China's Constitutionalist Option

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...