Sunday, August 19, 2012

State and Party Constitution in China: A View From China

People tend to understand things only from out of their personal experiences and contexts.  People tend to take the foundational premises of the social and political order in which they have achieved a measure of success as "natural" and "given."  That then becomes the basis from which to judge, and sadly, understand social and political orders other than their own.  But sometimes that pattern is unhelpful. 

 (pix (c) Larrty Catá Backer 2012)

This is especially the case when Western scholars and political analysts try to understand the Chinese system of Marxist Leninist state organization.   Many are content to judge that system against the metrics of Western  post 1945 political and economic conventions.  The result is predictable and negative.  Others, with the failures of the Stalinist Marxist Leninist experiment in Europe and Latin America firmly in mind, tend to assume the Chinese model is merely a variant on this model and thus also ultimately doomed to failure, or that in any case, the inefficiencies of Soviet organization cannot be avoided by the Chinese.  There are exceptions who are well worth reading (e.g., Randall Peerenboom, China's Long March toward Rule of Law (Cambridge University Press, 2002; Peerenboom, Randall, The Social Foundations of China's Living Constitution (January 26, 2010). 

Among the most difficult aspect of Chinese institutional organization to understand is that of the formal relationship between the Chinese Communist Party and the State organs.  (e.g., Backer, Larry Catá, The Party as Polity, the Communist Party, and the Chinese Constitutional State: A Theory of State-Party Constitutionalism (January 10, 2009). Penn State Legal Studies Research Paper No. 05-2009. The work of Chinese scholars, little known in the West, is useful for acquiring perspective.  My research assistant Shan Gao (Penn State SIA '12; SJD expected) prepared a brief introductory summary of the a conversation among Chinese scholars about the issue, which follows.

GAO Shan

One famous Chinese jurist once had said that “the progress of the rule of law” in China always follows the routine “two steps forward and then one step back”. For a long time, CPC always had trouble in dealing with its role under the ideology of rule of law and constitutionalism, especially when it comes to the separation of politics from government institution. Since the foundation of PRC, CPC has kept maintaining his role as a leader in all aspect of the nation, inserting its ideology of Marxism, Leninism, Maoism, the Deng xiaoping Theory and the “Three Represents” theory into the state Constitution is one of the ways. In fact, as time went by, there is an inconsistent of the recognition on CPC’s role under “Rule of Law” in relation with the principle of “leader in all aspect of the nation”, which had been set up in both the State Constitution and the CCP Constitution.
 The 1982 State Constitution and Party Constitution after 11th CPC National Congress are significant events on the history of PRC. Both Constitutions actually announced the end of an era, an era that CPC can explicitly take control of everything in PRC. Since 1980s and Open up policy, the development in economic is tremendous. The embrace of private economy, the recognition of human rights and emphasize of the Rule of Law can be seen as the response to such development in the political area. Although people are increasingly concerned about current silentness of political reform, some reforms had taken places during 1980- 2006 and they are producing positive effect to the society.  
Party’s Constitution is the supreme rule for the CPC member, State Constitution is the supreme law for the Chinese. NPC is the highest organ of the State Power. The Constitution stated that Political party need to obey the Constitution and it also said that all the Chinese is under the leadership of CPC. People always confused by such statements and the logic behind them. Who possess the supreme authority? What’s the relationship between the CPC party Constitution and State Constitution? All these questions are touches the fundamental issue of the CPC’s leadership and essential nature of the CPC’s leadership. All these questions are tricky, ambiguous and controversial. In order to give readers some clues, this report is trying to present the Chinese Scholars (including Taiwan) discussion about the CPC’s leadership. In interpreting this topic, the report will separate into 3 chapters, which are specifying the CPC’s leadership in relation with the State Constitution, Party Constitution and Legislature.
The first chapter will explore the similarity between the Party Constitution and State Constitution and scholars view on Party’s Constitution’s effect on the State Constitution. The next chapter will have a further discussion on the CPC’s leadership in relation with the State Constitution. It will present you the disputes on who possess the supreme authority of the power. In Chapter3, the reports will talk about the relationship between the CPC and NPC, how CPC legalize its power through the NPC, and how CPC carry out its leadership through the internal and external system. Hope this organization and analysis can give reader a good start on understanding the presented questions.

Chapter I         CPC leadership: State Constitution and Party Constitution ch1
                        Introduction & Summary
1.     The amendment of the State Constitution in reflection of the Party Constitution
2.     The Party Constitution’s importance to State Constitution

Chapter II        CPC’s leadership, CPC and the State Constitution ch2
                        Introduction & Summary
1.     The revision of the state Constitution and CPC leadership
2.     Constitution and CPC leadership, who is the supremacy authority
1)    One Taiwanese Scholar’s view
2)    What is CPC’s leadership and how CPC carry it out
3)    Disputes on whether there is a confliction between the CPC leadership and Constitutional principle
a. Views on there is a confliction
b.Views on there is no confliction
4)    Does CPC process supreme authority?
5)    CPC’s view on Centralized leadership (over-concentration) issue
a. What is the over-concentration?
b.The consequence of this problem
c. The causation and CPC’s attitude toward it  
3.     Constitution principles and CPC’s leadership
1)    Rule of Law and Rule the Party by Law
a.Rule the party by law is WRONG
b.Rule the party by law is RIGHT
2)    Three Representatives and CPC’s leadership

Chapter III       CPC’s leadership, the relationship between CPC and the Legislature, the NPC
                        Introduction & Summary ch3
1.     the role of NPC as the highest organ of the State power
2.     Debates on the confusion of two authority: CPC’s decision making power and NPC’s decision approval power
3.     the connection between CPC and NPC
a.     Taiwanese Scholars view
b.     Mainland Scholars view
c.     Political leadership
d.     Organization leadership: Appointment and remove an official
1)         The party organ and party headquarter
2)         Supervision

The paper can be accessed HERE

No comments: