CHINA TOWARD CONSTITUTIONALISM? INSTITUTIONAL DEVELOPMENT UNDER SOCIALIST RULE OF LAW SYSTEM by Jiajun Luo LLB (with Distinction), Shenzhen University, 2013 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) April 2015 © Jiajun Luo, 2015 ii Abstract Building Constitutionalism in China is seemingly a constant topic worth exploring. However, attempts to adopt the current Western Mature Constitutional System, as a static standard for assessing constitutional development in China’s Context is quite prevalent. By reference to three respective institutions in China’s Socialist Rule of Law system: the Communist Party of China (CPC), National People’s Congress (NPC) and the People’s Courts (Courts), this thesis seeks to examine constitutional development in People’s Republic of China (PRC). This thesis also argues the Mature Constitutional model is unable to engage with the orthodoxy of China’s approach to constitutional development. This thesis first demonstrates why applying the standard of mature constitutionalism to assess constitutional development in China is problematic and renders inaccurate results. Thus a more suitable institutional approach has been raised to examine constitutional development in China. It subsequently discuss the evolution of CPC (ideologies, structure, operation) in post 1978 China in order to examine the Party’s role as both the determinant and product of China’s constitutional development. Then the thesis will discuss how the NPC, a traditional “rubberstamp”, has developed as the highest national legislature and constitutional supervisory organ. The courts in China, in particular, have taken the incremental approach to expand institutional authority by interacting with this highest political power holder and supporting the current constitutional order. This thesis makes an original contribution to both the discourse of China’s constitutional law and the studies on authoritarian constitutional development. The thesis has confirmed that institutional development in China’s particular authoritarian context (the socialist rule of law system) is possible. Development of this nature would be difficult to be appreciated by the Mature Constitutional Standard. Thus, an institutional approach based on a contextual analysis is more suitable for examining how the authoritarian system responds to the challenge of constitutionalism. However, the thesis has found that the future of applying the Mature Constitutional Model to China’s Socialist Rule of Law system is tentative and has predicted that China’s system would confront potential tension between democracy and constitutional development in future. iii Preface This thesis is an original intellectual product of the author, Jiajun Luo. iv Table of Contents Abstract ......................................................................................................................... ii Preface.......................................................................................................................... iii Table of Contents .......................................................................................................... iv List of Tables ................................................................................................................. vi List of Figures ............................................................................................................. vii List of Abbreviations.................................................................................................. viii Acknowledgements ....................................................................................................... ix Dedication ...................................................................................................................... x Introduction .................................................................................................................... 1 1. Overview of The Thesis ......................................................................................................................... 1 2. Outline of The Thesis .............................................................................................................................. 4 Chapter 1: The Model of “Mature Constitutionalism” and Its Application in China .... 8 1.1 Mature “Constitutionalism” Model and Its Dilemma to Apply to China’s Context ......... 8 1.1.1 Model of “Mature Constitutionalism” .................................................................................... 9 1.1.2 Dilemma of Mature Constitutionalism Model Applied in China’s Context ............ 16 1.2 Constitutional Supremacy, Parliamentary Supremacy and China’s Constitutional Configuration ............................................................................................................................................... 27 1.2.1 The Pattern of Parliamentary Supremacy and Constitutional Supremacy ............... 27 1.2.2 China’s Constitutional Configuration, Institutional Development and a “More Suitable Framework” ........................................................................................................................... 29 1.3 Summary of the Chapter ................................................................................................................... 36 Chapter 2: Constitutionalism and The Party Rule ....................................................... 37 2.1 From Marxist Orthodoxies to “Socialism with Chinese Characteristics” Theory: Compatibility of the CPC’s Changing Ideology and Constitutionalism ................................... 37 2.1.1 Orthodox Marxist-Leninism, Maoism and “Mature Constitutional Model” ........... 38 2.1.2 Deng Xiaoping’s “Socialism with Chinese Characteristics” ........................................ 49 2.1.3 Evolution of Political Discourse in Post Deng Xiaoping Era and Constitutionalism .................................................................................................................................. 57 2.1.4 Xi Jinping Era: Return to “Socialist Rule of Law” ......................................................... 60 2.2 Party Organization and Party/State Structure: Determinant and Product of Constitutional Development in China.................................................................................................. 66 2.2.1 Organizational Structure and Political Power Mechanism of CPC ............................ 69 2.2.2 Overview of Party’s Control on PRC Constitutional Structure ................................... 76 2.3 Legalization and Institutionalization of the Party/State and Liberalization and Pluralism of The Chinese Society ......................................................................................................... 87 2.3.1 Legalization and Institutionalization of The Party/State ............................................... 87 2.3.2 Liberalization and Pluralism of The China’s Society ..................................................... 93 2.4 Concluding Remarks ........................................................................................................................ 100 v Chapter 3: NPC with Dual-Hats: A Proto-Parliamentary Development .................... 103 3.1 Constitutional Development of The NPC’s Legislative Power .......................................... 109 3.1.1 Overview of The Development of The NPC Legislative Authority ......................... 110 3.1.2 Legislative Development and RLL in 2015 ..................................................................... 121 3.2 From Hearing Report to Filing and Review System: The Development of Supervisory Power of The NPC ................................................................................................................................... 125 3.2.1 Development of Supervision on Implementing Law .................................................... 128 3.2.2 SOLA and The Development of Filing and Review System ...................................... 138 126.96.36.199 Evolution of Filing and Review System .................................................................................... 138 188.8.131.52 Structure and Operation of Filing and Review System......................................................... 140 184.108.40.206 Evaluation of Practical Effect of The Filing and Review System and New Development in The RLL .............................................................................................................................. 150 3.3 Factors Behind The NPC Development ..................................................................................... 158 3.3.1 Initial Development of The NPC: “Network Approach” ............................................. 158 3.3.2 Influence from Institutionalization and Legalization of The Party/State ............... 161 3.3.3 Functional Shift from “Rubberstamp” to Vibrant Legislature ................................... 162 3.4 Concluding Remarks ........................................................................................................................ 166 Chapter 4: Pragmatic Approach and “Adjudicative Independence”: PRC Courts Under the Dual-Supremacy of NPC and Authoritarian Environment ....................... 171 4.1 Recent Judicial Policies of CPC: “Rule of Law” and “Fairer and More Efficient Justice System” ....................................................................................................................................................... 174 4.2 Judicial Independence in China’s Context: What is Wrong with “Global Standard” for Assessing “Independence” in China’s Courts? ............................................................................... 177 4.3 Courts Under The Dual-Supremacy of The NPC ................................................................... 185 4.3.1. Constitutional Underpins of Courts .................................................................................. 185 4.3.2 Judicial Interpretation and Judicial Review: Counter-Attack from China’s Courts ................................................................................................................................................................... 187 4.3.3 Case Studies: Constitutional Attempts by China’s courts ........................................... 198 4.4 Court and Party: Autonomous Development and Political Limit ...................................... 206 4.4.1 Incentives for Party’s Tolerance on Courts’ Development .......................................... 206 4.4.2 Assessing Party Control in China Courts.......................................................................... 210 4.4.3 Authoritarian Court Strategy: Using Party Authority to Balance Institutional Powers ................................................................................................................................................... 214 4.5 Mapping The Development of Courts: “Adjudicate Independence” or “Judicial Independence”? ......................................................................................................................................... 219 4.6 Concluding Remarks ........................................................................................................................ 228 Concluding Chapter: “Dream of China, Dream of Constitutionalism”? ................... 231 Bibliography .............................................................................................................. 238 vi List of Tables Table 1 Three “Constitutional Models” in Maoist Era and their Coherency with “Mature Constitutionalism” ............................................................................................... 47 Table 2 Evolution of CPC political theories after 1978 and Constitutionalism： .... 65 Table 3 The Legislations and Revised Laws Passed by NPC Session and NPCSC (2003 -2015) ................................................................................................................. 120 Table 4 Filing and Review System of PRC (the system under the RLL in 2015) .. 157 vii List of Figures Figure 1 Theoretical and Actual Shape of CPC Formal Stucture and Political Power Mechanism---------------------------------------------------------------------------------------75 viii List of Abbreviations PRC………………….…..………………………………..People’s Republic of China CPC………………………………………………………..Communist Party of China NPC……………………...National People’s Congress of People’s Republic of China NPCSC………………………….Standing Committee of National People’s Congress SPC………………………….Supreme People’s Court of People’s Republic of China China’s Courts………………………..People’s Courts of People’s Republic of China SPP………………….Supreme People’s Procuratorate of People’s Republic of China NRC………………………….National Party Congress of Communist Party of China CC………………………………….Central Committee of Communist Party of China LPMG…………………Leading Party Members Group of Communist Party of China KMT……………………………………………China Nationalist Party (Kuomintang) LAC…………………….Legislative Affair Committee of National People’s Congress LAO…………………………………...Legislative Affair Committee of State Council RLL………………….......Revision to Legislation Law of People’s Republic of China PLC…………………………………………………………Political-Legal Committee CPLC……………………………………………….Central Political Legal Committee ix Acknowledgements During this one and half year for completing this thesis, I have owed many people a deep debt of gratitude. First of all, I would like to express my largest thanks to my LLM Supervisor, Professor Pitman B Potter. This thesis would not be done without his supervision, comments, guidance, selfless help and personal investment. I would also like to thank Professor Wei Cui, the Second Reader of this thesis, for his time and comments. Here I would also like to thank the University of British Columbia, the Allard School of Law who offer me such invaluable opportunity to study in the most beautiful city of the world, Vancouver, and kindly grant me the financial support through the British Columbia Law Foundation Fellowship and International Tuition Awards. I would like to particularly mention Professor Mary Liston, Professor Emma Cunliffe, Professor Shigenori Matsui, Dr. Mosope Fagbongbe for their instruction. I would like to thank the LLM Class of 2013 with particularly welcome and inspire my thought about this thesis. And particular thank would give to Olivia Adamski, Isabel Story and Pamela Langevin for proofreading my English Language in the thesis. Finally, I would take this opportunity to thank my mother, Meiqing for her genuine support and encouragement all the time. My gratitude extends to my dear friends both in China, Canada, and other places in the world. I would like to particularly thank Xinya, who offer me encouragement, companionship, academic help and mental support in these years. x Dedication To my Father and Grandfathers 1 Introduction 1. Overview of The Thesis This thesis examines constitutional development in People’s Republic of China (PRC) by reference to critical institutions in China’s socialist rule of law system. By examining the respective roles of the Communist Party of China (CPC), the National People’s Congress (NPC), and the People’s Courts, this thesis will explore how China’s authoritarian system responds to the challenge of constitutionalism. The thesis will examine problems with applying the Mature Constitutionalism model to China’s constitutional development, in part because this model cannot account for particularities of China’s context and is unable to engage with the orthodoxy of China’s approach to constitutional development. It goes without saying that the current PRC is an authoritarian regime and a Party/State. Some might assert that constitutionalism could not develop in an “anti-constitutionalism” environment. Also, many insist that only through “constitutional transition” or democratization could a meaningful constitutional development be produced. However, the PRC, as an typical authoritarian state includes many factors which appear to be “anti-constitutionalist”, such as the leadership of a Marxist-Leninist Party, “Party/State” structure, a seemingly “rubberstamp” parliament, a government without “checks” by constitutional means, a system of courts “lack of judicial independence”, and so forth. This thesis, however, argues that, not only a meaningful constitutional development is possible in an authoritarian context, and that such development, may also be the necessary condition for constitutional potential in the future China. Moreover, this thesis also attempts to illustrate that, “constitutional development” might not be “discovered” by the static “Mature Constitutional Model”. Instead, a more “pragmatic” framework 2 may be needed to complete the task to examine and assess such considerable constitutional development in China, an authoritarian state. Interpreting constitutional development in current China is very important because, on one hand, it could contribute to our understanding of constitutional discourse in current authoritarian states. China, as one of the large authoritarian regimes, the second-economic entity in our world with billions of people, provides us, especially for those holding the “liberal-democratic” perspective, to explore constitutional development in a foreign terrain. As we will discuss in this thesis, interpretations on China’s constitutional development need a “liberal-democratic mind” to leave their comfort zone, i.e., a set of evaluating methods and standard based on the “Mature Constitutional System” that is referred to constitutional system of West Europe or North America. Thus, the case of China will surely contribute to the discourse of “constitutionalism”, or more precisely, constitutional development in authoritarian environments. On the other hand, China is a special authoritarian state with many unique characteristics. One of these important features is that “Communist” rulers in China today have embraced the concept of the “socialist rule of law”. It has been witnessed that, in recent decades, especially after entering the Xi Jinping Era in 2012, considerable constitutional development has occurred, or what we will call in this thesis: Institutional development in Socialist Rule of Law System in China. Discussion on the recent development in these institutions are important because as we will observe in latter part of this thesis, constitutional developments have manifested themselves through institutional politics and institutional behavior, in diverse constitutional organs of PRC polity. Such developments indeed 3 might share some important features as the prototype stage of current Mature Constitutional system, but China’s current constitutional development is unique, mixed, or even self-contradictory in some aspects. Therefore, both similarities and differences in the case of China indeed deserve for our exploration. This thesis focus on the CPC, NPC and China’s courts as “lenses” into the of study constitutional development in China. First, the reason for choosing the CPC is that the Party, or more precisely, the (1) Party ideologies, (2) structure of the Party/State, (3) the evolution of the Party/State, and (4) how the Party/State has impacted the China’s society have set up the general background, or one could call “China Context” for constitutional development in the PRC. Moreover, since the Party itself has been a quasi-constitutional structure with its increasing institutionalization in post-1978 China, the development of both the CPC’s constitutional discourse and Party structure have reflected the constitutional development in China. This thesis choose the NPC for the second lens because, the politically speaking, the NPC was used to be a “rubberstamp”, and a typical weakest constitutional organ in a typical Party/State. Moreover, constitutionally speaking, the NPC, as the highest national legislature and supreme national organ, is constantly wearing “two hats” in the PRC constitutional structure. However, as we will see, the NPC has grown as a meaningful constitutional supervisory organ and a powerful national supreme legislature, owed to the interplay between Party hegemony and several institutional strategies that it applies. 4 Thus, looking at how the NPC, a politically weak organ yet with “dual-supremacy” in the formal constitutional structure, develops itself with use of institutional politics and tactics from a complex and ambiguous political and constitutional setting of NPC is indeed a good example of constitutional development in an authoritarian state. Third, we also concentrate our study on China’s courts as a lens to interpret the constitutional development in authoritarian environment, because the courts exert institutional politics by playing along with the Party hegemony and by supporting the supreme parliamentary system in order to self-develop and self-empower. By examining the example of “Adjudicate Independence”, a current goal for development in China’s courts, we could illustrate the interplay between courts, a traditional weak constitutional institution with Party Hegemony, the political leadership as well as the constitutional supreme organ in an authoritarian environment. 2. Outline of The Thesis This thesis will be divided into another four Chapters and an additional Concluding Remark, outlined as follows: Chapter One will focus on the model of “Mature Constitutionalism” and its application in China. This chapter will explore the concept of “Mature Constitutionalism” and its utility in assessing constitutional development in China’s rule of law institutions. After briefly examining major developments of western constitutional systems, the Chapter will first identify three Principles underlined by Mature Constitutionalism: (1) Constitutional Supremacy; (2) Separation of Power and (3) Liberalist Version of Rule of Law. This 5 provides an important conceptual framework for examining the behavior of China’s rule of law institutions and their engagement with challenges of constitutionalism. In the chapters that follow I shall explore the problems with applying the Mature Constitutionalism model to China’s constitutional development. Chapter Two: Evolution of Party ideologies, legalization, institutionalization and liberalization of the Party/State. This chapter will focus on the role of the CPC as an illustration of how authoritarian rule affects the development of constitutional organs in the PRC. The evolution of ideological language of the CPC will be reviewed, and specifically, the Chapter will show how CPC’s political theories evolved from Marxist-Leninist “anti-constitutionalist” orthodoxies, to Maoist constitutional discourse and a more coherent political discourse with Constitutionalism in post-1978 CPC. Emphasis will be put on “Rule of Law” rhetoric of the Xi Jinping Era since 2012. The second aim of this chapter is to demonstrate that, through ongoing institutionalization and legalization, the CPC organization and Party control, if quoting David Shambaugh1, adapts and atrophies in the Deng and post Deng era. In addition, with “tactical withdrawing2” the Party/State structure that has started at 1978, attention will also be paid to several aspects of the process of liberalization and pluralism of Chinese society after Mao’s era, as the third part of this chapter. Overall, in chapter two we will seek to depict the authoritarian context in which constitutional development has occurred in post-Mao China. 1 David Shambaugh, China’s communist Party—Atrophy and Adaptation (Washington, D.C.: Woodrow Wilson Center Press, 2008). 2 Ambrose King Yeo-Chi, Chinese Politics and Culture (London: Oxford University Press, 2013) at XIII.[translated by author]. 6 Chapter Three will examine the NPC as an illustration of how, even under an authoritarian environment, a constitutional body may be able to evolve from a “rubberstamp” into a meaningful constitutional player, a powerful legislature and a growing supervisory body in contemporary China. Specifically, the chapter will separately discuss the development of “two hats” of the NPC, as noted above, by examining the NPC’s development in the legislative process and the NPC growing supervisory power through its growing constitutional functions such as the Law-Making Process and Filing and Review system. This chapter will particularly examine how the new passage of Revised Legislation Law in 2015 will strengthen the “dual-supremacy” of NPC institutional authority. In addition, the chapter will identify and analyze several factors contributing to the continuing development of NPC since the 1978. Chapter Four examines the role of pragmatism and “Adjudicative Independence” in PRC courts under the Dual-Supremacy of NPC and authoritarian environment. This chapter will focus on constitutional development in China’s courts. This chapter will firstly show how the “global” standard” of “judicial independence” based on mature constitutionalism may not be accurate for measuring the development of China’s courts. The chapter will then provide a detailed analysis mainly through the institutional politics exerted by courts in China, and how China’s courts interplay with other powerful political players and constitutional organs. The lens of this chapter, however, is how China’s courts pursue of “Adjudicative Independence” rather than “Judicial Independence” in exchange of space for judicial development from the NPC’s constitutional support and political patronage of the Party. The thesis then argues that, currently, the main task for China’s court is 7 pragmatic, by seeking to establish a fairer and more efficient justice system, rather than departing itself from Party authority or trying to be a neutral and independent arbitrator in China’s constitutional system. The concluding chapter will summarize observations presented in the thesis as a whole and offer tentative conclusions about the application of Mature Constitutionalism to China’s Socialist Rule of Law system. The Conclusion will also identify questions for further research, such as the tension between democracy and constitutional development in China’s context. 8 Chapter 1: The Model of “Mature Constitutionalism” and Its Application in China Building Constitutionalism in China has received much attention from both academia and general public of the world. However, many researchers have only focused on introducing or transplanting the entrenched Western constitutional system, what I call the “Mature Constitutional System” to China. In this chapter, we would demonstrate why a successful constitutional system might not be the best choice for examining and accessing constitutional development in China. The “Mature Constitutional Model”, on one hand, it blinds one’s eyes on considerable institutional development on premature constitutional system for using the static standard based on established constitutional system. On the other hand, it usually fails to take cultural, historical and contextual differences into account. In the latter part of the thesis, we will observethe dilemma of applying “Mature Constitutionalism” into the case of China by adopting the pattern of parliamentary supremacy and constitutional supremacy into PRC constitutional configuration. The incompatibility of applying this framework into China’s constitutional system has illustrated that we need a more suitable framework to study constitutional development in a China’s typical yet unique authoritarian environment. 1.1 Mature “Constitutionalism” Model and Its Dilemma to Apply to China’s Context “Constitutionalism” seems to be a constant topic for the world. In China, since the late 19th century, the pursuit of constitutionalism has undergone more than 100 tumultuous years entailing many disasters and pains3. However, few will see that the definition of 3 Chen Albert Hung-yee, Fazhi, renquan yu minzhuxianzheng de lixiang [Rule of law, Human Rights and Ideal of Democratic Constitutionalism] (Hong Kong: Commmercialpress, 2013) at 66 [translated by author]. 9 constitutionalism is actually highly controversial. The controversy is due to the fact that very few constitutional systems develop in exactly the same context, political environment, historical experience, cultural influence or social structure. Thus, “contextual analysis” is needed for the study of “constitutionalism” in different constitutional systems. However, the temptation, and subsequent attempts, to generalize or conceptualize constitutional developments in different contexts by static standard do exist, as demonstrated by applying the prevalent model of “Mature Constitutionalism” to China. 1.1.1 Model of “Mature Constitutionalism” It is widely accepted that the definition of “Constitutionalism” originated in the American Revolution. Rooted in American history, “Constitutionalism” first means the opposition to the Parliamentary Supremacy and the check on majoritarian rule. Under the colonial rule imposed by the British Parliament, an organ entrenching “majoritarian rule”, the American founders developed the idea that “majoritarian authority” should also be questioned, at least should be suspected and thus parliamentary power should also be circumscribed by a higher law. As the British colonial experience demonstrated that the decision of the majority had the possibility to infringe on the fundamental rights of minorities and individuals. As James Madison pointed out in the Federalist Papers：“it is of great importance…not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part…if a majority be united…the rights of the minority will be insecure…The Structure of the Government 10 Must Furnish the Proper Checks and Balances between the Different Departments. 4” Therefore, after independence, institutionally, the US Constitutionalism accepted the idea of “Constitutional Supremacy” from “Federalists” and local autonomic experiences 5 , “Separation of Powers” from John Locke and Montesquieu, and inherited wisdom from common law tradition: rule of law, and an impartial and independent judiciary6. In 1803 Marbury v. Madison, the idea of judicial review7 was first introduced, then after several decades of evolution, the system of judicial review was, for the first time, institutionalized in human history. Therefore, the “standard” definition of “American constitutionalism” could be summarized by Eskridge and Ferejohn as the following principles: “First, the Constitution is a written legal document whose meaning is authoritatively elaborated through Supreme Court precedents applying and trumping ordinary state and federal laws. Secondly, the legitimacy of Constitutional law and the validity of its ability to trump laws adopted by current legislative majorities is derived and justified by the super-majoritarian and popular process through which the document was ratified and amended. Thirdly, the primary role of the Constitution is to be a bulwark protecting the People against government oppression or discrimination, by which, “when 4 James Madison, “The Federalist Paper No. 51”, in Michael A. Genoverse, ed, The Federalist Papers (New York: Pargrave Macmillan, 2009) at 121-122. 5 Research conducted by Wang Jianxun has revealed，“Before independence, some British colonies(States) in North America has already entrenched the ‘Constitutional Supremacy’ through local autonomy”. See Wang Jianxun, “Xianzheng de difang genyuan [Local Roots of Constitutionalism]”, in Cai Dingjian & Wang Zhanyang, eds, Toward Constitutionalism (Beijing: Law Press, 2010) at 215-235 [translated by author]. 6 As Hamilton commented, “The judiciary…has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments…the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.” Alexander Hamilton, “The Judiciary Department”(the Federalist Paper No. 78), see supra note 4 at 236. 7 “In the United States, constitutionalism first and foremost means constitutional review by the judiciary, also referred to as ‘judicial review’. Specifically, the term “judicial review” refers to the power of courts (1) to reach independent judgments about the meaning of the Constitution, and (2) thus to set aside laws, regulations and policies that conflict with the judicial construction of the Constitution. Also, in the U.S., all state and federal courts have the power of judicial review. See Michael C. Dorf & Tervor W. Morrison, Constitutional Law (New York: Oxford University Press, 2010) at 12. 11 the state traverses those limits, the Constitution overrides.”8 It was not until the disaster of World War II that the ideas of “Constitutionalism” were accepted internationally. In 1949 Basic Law of Germany9, the idea of Constitutionalism was enshrined as a fundamental value. Section 3 of Article 1 declared the constitutional goal to protect constitutional rights that “the following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law10”. Section 3 of Article 20 stated that “the legislature shall be bound by the constitutional order” and clearly entrenched the supremacy of the constitution. Moreover, Articles 79, 92, 93 and 100 further underpinned the principle of Constitutional Supremacy11. Furthermore, the Basic Law has provided two mechanisms for direct application of Basic Law: judicial review and constitutional litigation in Articles 93 and 10012. Generally speaking, judicial decisions from the Federal Constitutional Court are legally binding for all state organs, and it even imposes enormous influence on parliamentary debates in Germany13. 8 See William N. Eskridge Jr. & John Ferejohn, A Republic of Statutes-the new American Constitution (London: Yale University Press, 2010) at 34. 9 Before that, for example, the “Enabling Act of 1933”(1933 Ermächtigungsgesetz) granted the power for the executive organ to supersede the Congress to enact the law, including those substantively alter the Constitution and constitutional order. See Bjorn Ahl, “xianfa zhishang: deguo de xianfa fazhan ji zhongguo dangqian de xianfa zhushu [Constitutional Supremacy: the Constitutional development in Germany and current Constitutional discourses in China]”, in Lin Feng, ed, Bainian xianzheng yu zhongguo xianzheng de weilai [Constitutionalism in China in the last 100 years and its future] (Hong Kong: City University of Hong Kong Press, 2011) 337 at 340 [translated by author]. 10 Basic Law for the Federal Republic of Germany, 1949, online: Deutscher Bundestag https://www.btg-bestellservice.de/pdf/80201000.pdf, last accessed on April 15 2015 [translated by Christian Tomuschat, David P. Currie, Language Service of the German Bundestag]. 11 In specific, Section 2 provides that any constitutional amendments shall be carried by two thirds of the Members of the Bundestag (Federal Diet) and two thirds of the votes of the Bundesrat(Federal Council). And the Section 3 is “Amendments to this Basic Law affecting the division of the Federation into Länder (state of Germany), their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 (principle of democracy, rule of law and constitutional order) shall be inadmissible.” See supra note 9 at 338. 12 Article 93 (2) 1 of German Basic Law reads “in the event of disagreements or doubts concerning the formal or substantive compatibility of federal law or Land law with this Basic Law, or the compatibility of Land law with other federal law, on application of the Federal Government, of a Land government, or of one fourth of the Members of the Bundestag; ” Article 100 (1) provides: “If a court concludes that a law on whose validity its decision depends is unconstitutional, the proceedings shall be stayed, and a decision shall be obtained from the Land court with jurisdiction over constitutional disputes where the constitution of a Land is held to be violated, or from the Federal Constitutional Court where this Basic Law is held to be violated. This provision shall also apply where the Basic Law is held to be violated by Land law and where a Land law is held to be incompatible with a federal law. ” 13 See supra note 9 at 343. 12 In Japan, after World War II, the allied forces (SCAP) implemented “five major reforms 14 ”, and swept away the old authoritarian Meiji Constitution 15 . The 1946 Constitution was enacted, modeled by American Constitution16. It clearly declares that the Constitution is the supreme law of Japan and that all governmental acts should not contravene the Constitution. As in the US, the Supremacy of the Constitution in Japan is safeguarded through constitutional review by the judiciary 17 . The 1946 Constitution provides the fundamental rights of Japanese people, which are elaborated as inviolable and eternal. Also, the judiciary has been established as entirely independent 18 . Furthermore, the principle of separation of power was endorsed in the 1946 Constitution with the aim of restricting governmental authority. In 1958, France promulgated a new Constitution. Before that, France was ruled by the traditional doctrine of Parliamentary Sovereignty 19 . In the 1958 Constitution, the separation of power and the principle of rule of law were sustained. Also, within a few years of 1958, the Constitutional Council, established by the 1958 Constitution, had magnified its importance by undertaking a strict constitutional review of legislation20. In a landmark decision in 1971, the Liberté d’ Association, which can be called France’s Marbury v. Madison because of its tremendous impact, that the Conseil 14 Hiroshi Oda, Japanese Law, 3rd ed (May 2009), online: Oxford Scholarship http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199232185.001.1/acprof-9780199232185, last accessed on April 15 2015 at 9. 15 Meryll Dean, Japanese Legal System: Text and Materials (London: Cavendish Publishing Limited, 1997) at 502-503. 16 Ibid at 10. 17 Hidenori Tomatsu, “Judicial Review in Japan: An Overview of Efforts to Introduce U.S. Theories”, in Yoichi Higuchi, Five Decades of Constitutionalism in Japanese Society (Tokyo: University of Tokyo Press, 2001), 251 at 252. 18 See: Percy R. Luney Jr. & Kazuyuki Takahashi, eds, Japanese Constitutional law (Tokyo: University of Tokyo press, 1993) at 39-56; Also see Shigenori Matsui, The Constitution of Japan (Portland: Hart Publishing, 2011) at 29-35; Ibid at 6; See supra note 15 at 506; Lawrence W. Beer & Hiroshi Itoh, The Constitutional Case Law of Japan, 1970 Through 1990 (Seattle: University of Washington Press, 1996) at 7. 19 After the Republican form of government had been firmly established in the Third Republic (1870-1946), “parliamentary sovereignty” promoting absolute majoritarian role derived from Rousseau has achieved its triumph. See Laurent Pech, “Rule of law in France” in Randall Peerenboom ed, Asian Discourses of Rule of Law—Theories and implementation of rule of law in twelve Asian countries, France and the U.S. (New York: Routledge Curzon, 2004) 79 at 86. 20 Ibid at 91. 13 constitutionnel(Constitutional Council) refused the promulgation of a law enacted by Parliament on the grounds that it was substantively unconstitutional. In a 1985 decision, the Constitutional Council argued: “The (Parliamentary) law expresses the general will only when it respects the Constitution.21” Traditionally, Canada had basically transplanted the British constitutional system under British rule. Canada shared the traditional of Parliamentary Supremacy and British wisdom of rule of law: a limited government with a basis in the Magna Carta. However, in 1981, the new Constitutional Act was passed which transformed parliamentary rule into constitutional supremacy. The principle, as held by the Supreme Court of Canada in Re Secession of Quebec, that “constitutional protection overrides parliamentary legislation” had been entrenched.22 Therefore, the “American” way of Constitutionalism entrenched in contemporary Canada has de facto substantially superseded the British-style parliamentary supremacy. The more recent but renowned example of adopting part of the “American model” was the UK. Traditionally, the Constitution of UK “rests upon…the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law23”. However, an important modern challenge toward the British Parliamentary Supremacy comes from the 1998 Human Rights Act (HRA). By this Act 21 Ibid at 91-93. 22 According to the court, there are three overlapping reasons why an entrenched Constitution beyond the reach of the majority is required: “The first reason is that a constitution may provide an extra layer of protection for fundamental human rights and freedoms might otherwise be susceptible to government interference when the majority will be tempted to ignore those rights in accomplishing collective goals. Second, a constitution may ensure that minorities will be protected from assimilative forces and provided with the institutions and rights necessary to maintain and promote their identities…” See Reference re Secession of Quebec, (1998) S.C.J. No. 61, 2 S.C.R. 217. See also Guy Regimbald & Dwight Newman, The Law of the Canadian Constitution (Markham: LexisNexis, 2013) at 97. 23 David Feldman & Andrew Burrows, eds, English Public Law, 2nd ed (New York: Oxford University Press, 2009) at 293. 14 litigants could complain to the Court if they felt their rights were being violated by the United Kingdom including the British parliament. Conclusively, the HRA only preserves the doctrine of parliamentary sovereignty in formal terms, but limits the legislative power of Parliament in substance24. In short, the American-style constitutionalism has found its own way to adapt to the British context. Thus, it seems that the model of “Mature Constitutionalism” based on the American constitutional experience has increasingly gained currency and been adopted, as referred by Francis Fukuyama, “the end of the history”. These “liberal-democratic” constitutional systems share three common principles as following: (1) The principle of Constitutional Supremacy First, the primary objective of “Mature Constitutionalism” seeks to protect the constitutional rights from infringement. This requires the Constitution to have the highest legal effect, which also usually demands special procedures to amending the constitution, and prohibit any state organs from depriving constitutional rights through ordinary law. This has marked the great difference from the Parliamentary Supremacy as noted infra. Secondly, constitutional remedy should be the last resort when infringing constitutional rights, including “top down” patterns such as American style constitutional review and “bottom up” patterns such as constitutional litigation in post World War II Germany. 24 See Colin Turpin& Adam Tomkins, British Government and the Constitution, 6th ed, (Cambridge: Cambridge University Press, 2007) at 62. Specifically, under the Human Rights Act 1998(HRA), the courts are, for the first time, empowered to review primary legislation for compliance with a codified set of fundamental rights. Under section 3 of the HRA, they are placed under a duty to interpret legislation compatibly with Convention rights, ‘so far as it is possible to do so’. The court’s issue of declaration of incompatibility is very likely to prompt the amendment of defective legislation. This follows because such a declaration is likely to create considerable political pressure in favor of the rectification of national law. In this practical sense, the Human Rights Act does introduce a limited form of constitutional review that is able fully to coexist with the theory of parliamentary sovereignty. See Lord Irvine of Lairg, “Sovereignty in Comparative Perspective: Constitutionalism in Britain and America”, in Norman Dorsen ed, The Unpredictable Constitution (New York: New York University Press, 2002) 309 at 322. 15 (2) The principle of separation of powers The principle of separation of powers, simply put, requires that state power should not be centralized in one hand or one branch of the government. For the parliamentary organ, once the constitution is promulgated, it should return to the normal position as the national legislature. Without legitimate ground, also the legislative body shall not interfere with judicial activities. The executive power, shall also refrain from intruding into the judicial realm, and has the constitutional duty to respect the legislative authority. Finally, for the judicial system, in order to apply the law impartially, they must be independent. To quote Montesquieu, “there is no liberty if the judiciary power be not separated from the legislative and executive.25” (3) The principle of “Liberalistic” Rule of Law Thirdly, the principle of rule of law should be implied. Rule of law provides a safeguard for the other two principles of Constitutionalism. The principle of rule of law is generally understood as a basic idea that all actions of the government shall be circumscribed by laws that originated from the Liberalism. Ideally, for administrative branches, the principle of limited government should be applied. For legislature, it shall not override the constitution through general legislative procedure, and theorists tend to regard the legislature as a representative organ with majoritarian rule under the Constitution, but not as a symbol of all the state sovereignty. 25 Montesquieu, Spirit of Laws, 6th ed, (Dublin: W. Mckenzie & J. Moore, 1792) at 154 [translated by Thomas Nugent]. 16 1.1.2 Dilemma of Mature Constitutionalism Model Applied in China’s Context Although the definition of Constitutionalism in PRC scholarship is varied in light of different criteria, most of them perceive the aforementioned idea of “constitutionalism” in Mature constitutional systems as the only desirable end. On one side, some PRC scholars hold that Constitutionalism consists of more than the restriction of power, but also contains other elements like democracy, the principle of rule of law and the protection of human rights26. A famous constitutional scholar in PRC, the late professor Cai Dingjian, defined constitutional government as a “splendid and magnificent picture” which combines democracy, the rule of law and human rights with other “human ideals” which depict the human society in all aspects….it is an echo to the modern civilization.27 Likewise, Zhang Qianfan defines constitutionalism as four dimensions: most fundamentally, constitutionalism was produced by individualism and skepticism. The process of Constitutionalism was first based on freedom of expression in “free idea market”; then the public options are formed by democratic process; Also, the constitutional government must observe the rule of law, separation of powers and judicial independence; finally the judicial review system protects individual freedoms and minorities rights from infringement 28 . On the other side, some scholars interpret constitutionalism in a more minimal sense, arguing that constitutionalism should mainly refer to the restriction of public power29. Many scholars in PRC have coined the term “Socialist Constitutionalism” proving that constitutionalism could be compatible with socialism in PRC, then they divide constitutionalism into “socialist constitutionalism” 26 Li Buyun, “zhongguo xianzheng zhilu” [China’s Path to Constitutionalism], in Cai & Wang, supra note 5, 23 at 24. 27 Cai Dingjian, “fazhiyuxianzheng” [Rule of Law and constitutionalism] (2002) 4 Journal of Beijing College of Politics and Law 1 at 1. 28 Zhang Qianfan, The Principles of Constitutional Law (in Chinese) (Beijing: Law Press, 2011) at 3, 5-7, 159, 277, 280, 282 [translated by author]. 29 Zou Pingxue & Fei chun eds, Constitutional Law, 2d ed (Beijing: Zhongguo Minzhu Fazhi Chubanshe, 2006) at 114. 17 and “capitalist constitutionalism”30. According to scholars such as Qin Qianhong, only “socialist environment” can achieve “substantial constitutionalism” by eliminating legitimate infringement in “capitalist constitutionalism”31. In addition, a few scholars in PRC, like Han Dayuan32, Zhai Guoqiang and Lin Laifan, have mentioned the paradigm between Classical Constitutionalism and Modern Constitutionalism33. Apparently, most of these arguments are largely based on the ideal model of “Mature Constitutionalism” or attempted to justify that “mature constitutionalism” could be applied to China’s context in the near future. Not surprisingly, despite containing vast values, these arguments largely prove ineffective to understand China’s constitutional development. The reason, simply put, is that they merely are prescriptive based on Mature Constitutioanl Model without describing and understanding constitutional development in China’s particular context. In modern China, Constitutional development indeed has a more unorthodox path. The Model of “Mature Constitutionalism” seems to fall short when applied to China’s context. As noted, this “incompatibility” is both historical and institutional. Historically, from the perspective of Mature Constitutionalism, pre-modern China, ruled by imperial despotism for over two thousand years, was composed of many factors that are widely perceived as “hostile” to Constitutionalism, such as the absolute “top-down” 30 Qin Qianhong & Ye Haibo, Shehuizhuyi xianzheng yanjiu [Studies on Socialist Constitutionalism] (Jinan: Shandong renmin chubanshe, 2008) at 61 [translated by author]. 31 See Qin Qianhong& Ye Haibo, “lun shehuizhuyi xianzheng” [On ‘Socialist Constitutionalism’] (2004) 12:2 Jounal of National Procurators College 3 [translated by author]. 32 See Han Dayuan, Yazhou lixian zhuyi yanjiu [Studies on Asian Constitutionalism], 2nd ed, (Beijing: Zhongguo renmin gongandaxue chubanshe, 2008) [translated by author]. 33 See Lin Laifan, Cong xianfa guifan dao guifan xianfa [From Constitutional to Normative Constitution] (Beijing: Law Press, 2001) at 22-27 [translated by author]. 18 pattern rather than some degree of “check and balance”. Further hostile factors included the autocratic rule by the Chinese Emperor, the integration of administrative chief and judges, the tradition of “Legalism”(fajia) without the idea of “rule of law”, the lack of liberal concepts such as “right”, “justice” or “citizen”, etc. As commented by Zhang Boshu, these historical-cultural factors had been internalized into constitutional structure and operation when China moved toward the modern state in late 19th Century and 20th Century34. On the other hand, the concept of “Constitutionalism” was introduced to China in an environment in which China faced the external pressure from colonial powers, although the widespread diffusion of constitutionalism in the late Qing Dynasty and early years of the Republic of China had very strong echoes 35 . In early 20th Century, Chinese acceptance of Constitutionalism came from the need to resist colonial powers and to strengthen the country. This inevitably led to instrumentalism and misleading application of the concept of Constitutionalism to democracy and then to “majoritarian rule”. For example, Mao Zedong once wrote in 1940s: “What is constitutionalism? Constitutionalism means democratic politics. 36” A direct reason for this is Mao’s political considerations for fighting against the Guomindang (KMT) government during 1940s, by using the ideological discourse from opponent as platform and resources, in order to 34 Zhang Boshu, Cong wusi dao liusi: 20 shiji zhongguo zhuanzhi zhuyi pipan [From May 4 to June 4: the Criticism on Chinese Despotism in 20th Century] (Hong Kong: Morningbell, 2008) vol.1 at 54 [translated by author]. 35 Even warlords who did not know much about “constitutionalism” used the Constitution as the shield for their arbitrary despotism. During this era, whoever openly and officially against the Constitution and constitutionalism, would be nationally denounced and repudiated. After Yuan Shikai self-proclaimed himself as the “emperor of China”, for example, even his old subordinates and loyal followers opposed to him, and questioned the legitimacy of his regime, in the name of “protecting constitution and constitution”. 36 Mao Zedong, “Xinminzhuzhuyi de xianzheng” [Constitutionalism in New Democratic era], in Mao Zedong et al, Selected Works of Mao Zedong, 2nd ed (Beijing: Renminchubanshe, 1991) vol 2 at 731,735-736 [translated by author]. 19 demonstrate the legitimacy of Revolution 37 . In fact, Mao was not original for such understanding 38 . Instead, it came from the Chinese misinterpretation and mistaken association with such two concepts since the late 19th century under the instrumentalism perspective39, as we will demonstrate in chapter 2. A more fundamental reason is, for modern Chinese people, that the influence of Rousseau’s public sovereignty vastly overrode the influence of liberalism from John Locke, thus the voice of democracy was far louder than the voice advocating the restriction of parliamentary power. Moreover, with the spread of Marxist-Leninist theories after the May 4th Campaign, “democracy” became the most legitimate political value, which heavily emphasized the idea of public participation and elections, while neglecting the discourse to check the public power 40. Thus, this might explain why Mao Zedong’s equation of “democracy” and “constitutionalism” could be accepted by both ordinary people and social elites. As commented by Dowdle, the Anglo-American constitutional state has never been seriously faced with external threats to its existence. By the time both England and its North American colonies started to explore their own constitutions, the principal threats to their societies had long since become internal rather than external41. However, for other states, the more persistent external threats, the less attractive the power-constraining emphasis of American constitutional metaphors will be. Under such circumstances, visions of constitutionalism will correspondingly tend to focus much more on state-building and not 37 See Lin Laifan & Chu Chenge, “Zhongguoshi ‘xianzheng’ de gainian fazhanshi [The history of terminological development of ‘Constitutionalism’ in China Version]”, in Lin, supra note 9, 51 at 66 [translated by author]. 38 As a Marxist, Mao accepted the Marxist version of “democracy”, which he paraphrased as “democratic politics”, combining a pair of contradicted concepts, “democracy”, and “dictatorship “Marxist jurisprudence orientates by class struggle…although it advocate democratic process, ‘struggle’ is the real purpose behind the democratic process. ” See Shih Chih-yu, Zhonggong fazhililun jiexi: guanyu “zhongguotese” zhi lunzheng [Analysis of legal theories of CPC: the Argument of “Chinese Characteristics”] (Taipei: San Min Book co., Ltd, 1993) at 5 [translated by author]. 39 Zou Pingxue, “Dangdai zhongguo xianzheng mianlin de jiyu yu tiaozhan” [Opportunities and Challenges for Building Constitutionalism in Contemporary China], in Lin, supra note 9, 118 at 121-122 [translated by author]. 40 See supra note 37, at 67-68. 41 Micheal W. Dowdle, “Constitutional Listening” 88 Chicago-Kent L Rev 115 2012-2013 at 117. 20 on state-constraining42. In addition, unsuccessful experiments of Constitutionalism in China’s republican era and “chaotic scenarios” resulted from premature constitutionalist practices in Republican period greatly influenced the contemporary understanding of Constitutionalism in China. For example, in On the People’s Democratic Dictatorship, Mao asserted that “the western bourgeois civilization, bourgeois democracy, bourgeois republic, went bankrupt in China, during the early period of Republican period.” He also emphasized that: “The constitution has been enacted in China. Was Cao Kun [’s Constitution] not an enacted constitutional? But where is liberal democracy? [China once] had much more Presidents...but what is the difference between them and despotic emperors? Whatever is Constitution or the President, are fake43.” Deng Xiaoping also repeated a similar view, for instance, one of his reasons to oppose “checks and balances” is that “it would definitely lead to chaos in China44”. Although one could argue that these words served as political rhetoric to justify one-party rule, the undoubtedly relevant historical experiences have seemingly made the model of “mature Constitutionalism” less attractive to both political elites as well as ordinary people in China. Institutionally, the incompatibility of applying the model of Mature Constitutionalism to China’s context not only has been intensively reflected on the intellectual discourses, but also conformed by institutional predicaments. In fact, the aforementioned three basic principles are all dampened in China’s constitutional system. 42 Ibid at 118-119. 43 Cai Dingjian, Lundao Xianfa [On Constitutional issues] (Nanjing: Yilin Press, 2011) at 249[translated by author]. 44 Deng Xiaoping, Selected Works of Dengxiaoping, vol 3, 2d ed (Beijing: Renmin Chubanshe, 1993) at 244 [translated by author]. 21 Regarding the first principle of Constitutional Supremacy, discussed in the latter parts of this thesis, there is an institutional “tension” in the PRC constitutional system. This “tension” is that the current Constitution of China has formally established supremacy of the Constitution, as provided by Article 5 of the Constitution45. Therefore, logically, even the National People’s Congress (NPC), the national legislative body, cannot issue any law that contravenes the Constitution. Also, even the NPC does not have the privilege to act beyond the Constitution. However, the Constitution also entrenched the parliamentary sovereignty. According to Article 3, Article 57 and Article 58, NPC is the “highest organ of state power”, which has the highest authority to promulgate, alter or interpret the Constitution46. Also, all state organs should be responsible for the NPC. Therefore, the NPC is wearing two hats, as the supreme state organ and the highest national legislature. Essentially, it undoubtedly contravenes the very basic principle in the “Mature Constitutionalism” model, that China’s legislature, by design, not only has a higher stature than the Constitution, but also commits to Parliamentary Supremacy and to “majoritarian rule”. The second basic principle, Separation of Powers, is also inconsistent with the “fundamental” People’s Congress system in PRC. Constitutionally speaking, all state organs derive their power and authority directly from the NPC, the supreme constitutional body. As will be demonstrated in Chapter 3, in principle, the chief of 45 “No law or administrative or local rules and regulations shall contravene the constitution. All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be investigated. No organization or individual may enjoy the privilege of being above the Constitution and the law.” See Constitution of the People’s Republic of China, 1982, last amended 2004 (PRC). 46 See Ibid. 22 administrative branch (the State Council), the judiciary (Supreme People’s Court and Procuratorate) and other constitutional bodies are appointed and removed by the NPC, and all are answerable to the NPC and subject to the supervision of the legislative authority. Moreover, in many occasions, the leadership of Party/State in China has consistently and openly refused the idea of “check and balance”. Thus, apparently such constitutional configuration of China’s polity is far away from the model of “Mature Constitutionalism” in terms of “Separation of Power”. Ultimately, few will question that China’s constitutional and legal systems fail to evince most of the defining features of the rule of law. If viewed from the perspective of “Mature Constitutionalism”, then China still struggles in the long march toward the “thin version” of rule of law but not the thick version which embraces some key values of liberal-democratic-constitutionalism47. Likewise, as pointed out by another PRC scholar, although today’s China has basically met the eight indexes of “inner morality of law” put forward by Lon L. Fuller in 196948, it is still far from the next higher standard for rule of law that the governmental power are generally circumscribed by law. In China, the citizenry have no electoral say over who runs the country or how they run it. Extralegal, political interventions frequently compromise the legal system. Few real formal protections, and no real legal protections, exist against unconstitutional exercises of state power by elite actors 49 . In particular, judicial reviews on constitutional issues are prohibited by China’s constitutional system. Thus, it is also disappointed if adopting the 47 Randall Peerenboom, China’s Long March toward Rule of Law (Cambridge: Cambridge University Press, 2002) at 2-6. 48 See Tai Benny Yiu Teng, Xianzheng. Zhongguo: cong xiandaihua ji wenhua zhuanbian kan zhongguo xianzheng fazhan [Constitutionalism. China: perspective on development of Constitutionalism in China from Modernization and Cultural Transformation] (Hong Kong: Hong Kong University Press, 2012) at 56 [translated by author]. 49 Micheal W. Dowdle, “Of Parliaments, pragmatism, and the dynamics of constitutional development: the curious cases of China” 35 NYUJ Int'l L & Pol 1 2002-2003 1 at 2. 23 standard from “Mature” Constitutional system to measure China’s constitutional development. In addition, China also lacks institutional direct public election to fill principal constitutional offices and a bureaucracy that also fails to fulfill the standard of traditional model of constitutional accountability50 established in Liberal-Democratic States. Of course, the above analyses provide a fairly pessimistic picture of China’s constitutional potential. However, as argued by Micheal Dowdle, while China’s current constitutional configuration might “tell us about China's current constitutional maturity, it tells us very little about that system's transformative capacity to identify and develop institutional foundations that could support and promote a mature constitutional commitment to these goals.51” In fact, Dowdle continues to argue, that these principle such as “separation of power” or “judicial review” are more like the product of mature constitutional development rather than the motor for it. In the United States, for example, the Supreme Court’s power to review federal governmental activities, although initially articulated in 1803, did not become an effective source of constitutional discipline until the 1870s. Even today, the political-question doctrine and case-in-controversy requirement effectively block judicial review from courts in the United States. Likewise, the constitutional histories of many other mature constitutional systems display a similar pattern52. This is because judicial review is “more the product of constitutional discipline 50 Michael W. Dowdle, “Public Accountability in Alien Terrain: exploring for constitutional accountability in the People’s Republic of China”, in Michael W. Dowdle ed., Public Accountability-Designs, Dilemmas and Experiences (New York: Cambridge University Press, 2006) 330 at 330-331. 51 See supra note 49 at 17-18. 52 France’s constitution, for example, did not articulate a practice of constitutional review until 1958, some eighty years after the initial 24 than the source of constitutional discipline.” A judiciary’s inherent status as the constitution's least dangerous branch makes it a poor candidate for enforcing constitutional norms against truly recalcitrant political actors 53 unless it developed sufficient institutional authority to do so. Another means by which scholars commonly evaluate the developmental potential of China’s constitutional system is by identifying structural criteria commonly regarded as essential for the success of mature constitutional systems and measuring the developmental relevance of China’s constitutional system by looking at the degree to which China's system conforms to the structural criteria54. Therefore, the use of a static standard drawn from “Mature Constitutionalism” may not be the best way to evaluate the constitutional potential of a developmental system. This kind of stereotype might also blind one’s eye to the actual development of a constitutional system. For example, Dicey once claimed that English constitutionalism and American constitutionalism were actually of a single kind. He also attempted to show why Anglo-American constitutionalism had succeeded while in contrast, continental and Asian visions of constitutionalism had all proved comparatively unsuccessful, by claiming their executive governments either were not subject to law at all, or it was subject to a special law administered not by an ordinary court, but by a special body55. Similarly, today’s many comparative projects, inside or outside the PRC, like Dicey’s establishment of her constitutional foundation, and that practice did not begin protecting the political and civil rights enumerated in that constitution until the 1970s.Britain developed a practice resembling judicial review only in the 1990s. The Dutch constitution, now entering its second century, forbids judicial review. Sweden's constitution articulates a judicial review practice, but as of 1987 Sweden had not yet resorted to this practice in its two-hundred-year history. Both Japanese and Italian courts occasionally have performed acts of constitutional review, but to date the effect of this review on central government behavior appears limited: In both countries, the central government has been allowed to ignore the courts' constitutional pronouncements. Even in India- where the practice of judicial review is more vibrantly exercised than perhaps anywhere else in the world-evidence exists that judicial review in fact has had only a marginal effect on the actual development of India's political and constitutional practices. See supra note 49 at 23-25. 53 Ibid at 25-26. 54 Stanley B. Lubman, Bird in a Cage: Legal Reform in China After Mao (Stanford: Stanford University Press, 1999) at 34-35. 55 Michal W. Dwodle, “Dicey, Lubman, and Bagehot: Chinese Law in the Common Law Mind”, 19 Colum. J. Asian L. 72 2005-2006 at 90-91. 25 constitutional discourse, see its principal contribution to find whether there are particular “essences” associated with the Constitutionalism. For example, China debated for nearly ten years before the NPC finally passed the Property Law in 2007 for encountering theoretical difficulties. One of these, are the ideological and constitutional controversies of “Property Law” ignited by Gong Xiantian, a law professor in China. Gong defend the public ownership enshrined by the PRC Constitution and attacked supports of Property Law for eroding the foundation of “people’s democratic dictatorship56”, which one might feel the least familiar in Mature Constitutional system. However, Gong has many supporters within Chinese academia as well as among ordinary Chinese “netizens”, because: “the ideals and values that Gong attaches to China’s distinctly socialist experiences seem admirable, even from a liberal perspective. These include a desire for economic equality, recognition of the state’s duty to provide for the alienated and needy, and the value of providing the citizenry a safe and stable economic and social life.57” Unfortunately, the prejudice from liberal-democratic perspective may prevent one from appreciating these values and their potential influence(s) on the constitutional development in China. Moreover, the peak of the prolonged debate, however, was the openly dispute between Liang Huixing, the leading civil-law scholar in China, and Tong Zhiwei, also a famous Chinese constitutional professor. The crux of their debate is whether “this Law has been 56 Gong's constitutional critique was not directed towards a particular provision in the law, it was directed towards the spirit of that law, and how it implicates the meaning of China's constitution. Gong's principal complaint with the draft law was that it effectively prioritized the development of the private economy over the public economy, which was contrary to China's constitutional status as a distinctly socialist polity. “The draft law focuses exclusively on privatization and marketization, without recognizing at all the contrary needs of the socialist property system.” See supra note 41 at 144-145. 57 Ibid at 154. 26 enacted in accordance with the Constitution” should be added into the Property Law. Notably, Liang maintained a traditional Marxist jurisprudential view that it is not necessary for the NPC to self-claim that it is empowered by the Constitution to enact the Property Law, because the NPC is the source of Constitution rather than the result of it58. Otherwise, it is bourgeois view adopting from “check and balance” system if the Property Law incorporates such a provision with a “Constitution”. Despite enormous the controversy incurred by Liang’s article, the “Constitutional clause” still enshrined by Article 1 of the Property Law promulgated in 2007. This indicated a fact that although it seems to be remote to Liberal-Democratic rhetoric, China has its own constitutional discourse and it had been witnessed that if there is inconsistency within this constitutional discourse, serious resistance may result59. In short, these limits manifest themselves in at least two dimensions: the first limitation is that the static standard mirror of Mature Constitutionalism may lead to enormous inaccuracy when evaluating other developing constitutional system. The second point arises out of a particular failure of liberal constitutional imagination that blind one from discovering other constitutional possibilities, as David Scuilli has presciently termed “the presupposition of exhausted possibilities 60”, or “the end of history” if paraphrasing Francis Fukuyama’s phraseology. Indeed, “listening” to other constitutional system is very important61. Dowdle himself, for 58 Liang Huixing, “Wuquanfa caoan de ruogan wenti” [On Several Issues of Property Law Draft] (2007), 1 Zhongguo Faxue [China Legal Science] 8 at 8-9 [translated by author]. 59 See supra note 9 at 345-347. 60 See supra note 41 at 116. 61 “The claim that we should not listen to odious constitutional systems simply because they are odious is to effectively assert that we 27 example, provides an alternative to describe the development of Chinese constitutionalism, “Constitutional Poiesis”62. To further clarify this point, this thesis will use a set pattern within the discourse of “Mature Constitutionalism” to further explain the incompatibility between liberal-democratic model in China’s Context, and more importantly, to demonstrate the necessity to “build” a more suitable mode for studying China’s constitutional development. 1.2 Constitutional Supremacy, Parliamentary Supremacy and China’s Constitutional Configuration In this part, this thesis take one important realm in constitutional studies, which is the pattern between constitutional supremacy and parliamentary supremacy, as an example to further explain the difficult situation when applying Mature Constitutional Model to examine China’s constitutional development. There is simply an “awkwardness” of applying these two concepts into China’s Constitutional configuration. 1.2.1 The Pattern of Parliamentary Supremacy and Constitutional Supremacy As previously noted, the idea of constitutional supremacy originated from United States, and after World War II, a number of liberal-democratic states have joined the “constitutional supremacy club”63, examples include German, France, Japan, Canada, and the United Kingdom. Notable, the “Constitutional Supremacy” entrenched in these have already learned all there is to know about what we might call constitutional morality…During the twentieth century many of humanity's more egregious political-moral transgressions have been the product of feelings of moral certainty, more than of moral uncertainty.” See ibid at 156. 62 Stephanie Balme & Michael W. Dowdle, “Introduction: Exploring for Constitutionalism in 21st century China”, in Stephanie Balme & Michael W. Dowdle, eds, Buidling Constitutionalism in China (New York: Palgrave Macmillan, 2009) 2 [Balme & Dowdle]; Michael Dowdle, “Beyond Judicial Power: Courts and constitutionalism in Modern China”, in Balme & Dowdle, ibid at 199. 63 Before the 20th Century, “restrain government through legislation” was a common practice and thus the legislative power was generally exclusively exercise by the parliament. But it had been changed after World War II, when administrative power began to expand with the increasing governmental interference to the economic life. For example, the 1946 French Constitution explicitly prohibits empowered legislation, whereas in 1958 Constitution the empowered legislation has been constitutionally permitted. Supra note 30 at 315-317. 28 countries are all somehow divergent from their American counterpart. In principle, Constitutional Supremacy is an idea that the Constitution per se is supreme over parliamentary authority, because most importantly, constitutional supremacy contains an underlying principle that fundamental constitutional rights are paramount and directly conferred by the Constitution, which shall not be altered, overridden or abolished by majoritarian rule or administrative acts whatsoever. Constitutional supremacy lies in following principles: (1) The Constitution itself shall be declared or implied as the supreme law, and any statutes made by other state organs which are inconsistent with or contravene the constitution shall be void. (2) Related to the first principle, constitutional rights could not be deprived or reduced merely through ordinary statutes or governmental act. (3) The constitutional protection should be the last but most powerful resort to protect civil rights and freedoms. In the institutional realm, such “constitutional resort” means the Constitution could be directly applied to cases by the judiciary. An important counterpart of Constitutional Supremacy is Parliamentary Supremacy, which refers to the fact that the parliamentary authority has a self-empowering stature over the Constitution per se and that the majority of the legislature enjoys and exercises unlimited power in law-making and other state affairs64. It goes without saying that the original meaning of parliamentary supremacy, coined in the British Parliament, was defined as having “the right to make or unmake any law whatever”. Adding, for the avoidance of doubt is seems, that “no person or body is recognized by the law of England 64 The most popular definition of “parliamentary supremacy” is that supplied by Albert Venn Dicey. Writing in 1885, he described the Westminster Parliament as having “the right to make or unmake any law whatever. Adding, for the avoidance of doubt is seems, that “no person or body is recognized by the law of England as having a right to override or set aside” its legislation. See AV Dicey, Lectures Introductory to the Study of the Law of the Constitution (London, UK: Macmillan, 1885) at 39-40. 29 as having a right to override or set aside” parliamentary legislation65.” As Sir William Blackstone concluded, “the British parliament has the supreme disposal of everything. 66” In a word, parliamentary authority could override everything, even Constitutional authority. Notably, Marxist-Leninist states, in order to reflect the “Supremacy of People” and openly proclaim the “Proletarian rule”, have usually also adapted the form of parliamentary supremacy. Apparently, the “embarrassment” lies in the fact that neither purely “Constitutional Supremacy” model nor “Parliamentary Supremacy” could be enough to fully depict China’s constitutional system or constitutional development. Something more is needed for conceptualize the constitutional development in China’s context. 1.2.2 China’s Constitutional Configuration, Institutional Development and a “More Suitable Framework” One would be wrong to conclude simply that because China’s case does not apply to either Constitutional Supremacy or pure Parliamentary Supremacy, that China’s Constitution has no force or real effect, and China’s constitutional institutions are simply rubberstamp of the Party, as asserted by many scholars. In fact, quite the opposite is true. As will be shown in the following Chapters, ever since the re-establishment of a rationalized political order, following the end of the Cultural Revolution in 1976, constitutional arguments have consistently shown themselves “capable of shaping and 65 Ibid at 39-40. 66 See Sir William Blackstone, Commentaries on the Law of England, 3rd ed, Tomas M. Cooley, ed, (Chicago: Callaghan and Company, 1884) vol 1 at 50; See also, Gary L. McDowell, The language of law and foundation of American Constitutionalism (New York: Cambridge University Press, 2010) at 209. 30 disciplining political behavior67”. Constitutionally speaking, China’s constitutional system upholds the idea of “Constitutional Supremacy”. Qin Qianhong and Ye Haibo thus divided such “Constitutional Supremacy” into “formal Supremacy” and “Substantial Supremacy”68. The former concept refers to the formal constitutional order that has declared the highest legal effect of the Constitution. As noted above, in the PRC constitutional system, the Constitution had been regarded as “fundamental law” and all legislations should not contravene the Constitution. Moreover, as Bjorn Ahl pointed out, the principle has been also confirmed by the special procedure for amending the Constitution stipulated by PRC Constitution69. However, for “substantial supremacy of the Constitution”, it is obviously beyond the grasp of the PRC Constitution. Indeed, the contemporary constitutional system based on 1982 Constitution of PRC is a mixed principle between parliamentary supremacy and constitutional supremacy, and also blended with Marxist-Leninist Ideology. For example, as concluded by a PRC scholar, Zhai Xiaobo, such a “mixture”, which he called “People’s Constitutionalism with Parliamentary Supremacy”, composing three principles: (1) Dual-track application of the Constitution, (2) unitary constitutional supervision and (3) the Constitution is fundamentally implemented by “People” 70 . Despite the enormous disparity between this ideal picture and the reality, Zhai’s theoretical framework is actually quite insightful. 67 See supra note 41 at 139-140. 68 See supra note 30 at 166-167. 69 See supra note 9 at 344. 70 Zhai Xiaobo, “Daiyi jiguan zhishang de renmin xianzheng” [People’s Constitutionalism: Legislative supremacy], in Fu Hualing & Zhu Guobin, eds, Xianfa quanli yu xianzheng: dangdai zhongguo xianfa wenti yanjiu [Constitutional Rights and Constitutionalism: Researches on Contemporary Chinese Constitutional problems] (Hong Kong: Hong Kong University Press, 2012) 219 at 220 [translated by author]. [Fu & Zhu]. 31 This thesis argues that the crux is to focus on dynamic and changing institutional behavior in the developing China’s constitutional system, i.e., institutional politics and interplay, rather than the static “portrayal” of China’s constitutional structure. We have already rejected to directly use Mature Constitutional standard to describe (not prescribe!) the actual development of China’s constitutional system, and based on the actual configuration of PRC constitutional system. Accordingly, we offer a more “suitable” framework for examining constitutional development in PRC as following: 1. The evolution of Party/State has underlain the “China’s context” for constitutional development in PRC after 1978 As will be discussed in Chapter 2, CPC’s changing ideology and the dynamic of Party/State has formed basis of the “big picture” for institutional development in China’s constitutional system. A prime example for this is how these factors influence the nature of the PRC’s Constitution. Since the 1954 Constitution, the prototype Constitution for PRC has consistently served as “A set of General Rule (总章程)71” and, to quote the phraseology of Mao Zedong, “to guide all People to a clear and correct path72”. Indeed, the “General Rule” means that the Constitution is only a political document enumerating the changing ideology and policy of the CPC, as commented by Pitman Potter, “China’s changing Constitution reflects the continued interplay between politics and policy and their expression through formal law. 73” For example, the 1954 Constitution copied the policies during the “transition period” whereas the 1982 Constitution is generally 71 See supra note 43at 249 [translated by author]. 72 Mao Zedong, “Guanyu Zhonghua Renmin gongheguo xianfa caoan”[On Constitutional Draft of PRC] (1954), in Mao Zedong Xuanji [Selected Works of Mao Zedong] (Beijing: Renminchubanshe, 1977) vol 5 at 125-132 [translated by author]. 73 Pitman B. Potter, China’s Legal System, (Cambridge (UK): Polity Press, 2013) at 58. 32 regarded as “Constitution of Reform”, a document recording “Open and Reform” Policies set up by the Party after 1978 74 . In short, as stated by the Preamble of the 1982 Constitution: “This Constitution, in legal form, affirms the achievements of the struggles of the Chinese people of all nationalities and defines the basic system and basic tasks of the State; it is the fundamental law of the State75 .”And because of this, under this circumstance underpinned by the Party/State, China’s courts inherently lack the power to “judicialize” the Constitution. More importantly, the Constitution lacks a mechanism for “direct application” by the standard of “Mature Constitutionalism” and “Constitutional Supremacy”. The authority of the Constitution, depends on constitutional organs in China who indirectly implement the Constitution by legislation, administration and judicial activities. Ideological discourse has enormously impacted China’s constitutional configuration and institutional features of state organs. In Socialist states, including the PRC, constitutional obsession to Parliamentary Supremacy derived from the Orthodox Marxism, in which “as radical democrats, Marxism commits to majoritarian rules”. Marxism even insists that the majoritarian rules imply an “absolute and unlimited” power in proletarian instates76. On the other hand, in China, the Party organs and Party control have simultaneously become both resources for institutional development and a prolonged obstacle preventing these constitutional bodies from growing as “real constitutional players”，in contrast to their counterparts in Mature Constitutional system. 74 See supra note 70 at 225. 75 Constitution of the People’s Republic of China, 1982, last amended 2004 (PRC). 76 See supra note 30 at 300. 33 2. Constitutional authority reflected by the “Dual-Supremacy” of the NPC Seemingly contradictory, the extent of “constitutional supremacy”, in China’s context, is largely reflected by institutional activities, especially the authority of NPC, the parliamentary body, and how they develop distinct institutional competence from the traditional Party/State and how they form their own institutional characteristic and prepare themselves for, if possible, future development. As will be evidenced in Chapter 3, in a constitutional configuration established by the Communist Revolution, the idea of “People’s Congress system” is directly in contrast to the aforementioned three principles implied by “Mature Constitutionalism”. Specifically, from Party/State’s narrative, in China, “People” (in this context, means CPC) created the Sovereignty of PRC directly via revolution, and “People” then formulated the Constitution through NPC 77 . Under this Marxist-Leninist rhetoric, the NPC thus symbolize the will of whole “People”, and thus the NPC wears two hats, representing the supremacy of the constitutional authority whilst still keeping its traditional role as the highest national legislature. In practice, the NPC would never be “unconstitutional”, because the NPC and its Standing Committee not only have the sole authority to interpret the Constitution, but also could prevent it from “trapping” the parliamentary authority itself in the unconstitutional valley simply through amending the Constitution. This has already been confirmed by the constitutional history of the PRC: the Constitution of the PRC either amended the formal four Constitutional amendments in 1988, 1993, 1999 and 77 Dong Biwu, Dong Biwu Faxue Wenji [Selected works on legal studies of Dong Biwu] (Beijing: Law Press, 2001) at 101 [translated by author]. 34 2004, or the Constitution substantially amended by NPC-promulgated legislations78. On the other hand, the development dual-supremacy of NPC is displayed by the development of NPC’s institutional authority, i.e., the legislative competence of NPC and the legislative supervisory system of NPC. But almost from the beginning of its tenure, selected aspects of political authority began gravitating to the constitutional apparatus. For example, a key moment in this occurred in the early to middle 1980s when a senior party member named Peng Zhen successfully deployed a constitutional argument within the Party itself to effectively locate some degree of autonomous political authority in the National People's Congress (NPC)79 . Subsequently, the NPC began revising its own international operating procedures to give greater voice to a greater diversity of social interests as a means of reifying, at least to some degree, its unique constitutional status as China's principal constitutional fount of “democratic” legitimacy80. Internal constitutional discussion and argument is a constant feature of this internal development81. In particular, such “dual-supremacy” also dictates a “unitary constitutional supervisory system” which refers to the mechanism that under the current constitutional system only the NPC (in reality is NPCSC though) could have the power to conduct constitutional review, and the development of “constitutional review” in China is also definitely depend on the NPC constitutional supervisory system, as entrenched by the PRC Constitution and other constitutional legislation. 78 See supra note 70 at 225. 79 Murray Scot Tanner, “Organizations and Politics in China's Post-Mao Law-Making System”, in Pitman B. Potter ed., Domestic Law Reforms in Post-Mao China (M.E. Sharpe: New York, 1994) 56 at 74-76. 80 Michael W. Dowdle, “The Constitutional Development and Operations of the National People’s Congress” (1997) 11 Colum J Asian L 1, at 22-23. 81 See supra note 41at 139-140. 35 3.Institutional politics and interplay: exampled by China’s courts However, as mentioned above, China’s current constitutional system is a changing dynamic, which is clearly demonstrated though institutional development, which is incrementally expending their constitutional power and authority through maneuvering political strategy and interplay with other power players in PRC constitutional and political system. The prime example is China’s court system. Unlike many contemporary Mature Constitutional systems, China’s courts were not conferred other functions or power besides pure “adjudicate works” by ideological theory and initial blueprint of PRC Constitution, let alone the “unconstitutional” power for judicial review. However, as will be demonstrated in Chapter 4, China’s courts, both the Supreme People’s Court (SPC) and lower courts, has adopted the pragmatic approach to incrementally increase their institutional authority. For example, by design the Courts in China do not interpret power and likewise, the 1982 PRC Constitution also does not provide a word about such power. However, by exerting institutional specialty and by taking advantage of Party authority and other power holders, the SPC have successfully gained the enormous power to issue judicial interpretation, and these interpretations has gradually become an inevitable way to implement NPC legislations. There are also attempts from China’s courts to strive for further, more “constitutional” power such as trying to open the gate of “constitutional review” yet they failed in institutional sense 82 . However, these setbacks strengthen China’s courts’ commitment to ongoing pragmatic paths that promote “adjudicate independence” rather than “judicial independence” by continuingly using institutional 82 Research from Stphanie Balme on rural grassroots judiciaries has showed that in the early and middle part of the first decade of the 2000s, these judiciaries were in fact being influenced by constitutional argument despite the formal prohibitions against constitutional interpretation. Stephanie Balme & Michael W. Dowdle, “Ordinary Justice and Popular Constitutionalism in China”, in Balme & Dowdle supra note 62 & 179. 36 politics and exploiting other power players, as discussing further in Chapter 4. 1.3 Summary of the Chapter In this chapter, we have briefly examined the evolution and the three principles of the Mature Constitutional Model: (1) Constitutional Supremacy; (2) Separation of Powers; and (3) Liberalistic Rule of Law. This chapter has illustrated the dilemma of Mature Constitutional Model when it applies to China’s Context. The failure is both intellectual and institutional. The static standard of Mature Constitutionalism may only lead to a fairly disappointingly shows that China virtually lacks all conditions to meet these three principles as noted above. Accordingly, one might accordingly conclude that no “substantial constitutional development” is occurring in China. Moreover, rejecting to take cultural, historical and contextual difference into consideration, “Mature Constitutionalism” also prevents one from “constitutionally listening” to constitutional discourse in China and from appreciating constitutional development “with Chinese characteristics” that might not be able to interpret from “Liberal-Democratic Mind”. We then have further seen the difficult situation the Mature Constitutional Model is in adopting the pattern of parliamentary supremacy and constitutional supremacy to PRC constitutional configuration. The incompatibility of applying such a framework into China’s constitutional system has illustrated that we need a more suitable framework to study constitutional development in China. In subsequent chapters, I will use institutions, (the CPC, NPC and courts) as individual lenses through which to comprehend and analyze constitutional development in PRC. 37 Chapter 2: Constitutionalism and The Party Rule This Chapter mainly discusses the “China context” which has formed the background for Constitutional development in the PRC. The first part of the chapter seeks to examine the evolution of the CPC’s ideologies from Marxist classics to “Socialism with Chinese Characteristics”, analyzing the “compatibility” of the CPC’s constitutional discourse with the Mature Constitutional Model as we discussed in Chapter 1. The second part of this chapter will discuss Party organization and Party control in China, a more obstructive factor to China’s constitutional development. In the third part, I will analyze the institutionalization and legalization of the Party/State in the post-Mao era, and argue that institutionalization and legalization have contributed to a more free and pluralistic society in China. This chapter will then demonstrate that both changes in the Party/State and China’s society are not only the main context for institutional development of China’s constitutional structure, but also the manifestation of constitutional development in China per se. 2.1 From Marxist Orthodoxies to “Socialism with Chinese Characteristics” Theory: Compatibility of the CPC’s Changing Ideology and Constitutionalism In this section, we will review the changing political theories of the CPC and analyze whether changes in the ideological language of these theories could be harmonious with the idea of constitutionalism. There are three reasons for examining the changing political theory of the CPC：First, official political theories, or ideologies often serve as a vehicle to understand a Party’s attitude toward constitutionalism and other institutional design. Second, understanding CPC political theory can help us interpret political reality. For the purposes of our discussion, to comprehend the dynamic of constitutional system, since all 38 political system or constitutional structure built on political discourse to some extend. Third and most importantly, as Michael Dowdle suggested, one should “take ideas seriously” and “listen to constitutional meaning” in a non-liberal context83. In this way, it would enable us to better interpret constitutional discourse in the “China Context” by seeing the constitutional potential in a foreign terrain that largely perceived as “anti-constitutionalist.” In particular, this requires one to not only listen to liberal Chinese dissidents such as Liu Xiaobo, but to “find constitutional meaning” from non-liberal voices84, such as the constitutional articulations of Mao Zedong or Deng Xiaoping. The thesis argues it is these seemingly “non-liberal voices” that have formed the constitutional discourse of the CPC, constructed the institutional design of the constitutional system in China, and have established the constitutional potential therein. From 1921 to 2014, CPC political theories experienced continuous transformation and adaption. The current ideology of the CPC is indeed offering spaces for all stages of political theories that have evolved in three parts: Marxist-Leninist orthodoxies, “Mao Zedong thought” (or Maoist political theory), Post-1978 Socialism with Chinese Characteristics theories developed by Deng Xiaoping, Jiang Zemin, Hu Jintao, Xi Jinping and their theorists. 2.1.1 Orthodox Marxist-Leninism, Maoism and “Mature Constitutional Model” As a “Marxist Party”, the CPC’s political theories have strong roots in Orthodox Marxist political philosophy, founded by Carl Marx and Friedrich Engels in 19th Century Europe. 83 See supra note 41 at 126- 127. 84 Ibid. 39 Orthodox Marxism greatly affected CPC political doctrines in the revolutionary period and in the first three decades in the PRC. Its influence peaked during the Cultural Revolution. After 1978, the impact of orthodox Marxism began to decay, but influence from “Classical Marxism” has remained until today. The critical core of Marxist political theories, “Class” and “Class Struggle” has not only repeatedly demonstrated by Marx and Engels themselves in their own works85, but also has been thoroughly discussed by scholars from PRC or outside worlds86. In fact, if we use Max Weber’s sociological pattern, “Orthodox Marxism” has justified the legitimacy of the CPC by its Charismatic Domination (familial and religious authority), rather than traditional domination and legal domination. Under orthodox Marxism, the CPC has become a “selfless and effective leading party” to guide the Chinese to a brighter tomorrow. This discourse started from the Marxist meta-logic and 85 Karl Marx, “The German Ideology” (1845)，Marxist.org，online https://www.marxists.org/archive/marx/works/1845/german-ideology/ch01a.htm, last accessed on April 15 2015; Karl Marx, “The Poverty of Philosophy”(1847), Marxist.org, online <https://www.marxists.org/archive/marx/works/1847/poverty-philosophy/ch02.htm>, last accessed on April 15 2015;Karl Marx, Capital, Vol.1, Marxists.org, Chapter Thirty-Two: Historical Tendency of Capitalist Accumulation, online <https://www.marxists.org/archive/marx/works/1867-c1/ch32.htm>, last accessed on April 15 2015; Karl Marx, “A Contribution to the Critique of Hegel’s Philosophy of Right” (1844), Marxists.org, online <https://www.marxists.org/archive/marx/works/1843/critique-hpr/intro.htm>, last accessed on April 15 2015; Marx to J. Weydemeyer in New York (1852), online: Marx/Engels Internet Archive (marxists.org) 2000, <https://www.marxists.org/archive/marx/works/1852/letters/52_03_05-ab.htm>, last accessed on April 15 2015; Karl Marx, “Critique of the Gotha Programme”(1875), Marxists.org, online <https://www.marxists.org/archive/marx/works/1875/gotha/ch04.htm>, last accessed on April 15 2015; Frederick Engels, “The Origin of Family, Private Property and the State” (1884), online: Marx/Engels Internet Archive (marxists.org) 2000, <https://www.marxists.org/archive/marx/works/1884/origin-family/>, last accessed on April 15 2015; Marx, “The Civil War in France”, second drafts (1871), online: Marxists.org <https://www.marxists.org/archive/marx/works/1871/civil-war-france/drafts/ch02.htm#D2s8>, last accessed on April 15 2015. Karl Marx, “The German Ideology” (1845)，Marxist.org，online <https://www.marxists.org/archive/marx/works/1845/german-ideology/ch01a.htm>, last accessed on April 15 2015; Karl Marx, “The Poverty of Philosophy”(1847), Marxist.org, online <https://www.marxists.org/archive/marx/works/1847/poverty-philosophy/ch02.htm>, last accessed on April 15 2015; Karl Marx, Capital, Vol.1, Marxists.org, Chapter Thirty-Two: Historical Tendency of Capitalist Accumulation, online <https://www.marxists.org/archive/marx/works/1867-c1/ch32.htm>, last accessed on April 15 2015; Karl Marx, “A Contribution to the Critique of Hegel’s Philosophy of Right” (1844), Marxists.org, online <https://www.marxists.org/archive/marx/works/1843/critique-hpr/intro.htm>, last accessed on April 15 2015; Marx to J. Weydemeyer in New York (1852), online: Marx/Engels Internet Archive (marxists.org) 2000, <https://www.marxists.org/archive/marx/works/1852/letters/52_03_05-ab.htm>, last accessed on April 15 2015; Karl Marx, “Critique of the Gotha Programme”(1875), Marxists.org, online <https://www.marxists.org/archive/marx/works/1875/gotha/ch04.htm>, last accessed on April 15 2015; Frederick Engels, “The Origin of Family, Private Property and the State” (1884), online: Marx/Engels Internet Archive (marxists.org) 2000, <https://www.marxists.org/archive/marx/works/1884/origin-family/>, last accessed on April 15 2015; Marx, “The Civil War in France”, second drafts (1871), online: Marxists.org <https://www.marxists.org/archive/marx/works/1871/civil-war-france/drafts/ch02.htm#D2s8>, last accessed on April 15 2015 [Civil Law in France]. 86 Peter Schran, “On the Organization of Production under Socialism”, in Arif Dirlik & Maurice Meisner, eds, Marxism and the Chinese experience (New York: M.E. Sharpe, 1989) 59; see also supra note 34; See supra note 30. 40 terminology, that is, “class” and “class struggle” rhetoric. On the other hand, Marx's ideal prototype of Proletarian State: Paris Commune has enormously impacted the design of constitutional system in the PRC polity. First, the “People’s Congress system”, in fact, was based on Marx’s perspective of “Paris Commune Mode”: that a supreme parliamentary system produced by theoretical universal suffrage87. Apart from the original “Marxism”, CPC is also the protégé of Leninism by accepting Leninism theoretically and practically. The most important contribution from Leninism was the Leninist Doctrine, i.e., Party discipline and the Party/State structure, which have been summarized by Lenin’s own works88 and substantial studies89. Lenin’s theory of “Vanguard Party”, which can be summarized as: (1) The highly centralized Party Power, organized by the principle of “Democratic Centralism”. (2) The Party is leading by a small group of professional revolutionary.90 As we will show in latter part, the traditional 87 The Paris Commune Mode include following principles: (1)the combination of legislative and executive powers whose officials approving and removing by universal suffrage. This has impliedly rejected the separation of powers. (2) Denial the principle of judicial independence. Quoting Marx, “the hypocritical independence of judges will be abolished” because “the judicial functionaries were to be divested of that sham independence which had but served to mask their abject subservience to all succeeding governments.” (3) “Genuine universal suffrage”: All public officials must work under public supervision, and people have the right to recall the remove public officials. Also, all public servants should only receive the equivalent of remuneration of ordinary workers in the Commune. See supra note 85 [Civil Law in France]; Manifesto of the Communist Party: Chapter 2(1848), Online: Marxists.org, <https://www.marxists.org/archive/marx/works/1848/communist-manifesto/ch02.htm>, last accessed on April 15 2015; See supra note 30at 18-19, 27 [translated by author]. 88 Democratic system “is to admit that within the state, the minority is subordinate to the majority; is to admit a dominating class or a group of residents systematically exert violence over another class or another group of residents.” Vladimir Lenin, The Complete Works of Lenin, 2nd ed (Beijing: renmin chubanshe, 1990) vol 25 at 442 [translated by author]; Vladimir Lenin, The Complete Works of Lenin, 2nd ed (Beijing: renmin chubanshe, 1984) vol 13 at 304, vol 15 at 146 [translated by author]; Vladimir Lenin, The Complete Works of Lenin, 2nd ed (Beijing: renmin chubanshe, 1984) vol 9 at 448 [translated by author]; Vladimir Lenin, The Complete Works of Lenin, 2nd ed (Beijing: renminchubanshe, 1984) vol 15 at 309 [translated by author]; Vladimir Lenin, The Complete Works of Lenin, 2nd ed (Beijing: renmin chubanshe, 1990) vol 29 at 101 [translated by author]; Vladimir Lenin, The Complete Works of Lenin, 2nd ed (Beijing: renminchubanshe, 1990) vol 27 at 244 [translated by author]; Lenin, Selected Works of Lenin, (Beijing: renmin chubanshe, 1995) vol 1 at 471[translated by author]. 89 Supra note 38 at 31. 90According to Lenin, this is because “in revolution that we need to keep the consistency and stability of leadership” and “revolution in despotic state require us to reduce the number of members in leaders group to the extent that only include those perceive revolution as their sole career and received professional training of political struggle. This makes our party more difficult to destroy. Lenin, Selected Works of Lenin (Beijing: renmin chubanshe, 1995), ed by Central Compilation & Translation Bureau of CPC, vol 1 at 404 [translated 41 CPC theories and organization basically have followed these two important Leninist principles. For “Proletarian Dictatorship” and Party/State Theory, it is important to note that Lenin has offered justification for Party’s natural and unchallengeable leading role in Communist and Socialist states by Marxist theories 91 . Also, Leninism has adopted Marxist’s Paris Commune Mode to establish the Supreme Soviet system, a prototype that the China’s constitutional system directly copied in 1954 Constitution. From the perspective of constitutionalism, Marxist-Leninism has been exploited by the Socialist State in the 20th century to justify its one-party rule and to reject the constitutional supremacy, “check and balance” system and even the “rule of law”. Indeed, in this sense, Orthodox Marxism become one important part in CPC ideology that is radically run against the Mature Constitutional Model in the 20th Century as mentioned in Chapter 1. Moreover, it is fair to say that political theories from Marx Engels and Lenin have not only formed a considerable part of theoretical basis of CPC constitutional discourse, but also have enormously impacted the original configuration of the constitutional system in PRC polity. 2. Maoist Constitutional Discourses Mao Zedong is the key of Sinicization of Marxist-Leninist doctrine, but Mao Zedong’s effort of Sinicization of Marxist-Leninist theories is hybrid. On one hand, as Shambaugh commented, that such hybrid is growing integrated in the large garden of Chinese by author]. 91 See Lenin, Selected Works of Lenin (Beijing: renmin chubanshe, 1995), ed by Central Compilation & Translation Bureau of CPC, vol 3 at 150-151, 526 [translated by author]; See Robert Michels, Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy (Kitchener, UK: 2001, Batoche Books) [translated by Eden & Cedar Paul]; Maurice Meisner, “The deradicalization of Chinese Socialism” in Arif Dirlik & Maurice Meisner, eds, Marxism and the Chinese experience (New York: M.E. Sharpe, 1989) 341 at 344; See supra note 34 at 253-254. 42 political culture and history long before it encountered Leninism, and the indigenous Confucian political culture was conducive to embracing Leninism92. On the other hand, Maoist theories also have incorporated Chinese spontaneous reaction toward Constitutionalism caused by western aggression since the mid-19th century. For China, the concept of Constitutionalism was roughly introduced by “external force”. Chinese constitutional movement in the 20th century did not begin as intent to circumscribe government power or protect fundamental rights, but as an attempt to modernize the State by revitalizing the national power through constitutional practice. As Zou Pingxue commented, Chinese elites have misinterpreted constitutionalism in modern times. Such comprehension has persisted for a long time and until now such “instrumentalism has still not been fundamentally changed. An obvious example is frequently amending the Constitution.”93 Mao Zedong has made no exception for this. Moreover, he also expressed such “constitutional instrumentalism” in the Marxist-Leninist context. A prime example was Mao Zedong’s articulation in the 1940: “What is constitutionalism? Constitutionalism refers to Democracy... but now the democracy we want, is the “New Democracy”, is New Democratic Constitutionalism…New Democratic Constitutionalism means dictatorship exerted by union of several revolutionary classes against the traitors and reactionaries. So the goal for current constitutional movement is to obtain democratic politics we have not yet achieved, not to admit the fact of democratization.”94 92 See supra note 1 at 6. 93 See supra note 39 at 121-122. 94 See supra note 36. 43 In the passage above, two sets of equations emerge, reflecting Mao and many Chinese elites’ understanding of constitutionalism: first that “constitutionalism” is equivalent to “democracy”, and the second is more “Marxist-Leninist”: “democracy” is equivalent to “Democracy within the Peoples plus Dictatorship on enemies”. A direct reason for such an interpretation may came from the need to fight against the KMT government in Chinese Civil War. Ironically, Mao’s advocate of “constitutionalism” or “democracy” served as a powerful political propagandizing weapon for attacking “KMT’s Party dictatorship and Party/State”, a more powerful structure that has been re-built by the CPC later. Mao and CPC used KMT ideological commitment to Constitutionalism as political resources to justify the revolution against KMT Government. Once again, such a unique Chinese meaning of “constitutionalism” cannot be interpreted purely from the western jurisprudence.95 The more fundamental reason is that, influenced by instrumentalism since the 19th century, Chinese elites interpreted the idea of “Constitutionalism” according to the state’s imminent tasks. In fact, Mao Zedong was not the first politician to publicly equal constitutionalism to democracy in modern China. The Chinese concept of “constitutionalism” was translated from 立憲主義 in Japanese. In late 19th century and early 20th century, Liang Qichao firstly associated with constitutionalism with the parliamentary system, while Yan Fu directly related the constitutionalism with democracy. Sun Yetsen, then, putting forward the “Three People Principle”, construed constitutionalism as the ultimate goal to realize democratic rights of citizens under the 95 See supra note 37 at 66. 44 principle of “Minquan”(democracy)96. In fact, for modern Chinese people, influence from Rousseau’s democratic thought has vastly overridden John Locke or John Stuart Mill’s liberalism. Thus the voice of democracy is far too high than voice advocating restriction of democratic power. Indeed, after the May 4th Movement in 1919, “democracy” had become the most legitimate political value97. Moreover, the spread of Marxism-Leninist political theory, a radical “democratic theory” has also enshrined the idea of “Democracy”. Thus, it is understandable why Mao Zedong’s “Equation”, an alien interpretation for western liberalists, could be accepted by both ordinary people and social elites in modern China. Based on this, Mao and his theorists put forward three “Constitutional System Models” basing on his application of “Marxist-Leninist Theories” to China’s context: “New democratic constitutionalism”, “People’s Democratic Dictatorship” and Maoist “Proletarian Dictatorship”. (1) “New Democratic Constitutionalism”. The New Democratic Constitutionalism is based on Mao’s “New Democratic Constitutionalism” theory. The CPC, as the vanguard of proletariat, leads other classes including peasants, Petite bourgeoisie, national bourgeoisie and intellectuals. Within the very broad category of “people”, these classes can also enjoy a variety of basic rights and freedoms, including the rights of political participation and the right to vote. On some occasion, the classes even could participate in “coalition government” led by the CPC. 96 Ibid. 97 Ibid. 45 Although the scope of dictatorship remains as a small scope, still, according to Marxism-Leninist doctrine, these people under “dictatorship” did not have any democratic rights or even fundamental rights 98 . However, for Mao Zedong, “New Democratic Constitutionalism” was just a transitional period before entering the second type, “People’s Democratic Dictatorship” in Socialist Stage. (2) “People’s Democratic Dictatorship” According to Mao, “Socialist Society” is the “Initial Stage” of the Communist Society, and Communism is considered to be the final destination of the socialist society. In the Socialist stage, “People’s Democratic Dictatorship” replaces the “New Democratic Constitutionalism”. But a major difference between “New Democratic constitutionalism” and “People’s Democratic dictatorship” is that the latter moves closer to the Marxism doctrine, and it mainly serves as a function to help the CPC realize its ideal scenario, the Communist Society. Secondly, people’s rights and freedoms become more limited99 . Nevertheless, as with the “New Democratic Constitutionalism”, “enemies” under dictatorship are not entitled to enjoy almost any rights. (3) The Dictatorship of the Proletariat The third Maoist Constitutional Mode is “Proletarian Dictatorship”. Mao’s concept of “the dictatorship of the proletariat” vastly diverged from orthodox Marxist-Leninist theory.100 For on thing, under the Maoist Proletarian Dictatorship, the scope of “people 98 See supra note 48 at 49. 99See supra note 48 at 50. 100 “Mao drew his notion of contradiction partly from Marxist dialectics but also from traditional Chinese philosophy. His ideas concerning classes seem to have originated more clearly in his exposure to Marxism-Leninism, although here too he gave the concept a distinctive Chinese twist.” See Kenneth Guy Lieberthal, Governing China: from revolution through reform, 2nd ed, (New York: 46 (proletariats)” had been narrowed down to working and peasant class, yet the subjects under dictatorship had been massively expanded. 101 For another, Maoist version committed more Populism than the original Marxist version. “Maoist dictatorship of the proletariat” had reached its peak during the Cultural Revolution (1966-1976), and even enshrined by the PRC Constitution of 1975 and 1978. For better understanding the Maoist’s constitutional system, we have listed three indicators from the model of “Mature Constitutionalism”: “Rule of Law”, “Constitutional Supremacy” and “Separation of Power” as showed in the following Table. W.W. Norton, 2004) at 73. 101See supra note 48 at 49. 47 Table 1 Three “Constitutional Models” in Maoist Era and their Coherency with “Mature Constitutionalism”： 102 Mao put forward a proposition that “Constitution is a zongzhangcheng(总章程, means the collection of general policies)” , which enable CPC guide people through it. “Constitution is a zongzhangcheng, it is the fundamental law. We using such fundamental law to fortify the principle of “People’s Democracy” and “Socialism”, and provide a clear and correct path for all Chinese people, improving the enthusiasm of them.” Analysis and comments of the idea of “zongzhangcheng”，See See supra note 43 at 7-10 [translated by author]. 103 “We will exert Dictatorship and absolute rule, oppress enemy of people…while exercise democratic rule within the people. People have the freedom of expression, right of assembly, right of association and other freedom. The electoral rights only grant to people but not the reactionaries.” Mao Zedong, Selected Works of Mao Zedong, 2nd ed (Beijing: renminchubanshe, 1991) vol 4 at 175 [translated by author]. 104 The “Legist view” refers to the the ancient Chinese Fajia (法家) School advocating the legal instrumentalism, with special emphasis on criminal sanction. 105Professor Tai comments that，the People’s Democratic Dictatorship is in the middle of the other two Maoist constitutional systems, yet there is still different “level” of such “democratic dictatorship”. The broader scope of “people”, the scope of dictatorship become narrower, and such level of “People’s Democratic Dictatorship” move toward “New Democratic Constitutionalism”. On the contrary, if the scope of “people” become narrower, then the scope of “dictatorship” correspondently become broader, and this level of “People’s Democratic Dictatorship” will approach more to the “New Democratic Constitutionalism.” See supra note 48 at 56. 106 “During the socialist construction period, all classes, social strata and groups who agree with, support and participate in socialist construction should be included into the scope of “People”, and all social forces and groups react against socialist revolution, or sabotage socialist construction，should be regarded as the enemy of people. See Mao Zedong, Selected Works of Mao Zedong, 2nd ed (Beijing: renminchubanshe, 1990) vol 5 at 244 [translated by author]. Maoist Constitutional Model Landmark Document Rule of Law Constitutional Supremacy Separation of Power “New Democratic Constitutionali-sm” (1940s-1954) “The Common Program” (1949) (1) Generally Upholding the values of Law102 (2) Abolishment of the ROC legal system. (3) Maximum scope of “People” and Minimum scope of “Enemies” being suppressed103. (4) Constitutionally recognizing civil rights and political rights (1) Enshrining Parliamentary Supremacy (Article 12 of the Common Program) (2) Instrumentalism: Goal of the Constitution (Common Program): “prosperous” China and Socialist transition. (1) Democratic Centralism (2) Abandonment of Judicial Independence, and Establishment of “People’s Judicial System” “People’s Democratic Dictatorship” (1954-1966) “1954 Constituti-on of PRC” (1) “Legists View104” (2) Classes under dictatorship105： “those oppose, antagonize or sabotage Socialism106”；Other belong to category of “People” (1) Enshrining Parliamentary Supremacy of NPC (2) Constitutional Supervisory power was vested with the NPC (3) Instrumentalism\Legalization: (1) Democratic Centralism (2) Constitutional Recognition of Judicial Independence, with emphasis on “courts only comply with law.” 48 Although Maoism has increasingly become a relic for contemporary PRC, the Mao Zedong era is the most important period forming CPC’s political theories, and its vast impact on the PRC political and constitutional development should not be underestimated111. Some might argue that “What Mao said was not what he thought”, and indeed many instances suggested Mao himself personally did not act in accord with such beliefs. However, as suggested by Michael Dowdle, for “listening constitutional voices”, “the fact of the matter is that over the long term, the actual intention of the 107“Due to the fact that the Socialist Constitution is in the historical stage of Socialism, classes, class contradiction and class struggle still exists. Therefore, the practice of rights should comply with the need of class struggle.”See supra note 30 at 35. 108 Professor Lieberthal has provided a reliable explanation for the motivation of Mao，：Despite Mao’s inherent flexibility, the ideology (especially proletariat dictatorship, noted by this artcile) should be taken seriously. Mao believed that it would be impossible to the world’s most populous country solely on the basis of formal government administration. He would have to instill in the people certain principles and a commitment to certain types of authority that would enable him not only to remain in power but also to remold the country over which he ruled. Moreover, in a political system whose technical and human limitations greatly restricted the information available to the leaders and their ability to analyze the consequences of their own policy options, moreover, ideology would be a key tool for ensuring compliance among lower-level officials. See supra note 100 at 63. 109 “Mass yundong (campaign)” is the major form of this. “Yundong were concentrated attacks on specific issues through mass mobilization of the populace. Their broad goals included sociopolitical transformation and economic development.” Ibid 65-66. 110 Article 16 of 1975 Constitution even stipulated “NPC is a state organ under the leadership of the CPC.” Also, according these two Constitutions, Military were directly led by CPC. 111 For example, as observed by Shambaugh, the party-state may have been born by armed revolution led by Maoist strategies. Thus even for today, any full consideration of the development of the Party/State and building of state socialism in China during the period must “bring the soldier back in” to the discussion. David Shambaugh, “Building the Party-State in China, 1949-1965: Bringing the Soldier Back in”, in Timothy Cheek and Tony Saich, eds., New perspectives on state socialism in China ( New York: M.E. Sharpe, 1997) 125 at 147.[Cheek & Saich] Maoist Constitutional Model Landmark Document Rule of Law Constitutional Supremacy Separation of Power (3) ”State-granted” fundamental rights107. The goal of 1954 Constitution is building Socialism. Dictatorship of the Proletariat (1966-1978) “1975 Constituti-on of PRC” & “1978 Constituti-on of PRC” (1) Only “Workers, Peasants and Soldiers” were counted toward “Proletariats”, while other classes should be “suppressed”. (2) “Dictatorship of Proletariat” became monster swallow up all fundamental rights and constitutional order108 (3) Legal Nihilism109 (1) Supremacy of CPC (Article 2, Article 16 of 1975 Constitution110 and Article 2 of 1978 Constitution) (2) Instrumentalism： Goals of 1975 & 1978 Constitution: Realizing Maoist Communism. (1) “Party led everything” (2) Abolishment of any form of judicial independence 49 speaker does not really matter in determining the effect of the speech. 112” Instead, “It is the interpretation of the listener, not the speaker, which determines the meanings that attach to ideas. 113” For example, we do not and should not deny the constitutional importance that Americans attach to what they call “Jeffersonian democracy”, simply because its founder and namesake, Thomas Jefferson, willfully violated its principles by owning slaves114. What Mao really thought have limited or no impact on constitutional development after 1978 in China, and let along its influence on today and, of course, future. But his articulation still has important influence on both CPC constitutional theories as well as constitutional practice in today’s PRC polity. 2.1.2 Deng Xiaoping’s “Socialism with Chinese Characteristics” Deng Xiaoping is a very important turning point from Orthodox Marxist-Leninism and Maoist revolutionary theories to current CPC’s constitutional discourse. For revolutionary generations in CPC survived after the 1978, the Cultural Revolution altered them to the dangers of political leadership unfettered by institutional restraints115. On the other hand, the incongruity between Marxist theory and Chinese reality is officially explained by China’s continued economic backwardness, and the resulting contradiction between the country’s relatively “advanced” productive relations and its low level of productive forces. Thus, not only all energies are to be devoted to developing “modern productive forces”116, but also theorists began to develop new theories for coping with this radical change. Therefore, starting with Deng’s era, “Commodities, which Marx, Engels, Lenin, 112 See supra note 41 at 128-129. 113 Ibid. 114 Ibid. 115 Pitman B Potter, From Leninist discipline to Socialist Legalism: Peng Zhen on Law and Political Authority in the PRC (Standford: Stanford University Press, 2003) at 117. 116 Maurice Meisner, “Marx, Mao, and Deng on the Division of Labor in History”, in Arif Dirlik & Maurice Meisner, eds, Marxism and the Chinese experience (New York: M.E. Sharpe, 1989) 79 at 110. [Dirlik & Meisner] 50 Stalin, and Mao all took as the essence of the capitalist mode of production, have been redefined by China’s post-Mao rulers as necessary and healthy elements.117” In response, the CPC’s political theories regarding the realm of constitutional system has been altered as well. Therefore, after the Cultural Revolution, the “dictatorship of the proletariat” as the representative of the Maoist ideology gradually had become a “negative asset” for the CPC’s governance. In this sense, a new theory, “Socialism with Chinese Characteristics”, raised by Deng Xiaoping, is actually an official statement to discard the old-fashion “Dictatorship of the proletariat” and Maoist Class Struggle. Deng Xiaoping is known as actual leader of the CPC after the Cultural Revolution until 1992, the “second generation leader” of PRC, and also the main founder of “Socialism with Chinese characteristics”. Under Deng’s leadership, “modernization” has taken the place of the “class struggle”. In the governing sphere, Deng Xiaoping began to promote the legalization and institutionalization of PRC governance structure, with particular adherence to the “Four Cardinal Principles” to maintain the CPC’s authoritarian rule and party/state system. So, under the “silent revolution”, Charismatic Authority gradually transfers to the legal domination. Marked by the 1982 Constitution of PRC, Deng and his team had restored Maoist theory of “people’s Democratic dictatorship”, which has replaced the “dictatorship of the proletariat” in the 1978 Constitution of PRC. Nevertheless, the restored “People's Democratic Dictatorship” has marked great differences from Maoist People's Democratic Dictatorship as noted infra. 117 Edward Friedman, “Theorizing the democratization of China’s Leninist State”, in ibid 171 at 182. 51 1 “ From Marxism-Leninist discipline to Socialist Legalism118” To quote Arif Dirlik’s words, in the 1980s, China had soon abandoned “socialism as an ideology of revolution” and embraced socialism as the ideology of modernization119. To smooth the “Four Modernizations”, in 1980s, immediately after the “people’s democratic dictatorship” theory had been reinstituted, the “legalization and democratization” had become the new official rhetoric. In the Deng Xiaoping era, the State gradually withdrew from the society. Though Deng still launched “Mass Movements” occasionally, such as 1980’s prolonged “Anti-spiritual Pollution Campaign”, undoubtedly “Mass movement” is gradually replaced by the institutionalized and legalized efforts. In fact, when Deng Xiaoping resumed his position in the Party in 1978, he immediately put forward “the Sixteen Character Policy” to “construct the socialist legal system”: “There must be law to rely upon; these laws must be followed; enforcement must be strict; violations must be corrected. (youfakeyi, youfabiyi, zhifabiyan, weifabijiu)120”. Furthermore, in 1981 the Central Committee of the CPC issued the Resolution on Certain Questions of Party History since Founding of the PRC, stating: “one of the important reason why Cultural Revolution could happen is because we did not ensure the inner-party democracy, nor institutionalize or legalize democracy in the State and Society.121” It was the first time “legalization and democratization” has been public included into the Party Document. Of course, unlike Mao, Deng’s enterprise was also operated by his comrades as well. For example, Peng Zhen, as secretary of CPC Politics and Law 118 From Leninist Discipline to Socialist Legalism” is the name of book, From Leninist discipline to Socialist Legalism: Peng Zhen on Law and Political Authority in the PRC, authored by Pitman B Potter (Stanford: Stanford University Press, 2003). See supra note 115. 119 Arif Dirlik, “Revolutionary hegemony and the language of revolution: Chinese Socialism between present and future”, in Dirlik & Meisner, supra note 116, 27 at 27. 120 Deng Xiaoping, Selected Works of Deng Xiaoping, ed by CCCPC Party Literature Research Office, 2nd ed (Beijing: renminchubanshe, 1993) vol 3 at 163. 121 CPC, Resolution on Certain Questions of Party History since Founding of the PRC, 1981. 52 Committee and later the chairman of the NPC Standing Committee in the 1980s has played a significant role to legalize and institutionalize the Party State. Peng has founded a power base for ongoing institutional development of the NPC. The process of “Legalization and Institutionalization122 of Party/State”, was identified as a process “from Leninist Discipline to Socialist Legalism” by Pitman B Potter123. Following the 1980s, the legal system that was to pursue goals embodied three broad characteristics- formalism, generality, and punishment124. Even after the Tiananmen Incident in 1989, it had been witnessed that Deng Xiaoping still continuingly pursued the theory of “legalization” and “institutionalization” in following speeches from himself and his protégés. Example includes Deng’s “Southern Tour”, Qiao Shi’s speech in 1993125 and 8th NPC’s outline in 1996126. In 1997, Deng Xiaoping passed away, yet this had not suspended or terminated the 122 However，even for Peng Zhen who genuinely concern the “legal construction”, Political and legal institutions were not vehicles for popular participation and institutional restraint, but rather were to be mechanisms for policy enforcement by the Leninist vanguard Party. Even Peng Zhen, the advocator of legalism, still held to the requirements of Leninist discipline that all institutions of political authority, including those in the judicial realm, should remain subject to Party control. For example, The 1982 Constitution enacted dictum “all are equal before the law”. However, it was not so much the protection of citizens from the state; rather, it was to ensure that the state acted in accordance with set procedures and policies rather than the preferences of individuals leaders. See supra note 115 at 27, 80, 124. 123 “Under norms of Leninist discipline, power and accountability flow in one direction, as party and state officials responsible only to their superiors have broad authority to direct and sanction subordinates in their organizations and in society at large…The Socialist legalism describes a modality of regulation which combines policy goals of socialism with operational norms.” See supra note 115 at 7. 124 Potter pointed out that：(1) Peng had noted repeatedly that law were the formal articulation of policy. Laws were to be written down, as formal statements of official norms, and legal institutions were to act according to formally enacted rules. (2) The goals of generality could be achieved when law apply to rulers and ruled alike- the Party itself should do things according to law. Although Party should play an important role in the policy-making processes on which specific legislation was based, Peng held that once enacted, legislation must be enforced generally- clearly indicating Party officials were not beyond the purview of the law.(3) Peng Zhen rely on the punitive force of law, noting on several occasions that law’s role as an instrument of policy was to serve as a basis for punishing violators. “Law is to be a weapon (wuqi) of policy and is to use punishment as the basis for policy enforcement.” See ibid at 141. 125 In a sign of this stage was in April 1993 Qiao Shi’s speech in the first session of the eight National People's Congress Standing Committee “the NPC Standing Committee to ensure the effective implementation of the Constitution and the law”. In order to do that, “we should further develop the specific constitutional system and procedure to improve the supervision on the implementation of the constitution.” For the first time, “supervision on implementation of the constitution” was included in the “arsenal” of the CPC political theories. See Fan Jinxue, “Zhizhengdang xianzheng xiuyang fazhan zhi wojian [Comments on development of Constitutional Awareness of Ruling Party]” in Lin Feng, supra note 9, 217 at 221 [translated by author]. 126 In March 27, 1996, the Eighth National People's Congress approved “Outline of people's Republic of China National Economic and social development Ninth Five-Year Plan and the Objective of 2010”, which contain the slogan “governing the state in accordance with law, building a socialist rule of law State”. This was the first time CPC announced “rule of law” in the form of a national legal document in PRC history. See ibid at 224. 53 process of transition of CPC political theories. In the same year, the Report of the 15th CPC National Congress raised the slogan of “legalization and institutionalization” by officially putting forward “rule of law” theory: “Governing the State in accordance with law, building a Socialist Rule of Law State127”. Therefore, from “Institutionalization and legalization” to “Rule of Law”, the concept of Law has been incorporated into “Socialism with Chinese characteristics”, as an important instrument to promote modernization. From the viewpoint of Constitutionalism, the slogan is also very important because it might imply a development “from totally unlimited political power toward governance subject to legal restrictions is an important step toward constitutional State.128” The CPC’s political theories evolved in Deng’s era has left a considerable space for ongoing constitutional development in the PRC Polity. It is also true that “the only casualty of the ideological activity to accommodate these change may be the concept of socialism itself129”, if such “Socialism” refers to the Maoist Revolutionary Ideology. 2. Adjustment of the Relationship between the Party and State in Deng Xiaoping Theory Deng Xiaoping Theory also involved the adjustment of relation between Party and State. The first change Deng advocated is that “Party leadership should be subject to formal 127“Governing the state in accordance with law, is under the leadership of the party, the people in accordance with the provisions of the Constitution and the law, and through various channels and in various ways to manage state affairs, manage economic and cultural enterprises, and engage in management of social affairs, making sure that all work of the state according to law, and gradually realizing the institutionalization and legalization of socialist democracy, and ensuring the legal system not to compromise because of changes in the leadership, nor because of the change of leaders’ views and attention.” Report on the Fifteenth National Congress of the CPC (2), CPC News (12 September 1997)，online: CPC News <http://cpc.people.com.cn/GB/64162/64168/64568/65445/4526287.html>, last accessed on April 15 2015. 128 Larry Cata Backer, “ Gongchandang yu zhongguoshi de xianzheng tizhi: yidang zhuanzheng de xianzheng fazhan lilun [CPC and Chinese constitutional system: Constitutionalism theory under One party Rule”, in Lin Feng, supra note 9 181 at 194 [translated by author]. 129 Arif Dirlik “Postsocialism? Reflections on ‘Socialism with Chinese Characteristics’”, in Arif Dirlik & Maurice Meisner, eds, Marxism and the Chinese experience (New York: M.E. Sharpe, 1989) 362 at 380. 54 law.” For example, as early as 1982, Deng used his own stature to pass the new Party Constitution in the 12th CPC National Congress, which stated the Party’s activities should be circumscribed within the scope of the Constitution and the Law 130 . Thereafter, “separation of Party and government” was put forward in 1986 to 1987131. According to Deng, “the Party should only handle problems stipulated in Party Discipline, and legal problems should be left to the State and Government”, because “if the Party interfere too much on the legal problems, is not conducive to people to have legal awareness. 132” Deng’s protégé, Zhao Ziyang, the general secretary of the CPC Central Committee of the 13th Party National Congress, gave a famous speech regarding the idea of “separation of party from government” in the 1987. Zhao stated that the Party should exercise political leadership but not to become involved in the routine work of the governmental institutions, “the Party’s political leadership is ensuring that the party’s proposition become the State’s Will through the legal process, and through the exemplary role of the party organization and party members to lead the broad masses to implement the party’s line（luxian）, principles and policies.”133 In addition, on the preparatory session of Thirteenth National Congress of the CPC, Zhao Ziyang stressed that, “the key of the political reform firstly lies in the separation of Party and government.134”However, unlike statement of “Legalization and Institutionalization”, the discourse of “Separation of Party and Government” did not survive the impact from the Tiananmen incident in 1989. After 130 Also, in the same occasion, Hu Yaobang, the Party General Secretary, for the first time in the history of the CPC, put forward that, “ the new Party Constitution regarding ‘activities of the party must conducted within the scope of the Constitution and the law’, become an important constitutional principle. The Party led the people to formulate the Constitution and laws, once the law passed by the state organs, the whole Party must strictly abide. See supra note 125. 131 According to Potter’s research, at that time, Deng, Peng Zhen and many senior leaders in the CPC considered that: (1) The Party, should mange economic life and in guiding the cultural and civil affairs of society. If left the economy uncontrolled, Chinese society would quickly devolve into the vicious state of laissez-faire capitalism that seemed to characterize Nationalist China in the 1920-1930s. (2) And the Party/State was to control the reigns of cultural life in order to ensure that people retained a collective ethic, one that would ensure continued fealty to the state even as its primary goal was social welfare. Such socialism was supported by ruling elites wholeheartedly in the post-Mao 1980s era. See supra note 115 at 140-141. 132 Supra note 120. 133 See supra note 125 at 128. 134 Ibid. 55 1989, the “Separation of Party and Government” seemingly rarely appeared in speech of Party leaders and Party Documents. 3. Party Leadership and Four Basic Principles On the other hand, as early as 1979, Deng Xiaoping had put forward the “Four Basic Principles” which clearly outlined the boundaries for political reform discourses in China, that the Party’s hegemony and leading position could not be challenged135. In fact, Deng never denied this purpose: “the political reform of the Party/State system, is not to weaken the party’s leadership, nor to weaken Party disciplines.” Instead, according to Deng, the purpose of reform is to uphold and strengthen the Party leadership as well as the Party discipline, “In China, uniting hundreds of millions of thoughts and power to engage in socialist constitution, without a party which comprises party members with a high degree of consciousness, discipline and self-sacrifice spirit, without a party can truly represent and unify the masses, without a party exercise unified leadership, it is impossible to imagine. Without such a Party, China will simply fall apart and is unable to achieve any progress.”136 Deng’s reasons are fairly straightforward to be understood. First, Deng’s bottom line is under no circumstances are the Party’s sole leadership could be destabilized. Thus adhering to the four basic principles is necessary. Secondly, the leadership of the Party guarantees unity and stability of the state which provide basic security for economic development. Third, any reforms leading to a “chaotic situation” are not an option. Perhaps more fundamentally, the unique historical development of “Constitutionalism” 135 Tony Saich, Governance and politics of China, 3rd ed (Basingstoke, UK: Palgrave Macmillan, 2011) at 133. 136 Deng Xiaoping, Selected Works of Deng Xiaoping, ed by CCCPC Party Literature Research Office, 2nd ed (Beijing: renmin chubanshe, 1994) vol 2 at 341-342 [translated by author]. 56 and the unsuccessful constitutional experiences in Republican period had still influenced Deng and other senior Party leaders in the 1980s, that the “Constitutionalism”, “Constitutional Supremacy” or “Check and Balance” are just part of “Western Mode Democracy” may not suitable for China’s condition. Therefore, they refused them wholeheartedly, without hesitation. Thus, it is not difficult to understand Deng’s following famous sentence: “We can not copy American political system... because if China copy multiparty elections or check and balance, it would certainly create chaos (dongluan). 137” In sum, Deng Xiaoping Theory has replaced the “proletarian Dictatorship” by legalizing and institutionalizing Party/State and tried to adjust the relationship between the party and the state within the CPC political discourse. These adaptations, along with limits from the Four Basic Principles have set the tone for the continuing evolution of CPC’s political theory after Deng’s death. Deng’s “pragmatism”, as demonstrated in his theory of “Socialism with Chinese Characteristics”, has provided a strong ability for CPC to adjust the theory to suit the policy138, from the “private property” to market economy, form the rule of law to human rights, from “governing the state in accordance with law” to the newest “governing the country in accordance with the Constitution”. This has offered a more comfortable environment cleared away the ideological obstacles for constitutional development in Post-1978 China, as we will discuss in later parts of the 137It is worth noting that “dongluan”（动乱，“chaos” or “chaotic”) is a fully derogatory term in Chinese. In Chinese context, if a State has been referred as “dongluan”, that means the country not only unable to maintain a stable political situation, but also the basic social order or people's basic rights or interests (even life) could not be guaranteed. Some PRC scholars have offered a further explanation for Deng’s words. “The unfeasibility of check and balance is not suitable for conditions of current China, because it denies the unity of people's sovereignty, and denies the people’s highest right to determine and circumscribe the supreme power of the state. Applying ‘Check and balance’ would make us running in opposite direction of socialist democracy. See supra note 30 at 40 . 138 A saying has became prevalent in China’s society since 1990s, “Socialism is a huge box, you could put anything you want.” （社会主义是一个框，什么都可以往里装。）. 57 Chapter. 2.1.3 Evolution of Political Discourse in Post Deng Xiaoping Era and Constitutionalism 1. Jiang Zemin Era: “Rule of Law” and “Three Represents” After Jiang Zemin was assigned as the third generation of core of leadership of CPC, Jiang has refined CPC’s “Socialism with Chinese Characteristics” in a new era. The first notable slogan is “Rule of Law”. In 1999, the CPC Central Committee submitted a “Legislative Suggestion of Constitutional Amendment” to the NPC, to amend the Article fifth of the Constitution with “governing the state in accordance with law”. In January 1999, Jiang further stated: “the first prerequisite to governing the state in accord with law is governing the state in accordance with Constitution.”139. At the same time, Jiang also stressed the combination of Rule of Law and Rule by Virtue140. On the eve before Jiang’s formal resignation of the General Secretary of CPC Central Committee in 2002, his report in the sixteenth CPC National Representatives Congress clearly stated: “the Constitution embodies the unity of the party’s proposition and volition of the people. Any organization or individual is not allowed to have the privileges act beyond the Constitution and Law.” This suggests that, the narrow sense of the idea “constitutional 139 In 2001 December Jiang’s second hand, the Chairman of Standing Committee of NPC, Li Peng, indicated that the preamble of the constitution also has the highest legal effect: “the preamble to the constitution is the most concentrated expression of the party’s proposition and fundamental volition of the people... similar with provisions in the Constitution, the preamble has its highest legal effect. Thus violating the preamble of the Constitution is violate the Constitution in most important aspect.” The preamble contains “adhering to the reform and open policy”, as well as “Four Basic Principles”. See supra note 125 at 229. 140 However, once CPC began to emphasize the “rule of law”, a great challenge to political morality of Communist regime has formed. Because in the past, CPC, as “moral authority” has always tried to build the highest moral appeal, and to conduct social mobilization rely on moral incentives. However, the core of rule of law famous individual behavior and legal responsibility, rather than moral stage, which resulted the legitimacy of the regime transit from moral legitimacy to legal legitimacy basic political rights. This might explain why in in the period of Hu or Xi, “rule of virtue” has lost its attention for CPC’s leaders, which gradually fading out of the political discourse of CPC. Nevertheless, this does not mean the Communist Party publicly has abandoned the slogan of “rule by virtue”. In fact, in October 2014, the Fourth plenary session of eighteenth National Congress of CPC just mentioned “combination of rule of law and rule by virtue”. 58 supremacy” has been incorporated into the contemporary CPC political discourse. Another development in CPC political theory is the “Three Represents141” theory put forward by Jiang Zemin in 2000. In theory, the “three represents” and “two vanguards142” which also put forward by Jiang Zemin manifested the transition of the CPC from the “Vanguard Party of Proletariat” to “Vanguard Party of all Chinese Nation”. “Bourgeois” now could become CPC members143. The subtext of the “Three Represents” is to remove the ideological barrier to allow the bourgeois to enter the Party and sweep off the traditional ideological bias toward “new social stratum” within the CPC 144 . In fact, “Three Represents” was an important effort to restore and reinforce the base of party’s ruling 145 . From the perspective of Constitutionalism, the “Three Represents” ideologically included the most peoples and social classes into the scope of “people’s democracy”, which also, if used Maoist phraseology, is a sign manifesting that the “People’s democratic dictatorship” has a strong potential tendency to return “New Democratic Constitutionalism”. 141“The CPC always represent the requirements for developing China's advanced productive forces, the orientation of China's advanced culture and the fundamental interests of the overwhelming majority of the Chinese people.” 142“The CPC is always the vanguard of Chinese working class, and the vanguard of all Chinese nation and Chinese people.” 143 As Jiang himself once explained, “ the ‘Three Represents’ is conducive for ‘expanding the mass foundation of the Party’, because according to incomplete statistics, the number of private enterprises has reached 176,0000 in 2000, and had recruited 2000,0000 of the staff. Whether from the view of economic strength, or from the number of private enterprises, they are an important part of our society. If we do not face this reality, nor absorb(争取) this social force, or even intentionally or unintentionally to push them to our opposite, then the consequence will be detrimental to our party. Jiang Zemin, “Kexue duidai makesizhuyi” [Viewing Marxism by Scientific Attitude], in Selected Works of Jiang Zemin, ed by CCCPC Party Literature Research Office, Beijing (Beijing: Renmin chubanshe, 2006) vol 3 at 341 [translated by author]. 144 In fact, Zheng Bijian, the executive president of the Central Party School and Jiang Zemin’s advisor, emphasized that the Three Represents was an theoretical attempt to come to grips with: (1) Globalization and the advance of science and technology; the diversification of Chinese society, social organizations, and lifestyles; and lax party organizations and the need to improve the CPC rank and file. Nevertheless, like other ideological campaigns of the post-Mao era, Jiang’s new theory was a codification of policies already under way. See supra note 1 at 113. 145In practical sense, one could argue that the Three Represents is a “fake ideological expression”, because apparently there is no one in the secular world could “always represent requirements for developing China's advanced productive forces”, while “the orientation of China's advanced culture and the fundamental interests of the overwhelming majority of the Chinese people.” Zhang Boshu, Jiegou yu jianshe: Zhongguo minzhu zhuanxing zonghengtan [Deconstruction and Construction: Multiple discourse on China’s Democratic Transition] (Hong Kong: Morningbellpress, 2009) at 133 [translated by author]. 59 2. Hu Jintao’s Period: New Constitutional Discourses Generally speaking, Hu’s speeches about “scientific development”, the “harmonious society”, and “advanced socialist culture”, were “largely meaningless to the population at large.146” However, CPC’s political theory in Hu’s era, from 2002 to 2012, was marked by increasingly incorporating discourses of Constitution and constitutional mechanisms. For example, in 2002, when Hu Jintao was first elected as the General Secretary of the CPC Central Committee, he mentioned that the Constitution of PRC “has the greatest authority and the highest legal effect”, and advocated all (including the CPC) should “uphold the dignity of the Constitution and ensure the implementation of the Constitution.147” Specifically, Hu Jintao also indicated that, the Party and state should “improve the constitutional supervision mechanism, ensuring any activities violating the Constitution should be corrected timely.” Furthermore, Hu listed constitutional responsibilities for constitutional organs in PRC Polity including the NPC, administrative organs and judiciary148.” Importantly, Hu’s speech has indicated a change in CPC’s view on Constitution that it began to view the Constitution as a protector of fundamental rights rather than “a set of General Rule” as Maoist tradition had viewed it. 146 See supra note 146 at 8. 147 Hu Jintao, “Zai shoudu gejie jinian zhonghua renmin gongheguo xianfa gongbu shixing ershi zhounian dahui shang de jianghua” [Speech at a rally marking the 20th anniversary of the promulgation and implementation of current Constitution], Xinhua News, online: <http://news.xinhuanet.com/newscenter/2002-12/04/content_649591.htm>, last accessed on April 15 2015 [translated by author]. 148 (1)The NPC and its Standing Committee, should always consider the fundamental interests of the state and the people, fully protect constitutional freedom and rights of citizens during the legislative process; the NPC must assume the responsibility to supervise implementation of the Constitution, resolutely correct any constitutional contraventions; the Standing Committee of the NPC should perform their constitutional to properly interpret the Constitution, issuing the necessary interpretation regarding problems occurred during in the implementation of the constitution. (2) All levels of local people's Congress and their Standing Committee must guarantee the Constitution are observed and implemented in every region. (3) State administrative organs, judicial organs and procuratorial organs at all levels should adhere to the constitution and administrate in accordance with law, and should constantly improve the quality of their personnel and the level of legal enforcement. (4) Any individual or organizations should not have privileges beyond the Constitution and Law. (5) We must adhere to the leadership of the CPC, Party organizations at all levels and all Party members should play an exemplary role in abiding by the Constitution, and should strictly act in accordance with the Constitution. See supra note 125 at at 230-231 [translated by author]. 60 Another development during Hu’s era was that “constitutional supremacy” has been highlighted hitherto by the CPC’s ritual performance. An important example is that in 2003, for the first time, as a top party leaders, Hu public took the oath as a president of office: “I must fulfill the duties entrusted by the Constitution, through hard work to dedicate the state and people.149” In another speech, Hu Jintao, for the first time in the history of the CPC, put forward that “without restriction and supervision, it will inevitably lead to abuse of power and corruption.” Thus, “to strengthen the restriction and supervision of power is an important task socialist democracy. 150” In 2007 17th Party Congress, Hu’s report repeated such view.151 Therefore, by itself, such discourse in Hu’s era has moved beyond the Marxism-Leninism orthodoxy of “proletarian sacred character” and Mao Zedong’s “proletarian human nature”. In Hu’s era, corruption brought by unrestricted power forced the CPC political discourse to indirectly admit that the character of “proletariat” is no longer sacred. In other word, the “Vanguard Party”, like other parties in the world, also could be eroded by power, and need to be restricted and supervised, although the CPC still explicitly rejected the separation of the powers or multi-party competition. 2.1.4 Xi Jinping Era: Return to “Socialist Rule of Law” There is more significant change in the CPC since Xi Jinping took over the General Secretary in 2012. In December 2012, Xi delivered a speech during the 30th anniversary celebrations of the 1982 Constitution. During his speech, Xi upheld the protection of 149 In 2008, when Hu Jintao was once again second elected as the President of the PRC in the Eleventh NPC, Hu repeated this oath. The Wu Bangguo, chairman of the NPC Standing Committee, was also took the oath of office that “we, all the NPC representatives, take the oath to be loyal to the responsibility vested by the Constitution. Ibid at 231. 150 Ibid at 233. 151In this report, Hu emphasized, “we should improve the mechanism of restraint and supervision... ensure that the power being properly exercised, must let the power operating openly and transparently.” The restriction and supervision mechanism is through “establishing a power structure that decision-making, executive power and supervisory mechanism could check and supervise each other but remain mutual coordination. Ibid at 238. 61 citizens’ rights and freedoms as the essence of the Constitution152 stressing that the highest legal effect of the Constitution must be the necessity to build a constitutional supervisory system. 153 Xi, for the first time, also mentioned that “the Party would discipline the Party according to the Constitution of CPC, while governing the State according to Constitution of PRC”. Finally, Xi greatly endorsed the development of a fairer and more efficient justice system, and supported the independence of courts stating, “deepen the reform of the judicial system, and guarantee (the courts’) to independently and impartially exercise the judicial power in accordance with the law.154” In 2013, Xi stressed “to strengthen the restriction and supervision of public power, we should cage the power by institutional means.155” This means the CPC’s ideological return to the “rule of law” rhetoric156. In an early 2014 speech, Xi explicitly abandoned the old pattern of “maintaining stability” previously upheld by Hu Jintao: “Right-defended should be the foundation of stability, and the essence of maintaining stability is protecting rights.” The “Harmonious Society” has been replaced by “freedom, quality, justice and rule of law” as part of the “socialism core values.” Albeit lacking legal effect, those statements further created a more compatible atmosphere for constitutional development. 152 “Fundamental rights of citizens…are the core of the constitution.” “Only ensure that people enjoy extensive legal rights and freedoms, the constitution can be deeply rooted in the hearts of the people.” “History has suggested if the constitution is ignored, weakened or even damaged, people's rights and freedoms cannot be guaranteed.” 153 “The NPC and its standing committee, and other relevant organs of the state should take on the constitution supervision, improve the quality of supervision mechanism and procedure, to redress unconstitutional actions.” 154 Nonetheless, a long-established view from Mao’s period still dominated Xi’s speech. For example, the only measure for circumscribing CPC’s authority is still remaining an old-school propaganda that the party would “take the lead to observe the constitution.” 155 Xi Jinping, “ba quanli guanjin zhidu de longzi li”[Cage the power by institutional means] (Jan 22, 2013), online: Xinhuanet <http://news.xinhuanet.com/politics/2013-01/22/c_114459610.htm>, last accessed on April 15 2015. 156 In May 2013, the CPC issue two regulations are considered as important moves to improve the CPC's internal management and sharpen intra-Party supervision: Regulation of formation of intra-Party rules and Provision of record system intra-Party rules and normative documents. (《中国共产党党内法规制定条例》、《中国共产党党内法规和规范性文件备案规定》) Here stipulated Central CPC organs should conduct constitutional review before issuing any intra-Party rules, and authorize specific CPC organ to repeal any Party rules against the Constitution of PRC. More importantly, as discussed later, the Standing Committee of the NPC officially terminated the Reeducation through Labor system and relevant regulations, which allowed government deprivation of citizen’s personal freedom without judicial decision up to four years. These small progresses somehow related to Xi’s attitude to the Constitution to some degree. Under the Party/State structure, opinions from CPC elites often play a significant role in “sensitive affairs”. 62 The more recent development was the “Statement on Rule of Law 2.0”. During the “Fourth Plenary Session of Eighteen Party Congress CPC” in October 2014, for the first time the entire Party Plenary discussed the issue of “Rule of Law” for the first time. Xi Jinping and his team further issued policies upholding the rule of law, the constitutional system, power supervision and restriction, the protection of fundamental rights and freedoms, and judicial reform. The Plenary issues Central Committee of CPC Resolution on Matters regarding Comprehensively Advancing the Rule of Law (hereafter referred as “Resolution”), an endorsement for Xi’s high-profiled commitment to build a “Socialist Rule of Law”. The Resolution stated: (1) The general goal for “governing the state in accordance with law”, is to build a socialist legal system with Chinese characteristics, building a “Socialist Rule of Law State.157” (2) Improving the system of constitutional implementation and supervision. The Resolution states, “making every piece of legislation accord with the spirit of the constitution.” Specifically, “The NPC and its Standing Committee should improve the system of constitutional supervision as well as the procedure of constitutional interpretation mechanism.” “The NPC and its Standing Committee should strengthen the 157That is, “under the leadership of the CPC, adhering to the socialist system with Chinese characteristics, and implementing the Chinese characteristic socialist rule of law theory, in order to form a comprehensive legal system, an efficient legal enforcement system, a strict legal supervision system, a powerful legal protection (on rights) system, and an advanced system of the inner-party regulations. (We should) jointly adhere to and promote the rule of law and governing by law, administrate according to law, adhere to the construction of state, government and society under rule of law, and realize the scientific legislation, strict law enforcement, judicial justice, improve the level of modernization of governing system and capability. In order to realize this goal, we must adhere to the leadership of the CPC, the people’s principal position(人民主体地位), the principle of all equal before the law, the combination of rule of law and rule by virtue, and the suitability of Chinese specific conditions.” CPC News, “Zhonggong zhongyang guanyu quanmian tuijin yifazhiguo ruogan zhongda wenti de jueding” [Central Committee of CPC Resolution on Matters regarding Comprehensively Advancing the Rule of Law], (29 October 2014) online: CPC News <http://cpc.people.com.cn/n/2014/1029/c64387-25927606-1.html>, last accessed on April 15 2015. 63 Filing and Review System, and all the normative documents should be included into the scope of filing and review system, the NPC and its Standing Committee should revoke and rectify unconstitutional and illegitimate normative documents.” (3) The Resolution also suggested setting up a National Constitution Day and a Pledge of Allegiance to Constitution system. (4) Indeed, for separation of power, the Resolution indicates a deepening understanding regarding operation of administrative power158 and judicial power. With regard to judicial power under the slogan of “justice”, the Resolution highlighted a number of measures to protect the independence and impartibility of China’s courts. For the first time, the Resolution put forward, “without statutory matters, or through the due procedures, a judge or prosecutor shall not be transferred or discharged from office, or subject to removal or demotion and other sanctions.159” (5) The Resolution also entails measures to protect fundamental rights, which could be summarized as follows: On the one hand, the legislature should “strengthen key areas regarding human rights protection in legislation160. On the other hand, the Resolution 158 For the administrative power, the Resolution states the necessity “to promote the legalization of administrative organization, functions, scope of power, procedure and administrative responsibility, to implement the system of ‘list of governmental power’（政府权力清单制度） of the government power list. We should strengthen the restriction and supervision of administrative power, improve the accountable fault-rectified mechanisms(完善纠错问责机制).” 159 Another example was, “we should establish a system to record, public inform (of criticism) and responsibility tracing of leading cadres intervention of judicial activities. Any party and government organs and leading cadres are not allowed to make judicial organs to violate their statutory duty, or conduct activities sabotage judicial impartibility. Judicial organs shall not engage in any activities result from illegal intervention of the party and government organs and leading cadres.” Otherwise, sanctions from party discipline and criminal liability will be incurred. Another measure proposed by the Resolution is Protection for judicial personnel exercise judicial duties. 160 “(The legislature should) strengthen legislative protection of equal rights, equal opportunities and quality before the law, protecting rights of the person, property rights, political rights and other fundamental rights of citizens from possible violation, and guarantee economical rights, cultural rights, social rights of citizens, and realize the legalization of citizens rights protection. (We should) improve the awareness of social respecting and safeguarding human rights, and expand the methods and channels of remedy of civil 64 advocates to “strengthening the judicial protection of human rights”. (6) The Resolution was not seeking to decrease the interference of the Party, and instead calls for strengthening the unified leadership of the CPC161. However, as Peerenboom commented, the Resolution is, to a great extent, an “old bottle for new wine”. Calling for Rule of Law, Respect for the Constitution, Protection of human rights, Independence of courts, and a Fair and Efficient judiciary is, of course, nothing new162. Also, some more fundamental problems were failed to be address in the Resolution163. Nevertheless, the Fourth Plenary Session of the eighteenth Party Congress has made the political commitment of CPC closer to Mature Constitutional Model, offering more compatibility especially for the Rule of Law, constitutional supremacy and judicial development in PRC polity. In fact, the current CPC theory is most coherent with constitutionalism even in the PRC history. As we will explore in next two chapters, significant developments occurred for both the NPC and China’s courts one year after the Resolution was issued. rights. 161 For example, the Resolution stated: “strengthening the Party leadership in legislative work, and refine the procedure for Party implement it decision on major issues in the legislative work. Where legislation involving major adjustment on system or policy adjustment, must be reported to the Party Central Committee for further discussion and determination. Constitution Amendment proposed by the Central Committee of the Party should go through the constitutional procedure. Major issues regarding enactment and revision of (ordinary) law must report to the Central Committee of the CPC by the Party Group(党组) of Standing Committee of NPC.” 162 Randall Peerenboom, “The Battle Over Legal Reforms in China: Has There Been a Turn Against Law?” (August 12, 2014), online: Available at SSRN, <http://ssrn.com/abstract=2479716>, last accessed on April 15 2015 at 9. 163 For example, as the Resolution states, “law is an important instrument for governing the state”, the view of legal instrumentalism still dominates the CPC legal discourse, rather than the rule of law concept in western jurisprudence. Another instance is, according to the Resolution, at the present stage the “legislative task” is to realizing the cohesion between legislation and procedure of decision-making, ensuring every major perform in accordance with law, and guaranteeing the legislation could accommodate the need of reform and economic-social development.” 65 Table 2 Evolution of CPC political theories after 1978 and Constitutionalism： “Generation of CPC Leadership” Rule of law Fundamental rights Supervision and Restriction of power Constitutional supremacy Deng Xiaoping’s Era (1978-1992) (1) “Proletariat Dictatorship” was marginalized; transition from “class struggle” to “all equal before the law164”； (2)“Institutionalizat-ion” and “Legalization”165 (3) “Party observe the law”(1978-1986;1986-1992) “Separation between Party and the Government”（1986-1989)166. (1) Explicitly rejecting the concept of “Human Rights”, Condemning “Human Rights” as a weapon used by “peaceful evolution” by the West; (2) First official discussion on “fundamental rights” (1)Explicitly rejecting the idea of “separation of power”； (2) Emphasizing the “political consciousness of Proletarian Party”, impliedly suggests Party would not eroded by Power; (1) Restored the supremacy of Constitution (2) Upheld the Supremacy of the NPC. (3)Instrumentalism: the goal of Constitution 1982: Open and Reform, “Four Basic Principles” Jiang Zemin’s period (1992-2002) (1) From “rule by law” to “Socialist rule of law”； (2) Emphasizing the combination with “Rule by Virtue”. (3) Judicial Reform: Professionalism (1) Discourse on Human Rights in the late 1990s； (2) Commence to systematically and widely discuss “fundamental rights” From 2000167 (1) Explicitly rejecting separation of power, check and balance, multi-party competition, Bicameral system168. (2) Discourse on Circumscribing administrative power”. (1) Supremacy and the Constitution and Supremacy of the NPC (2) Beginning advocate, “implementing the Constitution” and the issue of “constitutionality”. (3) “Four Basic Principles” Hu Jintao’s Period（2002-(1) From “governing the state in accordance with law” to (1)“Human rights” with “Chinese characteristics”169. (1) “Absolute power lead to absolute corruption” (2) Rejecting “Western-(1) Highest Legal Effect of Constitution. (2) Supremacy of the 164 Equality before the law nonetheless signaled important conclusions about the changing character of class struggle and the transition to a rule-based system of governance that would replace the campaign style of rule associated with Mao and the doctrine of permanent revolution. In this regard, the rights of citizens were made dependent on behavior rather than class, and the notion of class struggle itself came to be reconstructed. See supra note 115at 124. 165 Basically, the CPC, since 1982 Constitution was promulgated, sign of entering legal stage has been manifested. The 1982 Constitution has come out of the struggle style, and turned to experience summary of experiences. Unexpectedly, the rule established by the 1982 Constitution was not being sabotaged by the 1989 Tiananmen Incident, and controversy between “reformists” and “conservatives” in 1990s also had not been upward to the level of constitutional discourse. See supra note 38 at 105. 166 However, as mentioned above, the fundamental reform has been rejected. Saich comments “Since fundamental political reform would lead to decrease in the party’s power, it has been strongly resisted. This resistance led to the dismissal of two general secretaries, Hu Yaobang in 1987 and Zhao Ziyang in 1989.” See supra note 135 at 129. 167 Han Dayuan, “Jiben quanli gainian zai zhongguo de qiyuan yu yanbian” [Origin and Evolution of the Concept of Fundamental Rights in China] (2009) 6 China Legal Science 15 at 25 [translated by author]. 168 The People, “Zai Xuexi Dengxiaoping lilun gongzuo huiyishang de jianghua [Jiang Zemin’s Speech on Working Meeting of learning Deng Xiaoping’s Theories]” (December 29, 2000) online: <http://www.people.com.cn/GB/channel1/10/20000529/80720.html>, last accessed on April 15 2015. 169 As concluded by Professor Tai, “Human rights” with Chinese characteristics has the following five features: （1）In the text of the Constitution, there is no single clause regarding “restriction on restriction”, which means government has no restriction when limiting 66 “Generation of CPC Leadership” Rule of law Fundamental rights Supervision and Restriction of power Constitutional supremacy 2012） “governing the state in accordance with the Constitution”; (2) Judicial Professionalism to Judicial populism (2) Vastly expanding the scope and content of fundamental rights in CPC’s political theories. style” separation of power and “check and balance”170 (3) Constitutional interpretation and supervision mechanism NPC (3) “Four Basic Principles” Xi Jinping’s Period (2012-now) (1) “Rule of Law 2.0” (2) “Taking Constitution Seriously” (3) Further judicial reform: independence of courts; fairer and more efficient Justice System (1) “Fundamental Rights of citizens” is the core of the Constitution; (2) Call for Administrative, legislative and judiciary Protection of Human Rights; (1)“Cage the power by institutional means”; (2) “Strengthen the Constitutional implementation and supervision” (1) Party leadership and authoritarian claim (2) Supremacy of Constitution; (3) NPC Supremacy 2.2 Party Organization and Party/State Structure: Determinant and Product of Constitutional Development in China In the following sections, we will continue our discussion of the CPC Party structure and the Party/State in the one party dictatorship system, both of which are important to the Human Rights. Without such “restriction on restriction” is in line with the principle of “democratic centralism”. (2) According to the Article 33 of the Constitution, when exercising the fundamental rights, the Constitution imply that citizens should first fulfill their duties before enjoying their rights. (3) Economic rights prior to other human rights (4) Emphasis is on cultural relativism rather than universalism. (5) So far the fundamental rights in the Constitution of PRC is non-justiciable, the Chinese citizens could not file the litigation to challenge government actions they believe infringed their constitutional rights, nor through an established organ exert constitutional review. See supra note 48 at 79-80. 170 In 2011, Wu Bangguo, the Chairman of NPC Standing Committee, spoke at the Four Session of the Eleventh NPC Standing Committee work report, comprehensively describing CPC constitutional view in Hu Jintao’s period: “the socialist legal system with Chinese characteristics is the only path toward “the realization of the great revival of the Chinese nation.” He also mentioned eight establishments through the form of “the Constitution and the law”: (1) establishing the fundamental system and the basic task of the state. (2) Establishing the leadership of the CPC. (3) Establishing guiding position of the Marxism-Leninism, Mao Zedong thought, Deng Xiaoping theory and “Three Represents”. (4) Establishing the people's democratic dictatorship led by the working class and based on the alliance of workers and peasants. (5) Establishing the system of people’s Congress. (6) Establishing that of all state power belongs to the people, and citizens enjoy the rights and freedoms widely granted by law. (7) Establishing the system of Chinese People’s Political Consultative Conference under leadership of the CPC, and the system of ethnic autonomous areas and basic level autonomous system. (8) Establishing public ownership as the basis and the development of multi ownership economy, and establishing “to each according to his or her contribution” as the basis and coexistence of varieties of modes of distribution system. In addition, he also put forward the “Five not allow”（五不搞）, namely “under China's conditions, we do not allow multi-party competition, do not allow in the pluralism of ideology, do not allow the separation of three powers and bicameral system, do not allow federalism, do not allow entire privatization. See Wu Bangguo, “Women bugao duodang lunliu zhizheng” [We would not adopt Multiparty rotational system, Federalism or Privatization]” (10, March, 2011) online: Xinhuanet <http://news.xinhuanet.com/politics/2011-03/10/c_121170495.htm>, last accessed on April 15 2015. 67 institutional environment for constitutional development in the PRC. Although the CPC power structure and its party/state system have strong institutional inherences from Leninist Party Dictatorship and former USSR practices, it has indeed developed a style different from that of the Soviet Union. This is especially true for post-1978 China 171 . It have been pointed out, “Party structure still runs on Soviet hardware172”. At the top of the system, the CPC has adopted the Leninsit Discipline what Lenin prescribed ‘as much centralization as possible’, allowing self-appointed professional revolutionaries like himself to dictate downwards to a working class considered incapable of rising above their day-to-day struggles173. After the PRC was founded in 1949, Mao had continuingly exercised his absolute rule until 1978. In 1949-1978, the entire power structure of PRC was built on the political power, rather than law and institution similar to the Soviet Union of the 1930s. Apart from three Constitutions in 1954, 1975 and 1978, there was almost no development in the realm of legal Construction before 1978. Without any real institutionalized power, it is impossible to form any structural basis for constitutional supremacy. Therefore, what will mainly be discussed here is the Party structure and Party/State after 1978. However, the formal Party/State structure in the PRC was set up since the Maoist era 174 and institutionally speaking, it was still considered as one of the major legacies passed down by Maoist era. More than a century after the model’s invention and two decades since 171 Although the formal Maoist system borrowed heavily from that of the Soviet Union, it also drew inspiration from China’s imperial past, the GMD, and the base-area experiences. Examples are ample, such as “United Front” and Chinese People’s Political Consultative Conference (CPPCC). See supra note 100 at 77. 172 See supra note 146 at 12. 173 See Ibid. 174 Although Mao severely undermined the integrity and legitimacy of those Party/State structures with political campaign such as the Great Leap Forward and the Cultural Revolution. 68 East Bloc fell apart, the core of Chinese system, still bears a remarkable resemblance to Lenin’s original designs175. It should be noted that the post-1978 Party organization is both a “product” and a determinant of constitutional development. In particular, the Tiananmen Incident in 1989 and the collapse of “East Bloc” and former Soviet Union has caused the CPC to increasingly adapt to the new circumstance. Shambaugh has summarized six adaptive measures taken by the CPC: (1) Improve public governance and be more responsive to societal demands.(2) Revitalize local-level party and state organs. (3) Make the government and party more transparent and law-bound. (4) Reduce corruption and dramatically improve the quality of cadres. (5) Establish a clear set of property rights, and (6) Find some kind of coherent and persuasive vision to replace its discredited official ideology 176 . The evolution and current configuration of Party organization, is a corresponding structure to lead these adaptive measures. Since 1978, the CPC ruled the state by the Party/State system until today, though it underwent significantly changes. Generally speaking, the Party/State structure is both hierarchical (or called vertical) and horizontal. Vertically, the core of Party power is located in Beijing, followed by the provincial level, the prefecture or city, the county, and the township and village. In each level, horizontally, there are a small party committee exercises centralized power on other state 175 See supra note 146at 12. 176 Supra note 1 at 38, 101-102. 69 organs, yet still be responsible to comply with their superior within the Party hierarchy. Also, Party cells are embedded within state organs and governmental bodies. At the center, the major party organs are, in ascending order of importance: the National Party Congress, the Central Committee, the Politburo, and the Politburo Standing Committee as well as the Secretariat of the Party177. Noteworthy, as we will discuss in Chapter 4, the “Horizontal-Hierarchical” structure has enormously impacted the development of China’s courts. 2.2.1 Organizational Structure and Political Power Mechanism of CPC 1. The National Party Congress (NRC) and Central Committee of the NRC (CC) According to the Party Charter, in theory there is a National Representative Congress of CPC (NRC) holding the ultimate power within the CPC. The NRC has been designed as a cumbersome organ including a large number of delegates meeting over such a short space of time mean that it is rarely, if at all, that anything of consequence is seriously debated178. Nevertheless, the symbolic function of the NRC is extremely important.179. 177 See supra note 100 at 77. 178 The First Party Congress was held in 1921 marking the foundation of CPC, and the most recent Congress is 18th Congress The meeting of NRC is held in every five year, and each NRC was only last virtually one or two week(s) without any exception since 1921. Moreover, from the 8th Congress in 1956 to now on, the number of delegates in the NRC has been increased to 500 or so, and in most of time after 1978, it contains around 2000 delegates. 179 In summary, these functions are: (1) Meeting of the Party Congresses per se is major events, which manifest important ‘milestones’ in party history. For example, each Congress solidifies the central political tasks for the party. For instance, the 16th Congress in 2002 formally permitted private sector entrepreneurs to join the CPC and become officials, and the 18th Congress in 2012 has marked the continuous reform policy. (2) The National Party Congress has the largest membership and “representativeness” within the party. (3) Policy debates among the leaders are often affected by the need to reach a consensus in time to convene an upcoming Congress. (4) Party Congresses also provide the occasion for appointments (or reappointments) to top party posts and to the Central Committee, and as a result, providing a display of power and unity. Besides, the Discipline Inspection Commissions, which are important agencies in the attempt to re-establish a system for dealing with discipline and monitoring abuses within the party, was formally elected by the Party Congress, yet it actually is subject to the command of Standing Committee of the Politburo, for the head of Discipline Inspection Commissions is a member of Standing Committee. In many occasions, it occurred severe criticism for overstepping the national judiciary organs’ authority to deal with corruption and other criminal cases in judiciaries’ daily works. See supra note 135 at 114; see also supra note 100 at 174. 70 According to the Party Charter, there is a National Representative Congress of CPC (NRC) holding the ultimate power within the CPC. The NRC has been designed as a cumbersome organ including a large number of delegates meeting over a short space of time that anything of consequence is rarely, if at all, seriously debated180. Nevertheless, the symbolic function of the NRC is extremely important.181 By extension of the configuration and function of the NRC, there is a smaller body called the Central Committee of the NRC of the CPC (CC) that is also stipulated by the Party Charter. However, just like the NRC, the CC is another organ with little real power, despite lots of vested responsibilities by Party Chapter182. But with few exceptions, the CC plenums discuss and announce policies rather than deciding them. Even debates seem to have become livelier, but again plenums are convened primarily to approve a party draft document. Nevertheless, membership in the CC usually holds some other position of great importance183, and it acts as a kind of enlarged board of directors for the Party in 180 The First Party Congress was held in 1921 marking the foundation of CPC, and the most recent Congress is 18th Congress The meeting of NRC is held in every five year, and each NRC was only last virtually one or two week(s) without any exception since 1921. Moreover, from the 8th Congress in 1956 to now on, the number of delegates in the NRC has been increased to 500 or so, and in most of time after 1978, it contains around 2000 delegates. 181 In summary, these functions are: (1) Meeting of the Party Congresses per se is major events, which manifest important ‘milestones’ in party history. For example, each Congress solidifies the central political tasks for the party. For instance, the 16th Congress in 2002 formally permitted private sector entrepreneurs to join the CPC and become officials, and the 18th Congress in 2012 has marked the continuous reform policy. (2) The National Party Congress has the largest membership and “representativeness” within the party. (3) Policy debates among the leaders are often affected by the need to reach a consensus in time to convene an upcoming Congress. (4) Party Congresses also provide the occasion for appointments (or reappointments) to top party posts and to the Central Committee, and as a result, providing a display of power and unity. Besides, the Discipline Inspection Commissions, which are important agencies in the attempt to re-establish a system for dealing with discipline and monitoring abuses within the party, was formally elected by the Party Congress, yet it actually is subject to the command of Standing Committee of the Politburo, for the head of Discipline Inspection Commissions is a member of Standing Committee. In many occasions, it occurred severe criticism for overstepping the national judiciary organs’ authority to deal with corruption and other criminal cases in judiciaries’ daily works. See supra note 135 at 114; see also supra note 100 at 174. 182 Theoretically, each CC members is formally chosen by a Party Congress, and the CC was responsible for the NRC and when the National Congress is not in session, the Central Committee carries out its resolutions, directs the entire work of the Party and represents the Communist Party of China in its external relations, and of course, chose a new CC. In reality, each five-year cycle of the NRC also has a series of plenums of the Central Committee that since the mid-1990s have been held more or less regularly once every year. However, like the NRC, the Central Committee convenes infrequently (once or twice a year), and has hundreds of members (which had nearly one hundred members until 1966, closer to two hundred members through the 1970s, and over three hundred members since the 1980s to now). Due to such short period of plenary in each year and the size of the committee, the CC also held little real power since the Maoist era. 183 Usually, CC members receive a number of special privileges and have access to inside information on party affairs. The CC substantially functions in three aspects: (1) A place vested a number of formal powers, including electing the Politburo and its 71 China184. Thus the CC is a good indicator for trends in the political system of PRC. 2. Politburos and Standing Committee of Politburo The real decision-making body is neither the NRC or CC but the Politburo and its Standing Committee. In theory, according to the Party Charter, it is the Politburo and its Standing Committee that are “responsible for” the CC. The Politburo and its Standing Committee have functioned continuously since 1956. Both the Politburo and its Standing Committee are elected by the CC in plenary session, and the Politburo and its Standing Committee exercise the functions and powers of the Central Committee when the CC is not in session. The Politburo, also functioning as a committee, typically has fourteen to twenty-four members and is the “Command Headquarter” of the CPC. The Politburo contains the most powerful leaders or power elites in the Party and State.185 Thus, power at the top has been highly concentrated in a very small number of individuals. Roughly twenty-five to thirty-five persons wield ultimate authority in the executive, legislative, and judicial spheres. Politburo members set the general policy direction for the economy and diplomacy and have been preoccupied in recent years with China’s towering Standing Committee and the general secretary. (2) A transmission belt passing down policy proposals and receiving ideas concerning their feasibility and implementation. See supra note 100 at 78; See supra note 135 at 114. 184 See supra note 146 at 12. 185 Lieberthal divided the members in Standing Committee of the Politburo into three types of people. The key generalists are those at the very top of the system who may be considered the equivalent of the chief executive officer or president of a major corporation. These individuals, includes the General Secretary of the CPC and the premier of the government. The bridge leaders are more narrowly specialized than are the key generalists. Each is responsible for helping to develop policy within a certain sphere. Those bridge leaders are equal to vice presidents in charge of major functions. Specialized leaders have control over individual important bureaucracies. They include the heads of Organization Department, the Ministry of Foreign Affairs, and so forth. Generally, each person in the Politburo also holds at least one other substantive position and has special responsibility in one or another field, such as propaganda and education or finance and economics. See supra note 100 at 175, 212 and 214. 72 challenges186. Nevertheless, membership in the Politburo is not itself a full-time job. Some members head distant provinces such as Guangdong and, presumably, miss most Politburo meetings. The most powerful inner circle of the Politburo is the Standing Committee, a small body with four to nine members that seems to meet weekly. Following the 18th Party Congress in 2012-2017, the number of members has been narrowed from nine to seven. Before 2002, these meetings were not announced publicly. An “Interlocking Directorates” exists in the core of the political power of the CPC. The official highest-ranking individuals such as the General Secretary are the Politburo Standing Committee members. That is, key party officials themselves directly take charge of state bodies. For example, the CPC Politburo includes the government premier, the head of the legislature, the president, the head of the CPPCC, all three vice premiers, and the top figures in the military187. The head of court, however, is generally not included in the Politburo. The reality is that the Politburo is the highest collective authority in the party. The Party Charter has rendered virtually unlimited power to the Politburo and its Standing Committee 188 as the Politburo and its Standing Committee are the most important organs of the party and are at the center of the decision-making process. Moreover, “recommendation” Probation” and “Nomination” of the CC members and Central Commission for Discipline Inspection of the Communist Party of China, two important bodies responsible for the NRC, are “always” under the leadership of Politburo 186 See supra note 146 at 13. 187 See supra note 100 at 239. 188 Combining Article 21 & 22 of the current edition of the Constitution of CPC, 1982. 73 and its Standing Committee.189 3. General Secretary and Secretariat of the CPC The Secretariat of the CC and “General Secretary of the CC of the CPC are very important top Party organs today. Formally, the Politburo has a staff under it called the Secretariat. In theory, the Secretariat was to handle the day-to-day work of the party, becoming its administrative nerve center190. In practice, however, it places the Secretariat in an extremely powerful position, as it supervises the regional party organs and the functional departments of the party that should, in theory, be responsible directly to the CC and the Politburo191. Its members also oversee the preparation of documents for Politburo consideration and turn Politburo decisions into operational instructions for the subordinate bureaucracies192. Nowadays, the duty of the General Secretary is to convene (and probably preside over) both the Politburo and its Standing Committee and preside over the work of the Secretariat193. Officially, the General Secretary is the highest-ranking official within the CPC and must also be chose from a Standing Member of the Politburo, and must also be theoretically elected by the CC according to the Party Constitution. Nevertheless, unlike 189 Qiushi, “Xin yijie zhonggong zhongyang weiyuanhui he zhonggong zhongyang jilv jiancha weiyuanhui danshengji” [The Nativity of New Members of Central Committee of CPC and Central Discipline Committee] (15 November 2012), online: Qiushi <http://www.qstheory.cn/zywz/201211/t20121115_194165.htm>, last accessed on April 15 2015 [translated by author]. 190 And the Politburo and its Standing Committee would be freed to concentrate on taking important decisions on state affairs and international issues. Also according to Article 22 of the Party Charter, the Secretariat of the Central Committee is the working body of the Politburo of the CC and its Standing Committee. The members of the Secretariat are nominated by the Standing Committee of the Politburo and are subject to endorsement by the CC in plenary session. 191 See supra note 135 at 117. 192 Supra note 100 at 175. 193 The current position of General Secretary, on the other hand, was supposed to replace the position of “Chairman” of the CPC that Mao Zedong served for a long time. After Mao’s death, the position of Chairman had been removed from the Party Charter in 12th NRC in 1982. This is to prevent anyone from rising above the party as Mao Zedong had done, that the Chairman became the dictator in the party. 74 the former “Chairman”, the General Secretary now convenes and holds the meetings of the Politburo and its Standing Committee. However, the General Secretary does not enjoy ultimate power as the former Chairman when making decisions in these meetings. CPC reports and studies have revealed that decisions on cardinal affairs are made by the majority in Politburo and Politburo meetings. 4. Other structures of CPC Importantly, the Military Affairs Commission is in charge of the People’s Liberation Army. It directly listens to the Standing Committee of the Politburo, yet is namely subordinated to and nominated by the CC. On the other hand, although the Central Committee is a body has no real power, departments formally under Central Committee departments exercise a great deal of power on the State’s affairs and various issue areas. These departments have various responsibilities such as the Rural Work Department, the Propaganda Department and the Organization Department.194 The actual organization of the central party is vastly more complex than the basic outline. Numerous additional bodies have been established for particular purposes. Also, there are a number of organizations and relationships that do not appear on any chart but are important for understanding power and control195. 194 For example, The Central Organization Department plays a vital role in selecting senior leaders and overseeing training. Basically, the Department oversees that CPC’s cadres’ appointments, these cover all senior ministry appointments, senior judicial appointees, heads of major stat-owned enterprises, top university presidents and media, and provincial leaders. See supra note 135 at 121-123. 195 Those leadership groups, including what Saich referred as “gateway” (kou口 in Chinese, that link the elite to a functional area within the party and state system), and what Lieberthal idefitied six “system” (xitong 系统 in Chinese, which means six main senior leadership groups functional bureaucracies are grouped together, including Party Affairs, Organization and Personnel, Propaganda and Education, Political and Legal Affairs, Finance and Ecomomics, and the Military, and all of these heads are members of the Politburo or its Standing Committee.).” However, as the institutionalization and legalization develops, some of those groups had declined in importance. Besides, some central party bodies, such as the Central Advisory Commission, which existed only from 1982 to 1992 and was used as a kind of way station to full retirement for leaders, have been the product of specific political needs at particular historical periods. At last, formal government structure sometimes reversely intrudes the Party Bureaucracy realm. An obvious example is a triangular relationship between party, PLA, and State Council exists- rather than simply a party-army relationship, the State Council now exercise authority over the military’s finances, and it has legal oversight (via the 1997 National Defense Law) over a wide variety of military activities. See supra note 100 at 177, 218-234; See supra note 135 at 143-144 and supra note 1 at 165. 75 Figure 1 Theoretical and actual shape of CPC formal structure and political power mechanism Substantially responsible for: Theoretically responsible for: Standing Committee of Politburo (including General Secretary) Politburo Secretariat (headed by the General Secretary) Central Committee Military Affairs Commission (headed by the General Secretary) Other Party Departments，Party Committee, and Party institution，including Central Organization Department, Political and legal Committee, People Daily and etc. National Party Congress Discipline inspection commissions 76 2.2.2 Overview of Party’s Control on PRC Constitutional Structure As observed by McGregor, for general Chinese, “the Politburo was a distant body, bloated with power, but devoid of character and personality.196” For the general Chinese population, however, the CPC has several channels to control state organs, as a most important feature in a “Party/State”. The division of roles between the Party and government is more than just perplexing for outsiders. The Party is omnipresent in the country’s politics, with the benefit of remaining largely unobserved itself197. However, among these channels, in this part we mainly discuss the principle of “Democratic Centralism” and the principle of “Party Control Cadres”, two principles for the CPC to rein over the state organs, as most important “organic form” of influence in China’s constitutional development. As of 2007, the CPC possessed approximately 3.6 million local-level party organizations across the PRC. The CPC must, therefore, be thought of primarily as an enormous vertical organization that penetrates state and society from top to bottom. This is the essence of Leninism: penetrating into localities, social and professional organs, and establishing party cells within them198. These party organizations could be divided as “Leading Party Members’ Group (dangzu, hereafter referred as LPMG)” system, as well as the Party Committee (dangwei) system, main channels that enable the Central Party to have control of state organs and other institutions. The LPMG is a small group solely consisting of Party members of every state organ, institution and organization. The members of LPMG are assigned and appointed by their equivalent party committees and 196 See supra note 146 at 8. 197 See supra note 146 at 17. 198 Supra note 1 at 134. 77 “must comply with” the equivalent Party Committee. At each local level, the LPMG is directly responsible to the local “Party Committee”. Each “Party Committee” directly listens to its superior Party Committee. At the central level, all LPMGs in state organs have to comply with the leadership of the CPC Central Committee, and as mentioned, the Politburo and its Standing Committee. Since the very early period of the CPC, the Chapter IX of the Party Constitution clearly provides for the LPMG system, as does the current Party Chapter of the Party199 .” Through the Party Committee and LPMG System, the CPC Central Committee has formed a “top-down200” process to control the state organs. In reality, the LPMG system has been embodied as the principle of “Party Control Cadres” and “Democratic Centralism”201. 1. The Principle of “Party Control Cadres”(dangguan ganbu) The CPC’s “comprehensive leadership” of the State was first guaranteed by the principle of “Party Control Cadres.” The fundamental principle of personnel administration laid down in the 1920s that “the Party Control cadres” has continued to guide organization 199 The current version of CPC Constitution, revised in 2012, reads: “Article 46. A leading Party members' group may be formed in the leading body of a central or local state organ, people's organization, economic or cultural institution or other non-Party unit. The group plays the role of the core of leadership. Its main tasks are: to see to it that the Party's line, principles and policies are implemented, to discuss and decide on matters of major importance in its unit, to do well in cadre management, to rally the non-Party cadres and the masses in fulfilling the tasks assigned by the Party and the state and to guide the work of the Party organization of the unit and those directly under it. Article 47. The composition of a leading Party members' group is decided by the Party organization that approves its establishment. The group shall have a secretary and, if necessary, deputy secretaries. A LPMG must accept the leadership of the Party organization that approves its establishment. Xinhuanet, “The Constitution of CPC” (18 November 2012), online: Xinhuanet, <http://news.xinhuanet.com/english/special/18cpcnc/2012-11/18/c_131982575_14.htm>, last accessed on April 15 2015 [translated by author]. 200 See supra note 30 at 343-344 . 201 Also, the Party also has the absolute leadership on the Military through the principle of “Party command the Gun”（党指挥枪原则）, which is out of the scope of discussion on this thesis. 78 work since 1949202. The “Party cadre management and Control” is actually a specific systematic mechanism ensuring the leadership of the CPC, a constitutional principle. The crux of the “Party Control Cadres” is the Party’s Organization Department, as the “institutional heart of a Leninist party system”.203 The system allows the Party to control “the appointments, transfer, promotion and removal of practically all but the lowest ranking officials.”204 There are three main categories of party personnel assignments: the nomenklatura system; the bianzhi system; and ordinary party committee assignments. As summarized by Shambaugh, the nomenklatura system is a list of leading position in both the Party Organs and the constitutional structure of the State205. The only “list of names” exposed by an academic in the University of Hong Kong, showed that Party in the 1990s was only able to directly controlled about 5000 key party and government posts206. The nomenklatura system is administrated by the CPC Organization Department. The bianzhi system is a State Council administrative office. The bianzhi is a list of the authorized number of personnel and defines their duties and functions in government administrative organs (guanli jiguan), state enterprises (guoyou qiye)207, and service organizations (shiye danwei). According to 2004 statistics, the bianzhi system totals 33.76 million personnel. The last category of personnel managed by the CPC Organization Department is those in leading positions of the 168000 party committees nationwide. Through these three 202 John P. Burns, “The People's Republic of China at 50: National Political Reform” (1999) 159 The China Quarterly 580 at 582. 203 David Shambaugh, China’s communist Party—Atrophy and Adaptation (Washington,D.C.: Woodrow Wilson Center Press, 2008) at 141. 204 Richard McGregor, The Secret World of China’s Communist Rulers (London: Allen Lane, 2010) at 78. 205 The nomenklatura system was inherited from the Soviet Communist Party. It is a list of positions for approximately 2500 party officials at the rank of minister in central-level organs or governor and party secretary in China’s thirty-one provinces and four centrally administered municipalities, and an additional 39,000 officials at the bureau level whose appointment must be reported to the Central Committee. Supra note 1 at 141. 206 See supra note 204 at 80-81. 207 The organization department’s responsibility for choosing the bosses of about fifty of the largest state enterprises make it relatively easy for it to play stern parent with these companies. Ibid at 89. 79 personnel control systems, the Organization Department manages its cadre corps- and through them the 70-plus million party membership208. Moreover, after 2000, the principle of “Party Control Cadres” has become more “institutionalized”. Since the promulgation of the Regulations on the Selection and Appointment of Party and Government Leading Cadres in July 2002, the Organization Department has stepped up its evaluation of all party cadres. All party personnel must have annual appraisal reviews, and are evaluated according to three criteria: professional merit and moral integrity, professional achievements, and whether they are accepted by the “masses”. In some cases, cadres are also judged on a “GDP index”, that is, how much gross domestic product, or GDP, grew annually during their tenure in their region. In 2005, the CPC issued a more comprehensive and systematic set of regulations to guide the appraisal process, which specify in great detail how personnel appraisals should be conducted and according to which criteria, what merits promotion, and how problem cases should be handled209. Thereafter, the rules for appointments have been codified in more than seventy articles read more like legislation. Promotions are tied to length of service, education levels and other factors. The economic growth, investment, the quality of the air and water in their localities, and public order all count in benchmarking performance.210 An inner-Party normative document, Regulation on Selection and Appointment of Cadres in Party and State (Dangzheng lingdao ganbu xuanba renyong tiaoli, thereafter referred 208 Supra note 1 at 141. 209 Ibid at 142. 210 See supra note 204 at 81. 80 to “Regulation on Cadres”) which issued by the CPC Central Committee in 2002 and revised in 2014, provides a comprehensive normative basis for implementing the principle. Section 1 of Article 2 of current Regulation on Cadres provides that, “Selection and Appointment of Cadres in the Party and State, must be adhere to the Principle of Party Control Cadres.”211 Article 4, on the other hand, stipulates the scope of cadres under control and management of the CPC Central Committee, which applies to the selection and appointment of leading cadres in CPC Central Committee, Standing Committee of NPC, the State Council, the Chinese People’s Political consultative Conference, Discipline Inspection Commission of CPC, the SPC and SPP. The Regulation on Cadres also applies to leading cadres in local levels (above County-level) Party Committee, Standing Committees in each level of People’s Congresses, government, local Political Consultative Conference, local Discipline Inspection Commission, local People’s courts, and local people’s Procuratorates. Moreover, the Article 4 of Regulation on cadres also provides “Selection and appointment of leading cadres in other committees and institutions based on Civil Servant Law of the PRC, and Labor Union, Communist Youth League of China, Women’s Federation, also refers to this Regulation.” Finally, Article 4 also stipulates, “selection and appointment all non-CPC members leading cadres and all cadres of division level(处级干部) non-leading cadres, refers to this Regulation.212” Some PRC scholars have summarized the principle of Party Control Cadres in two ways. 211 CPC, Regulation on Selection and Appointment of Cadres in Party and State, 2002, last amended 2014. 212 See ibid. 81 First the Central CPC has the power to appoint and manage cadres in the Party and State. Second, the scope of the principle includes grading management and appointment almost all cadres in different levels of governing structures, institutions, and organizations213. These two aspects are still true for the new revised Regulation on Cadres, which provides an extensive scope for application of such Regulation, de facto including all the Party/State cadres above the county level, all the cadres of CPC, and all government official above the level of division, and all non-CPC members cadres in leading positions. However, according to Article 10, Section 2 of the Constitution of the CPC, all positions within the Party should be elected. So how does the Central CPC manage elections within the Party? If examining the overall design of inner-party election system of the CPC, it vastly resembles the election of the People’s Congresses electoral system (or more precisely, the latter modeled the former). That is, through the “Primary Election Process”, in which formal candidates should be generated from a list of names prepared by the equivalent or superior level of Party Committees214 in state level is the Central CPC. When the elections in the Party Congress formally begin, the elections usually become nominal. Even in many inner-party elections, there is only one candidate for one position. Unlike the elections in People’s Congresses, the election results in lower party organizations should be reported and be approved by their superior party organizations after the elections215. This reflects that, within the party, superior leader cadres have the power to appoint cadres in their subordinate party organization. In the scale of the entire 213 Xu Xianglin, “Danguan ganbu tizhixia de jiceng minzhu shigange” [Trial Reform of Grass-Root Democracy under the principle of Party Control and Manage Cadres] (2004) 1 Zhejiang Academic Journal 107 at 107 [translated by authory]. 214 See Article 11, 22, 27, 29, 30 of CPC Constitution. 215 Lin Feng, “Zhongguo de lixian zhilu-ruhe cong lixian zouxiang xianzheng” [The Path of Constitutionalism for China- From Constitution to Constitutionalism], in Lin Feng, supra note 9, 243 at 267 [translated by author]. 82 country, the Central CPC has the ultimate power to appoint cadres in their lower levels through the principle of “Party Control and Manage Cadres”. The existence of such an arrangement can also be found in state structure. At the central level, the Central CPC controls the head of the state structures mainly through a major function of the NPC that is electing or deciding heads of the following organs of the state: (1) The President and Vice President of the PRC; (2) The Premier in the State Council; (3) The Vice Premiers, State Councilor, Ministers and heads of all Committees, the Auditor General and the Secretary General in the State Council. (4) The Chairman and other members in the Central Military Commission; (5) The president of the SPC and the SPP. Just like the elections taken within the CPC and NPC elections, elections in these positions also have to go through the “Primary Election Process”, in which the Central CPC first renders a “list of candidate”, and then process to “single-candidate election” 216. However, the Principle of Party Control Cadres has been declined in recent years. Because of China’s size or other organizational obstacles, the Central Party now has difficulty monitoring or responding to subordinate activity. These dynamics provide the constitutional apparatus in China with a significant degree of constitutional autonomy, even in the shadow of the CPCs formal domination217. Dowdle’s research has indicated that, since the 1990s, party structures have atrophied greatly. In the NPC and elsewhere, party organs are increasingly being captured by the very institutions they are supposed to 216 The biggest difference between elections in central and local level is the central level election usually only contain one candidate for each position, whereas in principle that elections of main leaders in local levels are “multi-candidates elections” with some exceptions of “one-candidates elections”. However, the reality is, under the principle of “Party Control and Mange Cadres” and “Democratic Centralism”, in many “multi-candidates election”, the Party Committee and Central CPC also unofficially and internally determined the outcome of elections before elections. 217 See supra note 49 at 62. 83 regulate. Rather than ensuring that the corresponding constitutional entity conforms to CPC dictates, party cells now infrequently serve to promote the corresponding constitutional entity’s interests within the CPC. For example (and as discussed in Chapter 3), the NPC now has increasingly gotten rid of the “rubber stamp” stereotype with the development of civil awareness and gradual democratization. Furthermore, many important constitutional departments, including all of the specialized departments in the NPC, have no structural parallel within the CPC. Perhaps more tellingly, these parallel structures are becoming increasingly inconsequential as their constitutional counterparts gain force218. A prime example is the CPC now does not have its former authority to determine in and out of elites in “all spheres” especially considering Chinese society has become more pluralistic today. Finally, the decentralization under the reforms has increased the chances of localism, and the central CPC may have lost large degree of power and control on local affairs. As Dowdle has observed, “the growing fragmentation of China’s political society and the CPC’s relative difficulties adapting to this fragmentation” cause an increasing proportion of “China’s political discourse and bargaining to take place in the constitutional apparatus, rather than in the party apparatus.” This, in turn, causes society to depend more on the constitutional apparatus as a unique forum for political discourse, resulting in an ever-growing constitutionalization of the political environment219. From the author’s own experience, in Shenzhen, one of the most advanced and largest costal cities in China, nowadays Party may have final words on party bureaucracy and governmental system, higher position in national-funded 218 For example, the political emergence of the NPC appears to have been accompanied by a corresponding atrophy of the Party's structural counter- part, the Chinese People's Political Consultative Committee (CPPCC). Several studies find the party's capacity to over- see judicial decision making also to be decreasing markedly. All this suggests that the institutional redundancies that once worked to arrest the development of the constitutional state are now working to atrophy the CCP's own parallel structures. Ibid at 68-69. 219 Ibid at 75. 84 enterprises, as well as non-profit government-controlled organizations such as some cardinal personnel in universities. In other circumstances, such as private firm or joint-venture enterprise, or even sometimes the university professors, the Party generally has no saying in any appointment or dismissal of personnel, which vastly contrasted with situation in Maoist era, when the CPC tightly controlled appointment and dismissal in all country. Nevertheless, the principle of “Party Control Cadres” still has retained as a powerful tool for the Central CPC to control the appointment and removal process of leading Party cadres and governmental official. 2. Principle of “Democratic Centralism” “Democratic Centralism” is a cardinal principle that the CPC has always stressed as a “fundamental organized principle” in both Party bureaucracy and State structure. Notably, the principle was not invented by Marx or Engels, but came from the Leninist Discipline.220 In fact, the classical definition of “Democratic Centralism” was rendered by Mao Zedong, as four points: “individual is subordinate to the organization, the minority is subordinate to the majority，the lower Party organizations are subordinate to the higher Party organizations; and all the constituent organizations and members of the Party are subordinate to the National Congress and the Central Committee of the Party.” These four points then have been enshrined into Section 2 of Article 10 of the Party 220 In 1919, for the first time, Lenin put forward the “principle of Centralism” in Article 5 of The Charter of the Third International, in which he summarized it into three sub-principles: (1) Party apparatus are elected. (2) Party organ periodically reports their works to electors. (3) All subordiantes should be absolutely comply with their superior. Thereafter, most “Leninist” Party upheld “centralism” or “democratic centralism” as their organic principle. See He Huahui and et al, Renmin daibiao dahui de lilun yu shijian [Theory and Practice of People’s Congress’ system] (Wuhan: Wuhan University Press, 1992) at 51-53 [translated by author]. 85 Constitution. Apart from the Party organizations, “Democratic Centralism”, as one of the constitutional principles, has also been applied to all state organs. The 1954 Constitution first stipulates said principle 221 , while the 1975, 1978 and 1982 Constitutions have inherited the principle of Democratic Centralism. In fact, the principle of “Democratic Centralism”, in reality, does not mean the genuine combination between democracy and centralism. Instead, it just stands for centralism with democratic embellishment. The Principle comprises four kinds of relations “Individual-Organization; Minority – Majority; Lower Party Organization—Higher Party Organization; and “all constituent organization -- the central Party”. Apart from “the minority is subordinate to the majority”, which has a democratic nature, the other three relations inherited its deep roots from Centralism. Generally speaking, the principle of Democratic Centralism means that all party members’ activities have to be operated with the top-down organization. This organization has a clear outer boundary separating it from outsides (individual to organization), and a strictly hierarchy structure was formed internally (lower to upper; local to central). Finally, small committees including a small numbers of elites in the top level apply to the “minority is subordinate to the majority”. Understanding this, the principle of Democratic Centralism is no longer mysterious. The principle could be simplified as: once the top but smallest “committee” makes a decision, the whole party (including lower and local bodies) and all of the Party members, as “individual”, should unconditionally comply with such decision. 221 See Cai Dingjian, Zhongguo renmin daibiao dahui zhidu [The People’s Congress system], 3th ed (Law Press: Beijing, 1998) at 85 [translated by author]. 86 Therefore, from NPC to elsewhere, we could have the similar observation that, through the democratic centralism principle, the CPC, as the solely ruling party in PRC, have exerted great power to control of most of the national wide and important matters, and this kind of leadership could be implemented through the legislative, administrative and judicial power of the state, determining political, economic and cultural affairs to a great extent. This is one of the most important features of the Party/State system, also as one important context for constitutional development in China. However, akin to the Principle of “Party Control Cadres”, the principle of “Democratic Centralism” also continuingly declines in post-1978 Era. The first reason is, the advocate of collective leadership. Collective leadership is designed to avoid the tendency towards one-person rule inherent in such a hierarchically organized structure. The Article 10, Section 5 of Party Constitution stipulates: “Party committees at all levels function on the principle of combining collective leadership with individual responsibility based on division of work. All major issues shall be decided by the Party Committees after discussion in accordance with the principle of collective leadership, democratic centralism, individual consultations and decision by meetings. The members of the Party committees should earnestly exercise their functions and powers in accordance with the collective decisions taken and division of work.”222 222 Liethethal considers that collective leadership means “a distribution of power that tends to give major vested interests increased influence over elite decisions. The outside interests may be institutional sectors such as military or geographical locales. However, these interests almost certainly include independent groups or organizations of citizens.” See supra note 100 at 157. 87 More importantly, as we will see in the latter part of the thesis, the institutionalization of the Party State, the increasing professionalization of state affairs, institutional politics and constitutional development in the PRC all now has enormously altered the terrain in which the CPC applied the Principle of Democratic Centralism. 2.3 Legalization and Institutionalization of the Party/State and Liberalization and Pluralism of The Chinese Society After Deng Xiaoping put forward the slogan of legalization and institutionalization in 1978, a thirty-year construction of Socialist Legal System commenced. This ongoing process has rendered an increasing institutionalization of the structure of party/state resulting in the progressive legalization of the Party’s exercise of political power. Conversely, the retreat of the party/state from the society has also resulted in increased pluralism within Chinese society, with a considerable amount of liberalization. 2.3.1 Legalization and Institutionalization of The Party/State In Mao’s last decade nearly all institutions in PRC experienced enormous disruption. In Deng’s era, meetings and procedures in these institutions became more systematical and predictable. More rational bureaucratic rule has replaced campaigns223. For example, the Party Congress has met every five years since 1977. Central Committee plenums began by the early 1980s to meet on a fairly regular basis each fall. The NPC is supposed to be elected anew every four years and to hold a plenum once each year. After Deng’s death in 1997, these criteria still have been observed. It appears that the Politburo, the Secretariat, 223 See supra note 202 at 582-583. 88 and the State Council also began to meet on a regular basis in the 1980s.224 In fact, the institutionalization also has impacted the alternation of the most powerful figures in the CPC. Undergoing potential tragedies that struggles to succeed an all-powerful core leader can produce, Deng therefore almost immediately set out to put into place the building blocks of a stable, predictable succession225. Thus, Deng had made several attempts to institutionalize the “issues of succession” by more regularized and predictable procedures. A prime example of this is Deng’s abolishment of the life tenure of leading cadres. As early as 1980, under the auspices of Deng Xiaoping, the CPC Politburo issued a Decision on Prohibiting Old Comrades Incapable of Work to Become Candidates of Representatives of 12th Party Congress and Members in Central Committee, which prohibited revolutionary patriarchs with venerable age to be “elected” as members in CPC National Congress and CPC Central Committee. This has prevented the “revolutionary generation” from retaining their formal position in the supreme power circle. The only exception was “Eight Elders”.226 Nevertheless, Deng had used his own personal authority to persuade other senior leaders to step down227. In November 1989, although still holding enormous personal authority, Deng resigned as chairman of the Central Military Commission, and the rest of “Eight Elders” also had completely retired, 224 Supra note 100 at 152. 225 Ibid at 150. 226 “Eight Elders”, “八大元老”, was the eight elders members(revolutionary generations) of CPC who held substantially power in 1980s-1990s. They were: Deng Xiaoping, Chen Yun, Li Xiannian, Peng Zhen, Yang Shangkun, Bo Yibo, Wang Zhen, Song Renqiong. 227 At that time. Then in 1982, the Central CPC, along with the State Council, established the retirement system for old cadres. Accordingly, CPC Central Advisory Committee was founded, as a transitional mechanism for eventually abolishing the system of life tenure in leading posts. In 1987, before the Thirteenth National Congress of CPC was held, Deng Xiaoping, Chen Yun, Li Xiannian，as “semi-retired”, resigned their membership in the CPC Central Committee, but still holds certain position. Deng Xiaoping as chairman of the Central Military Commission, Chen Yun served as chairman of the Central Advisory Commission, Li Xiannian served as chairman of the National Committee of Chinese People Political Consultative Conference. 89 resigned all their position in Party and State228. When Deng Xiaoping and Chen Yun passed away, the “retirement system” had become a systematic convention after the mid-1990s, evidenced by then no top leading elites had successfully retained their position as life tenure229. In 2006, the CPC Central Committee issued “Temporary Provisions on term of Leading Cadres in the Party and State which expressly abolish all forms of life-tenure. 230 The document had marked that life-tenure of supreme leaders system, a political tradition lasting for thousands of years in China, had been eventually and formally abolished. Another example for institutionalization and legalization of Party/State is the change of position in the top of the Party/State has begun to respond constitutional requirement. This in turn has made the alternation of supreme power more predictable and opener. This development began in 1990s, when the ongoing process of institutionalization and legalization gradually drove the changes in higher leadership in both Party and State began to be consciously constrained by the constitutional and legal requirement. An obvious example is the Ninth NPC in 1998 promoted Zhu Rongji to premier and 228 Jiang Yiwen, “Dengxiaoping feichu lingdao zhiwu zhongshenzhi shimo” [History of Deng Xiaoping’s abolishment of life tenure of leading cadres] (Apr 6, 2011), Online：People cn <http://dangshi.people.com.cn/GB/14317188.html>, last accessed on April 15 2015 [translated by author]. 229 For instance, after the sixteenth Party Congress (October 2002) and Tenth National People’s Congress (March 2003), strict retirement norms were enforced- over 61 percent of the Central Committee were sent into retirement, with thirteen of twenty-one Politburo members also retiring. As new 198-member Sixteenth Central Committee (plus 158 alternates) was elected in their place, headed by Hu Jintao as the new general secretary of the CPC. As a result of the personnel changes, 16 of the Politburo’s 25 members were new to the body; 6 of the 9 members if the Politburo Standing Committee were new; 7 of the 8 members of the Party Secretariat were new; all the 5 main Central Committee departments (Organization, United Front, Discipline Inspection, International and Propaganda) were new; 4 of the 5 State Council vice premiers and all 5 of the state councilors were new… In sum, this was the largest, most thorough turnover of the party elite since it came to power in 1949. The fact that it occurred peacefully and according to institutional procedures, absent a purge, is also a noteworthy indication of the institutionalization and regularization of inner-party norms. Supra note 1 at 152-153. 230 “Each term for cadres serving as leading position in the party and government is five years. Cadres above the county level including the central level who serves as principal leading position(正职领导职位) in party apparatus, government, People’s Congresses, Political Consultative Conference, Discipline Inspection Commission, Courts and Procuratorates, should not holds the same position after two terms, and should not serve as any same level leading positions after a total of 15 years.” The People, “Dangzheng lingdao ganbu zhiwu renqi zanxing guiding” [Temporary Regulation on Office Term of Cadres in Party\State] (August 7, 2006), online: People.cn <http://politics.people.com.cn/GB/1026/4671266.html>, last accessed on April 15 2015 [translated by author]. 90 confirmed Li Peng as the new head of the NPC. Li had to step down as premier because he had served in that position for two terms, the maximum period allowed by the constitution. Reflecting changes in the Chinese system as a whole, Li’s job change in 1998- 49 years after the founding of the PRC- was the first by a top leader in response to constitutional requirements231. However, for a Leninist Party, the process of institutionalization is of course, not cost-free. For instance, the Party Organization Department is plagued by a constant tension that bedevils most political systems. The Politburo has striven to professionalize the selection of top officials through the department, while undermining the process at the same time by fixing appointments in favor of loyalists and relatives232. The process of institutionalization and legalization has resulted in considerable part of Party/State structure to be institutionalized and legalized as well. McPherson has defined the idea of the rule of law include the notion that (1) the rules are pre-fixed and preannounced, (2) all are equal before the law and no man is above the law, (3) fixed formal procedures that are characterized by “consistency, predictability, calculability”, (4) protection of capital/property, (5) limits to corruption, (6) a correct level of regulation, (7) transparency and accountability, and (8) proportionality233. If based on this standard, China’s Party/State system in today has reached most of these indexes. In this sense, the overall constitutional development in China now has achieved the stage what Peerenboom called “thin version of rule of law” that may lacks “liberal democratic 231 Supra note 100 at 211. 232 See supra note 204 at 75. 233 Stephen L. McPherson, “Crossing the River by Feeling the Stones: The Path to Judicial Independence in China” (2008), 26 Penn St. Int'l L. Rev. 787 at 790. 91 meaning of thick version of rule of law234”. Likewise, even if the CPC did not fully accept the idea of “thick version” of constitutionalism embracing liberal democratic constitutional values, the Party/State system still could be regarded as accepting the “thin version” of constitutionalism. Nevertheless, China’s political institutions impose few real constraints on the top leaders and this is especially true regarding the position of “core leader.”235 China is still led by self-selected elites who are not periodically tested by election. Nevertheless, these developments have demonstrated that the institutionalization and legalization of “Party/State” brought by Deng Xiaoping has turned Maoist personal dictatorship to authoritarian legalism, where authoritarian rules have to observe formal constitutional limit. Moreover, in such transition, the Charismatic Authority of the revolutionary generation has been superseded by legal authority and accountable government236 which could respond to people’s voices by political-social means. For now, this seems to strengthen the leadership of the CPC rather than impairing it. Apart from the institutional development of the constitutional structure such as NPC or China’s courts, the process of institutionalization and legalization of the Party/State also has brought limited elections at the basic level since the late 1980s. The so-called “grassroots” democracy, refer to elections in local Party organizations and local People’s Congress. 234 Supra note 47 at 2-6. 235 Supra note 100 at 149. 236 However, care must taken that China’s top leaders’ willing to respond to popular opinion is as a matter of choice or tactics, not out of obligation or because they fear removal in a democratic election. Kevin J. O'Brien, “Villagers, Elections, and Citizenship in Contemporary China” (2001) 27:4 Modern China 407 at 413. 92 First, such limited democracy manifested by reforms in the grassroots level election of Party Congresses. The second reform relates to election of leaders in village Party branches. The third reform is related to the township and county party committee election. The main point is direct election of members and Secretary of Party Committee in these levels237. Importantly, these inner-party electoral reforms were conducted with the permission of the Organization Department of the CPC Central Committee.238 Apart from the democratic development within the party, limited progress also has been made with respect to the People's Congress direct election in the township and County election, with the development of legalization and institutionalization. Indeed, the 1982 Constitution only provides the People’s Congress direct election at the township and County level239. With the passage of the revised Organic Law of Villagers Committees in November 1998, elections have entered another stage. Self-government has finally shed its trial status and the pace of institutionalization has picked up. Election procedures have been clarified.240 Cai Dingjian has commented that, “overall, although after 4 revisions in 25 years, the current ‘electoral law’ has made further progress, the direct election of representatives of people's Congress still limited to the township and county levels. The 237 163 News, “Chengdu kai quanguo xianhe: 639ming dangyuan zhijiexuanju zhendangwei shuji” [Breakthrough in Chengdu：County Party Committee Secretary directly elected 639 Party members] (Dec 10, 2003) online: 163 News <http://news.163.com/2003w12/12396/2003w12_1071016179570.html>, last accessed on April 15 2015 [translated by author]. 238 Since 2002, the Article 29 and Article 30 of the revised Party Constitution provides the direct election of leading position in the grassroots level party organizations. Some scholars in Party School regarded this as a gradual way to expand the democratization inner the Party (党内民主). According to them, the direct election in grassroots level is an important step for the eventual direct election within the Party organization as well as an important step for the democratization of PRC. See Zhou Tianyong, Wang Changjiang & Wang Anling, eds, Gongjian: shiqidahou zhongguo zhengzhi tizhi gaige yanjiu baogao [Going for Hard: Report and study of Chinese political reform after the 17th National Party Congress] (Wujiaqu, China: xinjiang shengchan jianshe bingtuan chubanshe, 2008) [translated by author]. 239 In December 1982, thanks mainly to Peng Zhen’s urging, villagers' committees were written into the Constitution as elected, mass organizations of self-government (article 111). A 1983 Central Committee circular also instructed that elected VCs should be set up, that they should actively promote public welfare and assist local governments, and that implementing regulations should be drawn up in light of local conditions. See Kevin J. O’Brien & Lianjiang Li, “Accommodating ‘democracy’ in One-Party State: Introducing Village Elections in China” (2000), 162 The China Quarterly, Special Issue: Elections and Democracy in Greater China 465 at 467. Also the 1979 “Electoral Law” has been revised in 1982, 1986, 1995 and 2004, but the fundamental legal framework of 1979 was sustained. 240 Ibid at 487. 93 present China is still dominated by an indirect and low degree democratic election system241. Nevertheless, it have been witnessed that many progress have been made, such as the wide existence of multi-candidates in these “grassroots” level’s election242. In fact, CPC leaders had viewed the implementation of any type of direct elections in China as unrealistic in the early period of PRC 243 . However, after the Cultural Revolution, as a part of “legalization and institutionalization”, necessity to launch political reform was recognized and promoted, though limited. The 1989 Tiananmen Incident resulted in a more tied political environment, whereas after 1992, Deng’s Southern Tour loosened it and the electoral system continued to be addressed. For example, the 2004 Decision of CPC 16th National Congress acknowledged the importance of building a democratic system. From the perspective of constitutional development, local elections are designed to increase support for the legitimacy of the Party, and grassroots democracy is understood to be fully compatible with strong state control.244 2.3.2 Liberalization and Pluralism of The China’s Society Admittedly, the current Party/State structure, even having attained a certain degree of institutionalization and legalization, has still employed an array of controls to assert its 241 Cai Dingjian comments, “Socialist democracy has made historical progress, but Chinese people still has further expectation on democracic development. Today Chinese people have their different understanding on democracy different understanding, which inconsistent to the “Party Control and Manage Cadres”. On the one hand people increasingly call for election could be in accordance with the law and legal procedure, ensure the elections could reveal authentic public will; on the other hand, the reality that (Party) require the outcome of elections should be comply with the Party committee and Party leaders, organized control the elections become more and more common and usual. These have resulted in increasing difficulty for electoral works so that the electoral practice is now far from the expectations of people.” See supra note 221 at 30-31. 242 See supra note 215 at 252-257. 243 For example, in 1953, Deng Xiaoping announced that because most people were unfamiliar with national policies and the names of state leaders, subjecting top Party and government functionaries to a popular vote was impossible. Supra note 236 at 411. 244 In this context, the self-government program is best seen as an effort to rejuvenate village leadership by cleaning out incompetent, corrupt and high-handed cadres, all for the purpose of consolidating the current regime. Supra note 239 at 488-489. 94 dominance over society in China. However, a wide variety of indicators suggest that the CPC, as an institution, has been in a state of progressive decline in terms of its control over various aspects of the intellectual, social, economic, and political life of the nation. Shambaugh points out that the CPC’s traditional instruments of control-propaganda, coercion, and organization have all atrophied and eroded considerably over time, despite remaining effective tools of party control245. As intoxicating as these changes have been for the Chinese people, the retreat has also paradoxically empowered the authorities. They Party has been able to maintain its own secret political life, directing the state from behind the scenes, while capturing the benefits and the kudos delivered by a liberalized economy and a richer society at the same time246. As a result, although still authoritarian, the Chinese government is no longer totalitarian in either its views or its practices. The government can repress major challenges to its authority, but generally seeks to entice the population to do its bidding. This requires that the authorities seek to understand popular desires. More importantly, the government has accepted the notion that large areas of social existence lie outside of the realm of politics and thus should be left for individuals to shape for themselves.247 The liberalization and pluralism of Chinese society could at least be summarized as the following aspects: First, Party/State has gradually retreated its role from the society and ordinary people’s life. In the city, the Danwei (unit) system, built in the early 1950s to control the urban populace248, has declined significantly, except for a small number of Party bureaucracy 245 Supra note 1 at 3. 246 See supra note 204 at 27. 247 See supra note 100 at 201. 248 On July 16, 1951, the Ministry of Public Security, with State Council approval, issued “Regulations Governing the Urban Populations.” The present regulations divided urban households into six categories with regulations governing each: residential 95 and government organs. Instead, an increasing number of people have entered private enterprises, international corporations and multinational companies. The middle class has progressively grown in the metropolitan areas and large cities, but still tends to view the state as a source of opportunity and seek more effective ways to develop its ties with it. In rural areas, a large number of peasants have entered the costal areas to become migrant workers since 1990s. Localization of the Party/State system structure in rural areas where reform has occurred has increasingly intensified which, in turn, has significantly weakened the Party/State’s pre-1978 role as a “unified leadership” in rural society. This is especially true for rural regions in costal provinces such as Guangdong. Secondly, as a result of economic reform, the country has witnessed years of high economic growth and rising living standards. China has also undergone rapid urbanization and industrialization. Besides this, literacy rates have also risen sharply249. “Participating in the market” has replaced the “participating in politics”. Market interests have taken the place of “Politics in Command”. Like many Asian states or area, the visible hand of the state and the invisible hand of the market, far from being contradictory, are made to complement and reinforce each other250. On the whole, the state is now satisfied politically if citizens do not engage in organized activity to oppose the authorities. In return, most ordinary Chinese choose to tacitly avoid discussing households, industrial and commercial households, public residents (living in hotels, inns, etc.), floating household, temple households, and aliens. Article 5 stipulated, “all those who move should first notify the local public security organ of change of residence, cancel the census record of the former abode, and apply for a change-of-residence permit.” Similarly, after any people, people were required to “report to the local public security organ to enter their names in the census record within three days of arrival. When available, a change-of-residence permit should be submitted; if not, other relevant documents should be submitted instead.” For the first time, a national wide mechanism was established to monitor urban population movement and residence, both long and short term. For example, visitors of three days or longer were required to register with a public security substation (article 6), and hospital and hotel residence were similarly registered (Article 7). Significantly, responsibility for registration and control were vested in the public security bureau. See Tiejun Cheng & Mark Selden, “The construction of spatial hierarchies: China’s Hukou and Danwei Systems”, in Cheek & Saich, supra note 111, 23 at 28-29. 249 Supra note 202 at 583-584. 250 See supra note 204 at 28. 96 political issues publicly, and in this way share a similarity to populations under other authoritarian regimes. “All about business”, market thinking and market participation overwhelm the desire of political participation and interest in politics. Third, the concept of “all people equal before the law” has generally replaced the Maoist “class-differentiation” in Chinese society. Unlike in the past, a person cannot be presumed guilty and subject to harsher treatment simply by virtue of their political position. Moreover, it gives individuals of talent, regardless of their parentage, a chance to do well in the contemporary PRC making it one of the most important social changes of the reform era. One glaring exception, however, involves the offspring and relatives of the top officials who were rehabilitated after the Cultural Revolution. These individuals have entirely been able to utilize their political connections to build economic empires and to insulate themselves from the normal risks of economic failure.251 Fourth, Chinese citizens now have a wider range of freedom of expression than before including access to a variety of sources of information not fully controlled by the party/state. This freedom reiterates the repetitive cycle of loosening and tightening the propaganda apparatus since the 1980s. Therefore, especially since the late 1990s, the traditional media are pushing the government to pay more attention to problems that has failed to address effectively. More importantly, along with the popularization of Internet, ordinary people in China can access and search for variety of information especially those are non-political, and the Internet has become important intermediary for public discourse. For the younger generation, the influence of the Internet may be much greater 251 Supra note 100 at 304-305. 97 than the traditional propaganda in the educational institution they attend. In fact, the Party/State’s inability to regulate the Internet has gradually and substantially reduced the effectiveness of internet regulation and control252. Fifth, regarding public participation, the post-1978 China has moved from a state-led, political campaign-oriented “isolated stage” toward a multi-participation stage in “open China”253. In the pre-1978 “isolated China”, most public participation was state-led，political campaign-oriented “Public Participation”, meaning public participation was totally regarded as part of political propaganda and education, and its primary function is to make the “masses” be more response to Party policies. In other words, the endogenous feature of “input” of public participation has been “alienated” into “output” 254, and the people were mainly regarded as the instrument for implementing Party Policies. This has been changed with the beginning of the “open China” after 1978. In “open China”, there were three types of public participation that continue to exist in China today: (1) state-led, Issue-Specific Public Participation255 (2) Spontaneous, issue-specific, group-based public participation 256 (3) Spontaneous, issue-specific, individual-based public participation257. In other words, public participation in current China society has its own 252 See Hu Ling, “Zhongguo wangluo yanlun biaoda de guizhi” [China’s Regulations on online expressions], in Fu & Zhu 389 at 411 [translated by author]. 253 Ibid at 400-401. 254 Ibid. 255 Ibid at 397-399. 256 Relatively, the economic-interest groups may have more recourses and bargaining power when participate in government decision-making process. In the contemporary China, empirical researches has showed that economic enterprises and their alliances participate in the decision-making process through in-depth. See Scott Kennedy, The Business of Lobbying in China (Cambridge, Mass: Harvard University Press, 2005) at 163-164. 257 When citizen, as an individual citizens fail to influence the government decision process, and fail to become a member of particular powerful interest groups, they often go through non-conventional path to influence the government decision. One of them is “aggressive participation”, including spontaneous protests, strikes, demonstrations and etc. Although these activities are regarded as “high risk” due to it may potentially challenges the political authorities, even are regarded as “illegal”, but these activities become more common in current China. Another way for individual citizen participating is via the Internet. See Fu Hualing & Richard Cullen, “Climbing the Weiquan Ladder: A Radicalizing Process for Weiquan Lawyers”(2011) the China Quarterly, 205:3 40；Also see supra note 252 at 401-403. 98 “breathing space” and increasingly differentiates itself from the Party/State structure. Yet, such variations may be foreign to the Western context, especially in those cases involving nonofficial or religious organizations. The sixth aspect is the development of nongovernmental organizations (NGOs). After 1978, the level of NGOs varied a great deal258. Nevertheless, foreign to the Western wisdom of “separation between state and society,” NGOs in China adapted themselves into the Party/State, which rendered a closer relationship and some collaboration between the Governing structure and NGOs. Indeed, the major reason(s) for the six liberations and pluralism of society probably are not spontaneous. Rather, result from the Party/State’s total and increasing retreat from non-political aspects of Chinese society. In addition to these changes, ongoing institutionalization and legalization of the Party and the State has generated unexpected yet enormous challenges the Party has to face. Under the “new condition of Market-economy”, the CPC itself no longer enjoys the sense of discipline and commitment among its members that typified its earlier days. Today many Chinese regard party membership primarily as a ticket to career advancement. China is evolving away from its revolutionary century and the CPC must cope with an increasingly self-aware, mobile, modern, and differentiated population. For example, 258 Liethethal concludes such development as following: (1) Some underground Christian churches and other religious organizations apparently have been tolerated by many local governments. (2) Environmental and other advocacy groups have sprung up. Some sympathetic officials even use their own units to register the group and provide it with protection. (3) Tens of thousands of voluntary groups- professional societies, hobbyists’ clubs, affinity organizations, school alumni groups, and so forth- have formed throughout China, typically with little or no real government supervision or interference. See supra note 100 at 200-201. 99 with new social and professional groups have proliferated rapidly across China, existing party committees have lost much of their relevance and appeal at the local level. To rebuild the local Party Apparatus, the CPC effort has made local level party committees more responsive and relevant to local interests259. Another result is that the Party itself now has to adapt to its changing environment. Unlike in the mid-1950s, the Party is more “middle class” and its leaders are better educated and more highly differentiated. Public officials with higher capabilities are performing new functions in an environment in which the law has become increasingly important. Government decision-making is increasingly based on rational considerations as authorities struggle to develop the economy in a market. There has been less adaptation in the links between state and society260. Furthermore, liberalization and pluralism also have encouraged constitutional development. For example, as we will see in Chapter 3, “representation of different social stratum” is increasingly enhancing the constitutional status of NPC. On the other hand, the continuous shaping and reshaping process of China’s society has rendered the possibility that the social awareness stream might be able to combine ideas such as the rule of law, human rights, publicity power supervision and restriction that the Central CPC has also advocated in recent years. At this stage, any absolute and arbitrary judgment may be too soon to predict. 259 Supra note 1 at 134-135. 260 See supra note 202 at 593-594. 100 2.4 Concluding Remarks First, in this chapter, we have analyzed the changing ideology and political theories of the CPC, from “anti-constitutionalism” to more coherent constitutional discourses in post 1978 China. The most recent development of the CPC’s political theories was The Resolution on Fourth Plenary Session of CPC Eighteenth National Congresses in October 2014, upholding the slogan of “Socialist Rule of Law”. The Resolution is the peak of Party ideology and most coherent with the idea of Constitutionalism in the Party history so far. Indeed, once constitutional discourses such as the rule of law, or constitutional supremacy are consistently stressed by an authority, these discourses will follow their own independent path to gain intellectual authority and will be no longer controlled by the Party. As Pitman Potter pointed out in Riding the Tiger, once a principle of law is enunciated it becomes part of the public domain and opens to uses that the regime may not be able to control261. This has been confirmed by the evolution of CPC political discourses in the last 37 years. Today, the potential conflict between the intellectual authority of constitutionalism and Party political legitimacy is increasing. We may not able to predict the future development of CPC ideology, but at least, it is highly unlikely that the current constitutional discourse would be set back to the Maoist “Dictatorship of the Proletariat”. Likewise, restoring extreme autocratic rule or Maoist personality cult is also implausible. A simple example is that today’s CPC regards the “General Secretary of Party” as a primary leader, rather than the supreme leader. 261 See Pitman B Potter, Riding the Tiger (1994) 138 China Quarterly 325 at 325-326. 101 The second observation in this chapter is the structural burden from Party Control and the Party/State System in post-1978 China. Simply put, the organization of the Party, is “centralism”. We have then demonstrated two principles allowing the CPC to control the PRC’s constitutional system: “Party Control Cadres” and “Democratic Centralism”. These, indeed, have displayed the authoritarian feature of the Party/State. Such an authoritarian-natural feature of a Leninist Party structure, of course, is incoherent with the Mature Constitutional Model. Nevertheless, we have observed that both “Democratic Centralism” and “Party Control Cadres” are declining for various reasons. In the third part of this chapter, we also analyze the constitutional driving forces: institutionalization and legalization of the Party/State, liberalization and pluralism of the China’s society. Notably, constitutional development in China may be hard observe also due to the influence of Chinese political tradition. Tong Zhiwei has pointed out that many constitutional problems in modern China also may not be solved by an openly confrontational approach, but “through internal consultations and other informal ways to resolve 262 .”A prime example is the 2003 “Sun Zhigang Incident”, in which an unconstitutional act was corrected by internal negotiation263. In sum, after 37 years of reform, the legalization and institutionalization of the Party/State has achieved a remarkable progress. More importantly, social pluralism and liberalization have provided important public resources for constitutional development in the context of intellectual authority. A Grand Justice in Taiwan, Su Yeong-chin (蘇永欽), commented that a “civil- 262 Liu Songshan, “Weixian shenchare de lengsikao” [‘Cold Reflection on the heat debate of Constitutional Review’] (2004) 1 Faxue 36 at 41. [translated by author] 263 In fact after Sun’s death have been publicized, the social public opinion is based on the relevant provisions of the Constitution and the “legislation law” to strongly criticize the unconstitutional nature of “Custody and Repatriation Regulation” which issued by the State Council in 1982 and request the NPCSC to review the constitutionality of the “C&R Regulation.” However, the NPCSC did not commence the procedure of constitutional review, yet the State Council initiatively to abolish the C&R Regulation. Undoubtedly, the NPCSC and the State Council or their LPMGs must undergo communications and negotiations, although they have not been publicly reported or revealed. Supra note 82 at 134. 102 law moment” has emerged in the society of Mainland China. Although Mainland China has not experienced what Bruce Ackerman calls a “constitutional moment”, a “civil-law moment” has emerged.264 The overall constitutional development in the PRC thus greatly depends on the extent to which China’s society dictates constitutional authority. In short, the evolution of the Party/State and changing society in current China has not only, by itself, been an important product of China’s constitutional development, but it also serves as most important determinant for the institutional development of PRC constitutional organs. This will be demonstrated in the next two chapters. 264 Justice Su observed “once Mainland China begin to move toward market economy, this moment can not be avoided. In legislative realm, from Contract Law to Property Law, “most of grey areas (state-led factors) reserved in socialist market economy” have been vastly wiped out, and this “silent revolution” has de facto transformed the constitutional system. Su Yongqin, “Zhonguo yujing zhong de xianfa shike” [Constitutional Moment in China’s Context], in in Lin Feng, supra note 9, 2 at 15 [translated by author]. 103 Chapter 3: NPC with Dual-Hats: A Proto-Parliamentary Development As we have seen in chapter 1, when applying any principle from the “Mature Constitutional Model” to the PRC’s parliamentary structure, a relevant framework is not easily to be found. The reason, simply put, is the particular structure of the National People’s Congress (NPC), China’s national parliamentary organ 265 . In the current constitutional system, NPC is not only perceived as a legislative body, but as a symbol of the sovereign power of the PRC. Also, unlike most parliaments or congresses in other constitutional systems266, the power of the NPC is considered as “supreme, unlimited, and inalienable.” Thus, the NPC is also the highest constitutional body in the NPC’s government structure267. The 1982 Constitution of the NPC reconfirmed its power in Articles 2, 57, 58 and 62.268 Hence, the constitutional stature of the NPC is inherently in conflict with the principle of constitutional supremacy 269 . On the other hand, the supremacy of the Constitution has also been declared in Article 5 of the Constitution of 265 NPC is the parliament in China, with “Chinese characteristics” of course. There are at least two reasons that support this observation: (1) Organization and functions: NPC is theoretically a representative organ, which means its deputies are formally “elected”, and the main function of NPC is legislative. Also, from the organic view, the modern NPC containes a parliamentary leadership apparatus, specified committees, and involves the role of political parties (with huge differences when compared to Western liberal-democratic constitutional systems, certainly). (2) Self-proclaim. A good example is that the NPC is now a member of the Inter-Parliamentary Union, IPU, and in 1996 it held the 96th conference in Beijing, China. See supra note 221 at 118-121, 135. 266 Here is a brief comparison between the NPC and a parliamentary body in the Western-style liberal-democratic constitutional system: (1) The NPC upholds the “organic principle” of “Democratic centralism”, while the Western parliamentary body enshrines the wisdom of “separation of power” in varying degrees. For example, judiciaries are generally not required to be “responsible to” the parliamentary body in the West. Also, there are few Western constitutional documents that directly provide a parliamentary body with the unlimited power to determine all matters as long as the parliamentary body considers them “necessary”. (2) Representative system. The members in a Western national representative organ, especially the lower house in a bicameral legislature, are generally directly elected by constituents. In the PRC, however, deputies were “indirectly elected” by the local People’s Congress. Also, the NPC has its Standing Committee, which is rare in a Western parliamentary body. Furthermore, ordinary members in the NPC are part-time, rather than full-time like their counterparts in Western parliament or congress. (3) The NPC is vested with the power of “recall” (bamian), which is also uncommon in the West, where the principle of accountable government is prevailing. (4) The leadership of the Political Party operates outside of the constitutional structure for the NPC, whereas in the Western constitutional system, political parties operate the legislature internally. See ibid at 118-121, and 135-139. 267 See supra note 70 at 53. 268 Article 2 provides that “All power in the People’s Republic of China belongs to the people. The National People’s Congress and the local people’s congresses at various levels are the organs through which the people exercise state power,” while Article 57 states that “the National People’s Congress of the People’s Republic of China is the highest organ of state power. Its permanent body is the Standing Committee of the National People’s Congress, and Article 58 states that “the National People’s Congress and its Standing Committee exercise the legislative power of the State.” Also, Article 62 (15) directly gives unlimited decision-making power to the NPC, “the National People’s Congress exercises the following functions and powers: …(15) to exercise such other functions and powers as the highest organ of state power should exercise.” These articles ensure the dual-role of the NPC as the symbol of the sovereign (People) and the highest legislative body, at least in the dimension of the formal constitutional system of the PRC. 269 See supra note 30 at 171. 104 the PRC.270 Therefore, there is a consensus among theorists in China that the Constitution simultaneously has established both the supremacy of the NPC and the supremacy of the Constitution. In other words, the Constitutional Supremacy in China’s parliamentary context is embodied by the Supremacy of the NPC. As I will demonstrate in the latter part of this chapter, the unification between the legislative review and constitutional review have illustrated a combination between constitutional supremacy and parliamentary supremacy for the NPC, at least in the sense of the PRC’s formal constitutional system. Therefore, in this chapter we mainly focus on the development of the NPC, an organ simultaneously wearing the hats of parliamentary supremacy and constitutional supremacy. The NPC was long viewed as a “rubber-stamp” from the 1950s until the 1970s by observers271 , but the institutional development of the NPC since the late 1970s has demonstrated that “the NPC came to occupy a new position in China and the political system, though still illiberal, was not unchanged by reform272.” Also, as illustrated later, such an “illiberal but vibrant” role was not only retained, but also strengthened in some aspects in the 1990s and the 2000s. As we will examine in this chapter, the ongoing constitutional development of the NPC has become significant since the 1980s, and it should be noted that such “development” by no means indicates what Dowdle called a “mature constitutional system” 273 as exemplified by states in North America or Western 270 Paragraphs 3 and 4 of Article 5 read “No laws or administrative or local regulations may contravene the Constitution. All State organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated.” 271 For instance, prior to 1978, the NPC's total permanent support staff never exceeded a dozen. See supra note 70, at 1, 3-4. 272 Kevin O’Brien, Reform without liberalization—China’s National People’s Congress and the Politics of Institutional Change (Cambridge University Press: New York, 1990) at 157. 273 As discussed in Chapter 1, China serves as a prime example for constitutional development in authoritarian regime. But “few question that China's constitutional and legal systems fail to evince most of the defining features of constitutionalism or the rule of 105 Europe. Nor will such “development” guarantee the future liberalization or democratization in the PRC policy. However, before continuing our discussion on the constitutional development of NPC, two caveats should be added: First, research has shown that the theoretical design274, historical basis275 before the 1978, as well as ideological justification276 has given the NPC its “rubberstamp” status. Simply put, Marxist-Leninism, ideological grounds, and Chinese historical experiences and from both Republican legislatures and CPC regimes before 1949 have created current institutional features and inherent weaknesses of the NPC. These have led to cumbersomeness when the NPC session (mainly the plenary session) exercises its constitutional functions: (1) Large Chamber Size277; (2) Brief and Infrequent Plenary Sessions278; and (3) Lack of Professionalism279. Therefore, the NPCSC, a “parliament law.” See supra note 49 at 2 & 7. 274 See supra note 221; See supra note 220 [translated by author]; Zou Pingxue, Zhongguo Daibiao Zhidu Gaige de Shizheng yanjiu [Empirical studies on China’s representative system reform] (Chongqing: Chongqing chubanshe, 2005) [translated by author][Empirical studies]; Jianfu Chen, “Coming full circle: Law-making in the PRC from a historical perspective” in Jan Michiel Otto etl. Eds, Law-making in the People’s Republic of China (Hague: Kluwer Law International, 2000) 19 [Coming full circle]; Albert H. Y. Chen, “Socialist law, civil law, common law, and the classification of contemporary Chinese law”, in Jan Michiel Otto etl. Eds, Law-making in the People’s Republic of China (Hague: Kluwer Law International, 2000) 55 [SCCC]; Tu Siyi, “Sulian sifa linxianfa zhi suweiai zhidu he zhongguo wusi xianfa zhi renmin daibiao dahui zhidu” [Soviet System in Stalin Constitution in U.S.S.R. and People’s Congress System in 1954 Constitution of PRC], in Fu & Zhu, supra note 70, 85 [translated by author] [U.S.S.R. and 1954 Constitution]. 275 See supra note 221; Coming Full Circle, ibid, at 19; Kevin J. O’Brien, “China’s NPC: Reform and its Limits” (1988), 13:3 Legislative Studies Quarterly 343 [Refrom and its Limits]; supra note 272; Perry Keller, “Sources of Order in Chinese Law” (1994), 42:4 The American Journal of Comparative Law 711. [Sources of Order] 276 See supra note 221; Emperical Studies, supra note 274, supra note 220; supra note 70; supra note 38; and supra note 48. 277 The first issue is the large chamber size of the NPC sessions. In order to create a mosaic of society that accommodates for their breadth (guangfanxing), progressiveness (xianjinxing) and representativeness (daibiaoxing), designation of choosing the NPC deputies have been applied for rather than going through an open and comparative nomination and election proces. Because the “breadth”, “progressiveness” and “representativeness” all have to be taken account, the total members of the NPC deputies are usually around 3000. In 2015, the total number is 2987. This large chamber size has also been the world’s greatest chamber for a parliamentary body. Obviously, it is impossible and impractical for all deputies to have adequate time and opportunity to speak and debate in the Plenary Session. For example, provided the total number of the NPC deputies is 3000, if everyone speaks for 10 minutes, it will take two months in total. Thus the delegates group and sub-group meetings are held for communicating and debating issues from the plenary session. However, even in these group meetings, the speeches and debates are still severely limited. Thus, such a large chamber inevitably lacks sufficient parliamentary debates or speeches, a vital element for both the legislative and supervisory task of the NPC. See Empirical Studies, supra onte 274 at 25; Kevin J. O’Brien, “Agents and Remonstrators: Role Accumulation by Chinese People's Congress Deputies”, 138 The China Quarterly 359 [Agents and Remonstrators]; See supra note 221, supra note 272, and supra note 70; Current number of NPC delegates, see NPC, “Daibiao didai [Deputy area]” online: NPC <http://www.npc.gov.cn/delegate/delegateArea.action>, last accessed on April 15 2015 [translated by author]. 278 The second institutional disadvantage is that of the brief and infrequent plenary sessions. Since the 1980s, most annual NPC plenary sessions only lasted 2-3 weeks, while 10-20 important motions or bills should be reviewed and voted in each plenary session. In fact, the duration of the NPC plenary session is the shortest in the world. Usually, a parliamentary body will last at least 4 months annually. And from the 1st NPC (1954) to 12th NPC (2015), the longest record is 26 days, while the shortest was only 5 days. In recent years, the NPC plenary session was usually held for approximately 10 days. An inevitable result is that every piece of motion or bill including important basic legislation are shortly reviewed and rashly voted. For instance, according to the agenda of the 2015 NPC plenary session, there were less than 12.5 total hours for the plenary sessions to review and vote the draft of revised Legislation Law, a 106 within the parliament” has taken this role to become the real legislative body that exercises most of supervisory power of the NPC280, despite not explicitly being allowed to do so according to 1982 Constitution. In order to further strengthen the competence of the NPCSC, the 1982 Constitution and Organic Law of People’s Congress also established special committees 281 and supporting offices 282 for the NPCSC that draft which stipulated fundamental principles of legislative procedure and contained an important debate whether the types and rates of taxation should be determined only by NPC laws rather than leaving it to the discretion of administrative bodies. Empirical studies, supra note 274 at 61-63 [translated by author]; NPC, “Dishierjie quanguo renmin daibiao dahui disanci huiyi richeng” [The Agenda of 3rd session of 12th NPC], online: NPC <http://www.npc.gov.cn/npc/xinwen/2015-03/04/content_1909113.htm>, last accessed on April 15 2015 [translated by author]. 279 The third weakness is the lack of professionalism. The deputies in the NPC are amateurs rather than full-time representatives. Thus most ordinary deputies lack the time and expertise for engaging in legislative or supervisory activities and other duties performed in the NPC sessions. The main reason behind this arrangement is more than the orthodox Marxist view advocating “part-time representative” could even explain. Rather, it is because the deputy in the NPC is not considered a professional representative like their counterpart in the West. Deputies, however, are more expected to be a “link (niudai)” or “bridge” between the leadership to the citizenry by design. Serving as regime agents, they represent state authority, explain the pattern of state extraction and justify allocations. On the other hand, deputies are also expected to be advocates: they are charged with reflecting mass opinions and bringing regional and group demands to the attention of decision-makers. In fact, the practice of “part-time representatives” has been recognized by the Law of the People's Republic of China on Deputies to the National People’s Congress and Deputies to Local People's Congresses (revised in 2010, Deputies Law). For example, Article 4 of the “Deputies Law” states that “Deputies shall perform the following duties: playing an exemplary role in abiding by the Constitution and the laws and…assisting the implementation of the Constitution and the laws.” Article 5 stipulates, “Deputies' work carried out according to the provisions of this Law, when the people's congresses at the corresponding levels are in session, and their activities conducted according to the provisions of this Law, when the people's congresses at the corresponding levels are not in session, shall all constitute the performance of their functions as deputies. Deputies shall not be separate from their own production and work. When attending the sessions of the people's congresses at the corresponding levels, and participating in the performance of their duties organized uniformly when the people's congresses are not in session, deputies shall make good arrangements of their production and work and give priority to the performance of their duties as deputies.” Nevertheless, the practical effectiveness of it may be questionable. For instance, in a survey conducted by East China Normal University, even in Shanghai, the most developed area in China, only 0.2% of underrepresented social stratum had sought help from deputies in People’s Congress (including NPC deputies). See Empirical studies, supra note 274 at 51; supra note 221; supra note 272; See also Drafting group of Deputies Law ed, Zhonghua renmin gongheguo quanguo renmin daibiao dahui he defang geji renmin daibiao dahui daibiaofa shiyi [Explanation of Deputies Law] (Beijing: zhongguo minzhufazhi chubanshe, 2002) [translated by author]; Agents and Remonstrators, supra note 277 at 365-369. 280 The Post-Mao NPCSC indeed owes its initial development to the 1982 Constitution and Organic Law of People’s Congress (Organic Law). The Organic Law, enacted in 1982, set out the basic framework of the NPCSC. In 1987, the Organic law was supplemented by a more detailed Standing Procedural rule for the NPC Standing Committee. See supra note 221 at 235-236; See supra note 70; Reform and its Limits, supra note 275 at 363. 281 Currently there are nine special Committees, including Nationalities Committee, Law Committee, Finance and Economic Committee, an Education, Science, Culture and Public Health Committee, Foreign Affairs Committee, an Overseas Chinese Committee, Internal and Judicial Affairs, Environment Protection and Resources Conservation Committee, and Agriculture and Rural Affairs Committee. Also, additional special committees could be set up by the NPC if necessary. 282 Working and administrating bodies of the NPCSC, simply put, include the Secretariat and General Office, Legislative Affairs Commission (LAC), Budgetary Affairs Commission, Hong Kong SAR Basic Law Committee, Macao SAR Basic Law Committee, and Delegates’ Credentials Commission. Also, each special Committee has their own supporting offices. Importantly, the LAC has the Administrative Office, the Office for Criminal Law, the Office for Civil Law, the Office for Economic Law, the Office for State Law, the Office for Administrative Law, the Office for Recording and Examining Laws, and the Research Office. Also, each Room has their own research staff and is entitled to seek for recommendations from external legal experts such as the major Law Faculties of many Universities. Legal experts have been included to offer suggestions or even participate in the drafting process of legislation. Examples are abundant, but the most significant legislation includes the Administrative Litigation Law, the Company Law, the 1996 amendments to the Criminal Procedure Code, the 1997 amendments to the Criminal Code, and the draft legislation law. This is in sharp contrast to the standard drafting practice of most administrative organs which still prefer to draft legislation in-house, perhaps with the assistance of one or two outside advisors. LAC and the Research Department also has its own general office,' and its hiring is not subject to the CCP's nomenklatura system. Thus, it enjoys significant independence with regard to hiring and staffing, which allows it to field a particularly educated and professional staff. See NPC, “Legislative Affairs Commission”, online: <http://www.npc.gov.cn/englishnpc/Organization/2007-11/20/content_1373187.htm>, last accessed on April 15 2015 [translated by author]; NPC, “Budgetary Affairs Commission”, online: NPC <http://www.npc.gov.cn/englishnpc/Organization/2007-11/20/content_1373188.htm>, last accessed on April 15 2015 [translated by author]; see also See supra note 49at 52; supra note 221. See also NPC, “Quanguo renda changweihui de banshi jigou he gongzuo jigou” [the supporting and working officials of NPCSC] (1, 107 subordinated the leadership of the Presidium during the NPC sessions by bestowing responsibility on the NPCSC when the NPC was not in session. In short, compared to the NPC, the NPCSC is a more bureaucratic 283 , and professional 284 organ but is not a democratic legislature285. As summarized by Ming Xia, the relationship between the NPC and the NPCSC can be explained as follows: the plenary is a huge ship; the delegation meetings are numerous separate compartments; the standing committee is its crew; the chairmen group is the captain. The plenary session mainly fulfills the role of legitimizing the power and position of the NPCSC.286 In fact, the development of the NPC is unbalanced between the constitutional development of the NPC session and the institutional development of the NPCSC, which should be noted when examining the constitutional development of the NPC.287 Mar, 2009), online: NPC <http://www.npc.gov.cn/huiyi/dbdh/11_2/2009-03/01/content_1475563.htm>, last accessed on April 15 2015 [translated by author]. 283 The bureaucratic feature of the NPC refers to the fact that since it was formed in the 1980s, the NPCSC operation more closely resembles an administrative decision-making organ rather than a representative body. For example, as noted above, the NPCSC is headed by Chairmen, and the Chairmen’s meeting is entit
UBC Theses and Dissertations
China toward Constitutionalism? Institutional development under the Socialist Rule of Law system Luo, Jiajun 2015
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