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The Leadership of the CCP: From the Preamble to the Main Body of the Constitution—What Are Its Consequences for the Chinese Socialist Rule of Law?

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Abstract

In the latest amendment of the Constitution of the People’s Republic of China, the leadership of the Chinese Communist Party (CCP) was reincorporated into the main body of the Constitution. This reincorporation constitutionally overarches a series of institutional reforms concerning the Party and state organs in 2018. In the analytical framework of the Party–state separation, this article aims to reveal the transformation of the Party–state relationship behind the positional alteration of the leadership of the CCP in the constitutional text and to indicate its possible consequences for the Chinese socialist rule of law.

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Notes

  1. Like the previous four constitutional amendments, the latest amendment was instigated by the CCP itself. It is customary in the history of the Chinese Constitution that each leadership generation of the CCP summarizes and concentrates its main leadership ideas and successful practices and includes them in the Constitution. For example, in the period of Jiang Zemin, the “socialist market economy” and the “socialist rule of law” were inserted into the Constitution by the second and third constitutional amendments; in the period of Hu Jintao, “respecting and protecting human rights” and “protecting private property rights” were inserted into the Constitution by means of the fourth constitutional amendment. Thus, for President Xi Jinping, symbolizing the new leadership generation of the CCP, this amendment to the Constitution after being in authority for 5 years is a routine matter.

  2. Zhongguo gongchandang zhongyang weiyuanhui guanyu xiugai xianfa bufen neirong de jianyi (中国共产党中央委员会关于修改宪法部分内容的建议).

  3. “In the year 1949, after more than a century of heroic struggle, the Chinese people, led by the Chinese Communist Party, finally achieved their great victory in the people's revolution against imperialism, feudalism and bureaucrat-capitalism; and so brought to an end a long history of oppression and enslavement and founded the People's Republic of China, under the people’s democratic dictatorship.” (Paragraph 1, sentence 1 of the preamble to the Constitution of 1954).

  4. “In the course of the great struggle to establish the People's Republic of China, the people of our country forged a broad people's democratic united front, composed of all democratic classes, democratic parties and groups, and popular organizations, and led by the Communist Party of China.” (Paragraph 4, sentence 1 of the preamble to the Constitution of 1954).

  5. Paragraph 1 of the preamble to the Constitution of 1975: “The founding of the People’s Republic of China marked the great victory of the new-democratic revolution und the beginning of the new historical period of socialist revolution and the dictatorship of the proletariat, a victory gained only after the Chinese people had waged a heroic struggle for over a century and, finally, under the leadership of the Chinese Communist Party, overthrown the reactionary rule of imperialism, feudalism and bureaucrat-capitalism by a people’s revolutionary war.”.

  6. Paragraph 2 of the preamble to the Constitution of 1975: “For the last twenty years and more, the people of all nationalities in our country, continuing their triumphant advance under the leadership of the Chinese Communist Party, have achieved great victories both in socialist revolution and socialist construction and in the Great Proletarian Cultural Revolution, and have consolidated and strengthened the dictatorship of the proletariat.”.

  7. Paragraph 4 of the preamble to the Constitution of 1975: “We must adhere to the basic line and policies of the Chinese Communist Party for the entire historical period of socialism and persist in continued revolution under the dictatorship of the proletariat […].”.

  8. Paragraph 7 of the preamble to the Constitution of 1975: “The Chinese people are fully confident that, led by the Chinese Communist Party, they will vanquish enemies at home and abroad and surmount all difficulties to build China into a powerful socialist state of the dictatorship of the proletariat […].”.

  9. Article 1, paragraph 1 of the Constitution of 1975.

  10. Article 13 of the Constitution of 1975.

  11. Article 15, paragraphs 1 and 2 of the Constitution of 1975.

  12. Article 16, paragraph 1 of the Constitution of 1975.

  13. Article 17 of the Constitution of 1975.

  14. Article 26, paragraph 1 of the Constitution of 1975.

  15. “After more than a century of heroic struggle the Chinese people, led by the Chinese Communist Party headed by our great leader and teacher Chairman Mao Zedong, finally overthrew the reactionary rule of imperialism, feudalism and bureaucrat-capitalism by means of people's revolutionary war, winning complete victory in the new-democratic revolution, and in 1949 founded the People's Republic of China.” (Paragraph 1 of the preamble to the Constitution of 1978).

    “The founding of the People's Republic of China marked the beginning of the historical period of socialism in our country. Since then, under the leadership of Chairman Mao and the Chinese Communist Party, the people of all our nationalities have carried out Chairman Mao's proletarian revolutionary line in the political, economic, cultural and military fields and in foreign affairs and have won great victories in socialist revolution and socialist construction through repeated struggles against enemies both at home and abroad and through the Great Proletarian Cultural Revolution. […]” (Paragraph 2 of the preamble to the Constitution of 1978).

    Compared with the two previous Constitutions of 1954 and 1975, the status of Mao Zedong was strengthened in the Constitution of 1978. Besides the general references to the Mao Zedong Thought as one of the dominant guiding ideologies of China, the personal status of Mao Zedong is also constitutionally confirmed: “Chairman Mao Zedong was the founder of the People's Republic of China. All our victories in revolution and construction have been won under the guidance of Marxism-Leninism-Mao Zedong Thought. The fundamental guarantee that the people of all our nationalities will struggle in unity and carry the proletarian revolution through to the end is always to hold high and staunchly to defend the great banner of Chairman Mao.” (Paragraph 3 of the preamble to the Constitution of 1978).

  16. Paragraph 5 of the preamble to the Constitution of 1982.

  17. Paragraph 7 of the preamble to the Constitution of 1982.

  18. Paragraph 10 of the preamble to the Constitution of 1982.

  19. See Ginsburg et al. (2013, p. 105).

  20. See Voermans et al. (2017, pp. 1, 6 and 79–80).

  21. Maunz/Dürig, Grundgesetz Kommentar, 82. Auflage, 2018, Präamble Rdn. 3.

  22. Maunz/Dürig, Grundgesetz Kommentar, 82. Auflage, 2018, Präamble Rdn. 16.

  23. See Ginsburg et al. (2013, p. 102).

  24. See Epping/Hillgruber, Grundgesetz Kommentar, 34. Auflage 2017, Präambel.

  25. See Ginsburg et al. (2013, p. 102).

  26. For example, in the preamble to the German Basic Law (Grundgesetz), such programmes are enumerated as “European integration”, “the contribution of Germany to world peace”, “the reunification of Germany in free self-determination” and so on. See Maunz/Dürig, Grundgesetz Kommentar, 82. Auflage, 2018, Präamble Rdn. 6.

  27. See Orgad (2010, 716–717).

  28. See Schmidt-Bleibtreu/Hofmann/Henneke, Grundgesetz Kommentar, 14. Auflage 2017, Präamble Rdn. 3.

  29. See Voermans et al. (2017, pp. 92–93).

  30. See Orgad (2010, 715).

  31. A scarce, but repeatedly mentioned exception can be found in the practice of the Federal Constitutional Court of Germany (das Bundesverfassungsgericht). In 1965, it directly cited the reunification clause (Wiedervereinigungsgebot) in the preamble to the German Basic Law to forbid the KPD (Die Kommunistische Partei Deutschlands, the German Communist Party). However, after the reunion of Germany in 1990, this clause of the constitutional preamble also lost its normative significance. See Maunz/Dürig, Grundgesetz Kommentar, 82. Auflage, 2018, Präamble Rdn. 6; Schmidt-Bleibtreu/Hofmann/Henneke, Grundgesetz Kommentar, 14. Auflage 2017, Präamble Rdn. 10, 17.

  32. See Voermans et al. (2017, p. 89).

  33. Schmidt-Bleibtreu/Hofmann/Henneke, Grundgesetz Kommentar, 14. Auflage 2017, Präamble Rdn. 12.

  34. Against such a radical point of view, see Dreier (Hrsg.) GG, 3. Aufl. 2013, Präambel Rdn. 27; Münch/Kunig, GG-Kommentar, 6. Aufl. 2012, Präambel Rdn. 10; Epping/Hillgruber, Grundgesetz Kommentar, 34. Auflage 2017, Präamble Rdn. 1.

  35. “The preamble merits recognition as a genuine interpretive aid in construing the Constitution’s provisions.” (see Leiter et al. 1990).

  36. Epping/Hillgruber, Grundgesetz Kommentar, 34. Auflage 2017, Präamble Rdn. 1.

  37. See Chen (2012a, b).

  38. See Yu (2011).

  39. See Yin and Li (2004, p. 17).

  40. See Huang (2010), Tian (2015). A similar point of view: “the Constitutional preamble is an important part of the Constitution. Most of the contents of the constitutional preamble have a guiding function for the constitutional main body. The constitutional preamble is a concentration of the constitutional main body. Thus, it has the highest legal force.” See Yang and Liu (2003). See also, Xie (2004), Dong (1987), Pu (1982).

  41. See Yin and Li (2004, p. 16). See also Wang (2008).

  42. The Speech by LI Peng (李鹏) at the symposium of the National Legal Awareness Day on December 3, 2001. LI Peng was then the chairman of the Standing Committee of the Ninth National People's Congress.

  43. Notwithstanding the lack of judicial applicability, the Chinese Constitution enjoys some kind of binding force from the perspective of legal sociology. The Constitution is enforced in such a way that its importance is repeatedly emphasized by official propaganda and the awareness of respecting the Constitution imperceptibly infiltrates into social awareness and shapes the behaviour of citizens.

  44. The current Chinese Constitution contains a total of 143 articles, of which 84 deal with state bodies. The constitutional provisions on state bodies form the basis for further organizational laws for these state bodies. For example, the Law on the State Council of the People’s Republic of China (zhonghua renmin gongheguo guowuyuan zuzhi fa, 中华人民共和国国务院组织法) expresses its constitutional basis in its first article: “This organizational law is made according to the relevant contents on the State Council in the Constitution.” Some organizational laws do not contain this expression, instead they directly repeat the relevant constitutional articles on important issues.

  45. In the common legislation of the National People’s Congress (NPC) and its Standing Committee, it is not rare to indicate formally that the Constitution is the basis for the legislation. For example, the first article of the General Provisions of the Civil Law of the PRC (中华人民共和国民法总则, zhonghua renmin gongheguo minfa zongze) indicates that “This law is […] promulgated according to the Constitution (根据宪法, 制定本法, genju xianfa, zhiding benfa).” This wording can also be found in the Law of the PRC on the Protection of Persons with Disabilities (中华人民共和国残疾人保护法 (zhonghua renmin gonghe guo canjiren baohu fa), the Law of the PRC on Supervision (zhonghua renmin gongheguo jiancha fa, 中华人民共和国监察法), the Criminal Law of the PRC (zhonghua renmin gongheguo xingfa, 中华人民共和国刑法), the Law of the PRC on the Protection of Women's Rights and Interests (zhonghua renmin gongheguo funü quanyi baohu fa, 中华人民共和国妇女权益保护法), and so on.

  46. The strongest form of the binding force (in a purely legal sense) of the current Chinese Constitution is that it functions as the basis of the common legislation of the NPC and its Standing Committee which in their legislation formally refer to the Constitution. However, even a formal reference to the Constitution as a legislative basis is far from being a rule in the praxis of the NPC and its Standing Committee. The vast majority of the laws of the NPC and its Standing Committee in reality lack such a reference. Thus, a review of the constitutionality of laws in the PRC is still quite feeble.

  47. The term “a socialist rule of law state” first appeared in the constitutional amendment of 1999 in the current Chinese Constitution. In this amendment, a new paragraph was added to Article 5 which reads: “The People’s Republic of China governs the country according to law and makes it a socialist rule of law state.” The constitutionally defined concept of “a socialist rule of law state” purports to establish a core paradigm of China’s own legal and constitutional narrative. In the prefix, “governing the country according to law” is added which inherits the CCP’s understanding of law as an instrument.

  48. In fact, the core formal and substantive elements which the Western concept of the “rule of law” includes, for example “liberal democracy”, the “separation of powers”, “independent courts” and so on, are exactly those which its Chinese counterpart intends to avoid so as to maintain the autonomy of the narrative modality of the “socialist rule of law” under the leadership of the CCP.

  49. “The Chinese Communist Party as a supra-state polity itself provided extra-state normative sources in the form of policies and intra-Party regulations and directly exercised vital functions in the state and society governance. […] The space of rule of law which entails the supremacy of states-laws and the independence of the formal legal system depends highly on a separation between the Party and the state.” (see Zhang 2017, p. 374).

  50. On the Reform of the System of Party and State Leadership (党和国家领导制度的改革, Dang he guojia lingdao zhidu de gaige, August 18, 1980). English version, see http://en.people.cn/dengxp/vol2/text/b1460.html, last visited on December 12, 2018.

  51. On the reform of the political structure (关于政治体制改革问题, guanyu zhengzhi tizhi gaige wenti, 1986), English version, see http://cpcchina.chinadaily.com.cn/2010-10/25/content_13918373.htm, last visited on December 17, 2018.

  52. The socialist market economy was first officially confirmed in the fourth constitutional amendment and stipulated in the “Decision of the CCP Central Committee on Some Questions Regarding the Establishment of Socialist Market Economy system” in 1993 (zhonggong zhongyang guanyu quanmian jianli shehui zhuyi shichang jingji tizhi ruogan wenti de jueding, 中共中央关于建立社会主义市场经济体制若干问题的决定).

  53. As the typical representative of this legislation, it is to refer to the Corporate Law of the PRC (zhonghua renmin gongheguo gongsifa, 中华人民共和国公司法) which, as the concretization of the constitutional stipulation of a “socialist market economy”, was also enacted in 1993 to “satisfy the needs of establishing modern enterprise systems, regulate the organization and operation of companies, […] and promote the development of socialist market economy (Article 1).”.

  54. Quantitatively, the laws which were formulated (including their revisions) from 1990 to 1999 amounted to 180, almost twice as much as those enacted in the 1980s. The legislation after 2000 up to now amounts to approximately 590 pieces which shows a dramatic increase compared with previous stages. Further, administrative norms (xingzheng fagui, 行政法规) which are formulated by the State Council (guowuyuan, 国务院) amount to 9600. For statistics on the legislation in the PRC, see the legal database Beida fabao: http://www.pkulaw.cn/.

  55. For a concise description of the history of the separation between the Party and the state since 1978, see Zhang (2017, pp. 379–388).

  56. See Zhang (2017, p. 387).

  57. The Cultural Revolution saw a high degree of interconnectedness between Party organizations and state organs and even the substitution of the latter by the former. In the Cultural Revolution, the formal state organs were destroyed and replaced by “Cultural Revolution Groups (wenhua geming xiaozu, 文化革命小组)” and “Cultural Revolution Committees (wenhua geming weiyuanhui, 文化革命委员会)” which were under the direct leadership of the CCP. The local Cultural Revolution Committees at different levels were defined as the local executive organs which took the place of the original local governments (Article 22 of the Constitution of 1975, Article 37 of the Constitution of 1978).

  58. This early stage is characterized by relatively stable and open political circumstances and in which, especially, many organizational laws on the state bodies at different levels were enacted. It indicated the beginning of the institutionalization of state bodies which reached its peak through the adoption of the Constitution of 1954.

  59. Article 16, paragraph 1 of the Constitution of 1975.

  60. Before the latest amendment in 2017, the Constitution of the CCP had been amended 6 times, respectively in 1987, 1992, 1997, 2002, 2007 and 2012.

  61. The amendment of the Constitution itself was mainly driven by the Report of the 19th National Congress of the Chinese Communist Party delivered on October 18, 2017. In this report, one can see new elements on the ruling of the CCP which is completely succeeded by the new Party Constitution.

  62. The original Chinese text of this citation is much more expressive. Directly translated, it reads: “The Party exercises its leadership over the Party, government, the military, the people, students, the east, west, south, north and middle. The Party leads everything (dang zheng jun min xue,dong xi nan bei zhong, dang shi lingdao yiqie de, 党政军民学,东西南北中,党是领导一切的).”.

  63. Notwithstanding the repeated emphasis on the significance of the rule of CCP, in the current Chinese legal system the legal safeguard for the rule of the CCP can be found in the crime of “jeopardizing national security” which is mainly defined in the Criminal Law of the People’s Republic of China (Articles 102–113). Although, due to the high interconnectedness between the Party and the state, it makes no essential difference whether a crime is punished in the name of “jeopardizing national security” or “jeopardizing the Party’s security”, the formal independence of the state regarding this issue is maintained and a special crime of “jeopardizing the Party’s security” does not yet exist.

  64. Decision of the Central Committee of the Chinese Communist Party on the Reform of Party and State Organs (zhonggong zhongyang guanyu shenhua dang he guojia jigou gaige de jueding, 中共中央关于深化党和国家机构改革的决定, adopted on February 28, 2018, hereafter the Decision 2018).

  65. The second part of the Decision of 2018.

  66. “The decision-making coordination institutions of the CCP Central Committee shall be optimized to take charge of the top design, general layout, overall coordination, and overall advancement of significant work. Party leadership over deepening reform, law-based governance, economy, agriculture and rural affairs, discipline inspection and supervision, organization, publicity, thought, culture, national security, political and legal affairs, united front work, ethnic groups and religion, education, science and technology, cyberspace administration, diplomacy, audit, and other work shall be strengthened and optimized.” (The third part of the Decision of 2018).

  67. “The Party committees or groups which are established in state organs, public institutions, mass groups, social organizations, enterprises and other organizations, need to be led by the Party committees which approve their establishment and report their works regularly to the later so as to ensure the implement of Party’s policies, decisions and layouts in the organs on the same level.” (The third part of the Decision of 2018).

  68. “Some Party organs can be established unitedly with other organs which exercise similar functions or are closed to Party organs so as to carry on unification or co-location of works.” (The third part of the Decision of 2018).

  69. This reform aims to “realize the organic unification between intra-party supervision and state supervision as well as the organic unification between Party’s discipline inspection and state supervision.” (The third part of the Decision of 2018).

  70. Shenhua dang he guojia jigou gaige fang’an (深化党和国家机构改革方案), announced by the Central Committee of the Chinese Communist Party on March 21, 2018.

  71. The first part of the Plan of 2018.

  72. The eighth part of the Plan of 2018.

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Acknowledgements

The author would like to thank the anonymous reviewers for their valuable comments and suggestions on the first version of this paper. All possible faults are the author’s own.

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    Xiaodan Zhang

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Zhang, X. The Leadership of the CCP: From the Preamble to the Main Body of the Constitution—What Are Its Consequences for the Chinese Socialist Rule of Law?. Hague J Rule Law 12, 147–166 (2020). https://doi.org/10.1007/s40803-019-00100-7

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