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China's Transition, by Andrew J. Nathan
Of the plausible scenarios for China's future, the possibility of a new constitutionalism has been taken seriously by only a few Western specialists. 1 Yet the constitutionalist scenario gains credibility from the improbability of the alternatives. Civil disorder is the worst fear of most Chinese, and few stand to gain from it. Local separatism would do more economic harm than good to the southeastern coastal provinces that are viewed as the most likely to secede, and would be opposed by the Chinese army. Some in Tibet and Xinjiang would like independence, but they lack the military power to seize it. Coup plotters would need broad support that would be difficult to marshal in the vast civil-military command apparatus. No one in the new generation of leaders seems to have strongman potential. And a factional stalemate would be only an interim stage in the search for a solution to the problem of political authority. So the worst one can say against the constitutionalist scenario is that it seems too sensible to be a genuine option.
Recent writings by Chinese scholars both within China and abroad suggest what the constitutionalist option might look like if it came to pass. 2 Since Deng Xiaoping's reforms began, the authorities have licensed three waves of discussion of constitutional issues. The first occurred during the drafting of the new Constitution that was promulgated in 1982. 3 The second took place during preparation for Zhao Ziyang's Political Report to the Thirteenth Party Congress in 1987. The third has consisted of a series of studies and conferences in academia and within the staff of the National People's Congress (NPC) since 1990, paralleled by work among members of the Chinese democracy movement now in exile.
The discussions are interesting as much for their diagnoses of what is wrong with the current system as for their proposals for reform. The diagnoses often carry implications too bold to be stated explicitly under today's political constraints. This essay details four sets of diagnoses and proposals on which the debate has focused, and which seem likely to be high on the agenda of post-Deng reformers whether the Chinese Communist Party (CCP) remains in power or not. The debates provide a script for reform efforts that are likely to be made in the coming years no matter who comes to power. For those interested in comparative constitutional design, the debates suggest how people living under a Soviet-style constitution see its possibilities for evolutionary reform.
Empowering the National People's Congress
The heart of most political-reform proposals is empowerment of the NPC. 4 Under the present Constitution the NPC is sovereign. There is no division of powers. The judicial and administrative branches report to the NPC. Either directly or through its Standing Committee, the NPC legislates; elects and recalls the top leaders of the other organs of state; supervises those officials' work, including the state budget and development plans; and interprets the Constitution and laws.
But the Constitution also acknowledges that the organs of the state operate under CCP leadership. In the NPC this leadership is exercised in a number of formal and informal ways. Party members make up from one-half to over three-fourths of the membership of the NPC, including the top layer of NPC officials and the majority of its Standing Committee, Secretariat, committee heads, and Presidium, as well as the bulk of its staff. Party cells guide the work of all these organs and staff. The central party organs instruct the NPC whom to elect to such posts as head of state, chair of the Military Affairs Commission, president of the Supreme People's Court, and procurator-general. The party center controls the NPC's budget, sets its long-term work plan, determines the agenda of its meetings, drafts much of the legislation that the NPC considers (although some drafting work is assigned by the party center to government agencies or NPC staff), and helps guide bills through committees to the final stage of passage by the NPC plenum.
The NPC's structure limits its ability to develop an autonomous ethos. It normally meets only once a year, usually in March, for twelve to twenty days; the Standing Committee (consisting of about 150 members) meets every two months for approximately one week. During NPC sessions, the huge membership of about three thousand convenes in full only to vote. Debate and discussion are limited to caucuses of provincial delegations.
Nonetheless, the legislature has shown a growing measure of assertiveness. In 1986, the Standing Committee refused to clear a draft of the Bankruptcy Law for presentation to the NPC plenum; it had to be returned to the relevant government agency for redrafting. In 1989, a substantial number of delegates opposed a State Council-drafted bill relating to the delegation of certain legislative powers to the Shenzhen Special Economic Zone, so the bill was postponed and later replaced by one that answered the members' objections. In 1992, only two-thirds of the deputies voted in favor of a proposal to build a huge dam on the Yangtze River at the Three Gorges; approval was postponed. In 1994, 337 votes were cast against the Budget Law, with another 274 abstentions and invalid ballots. In 1995, NPC delegates cast a total of 1,006 abstentions, spoiled ballots, and votes against the nomination of Jiang Chunyun as vice premier, and many withheld support from the draft Central Bank and Education laws and from the work reports (reports of work performed over the past year and plans for future work) of the Supreme Procuratorate and the Supreme People's Court. In 1996, hundreds of delegates voted against or abstained from voting on the work reports of the procurator-general and the chief judge of the Supreme People's Court.
These events indicate that NPC members are taking their roles more seriously. The Congress passed 175 laws from 1982 to 1994 and is in the middle of a CCP-assigned five-year legislative plan to promulgate by the end of the century 152 additional laws deemed essential to China's economic and administrative modernization. NPC delegates and staffers have gained a greater sense of responsibility as their duties have expanded.
Freeing the NPC further from CCP control lies at the heart of the proposals for NPC reform, even though the proposals do not mention the problem explicitly. Proposals include the following:
Reducing the size of the NPC . Scholars argue that the large size of the NPC makes it unable to discuss proposals in plenary meetings, while discussion in small groups provides no efficient means of communication among members. Since the delegates' groups are divided mostly by territorial administrative unit, the discussion is dominated by high-ranking officials from the localities. To increase the ability to communicate and the efficiency of proceedings, scholars have proposed reducing the membership to between 700 and 2,000.
Lengthening sessions . Longer sessions would allow delegates to discuss proposed legislation more adequately.
Strengthening the committee and staff systems . The 1982 Constitution established a system of six committees for the NPC; two more were set up in 1988. The committees are supposed to help the Standing Committee with the study, review, and drafting of legislation and the supervision of other agencies of government. Scholars have proposed that the system be strengthened, though without suggesting specific methods of doing so. A related proposal is to establish (or strengthen, in the few cases where they exist) professional staff offices to help legislators at the national and provincial levels discharge their duties. The staff would consist of legal specialists working as full-time professionals.
Improving the qualifications of NPC members . Scholars have proposed that fewer officials and model workers be chosen for the NPC and that more professional politicians, legal specialists, and social activists be selected. Another proposal has been to establish a training school for NPC members.
Clarifying or improving the legislative process . Proposals include allowing NPC delegates to introduce legislation (they can do so in principle but never do in practice), ending CCP prereview of legislation, allowing more time for NPC debate over legislative proposals, opening NPC sessions to the public and the press, and making a practice of voting on each part of a bill separately rather than on the bill as a whole. The idea behind these proposals is to center legislative action within rather than outside the NPC.
Increasing the NPC's role in rule-making . Scholars argue that the boundary between the legislative process and the process of framing administrative regulations is currently misplaced. Because the NPC meets so seldom, fewer rules are put through the legislative process than in most countries. Wide latitude is left for administrative agencies (the State Council, ministries and commissions, and others) to enact regulations that have the character of laws. This phenomenon is referred to as administrative legislation (xingzheng lifa). For example, the NPC has left the rule-making process pertaining to military affairs almost entirely to the Military Affairs Commission (nominally a state agency, but in actuality a party organ). Scholars have proposed a clarification of the division of rule-making powers between NPC and administrative organs in such a way as to give a larger role to the legislature.
Introducing two chambers . Some scholars argue that the NPC already has certain features of a two-chamber system and that these should be strengthened. Members of the Standing Committee are usually leaders of lower-level people's congresses or retired senior party, government, or military officials. Currently the Standing Committee exercises more power than the NPC itself because it meets more often and has more influential members. One proposal is to elect an upper chamber with three members from each province or provincial-level unit, with a lower chamber elected in proportion to population. The division of powers between the two houses is not generally specified.
Introducing the no-confidence vote . Scholars have proposed that if the work report of the government, Supreme People's Court, or Supreme Procuratorate is not approved by the NPC either initially or after one round of revision, the relevant official (premier, Supreme People's Court president, or procurator-general) should resign.
The common theme of these proposals is to increase the autonomy of the NPC and reduce the CCP's authority over it.
Invigorating Elections
Scholars have also put forward proposals to invigorate the process by which the NPC is elected. If implemented, they would also help make the legislature more autonomous. 5
Of the four levels of people's congresses--national, provincial, county, and local--the two higher levels are indirectly elected, with NPC deputies elected by provincial congresses and provincial-congress deputies elected by county congresses. Local (village) people's congresses have been directly elected since the first elections in 1954. The Electoral Law of 1979 provided for direct election at the county level, as well as for multicandidate elections. With scattered exceptions in 1979-80, the county-level elections have not turned into competitive campaigns owing to tight party control through the local election committees.
The term "election" is a misnomer for the delegate-selection process, which is sometimes referred to more forthrightly as "production" (chansheng ). At each level of people's congresses, the standing committee organizes the selection process for the level directly below. The standing committee supplies lists of persons who must be chosen in order to meet quotas of females, national minorities, "democratic personages," and other categories and to ensure that top party officials are included. It also supplies lists of other candidates from whom the remaining delegates must be selected. Few of the candidates are well known to the electors.
Reformers propose to free the elections from CCP control in several ways:
Improving the nomination process . Although ten citizens can join to nominate a candidate, this seldom happens. Even when it does, the final list of nominees is produced through a CCP-controlled consultative process. Rarely are there candidates not approved by the Party. (These details pertain to county-level people's-congress elections, but the same types of procedures are used in elections at all levels, including the indirect elections to the NPC Standing Committee.) Reformers propose changes not in the rules but in their implementation, to allow genuine nominations from below with less party control over the process.
Reducing malapportionment . The Chinese system intentionally gives urban districts four times as many delegates per voter as rural districts in the county-level congresses; the imbalance is even worse at higher levels. This practice is justified by the Marxist theory that the urban proletariat is more progressive than rural peasants. Many reformers are nervous about granting too much power to rural people, whom they view as backward and pro-authoritarian. Political leaders fear that a farmer-dominated legislature would not support longstanding CCP policies unfavorable to rural residents. At least one scholar, however, has proposed reducing the rural-urban disparity to two-to-one. I am not aware of any proposal to move to a "one person, one vote" system.
Shifting to single-seat districts. At the county level, each district elects from one to three representatives to the people's congress. (Taiwan also has a multiseat-district system for its Legislative Yuan, but I have been unable to discover whether these two Chinese systems have a common historical origin.) Some writers have suggested moving to a single-seat system as a way of tightening representatives' links with their constituencies. This reform would force the CCP to work harder to ensure representation of its own cadres and protected categories such as women and national minorities. I do not know whether Chinese scholars have begun to look seriously at other institutional choices in the design of an electoral system, such as balloting rules, which could ultimately affect the party system and the stability of governments.
Direct elections . Scholars have refuted the idea that China is too backward or too large for direct elections to the NPC. They argue that the idea of direct elections is found in the Marxist classics, and that Chinese citizens who have been educated in advanced socialist ideas for more than forty years must have as strong a democratic consciousness as did the citizens of capitalist systems when the direct election of parliaments began. As for constituency size as an obstacle to direct elections, they point out that each of the current NPC delegates represents a population of 360,000--fewer than the 510,000 represented by each U.S. congressman.
Competitive campaigns . Direct election would not be meaningful without reform of campaign procedures. The direct elections for local people's congresses feature an often perfunctory process of official "introductions" of candidates to voters, either on paper or at meetings. Reformers have suggested that the job be done better, that those who nominate candidates be allowed to speak for them, and that more time be spent on the process. The new procedures could build on the experience of competitive village-committee elections that have been going on since 1987, an experiment that some senior leaders see as a first step in training rural residents for a more democratic system.
Multipartism . Scholars have also proposed new legislation on parties that would allow multiparty competition, arguing that a party claiming to represent the people's interests should submit to the test of competitive elections. The CCP has advantages over other parties and could benefit from such elections, they contend. They argue that competition is a natural law and a dynamic of social development, not a monopoly of the bourgeoisie. Multiparty elections would keep the CCP on the right track and prevent the emergence of another Cultural Revolution.
Against the concern that electoral competition would create an out-of-control NPC, reformers argue that a more strenuous election process would be good for the CCP. Because the Party faces no real competition and has most of the best potential candidates in its ranks, electoral reform would facilitate the advancement of the best CCP members as candidates. If campaigns are competitive, the CCP members closest to the people will win.
Constitutional Supervision
The Constitution gives the NPC the power to "supervise the enforcement of the Constitution" (Article 62) and empowers the NPC Standing Committee "to interpret the Constitution and supervise its enforcement" and "to interpret statutes" (Article 67). 6 These powers of supervision and interpretation are not equivalent to constitutional review in a system of divided powers. Since the NPC makes the laws, it could not very well declare one unconstitutional. Rather, supervising enforcement (jiandu shishi ) means supervising the implementation or carrying out of the Constitution. Nominally, the NPC does this by hearing work reports from the other organs of government. It has seldom exercised its supervisory power in a more concrete way. A supervision law (jiandu fa ), which would detail the means by which the NPC can exercise its supervisory power, exists in draft form, but its contents are not public.
Nor does the NPC Standing Committee often exercise its power of constitutional interpretation. It has responded occasionally to requests for interpretation from lower-level people's congresses. It has also issued a small number of "internal interpretations" (neibu jieshi ) in response to requests from other government agencies. Such clarifications have the character of ad hoc problem solving, rather than formal constitutional interpretations.
Other agencies often substitute for the NPC Standing Committee in interpreting statutes. For example, the Supreme People's Court issued a brochure on how to understand the concept of marital breakdown under the 1980 Marriage Law. The Court has done similar work for the Civil Procedure Law of 1991, the Inheritance Law of 1985, and other laws. These activities seem to go beyond the constitutional authority of the Supreme People's Court to "supervise the administration of justice by the local people's courts" (Article 127); rather, the Court got involved because the NPC Standing Committee abdicated authority owing to a lack of time or expertise. The understaffed courts themselves often yield authority to administrative agencies, which have yet more personnel and expertise.
By making these diagnoses, scholars imply that the NPC's constitutional-supervision function should be strengthened. To this end, some have recommended the establishment of a specialized organ to exercise the powers of constitutional interpretation and supervision. Three proposals have been floated. The first is to establish a subsidiary committee under the Standing Committee to advise it in interpreting the Constitution. 7 The second is to establish a separate constitutional-supervision committee within the NPC, equal in rank to the Standing Committee and able to supervise all organs of state including the Standing Committee itself. The third is to establish a constitutional court with authority to reverse the actions even of the NPC, in effect creating a separation of powers and broadening the constitutional-supervision function to include constitutional review. Only the first of these proposals could be implemented without a constitutional amendment.
The discussion draws attention to the absence of a locus within the state apparatus where problems of jurisdiction and other intrastate issues can be solved. It also implicitly identifies the problem of CCP dominance as an obstacle to the lawlike functioning of the state. In addressing this issue, scholars have debated whether the CCP could be subjected to constitutional supervision. On the one hand, the Party might be considered not subject to the Constitution, since CCP leadership is listed as a principle of state power in the Constitution's Preamble. On the other hand, the academic consensus is that the Party is in principle subject to the Constitution, both because the Constitution lists political parties among the entities that it governs, and by virtue of the Party's charter, which calls for it to obey the Constitution. But scholars recognize that it is impractical to exercise constitutional supervision over the Party now. They envision a transitional stage during which the NPC might review selected CCP documents and notify the Party of any contradictions with the Constitution so that the Party can rectify them itself.
Judicial Independence
The Chinese Constitution states that people's courts "shall . . . exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals" (Article 126). 8 This is not a provision for what those in the West understand by the term "judicial independence"--that is, the protection of each individual judge from interference in the lawful exercise of judicial authority. Literally, it holds that the courts should "independently carry out the judging power" (duli xingshi shenpanquan ), meaning--as Chinese scholars interpret it--that the court as an organization should do its job exclusively, rather than having other organs share in the function, as occurred, for example, during the Cultural Revolution.
There is debate about the scope of the term "public organizations" (shehui tuanti , literally, "social groups") that appears in Article 126. The question is whether the CCP is included among these entities that constitutionally cannot interfere with the work of the courts. The dominant interpretation is that the category does not include the Party. Scholars note that the 1982 phrasing is different from that of 1954, which stated, "People's courts independently carry out judgment, following only the law" (Article 76). In listing the entities that are prohibited from interfering in judicial processes, the 1982 Constitution seems to make room for groups that are not listed--namely, the CCP and the NPC--to get involved. In light of this reasoning and the fact that the Constitution mentions the principle of "Party leadership" in its Preamble, involvement of the CCP in the work of the courts is not deemed interference, but rather constitutionally sanctioned leadership.
Party "leadership" takes three forms. One is collective decisionmaking. Under the "report and approval system," authority for court judgments is vested in a judicial committee of each court (shenpan weiyuanhui ) that is led by the court president and vice-president, who are invariably also officials of that court's party group or cell. Thus judicial independence in China is not the independence of individual judges, but the independence of any given court as an organ. As one sitting judge told me, "If the [court] leaders want to change my decision, I have no power to interfere [ganshe ]." In the Chinese judicial system, then, it is a judge's sticking to his own decision, rather than court authorities' changing it, that constitutes "interference."
The second form of CCP "leadership" is the "asking for instruction" system, by which lower courts are expected to bring important or complicated cases to higher courts to obtain instructions before handing down a judgment. Ostensibly aimed at avoiding the reversal of judgments, the process provides the opportunity for the party organs located in higher-level courts to decide the outcome of cases in lower courts.
Third, local CCP authorities (who are also administrative authorities) often issue directives to local courts on how to decide individual cases. The practice is of questionable constitutionality but is built into the system of party leadership. At each level of the administrative hierarchy (say, in a city), the local party committee has a subsidiary organ known as a political-legal committee (zhengfa weiyuanhui ), which brings together the heads of the police, procuratorate, court, department of justice, state-security department, and civil-affairs department so that they can coordinate their work. As part of such coordination, the courts are required to seek the committee's guidance in deciding important or difficult cases (zhongda fuza anjian ). If opinions are divided or the case is especially crucial, the political-legal committee may refer the issue to the full party committee at that level of the hierarchy.
The courts not only are led by the CCP but are constitutionally subordinate to the legislative branch. The Constitution says the courts are "responsible to" their respective people's congresses (Article 128). A people's congress cannot constitutionally interfere in a specific case, but it can require a report on a case, organize an investigation into the suspected mishandling of a case, or cashier and order the indictment of judicial officials who criminally mishandle a case. The frequency with which this happens is uncertain, but improper interference in court cases by people's congresses was sufficiently problematic that the NPC Standing Committee in 1989 issued a decision stressing the limits on such interference, presumably as a reminder to lower-level people's congresses. 9 Since local people's congresses are controlled by local CCP authorities, this seems to be a second channel for party control of the courts.
Judges and scholars have drawn attention to ways in which subordination to the CCP disrupts the courts' ability to perform their functions. Local courts often fail to enforce judgments in favor of out-of-town Chinese (or foreign) plaintiffs. Judges are reluctant to rule against local administrators in suits lodged by individual citizens under the Administrative Litigation Law of 1989 and the Compensation Law of 1994.
Proposals for improving the functioning of the courts are modest. Most involve improving the professional quality of judges and establishing better remuneration and more secure tenure. Judges in China, as in other civil-law jurisdictions, are civil servants. Their ranks are equivalent to those of various other bureaucrats across the system. Their incomes tend to be less than those of factory workers, educators, doctors, and government officials in many fields because of the lack of outside opportunities, bonuses, and supplements.
In 1995, the NPC adopted new legislation concerning judges. 10 The Judges Law mandates minimum qualifications for judges and specifies circumstances under which they can be removed from office. In these small ways it increases their independence. It states further that anyone who interferes with judges' exercise of their duties will be prosecuted according to law. But there is no law under which to prosecute such people, nor does the Judges Law define interference. The law does not solve the problem of inadequate remuneration; does not create a standard of judicial conduct; and supplies too many and too broadly stated causes for which judges can be dismissed. Some judicial reformers nonetheless see the Judges Law as the start of a trend toward independent individual judges who have job security, professional prestige, and adequate remuneration.
Other proposals relating to the judiciary include shifting more of the burden of evidence collection from judges to litigants, thus putting judges in a more neutral position; ending the system whereby judges get approval for their rulings from their administrative superiors; and reducing the practice of lower courts' seeking directives on specific cases from higher courts. A proposal has also been made to do away with the police power to sentence people under the "administrative punishment" system of labor reeducation. By moving many acts now deemed noncriminal into the criminal category, this would increase the number of cases that would have to be taken to court for judgment.
The central point of these reforms would be to strengthen the autonomy of individual judges in trying cases. More boldly, some Chinese legal workers view the arrangement by which people's congresses can intrude into judicial affairs as invasive, and have argued that the NPC's power over courts should be limited to reviewing their annual reports. This approaches advocacy of separation of powers.
Other Proposals
Aside from the proposals described so far, the constitutionalist debate has raised a number of other significant issues. 11
The legal force of the Preamble to the Constitution . The debate over the legal force of the Preamble is in effect a debate over whether Deng Xiaoping's "four basic principles" (socialism, people's democratic dictatorship, Marxism-Leninism-Mao Zedong Thought, and Communist Party leadership), which are contained therein, are legally binding. Some scholars hold that the Preamble has legal force. A second view is that while the Preamble as a whole does not have legal power since parts of it are simply assertions of historical facts or goals, some stipulations in it have legal authority, including the four principles. A third view holds that the Preamble does not have legal authority because it is not written as a formal article. Rather, it is a statement of purposes and values, compliance with which is optional for law-abiding citizens who are not CCP members. Peking University professor Gong Xiangrui has gone so far as to argue, "The Constitution is, after all, not the Party's constitution. The spirit of the Preamble is in conflict with the principles of constitutionalism." 12
Citizens' rights versus human rights . 13 Many scholars argue that the constitutional notion of citizens' rights should be changed to a notion of human rights as a way of symbolizing the importance of individual rights. Legal specialists have argued for years that certain laws--including the Public Demonstrations Law and the State Secrets Law, both passed in 1989--should be revised to protect such rights. The difficulty of finding the right balance between protecting and limiting rights has delayed the adoption of a press law that has been undergoing drafting on and off for more than a decade. A revision of the Criminal Procedure Law in March 1996 increased the impartiality of judges, improved defense lawyers' access to clients and evidence, limited detention without charge to one month, and improved other procedural safeguards for defendants, at least on paper. Proposals have also been made to expunge crimes of counterrevolution from the criminal code and to eliminate the power of the police to imprison people for up to three years without trial ("administrative detention").
Separation of powers . Since the top leadership has ruled this subject out of bounds, it is seldom discussed explicitly. But some scholars privately favor greater separation of powers. They view the Paris Commune model of single-branch government (the historic root of the current system) as an immature one that was adopted under conditions of civil war in a single city and lasted only a few weeks. When implemented in a large country over an extended period of time, it confuses the division of labor between the legislative and executive branches, allows an unhealthy growth of executive powers, and undermines the ability of the legislature to supervise the executive. Some scholars see a germ of separation of powers in the provision in the current NPC Organic Law that states that members of the NPC Standing Committee cannot hold full-time offices in state administrative organs. A similar provision governs members of standing committees of local people's congresses.
Subjecting the Military Affairs Commission to the authority of the NPC . The Military Affairs Commission is a CCP organ, although it has a second, nominal, identity in the Constitution as a state organ. It promulgates its own laws and regulations without the involvement of the NPC. Some scholars argue that this exercise of legislative power violates the Consti-
tution; some have suggested amending the Constitution to state more strongly that the Military Affairs Commission is subordinate to the NPC. 14 This would be a move toward shifting the military from party to state control, a process referred to in Chinese as "statization" (guojiahua ) of the military. However, civilian control of the military through the Military Affairs Commission is already weak, and some scholars worry that it would be even weaker under the NPC unless the NPC were much more vigorous than it is now.
Federalism . China is a unitary state but has some quasi-federalist traditions. The Constitution and the Regional Autonomy Law for Minority Nationalities (1984) provide for the nominal autonomy of minority-inhabited areas. Deng Xiaoping's idea of "one country, two systems" for Hong Kong and Taiwan is reflected in the inclusion in the 1982 Constitution of Article 31, which provides for the establishment of Special Administrative Regions. Under the reforms, provinces have developed substantial economic, fiscal, and policymaking powers. Some Chinese scholars think that making the system more explicitly federal would help clarify Han-minority relations and center-province relations. Abroad, Yan Jiaqi has argued this position most strongly. 15 Within China, scholars tend to avoid the term "federalism." Nevertheless, several have argued for new, clearer definitions of central and local powers, or for a "financial apportionment committee" under the State Council or the NPC Standing Committee to resolve issues of central-local revenue sharing and interprovincial financial transfers. Since the NPC is made up of local CCP elites, strengthening the role of the NPC would likely lead to increased articulation of provincial interests. In contrast to a national breakup, which would be inimical to constitutionalism, the lawful institutionalization of power-sharing between the center and the regions would be a move in the direction of a more constitutionalist regime.
Leninism and the Rule of Law
Although individually modest, the proposals reviewed here array themselves around the issue of the role of the CCP. The diagnoses of problems and proposals for change are cautious and technical, but they make clear that the authors see the Leninist one-party system as the main obstacle to the rule of law. In fifteen years of legal reform, the Leninist core has developed mechanisms to bargain with, consult, and persuade other actors in an increasingly complex society. But power is neither grounded in popular consent nor limited by laws. As Carol Hamrin and Suisheng Zhao argue, China under Deng is a form of "bureaucratic authoritarianism." 16
Legal scholars themselves are not a powerful constituency. Yet they possess expertise that the leaders need in order to fix problems in the system. As marketization erodes the old techniques of control, the leaders have turned to law to direct lower-level officials and constrain independent economic actors. Lawyers, judges, law professors, and NPC staff are pointing out that legal institutions cannot perform the tasks they are charged with unless they are given more autonomy. As one Chinese scholar put it, "When conditions are ripe, we should move from conceiving of [our government] as a ''people's democratic dictatorship' and start calling it a 'people's democratic constitutionalism' or a 'socialist constitutionalism'." 17 Reliable and predictable processes of rule-making, adjudication, and enforcement will constrain the party leaders as well as other actors.
There are also more directly political reasons why some CCP leaders have promoted the discussion of constitutionalism. Politicians associated with the NPC (formerly Peng Zhen and Wan Li, now Qiao Shi) want to enlarge the NPC's power in order to increase their own influence. The regime is also influenced by foreign pressure and example with respect to investment law, tax law, contract law, court procedures, intellectual property rights, human rights law, and so on.
Constitutionalism also has opponents. If one faction would benefit from an increase in the NPC's strength, others would benefit from a continuation of the status quo. While law in some ways improves the functioning of the economy, many entrepreneurs and local communities have learned to profit through evasion of laws and personal connections. The experience of postcommunist Russia is often cited as evidence that China cannot afford to democratize. In its transition "from utopia to development," to use Richard Lowenthal's phrase, the regime has not found a way to replace revolutionary legitimacy with legal-democratic legitimacy. Constitutionalization would serve the CCP's interests in legitimation and stability. If the reform proposals reviewed in this essay were implemented, China would still be a dominant one-party system with weak separation of powers and weak federalism. To be sure, the process of transition to constitutionalism has been turbulent almost everywhere, and China's earlier history of failed experiments is not encouraging. But constitutionalism--which is not necessarily democracy American-style or Russian-style--is one of the most conservative options for change in a situation where stasis seems impossible.
Note 1: Besides some of my own writings, see Arthur Waldron, "China's Coming Constitutional Challenges," Orbis 39 (Winter 1995), p. 26. A longer and more fully referenced version of the present essay will appear in a book on consolidating the third-wave democracies edited by Larry Diamond, Marc F. Plattner, Yun-han Chu, and Hung-mao Tien (forthcoming in 1997 from Johns Hopkins University Press). Back.
Note 2: Much of the information presented here was gleaned from seminar meetings and papers from a three-year study project on "China and Constitutionalism" conducted at Columbia University from 1992 to 1995. The project was supported by the Henry Luce Foundation, the National Endowment for Democracy, and the United Daily News Foundation. A series of papers from the project is being published over the course of several years in the Journal of Asian Law (formerly Journal of Chinese Law ), starting with the Spring 1995 issue. Back.
Note 3: Official English translation published in Beijing Review , 27 December 1982, 1-29. Back.
Note 4: This section draws chiefly on Cai Dingjian, Zhongguo renda zhidu (The Chinese people's congress system) (Beijing: Shehui kexue wenxian chubanshe, 1992); Cang Lin, "Zhongguo lifa gaige de jige wenti" (Several issues in the reform of China's legislation), working paper, China and Constitutionalism Project, Columbia University, Spring 1995; Cao Siyuan, Siyuan wenxuan (Selected works of [Cao] Siyuan) (Beijing: Jingji ribao chubanshe, 1995); and Kevin J. O'Brien, Reform Without Liberalization: China's National People's Congress and the Politics of Institutional Change (New York: Cambridge University Press, 1990), ch. 7. Back.
Note 5: This section is based chiefly on Li Lin, "Zhongguo xianfa yanjiu de xianzhuang yu zhanwang" (The situation and prospects of constitutional research in China), working paper, China and Constitutionalism Project, Columbia University, April 1994, pp. 12-16; Cang Lin, "Zhongguo lifa gaige," 21ff.; and Wang Liqun, "Zhongguo xuanju zhidu de juxian jiqi wanshan" (The limitations of China's electoral system and its improvement), Renda yanjiu (NPC studies) 11 (1992), pp. 8-12. Back.
Note 6: This section draws chiefly on Tao Ren, "Zhongguo de xianfa jiandu he xianfa jieshi" (Constitutional supervision and interpretation in China), working paper, China and Constitutionalism Project, Columbia University, Spring 1994. See also Susan Finder, "The Supreme People's Court of the People's Republic of China," Journal of Chinese Law 7 (Fall 1993), pp. 164-90; and Anthony R. Dicks, "Compartmentalized Law and Judicial Restraint: An Inductive View of Some Jurisdictional Barriers to Reform," China Quarterly 141 (March 1995), pp. 82-109. Back.
Note 7: In 1989, some NPC deputies submitted a proposal to establish such a committee to help the Standing Committee review constitutional issues; it was never listed on the agenda of the session. Renmin ribao (People's daily), overseas edition, October 30, 1989, p. 1. Back.
Note 8: This section is based chiefly on Qiang Zhou, "Judicial Independence in China," working paper, China and Constitutionalism Project, Columbia University, Spring 1995. See also Shao-chuan Leng and Hungdah Chiu, Criminal Justice in Post-Mao China: Analysis and Documents (Albany: State University of New York Press, 1985); Donald C. Clarke, "The Execution of Civil Judgments in China," China Quarterly 141 (March 1995), pp. 65-81; and Finder, "Supreme People's Court," 145-224. Back.
Note 9: Peng Chong, report on behalf of the NPC Standing Committee to the full NPC, March 28, 1989, in Zhonghua renmin gongheguo quanguo renmin daibiao dahui changwu weiyuanhui gongbao (Gazette of the Standing Committee of the PRC National People's Congress), May 5, 1989, p. 108. Back.
Note 10: The PRC Law on Judges, Foreign Broadcast Information Service (FBIS), Daily Report: China , March 21, 1995, pp. 32-37. Back.
Note 11: This section draws on interviews with participants in the Constitutionalism and China Project and on Li Lin, "Zhongguo xianfa yanjiu." Back.
Note 12: Gong Xiangrui, "Zhongguo xuyao shenme yang de xianfa lilun" (What kind of constitutional theory does China need?), Faxue (Law science monthly), April 10, 1989, p. 6. Back.
Note 13: Albert H.Y. Chen, "Developing Theories of Rights and Human Rights in China," in Raymond Wacks, ed., Hong Kong, China and 1997: Essays in Legal Theory (Hong Kong: Hong Kong University Press, 1993), pp. 123-49. Back.
Note 14: See Jeremy T. Paltiel, "Civil-Military Relations in China: An Obstacle to Constitutionalism?" Journal of Chinese Law 9 (Spring 1995). pp. 35-65. Back.
Note 15: Yan Jiaqi, Lianbang Zhongguo gouxiang (A conception for a federal China) (Hong Kong: Mingbao chuban she, 1992). Back.
Note 16: Carol Lee Hamrin and Suisheng Zhao, eds., Decision-Making in Deng's China: Perspectives from Insiders (Armonk, N.Y.: M.E. Sharpe, 1995), pp. xxix-lviii. Back.
Note 17: Du Gangjian, "Cong zhuanzheng dao xianzheng" (From dictatorship to constitutionalism), Zhejiang xuekan (Zhejiang journal) 3 (1992), p. 39. Back.
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