Micha³ Korzec:
A
Fragmented or a Scattered State?
A paper for the Warsaw
Workshop June 30th-July 1st: State, Law and Society in Contemporary
China
(From Beyond
the Party-State: Remarks About the State Formation the People’s
Republic of China)
When writing about the political system in the
People’s Republic of China the first question is: how should we call that
system? What is, in a word or two, the shape, structure content and quality of
that system, state and society? Is it Leninist, neo-totalitarian,
post-totalitarian, repressive, open society, soft state, neo-imperial, global,
cellular, third world, developmental, capitalist, state capitalist,
traditional, neo-traditional, typically Chinese, simply cleptocratic,
plutocratic, oriental despotic, legalistic, authoritarian, fragmented
authoritarian, oligarchic, polyarchic, soft authoritarian, network state, the
web that has no weaver, unitary state, (quasi) federal state? This
question (which can be inflated ad
infinitum) is an answer. The system is all of the above.[1]
The apprehension of the Chinese state is only possible through a combination of
functional analysis and Gestaltwechsel (made possible by the use of
these phrases regarded as vector projections of the reality of the political
system). Is it therefore not necessary to abandon comparative theory and to
describe the PRC only with truisms such as ‘China is an eclectic amalgam’ or
‘China is China’ or ‘China is unique’.
If forced to take sides in a debate which has been
going on about China for more than hundred years and will be relevant for many
years to come, I am inclined to say, with June Dreyer, that China is much more
modernizing than traditional.[2]
This is obvious when talking to the overwhelming majority of inhabitants of the
People’s Republic. Their ignorance of the most basic aspects of the classical
Chinese civilization is unbelievable. This certainly applies to the most well
known political leaders of China during the last hundred years. Chang Kai-shek
was an exception in the sense of having received a classical education. But
state builders such as Sun Yatsen (during most of his life) or Mao Zedong were
not only unfamiliar with the major part of the Great Tradition but also proud
of it. They considered themselves as modernizers.
One can ask the question, moreover, if there have ever
been in China traditional thinkers in the popular sense of the word. Let’s
take, for example, the key concept in Confucian political philosophy: lizhi （礼治）- rule through rites. This
concept has been identified by some (not correctly) as the Chinese equivalent
of natural law. But natural law presents itself as sacred, given, unchangeable.
Confucian rites are secular customary, adaptable and, within the limits of a
limited number of moral standards, changeable. Changeable tradition is an
oxymoron and Confucian tradition is therefore no tradition in the most popular
sense of the word. 白马非马 – a white horse is not a
horse.
However: what is tradition?
One could say, for example, that the language of anti-statist individualism is
typical for American political tradition and that the American Constitution
embodies that tradition. At the same time the same Constitution expressed the
acceptance in the United States of the structures of the military-fiscal state
which made the new federal republic similar to the modern European states
despised by America’s revolutionaries. [3]
Tradition is continuously discovered and invented for the purpose of modern
politics in America, in China and elsewhere. Flexible, multi-intepretable
traditions are useful for narratives of politics, inflexible (if any) are not.
The bottom line is the expression use by the Chinese ‘misty’ poet Yang Lian: “I
was not born into a “motherland” or a “tradition”, they are born in my poetry.”
[4]
A final remark about the
uses of tradition. It is perfectly legitimate to apply Confucian, Taoist,
Buddhist, Legalist or Huanglao political philosophy to analyze the political
systems of the West. There is no reason
why such an analysis, whatever one might think of its uses and limitations,
should not be allowed to understand the political system of the People’s
Republic of China. The fact that most Chinese intellectuals at present are more
interested (fascinated) in discovering the uses of the Western natural law for
their country than in rediscovering the truths of 道德经 (Daodejing) is not the
final verdict in this dialogue of civilizations.
And: what is modern
politics? Political culture that regards the open pursuit of group interests as
legitimate (with interest representation in the form of legislative lobbying
and pork-barrel politics) certainly did not manifest itself in Mao’s China. But
this kind of modernity was not in the recent past openly recognized (even if
accepted in practice) even in liberal democratic political systems. It is still
contested now. Today, certainly with the promulgation of the constitutional
amendments of 2004, the Chinese Communist Party consented to the pursuit of
group interests (and their representation within strict boundaries). In this
sense the CCP with its ‘three represents’ is on its way to become one of the
many modern political parties of the world. And, of course, the March 2004
Constitution of the People’s Republic of China says: “The State respects and
protects human rights”.
One could ask oneself if “tradition” should be looked
for in the realm of knowledge or rather, like the author of this work thinks,
in the methodology of change, the methodology of institution building. This
meta-knowledge is present in the culturally grounded answer to the question:
what is change? Behind that answer traditional ontological assumptions are
hidden. Assumptions about what is really real. Or at least assumptions about
how things really appear to be.
Manifestations of hidden traditions appear when one
considers the dependence of the sequence of steps (the weight of time, path
dependence) and relations giving sense to specific elements. To give an
example: in China local markets were merely ‘frozen’ for twenty years and could
be revived after 1978. In Soviet Union these local markets were successfully
liquidated. The revival of the local markets in China is a form of revival of
tradition. Another example (which I describe in more detail in chapter IV on
the Korean War) – the change of sense through change of the context –
characteristic of the Taoist tradition – was one of hidden reasons for China’s
entry into the Korean war (war as a disciplining ramification strengthening the
nexus party-state).
The communist revolution in China which reinterpreted
the Leninist strategy of destruction of institutions in order to make place for
communist institutions was also in this sense traditional because it recognized
that change is before all a change of relations in which a given element is
embedded.
All of the above, of course, does not exhaust the
richness of the discourse on tradition and modernity in and about the
present-day China. That discourse, however, should not be conducted along
preconceived lines. The communist system, which was supposed to be the most
advanced in the world, has succeeded to preserve, in China and elsewhere, the
most touchingly backward forms of daily life, habits and material culture. One
can, if one really wants, consider this as ‘subconscious tradition’. At the
same time, if we look at the present legal system in the PRC, we will not find
in it even the slightest remnants of the legal systems of traditional China. It
is very ironic that the only place in China where civil law has been build on
the foundations of the civil law of the Qing empire is Hong Kong, the most
westernized part of Greater China. On
the one hand one is reminded here of the delightful description by Samuel
Huntington of the political and legal system in the present day United States
as “essentially Tudor and hence significantly medieval”[5]
In a more seminal vein it is deeply significant that we observe in the PRC
today a fascination with American constitutionalism [6]
(the Chinese law-in-the-books of today being decisively continental). Of course
the Chinese main tradition lacks the concept of natural law, which is the
fundament of the American constitution. [7]
But neither China nor America were really influenced by the Enlightenment
rationality. The political system of the United States is one of the products
of the European Enlightenment. It is an early product though, empirical but not
oriented to the rationality of positive law or administrative law.
The fascination in China with the American
constitution (both in republican times and in the PRC at present) is, at least
partly, derived from a deep understanding in China of premodern structures of
rule (governance), which did not go through the process of rationalization.
These premier forms of rule and law with their absence of a center and their
multiplicity of logics, rationalities and regulations (instead of derivations
of unified procedures from one set of rational axiom’s) fit the reality of
globalization. To say it in other words: the deficit of politics is a
characteristic of both premodernity and postmodernity. Of premodernity because
of the absence of representative mechanisms (parliaments) in states. Of
postmodernity because of the reduced function of states.
The 4th (2003) edition of China’s
Political System of June Teufel Dreyer speaks of the visible
“re-traditionalization” of many aspects of Chinese society: growth in power of clans, religion, local
protectionism; deterioration in position of women, etc. While the current PRC
legal system certainly isn’t built on that of the Qing, it does resonate with
political control of the courts: the
role of bribery in the legal process, the importance of mediation, the
tremendous concern with social stability, and of course protection of local
elites. All this was found in imperial China. But the corruption of the judges
was most pronounced in those old days when the judges (on county level they
were county magistrates at the same time) were most independent of central
authority due to the weakening of that authority. It is not surprising that the
overwhelming majority of the inhabitants of the PRC, when confronted with the
issue of independence of courts, reply that independence would make Chinese
judges even more corrupt than they already are. In present day China there is a
subterranean aversion to modernity which is not caused by sehnsucht for
Maoism but by rediscovery (induced by the popularity of historical TV-serials)
of the truth that “when traditional China lived up to its ideals, it was quite
a good system”[8], Certainly
if China attains modernity, it will look very different from that of Europe and
North America. According to some Andrew Walder’s communist neo-traditional
paradigm is a more likely route.[9]
But I think it is also true that if Durkheim could look at today’s China he
would have no trouble to apply to its society his concept of modern ‘organic
solidarity’.
The most general and useful concept to describe the
changes in the PRC since 1978 is depoliticization. This depoliticization
consists of the following:
-
The end of forced
participation of the population in mass campaigns, political rituals, hate and
allegiance meetings.[10]
It can be described as a transition from totalitarian democracy to something
described as an authoritarian system. Whatever the merits of that description
may be it is certainly not a system of representative democracy.[11]
-
The reduction of
the obligations of party members. Previously a party member was supposed to
believe and execute a party ideology, a party policy and a party line. All this
was continuously changing. An adaptation to these changes necessitated a
considerable amount of stress resistance and elasticity. The only thing that
the Party requires from its rank and file today is occasional participation in
meetings to hear repetitive statements of the most general non-controversial
kind. This does not require any effort except resistance to boredom.
-
The ‘growing out
of plan’. In the past the drawing, promulgation and implementation of plan
targets involved practically all levels of the party, government, industrial
and agricultural apparatus. In the present situation where ‘responsibility
system’ reigns and the principal worry of the government is to get rid of the
responsibility for loss-making state enterprises the role of the plan is
reduced from a all encompassing political imperative to that of an estimate, a
prediction and a guideline. The pressure on local powers that be to produce
(and, if necessary, to falsify) the expected statistics still exists. But this
is but a pale shade of the previous power politics of planning.
-
The replacement
of the ‘politics of policy’ by the politics of law making (or: rule-making). To
make a long story short (I will elaborate on this in the chapters on law and on
administrative law) this change resembles a transition from hand steering to
automatic pilot in airplanes. To say it in other words: it is a change from
preoccupation (or obsession) with control to preoccupation with steerability.
It is also a shift from issuing and obeying of orders and instructions to
following of procedures. It can be called the institutionalization of
procedures. [12]
-
The growing relative autonomy of
non-party and non-state organizations. While, as I will explain later, this
does not necessarily mean that a civil society in our sense of the word will
exist in China in the foreseeable future, the direct dependence (resembling
Durkheims ‘mechanic solidarity’) of individuals and groups on party and state
has been diminishing in China since 1978. The rise of the power of
entrepreneurs (although a great part of them could be described, at least
initially, as ‘political capitalists’) is a part of this process. Some use the
word decentralization to describe this process (also supposingly taking place
within the party and the state) but that word, just as the word reform, or the
duality conservatives-reformers is not a useful analytic tool.
-
Deideologization of all forms of public
life. The often all-pervasive moralizing practiced by public figures that
remains might be called an ideology. But if it is an ideology it is much older
than the short story of communism in China. And politicians in all countries
are moralizers.
-
Differentiation
between politics and administration (Zheng dang fenli – division between
government and party)
-
The replacement
of the quest for control by the quest for steerability
-
The remarkable
reduction of political repression. [13]
All this has been referred to as the ‘retreat of the
state’ and/or ‘retreat of the party’. [14]
I think that a more appropriate general expression is useful: the absorption of
the Party by the State. This expression
(one of the few falsifiable theories, a ‘thick’ one, in the field of China Studies)
contains depoliticization and does not hide the growing role of the state and
the governance in Chinese society. Next I will say more about the absorption of
the Party by the State. The growing role of the state represents the
contemporary Chinese counterpart of the growing “infrastructural power” of
European absolutist states (at the expense of both “despotic power” and “power
of estates”) since the 15th century and can therefore be regarded as
state formation.
Absorption of the Party by the State
For about twenty years a slogan has been used in the
PRC: separation of the party from the government (dang zheng fenkai [or:
fenli]). That slogan has never been recanted but one does not hear it so much
anymore. The reason is that the experience of 1989 and the demise of the Soviet
Union shows that any serious implementation of the “separation” policy leaves
the communist party in a void and leads to the chaotic collapse of the state.
Instead in the nineties we have been watching in the PRC a silent, inadvertent
transition[15]: a slow
incremental absorption of the party by the state. The January 2003 issue of the
Hong Kong monthly Zhengming (Chengming) gives the following description of a
speech by Jiang Zemin:
“In mid-December 2002, the CPC Central Secretariat
convened a meeting on the work of organization development. Jiang Zemin
attended as an ordinary party member and issued directives at the meeting to
the whole party regarding the present state, the stage and the orientation of
development of the CPC as an organization. Jiang pointed out that by 2010 the
CPC membership is expected to grow to 80 million and the workers and peasants,
who currently are the party’s nucleus, would be replaced by the middle class of
socialism with Chinese characteristics as the nucleus. (…) Jiang continued,
when party building and organizational development reach 2010 or 2015, we are
expected to become a political party boasting of a nucleus including state
organs’ and government departments’ functionaries, the army, the armed police,
all structures of the superstructure, the various democratic parties, and the
industrial and commercial circles. This is inevitable when a political party
advances along with social development. This will also show we are a political
party that has vitality, is most widely representative of the society, and has
vision.”
Jiang’s words about a future political system in China
are a succinct, sophisticated “non-communist manifesto” of a kind that we have
never heard from a PRC leader. It is a vision of political reform that is an
exact opposite of what is usually meant by those who speak of the need for
political reform in China. It is political reform without democratization. It
is a strikingly realistic scenario for the shape of things to come. It shows
the way from a party-state to a state-party.[16]
Jiang Zemin uses the word ‘superstructure’ in an other
way that a Marxist would do. For a Marxist superstructure is simply derived
from relations of production. Taking the state seriously is what distinguishes
a non-marxist from a Marxist.
The goal of that non-marxist transformation is
political stabilization (a different thing from social stabilization). This
manifesto goes against everything written about government of the people in the
constitution of the PRC and democratic constitutions of other countries.
Obviously the former chairman (president) of the PRC
used the expression ‘middle’ class in another way that it is usually done. His
middle class is state created and as such it is not going to be (or, at least,
it is not meant to be), like it was in the West, the breeding ground of a civil
society.
Jiang’s words marked an end of the reform era, as we
know it. Reform created a crudely cleptocratic system with a political class
(ganbu) living in the best parts of two worlds: communism and capitalism. This
cleptocracy is not only hated by the laobaixing (common people) and
endangering China’s image in the world. It is the source of political and
social instability.
The transformation of ganbu (cadres) into gongwuyuan
(civil servants, public servants) which has been going on for some time already
makes it possible to raise their salaries and therefore do away with a part of
corruption by legalizing it. A communist party must profess egalitarian ideals.
A state doesn’t need to.
The state-party will be the core of an imperial (not
necessary imperialistic) whole with a structure of multiple citizenships and
multiple political-social systems (one country-empire many systems). It will
reflect, Marxists would say ‘reproduce’, (as it already does) the structure of
the present global empire. We can call it: internal globalization of China.
Such a multiplicity of systems makes one think not so much of old imperial
China but of old Rome with its coexistence of the republican, senatorial,
caesarian form of rule and a differential application of civil law.
The existence of multiple systems means, among others,
that the present situation where there is a rule of law for some, a rule by law
for some and no law for some will continue to exist. But a state-party is more
conductive for ‘fazhihua’ (‘Enlawment’)[17]
than the present Party-State where the party’s “leading role” will defy further
advance to ‘Enlawment’, constitutionalism etc.
The present Chinese state is committed to fazhi
(法治).
A word that means both ‘rule of law’ and ‘rule by law’. [18]
China is not so unique in this ambivalence since in every country the law also
functions as an instrument of power.
The present president of the PRC Hu Jintao’s has since
his accession been (at least verbally) engaged in favor of China’s
disadvantaged. This should not be seen as his opposition to Jiang Zemin’s
etatist visions. As said the etatist visions are about political stability. Hu
Jintao expresses concern of the Chinese power elite about social stability. The
two are no opposites but complementary.
What will happen to the Communist Party of China after
the transformation from party-state to state-party? It might simply change its
name. It might become the functional equivalent of a constitutional monarch
without real power. The most interesting possibility in the nearest future is
that of the party becoming a crisis-oriented strategic center defining boundary
conditions of a fuzzy regulatory system that is a prerequisite of steerability in
a global context today. That center can coexist with the appearance of
hierarchy of political parties with the present CCP as a ‘superparty’or hegemon
party defining the rules of interaction of other political subjects and
distributing ‘concessions’ for their activity.
The ‘democratization’ of the party that Party
officials sometimes speak about is unlikely as long as ‘democratic centralism’
remains one of the basic principles of that party. Without that principle the
CCP would not be CCP anymore.
The enlargement of the role that the 8 so-called
‘democratic parties’ play in the public life in the PRC is possible and even
likely. But a real political pluralism (existence of autonomous political
subjects) would mean the end of the present political system in the PRC and in
the foreseeable future (the next 12 years) this is unlikely to occur.
Therefore, democratization such as it is hoped for
China in the West will probably not happen soon. Modernization of the society
and modernization of the state are, on the other hand, the goals of the present
regime. The realization of those goals will take a long time but if they are
pursued the political system of China will change. The key to this slow,
incremental change is the present Chinese State. In this State, for the time
being, the leading role of the Party is officially regarded as eternal even if
that longaevitas is dependent on following the correct line. [19] But, to use the language of Aristotle, even
within that longevity the Party cannot be regarded anymore as an unmoved mover
of eternal motion evolving according to principles once given.
The Chinese state is an eclectic amalgam. It is a Leninist party-state where the leading role of the party is eroded, it is a market promoting entity (小国家 – 大社会, “Small State – Big Society”), and it is modern, traditional and neo traditional at the same time. When talking about the backwardness of country and the way it is ruled the Chinese intellectuals and politicians have for four generations talked about the persistence of ‘feudalism’ (fengjianzhuyi – 封建主义). The word is misleading since feudalism in the European sense of the word disappeared in China around the 7th century BC.[20] Fengjianzhuyi is used, among others, to describe what Max Weber called patrimonial bureaucracy and which is also called arbitrary rule, patronage and corruption.
Our Chinese State is presently based on the rule by law and it is based on the rule of law. It is influenced by globalization. The state is influenced by its “Chinese characteristics” or ‘guoqing’ (country’s ‘nature’). It is unitary and quasi-federalist. It is democratizing and authoritarian, authoritarian and pluralistic. It is a third world country ‘soft state’. It has, in some aspects, a strong center capable of imposing a set of policies upon the country: a developmental state. One wonders if these unities of contradiction reflect the ancient Chinese non-dual thinking and multiple logic. Or should we label all this as ‘characteristics of a developmental state’? Since Chinese scholars have different views on the nature of the Chinese state and its problems one should not expect unequivocal answers on the subquestions derived from the question: what is the Chinese state?
Officially, the People’s Republic of China is a unitary centralized state under the “democratic dictatorship of the people”. The central government gives an ‘unified leadership’ to the whole country while the local governments take care of state’s matters on local level according to the ‘separation of levels’. Therefore from the central government (State Council) to the different local governments a gradual pyramid-like structure has been established. The elements of the local governments interlock horizontally and vertically. A vertical and horizontal analysis yields what is called the ‘branch’ (tiao) and the ‘chunk’ (kuai) aspects of the local government.
The vertical analysis yields a picture of the Chinese state as having superimposed layers, with different prerogatives and functions of each layer. The lower the layer the less management responsibilities, each level is subordinated to a higher one.
In the beginning years (1949-1953) of the PRC 5 administrative levels existed under the central government: big (government) area (da [zheng] qu),[21] province (sheng), county (xian), area (qu) and xiang (township). In provinces where prefectures were introduced the actual number of administrative levels was 6.
In order to strengthen the new order the newly ‘liberated’ big area’s were placed under military control (military administrative committee), in other area’s a “people’s government” was established. The military or former military were, however, in charge in all government organs. See the chapter about the Korean War in this book.
After territorial reorganization of the counties in 1952 2149 counties and county-like entities existed. They were administratively placed directly under governments of the provinces. At that time as now the basis units of government were the xiang (townships) and the zhen (small towns) of which they were (xiang and zhen together) in 1952: 267371.
Administrative territorial division: 1952
|
Administrative area |
Province level |
Administrative Office Special Level |
Towns |
County level |
|
Country |
29 provinces, 13 municipalities, 1 autonomous region, 1 Locality, 2 Administrative Office Areas. |
1 Administrative Area, 187 Special Regions, 13
Autonomous Regions, 1 Mining Area, 1 Salt Area, 1 Special Area, 1 Management
Bureau, 1 Office Department, 3 (Mongolian) Leagues, 3 Departments. |
82 provincial towns (under provincial government),
62 specially administered towns. |
1941 counties, 57 banners, 7 autonomous districts, 14 towns, 1 industrial-mining district, 2 mining districts, 3 focal districts, 3 districts directly under the central government, 2 salt districts, 1 special district, 1 developmental district, 123 Tibetan counties. |
Administrative territorial division: 2004
|
Provincial
level |
Local
level |
County
level |
Township
level |
|
4
municipalities 23
provinces 5
autonomous regions 2
Special Administrative Regions Total:
34 |
275
local towns 22
local areas 30
autonomous cantons 5
banners Total:
332 |
830
town areas 381
county level towns Total:
2860 |
66
public places 20600
towns 17196
townships 286
sumu (苏木) 1160
minorities townships 2
minorities sumu 5516
‘street’ townships Total:
44822 |
Translated, adapted and developed from www.xzqh.org and other Chinese sources
The best overall description and functional case analysis of local governments of all levels (4 and sometimes 5 or 6) is the ten-volume 中国地方政府挂历丛书 (The Series About the Management of Local Governments) commissioned by the “Eighth Fifth” plan for the “National Philosophy and Social Sciences”. The volumes have appeared in 1995-1998. These studies are excellent and wait to be mined by Western and Chinese specialists in the administration of the PRC and its history. I choose not to analyze here the findings of these volumes since doing so would necessitate the adding of many chapters to this book or writing another book.
There has been many recent discussions y in the Chinese popular and specialized press whether this four layer unitary (but, as we will later see, quasi-federal) government is necessary. The most radical proposal is to abolish the fourth layer, the basic level of government, the township.[22] This would establish self-government at the bottom of the Chinese society, which is what the so-called free village elections practiced in an increasingly greater part of the PRC, is really about. This would also lead to the disappearance of party cadres (ganbu) at the underside of the Party-State. Thus the Party is absorbed by the State at the top and is left in a void at the bottom.
Let’s take a brief look at the top of Our State.
The
head of State
The head of state in the PRC is called ‘Zhonguo zhuxi’ – the chairman of China or ‘guojia zhuxi’ – the chairman of the state. This expression is, however, translated in official documents into English as President.
In 1949-1954 such a function did not exist. The Committee of the Central People’s Government did at that time fulfill some of the duties comparable with that of the head of state.
The CPG was not like the present Central Government, the State Council. It consisted of the Central People’s Government Committee, political affairs court (zhengwuyuan), people’s revolutionary army committee, Highest Court, and Highest Procurate. Because the National People’s Congress did not convene untill 1954 the role of the parliamentary agent was fulfilled by the non-elected China’s People’s Political Consultative Conference. The last-mentioned body exists until now with, more or less, same characteristics.
Paragraph 4 of the “Organic Law of the Central People’s Government said: “The committee of the CPG represents the People’s Republic of China externally and internally. It exerts political power”. The committee thus had two functions: one of the then not yet convened NPC (the highest organ of the state) and one of the later head of state. It can be said that the function of the head of state in those days was exercised collectively. The committee of the CPG consisted of 63 people of whom one was the chairman of the CPG, 6 vice-chairman and one secretary general. CPG led the country during the war in Korea and the land reform. It promulgated a great number of laws existing and implemented until the beginning of the eighties or, in a modified way, until now.
In September 1954 when the NPC approved the first constitution of the PRC it represented a step toward establishment of a legal system. According to the constitution was established the function of state’s chairman who, among others, represented the country externally, announced laws and appointed and removed members of the also newly established State Council. The state’s chairman was according to the constitution an independent state organ; he was not a member of the central government. But still the head of state was a collective entity. Liu Shaoqi said in “Report about the project of the constitution of the PRC”: “The powers of the head of state are exercised jointly by the standing committee of the NPC and the country’s chairman”.
Between September 1954 and April 1959 Mao Zedong and Zhu Du were appointed as the state’s chairman and vice-chairman. In 1959 and 1965 Liu Shaoqi was chosen as chairman. In 1966 Liu Shaoqi was arrested and died in captivity. The function of the chairman of state was exercised until 1975 by the vice-chairman chosen in 1965, Dong Biwu. Since almost no legislation activity took place in those years his function was limited to receiving ambassadors and foreign head of states.
In 1975 the NPC abolished the function of the state chairman and the concept of the head of state. In the 1975 constitution nothing is mentioned about who should fulfill the duties assumed by the chairman of state before. No reason was given by the congress why the function of chairman was abolished. In practice the Standing Committee of the NPC, the State Council or the Central Committee of the CCP performed the different functions of the head of state. In the 1978 constitution the function of the head of state was reestablished. It was stipulated that the chairman of the SC of the NPC would fulfill this function. However, just as in the constitution of 1975 the premier of the State Council was to be nominated by the CC, not NPC, and the leadership of the armed forces was to be exercised by the chairman of the CC of the CCP.
In 1982 the NPC approved the constitution valid (with some amendments added) until now. It restored the function of state chairman. In 1983 the NPC elected Li Xiannian as state chairman. In 1989 Yang Shankun was elected. In 1993 Jiang Zemin was elected as state chairman. In March 2003 that function passed to Hu Jintao. One of the differences between the constitutions or 1954 and 1982 is that the constitution of 1982 allows the chairman to hold the position for two terms of five years. In the 1954 each term was four years and no maximum of terms in office was specified. There is nothing in the present constitution about the chairman of China being the Secretary General of the Communist Party of China but it so happens to be.
The chairman and the vice chairman of the PRC are elected by the NPC. “Citizens of the PRC who have the right to vote and to stand for elections and who have reached the age of 45 are eligible for election as president and vice-president of China” (article 79 of the 1982 constitution). The limitations on the powers of the chairman (“in pursuance”) are given in Article 80:
“The president of the People’s Republic of China, in pursuance of the decisions of the National People’s Congress and its Standing Committee, promulgates statutes, appoints or removes the Premier, Vice-Premiers, State Councilors, Ministers in charge of ministries or commissions, the Auditor-General and the Secretary-General of the State Council;”
The constitution does not specify what the functions are of the vice-president. Article 82 says merely that the vice-president assists the president in his work.
According to the constitution the president of China does not have any independent power. One can phrase it using the words of Liu Shaoqi and speak of joint exercise of the function of the head of state by the chairman of the SC of the NPC and the president. It was indeed so during the presidency of Jiang Zemin that foreign state visits were more often than not done by SC NPC Chairman Li Peng and the constitution says:
“In the event that the offices of both the President and the Vice-President of China fall vacant, the National People’s Congress shall elect a new President and a new vice-President. Prior to such election, the Chairman of the Standing Committee of the National People’s Congress shall temporarily act as the President of the People’s Republic of China.”
Since this sentence has been copied from the Constitution of the United States of America there is not much more to be said.
But one can add that the power of the president is dependent on his/her other functions in the state and party and not by the presidency as such. In March 2003 for the third time in the history of the PRC the function of president (chairman) was transmitted (in this case from Jiang Zemin to Hu Jintao) with full observance of the existing constitutional procedures. There was no ‘paramount leader’ this time. Jiang Zemin kept his function as the chairman of the Central Military Commission.
The National People’s Congress
Theoretically the National People’s Congress combines the functions of representation, legislation, constitutional review and that of the highest organ of state power.
“All power in the People’s Republic of China belongs to the people,” says article 2 of the constitution. In the same constitution article 57 says: “The National People’s Congress of the People’s Republic of China is the highest organ of state power”.
Both statements are not true. The people do not have “all power” in China or anywhere else. Until what has been called above “the absorption of the party by the state” runs its course the highest organ of social and state power in China is the Standing Committee of the Political Bureau of the CCP. The only statement that is becoming truer as time goes by is that the NPC and its Standing Committee is not anymore the “rubber stamp” of the decisions reached by the SCPB. During the 1980s and 1990s national law making became a process largely independent of the communist party. It was initiated and prepared within the commissions of the NPC and its advisory bodies. The laws still had to fit within the broad policies of the CCP but there are few traces (one I observed personally in March 2000, see chapter II) of CCP direct interference with the law making process.
This does not mean that the Party is absent from the NPC. Firstly the majority of the delegates are party members. The election of all delegates by provincial people’s congresses is controlled by relevant party organizations. Secondly no less than three party groups were functioning in the Standing Committee of the NPC in the eighties: The NPC Standing Committee Party Group, the NPC Standing Committee organs party group and the NPC Standing Committee Legislative Affairs Work Committee party group. The two last mentioned groups were abolished in April 1988.
In addition to the NPC Standing Committee Party Group, which is a permanent organ, the CCP convenes a meeting of all NPC delegates who are Party members before each annual NPC plenary session. This meeting has a more ritual than disciplinary meaning.
The “system of people’s congresses” took form in 1953 when under leadership of the CCP the military rule of the country gave way to local civil governments and their corresponding parliamentary bodies from province government and province congress down. The NPC first came together on 15 September 1954. Among the laws which where passed then was the constitution, the organic law of the people’s congresses, the law on the State Council, the organic law of the people’s courts, the organic law on the people’s procurators, the law on the local people’s governments and the electoral law.
The “system of people’s congresses” started to weaken with the start of the anti-rightist campaign in 1957 and the concurrent disappearance of law making activities. The system gave way to military rule and that of the ‘revolutionary committees’. Only from 1978 the rebuilding of the “system of people’s congresses” started again.
That system as we can read in official writing fits “China’s nature” (“Zhongguo guoqing”). The meaning of that phrase is that a multiparty parliamentary system would not be natural in China since only a ‘socialist’ system based on Marxism-Leninism and Mao Zedong thought is normal in that country. The system of people’s congresses assures democratic centralism and the leadership of the center while giving full play to local initiatives. Its base is the “democratic dictatorship of the people”.
The people’s congresses are elected by indirect and direct elections. Article 2 of the electoral law of 1995 says:
“Deputies to the NPC and to the people’s congresses of provinces, autonomous regions, municipalities directly under the central government, cities divided into districts, and autonomous prefectures shall be elected by people’s congresses at the next lower level. Deputies to those people’s congresses of cities not divided into districts; of municipal districts, counties, autonomous counties, townships, townships inhabited by minority nationalities (autonomous townships) and towns shall be elected directly by the voters.”
It is often stated that the congresses are ‘entrusted’ (weituo) with power by the people: “The masses of the people directly entrust the delegates of the congresses with the power of the state”.[23] In turn the congresses entrust the power of the state to the functionaries of (central or local) goverments and can withhold that confidence and entrust it to other functionaries.
The people’s congresses have all the attributes of parliamentary bodies in democratic countries such as the right of interpellation of government officials or personal immunity of the delegates from persecution for expression of opinions in their line of work.
The electoral law of 1953 introduced the principle of serious underrepresentation of the rural population. Each vote in the urban areas was worth eight times as much as a vote in the rural areas. For example each 800.000 people in rural areas could be represented by one deputy in the first NPC while 100.000 people in the urban areas were represented by one deputy. This 8:1 proportion was the principle for election of the people’s congresses on all levels. Only in 1995 electoral law was this proportion changed to 4:1.
Three remarks can be made about the electoral under-representation of rural dwellers. Firstly it is unconstitutional: the Chinese constitution stresses the equality of all citizens before the law and there is no reason why electoral law should be an exception. Secondly, such a system of weighted voting is unparalleled in the constitutional systems of the world. It occurred in the U.S. Constitution of the United States between 1787 and 1868 where three-fifth of a vote was accorded to slaves (or rather to slave-owning southern states). It was proposed by the then South African president De Klerk in 1990 to over-represent the white population but immediately rejected by Mandela. This failed proposal for under-representation of blacks was actually quite mild compared to the electoral system practiced now in the PRC. Thirdly this anti-rural bias is indicative of the fear of those in charge of the Chinese political system of being overwhelmed by the uncontrollable forces of the ‘backward’ peasant population.
In 1953 as now the elections from provincial people’s congress down take place by direct vote while the delegates of the provincial people’s congresses choose the delegates to the NPC. The first NPC (1954.9 – 1959.4) and the second NPC (1959.4 – 1965.1) had 1226 delegates. The third NPC (1965.1 – 1975.1) had 3040 delegates. The fourth NPC (1975.1 – 1978.3) had 2885 delegates and the fifth (1978.3 – 1983.6) 3497. During the fifth (1983.6 – 1988.4) NPC the principle was introduced that the number of delegates should not be larger than 3000. In the sixth, seventh, eighth and ninth NPC the number of delegates was kept at 2978.
Members of the NPC and the SC of the NPC 1954-2003
NPC SC NPC
1st (1954.9-1959.4) 1226 79
2nd
(1959.4-1965.1) 1226 79
3rd (1965.1-1975.1) 3040 115
4th (1975.1-1978.3) 2885 167
5th (1978.3-1983.6) 3497 196
6th
(1983.6-1988.4) 2978 155
7th
(1988.4-1993.3) 2978 155
8th
(1993.3-1998.3) 2978 155
9th (1998.3-2003.3 2978 155
10th (2003.3- 2984 175
Source: Li Shouchu, Zhongguo Zhengfu Zhidu (The government system of China) Beijing 1997 (Zhongyang Minzu Daxue Chubanshe)
Pp. 112-113, 118.
Figures for 9th NPC and SC NPC from my notes during the March 2000 session.
The amount of members of the 10th NPC from Washington Post 2003.03.05, John Pomfret, “Premier says China must aid jobless or expect unrest”. The amount of members of the 10th SC NPC from Xinhua 2003.03.10
The social background of NPC delegates (in %)
The social background of NPC delegates (in %)
1st 2nd 3rd 4th 5th 6th 7th 8th 9th
Workers and peasants 5,1
11,1 12,6 51,6 47,3 16,6 23
20,6 18,9
Intellectuals
12 15 23,5
23,4 21,8 21,1
Cadres 11,2 13,4 21,4
24,7 28,3 33,2
Military 4,9
4,9 3,9 16,8
14,4 9 9 9
8,9
Returned Overseas
Chinese 2,5
2,5 2,5 1
1 1,3 1,6
1,2 2.5
Party members among NPC delegates (in %)
1st 2nd 3rd 4th 5th 6th 7th 8th 9th
CPC members 55,5
57,8 54,8 76,3 72,8 62,5 66,8 68,4 71,5
‘democratic parties’
members and non-
party members 25,5
42,2 45,1 8,3 14,2 18,2 18,2 19,1
15,4
Representatives of
the masses 15,4 13 19,3 15 12,5
Women and minorities (in %)
1st 2nd 3rd 4th 5th 6th 7th 8th 9th
Women 12 12,2
17,8 22,6 21,2 21,2
21,3 21 21,8
Minorities 14,4 14,7 12,3
9,4 10,9 13,6
15 14,8 14.4
Yang Fengchun, Zhongguo zhengfu gaiyao (An outline of China’s government), Beijing daxue chubanshe, Beijing 2002.
According to present law each NPC has a term in office of five years. The Standing Committee of each NPC has to conclude the election for the next NPC 2 months before the five years expire. In an exceptional situation the length of NPC’s duration can be prolonged by one year. A session of the NPC can take place at any time if the Standing Committee deems it necessary of 1/5th of the deputies to the NPC so propose.
Since NPC is the highest state organ in China its laws and decisions are binding on every state institution and “every political party” (except the communist party there are eight other political parties in China). If we take it literally it would mean that the NPC is above the CCP. This is not contradicted by the CCP’s ‘leadership’ as mentioned (twice and only in historical context) in the Preamble of the Constitution.
Among the functions of the NPC are:
1. The legislative function.
Changes
in the constitution can only be made by the full session of the NPC. Such
changes can be proposed by 1/5 of the deputies and the amendments must be
passed by 2/3 of the assembly.
Enacting
and amending other important laws.
No
definition is given on what differentiates an important law, which can only be
passed by the full NPC, from other laws which can be passed by the Standing
Committee of the NPC.
2. Deciding on nominating and removing from office of the highest state
functionaries such as the president and vice-president, the premier and
vice-premiers of the State Council, ministers, the auditor-general, the
chairman and members of the Central Military Commission, the president of the
Supreme People’s Court, the procurator General of the Supreme People’s
Procurate and the Secretary-General of the State Council.
Removing
from office has to be proposed by 1/10th of the assembly, a simple
majority is sufficient for that removal.
3. To approve the establishment of
provinces, autonomous regions,
and municipalities directly under the Central Government. No approval of
the NPC is needed to establish prefectures, counties and townships. Nothing is
said in the constitution about NPC approval for abolishment of provinces,
autonomous regions and municipality. That seems to be the prerogative of the
State Council (see further) but the constitution is not very clear about this
point.
4. Deciding on things of particular importance to the country such as
annoucing of the state of war or of imposition of martial law in all of the
country or parts thereof.
5. Controlling powers.
Controlling the preservation of the
constitutional order. This means on the one hand the preservation of the laws
and on the other hand the preservation of the state institutions. To annul laws
of the SC or the State Council that contravene the constitution or the law. To
annul the local laws that contravene the constitution or the law.
6. Resolving important questions concerning the highest state organs not
directly concerned with constitutional or unconstitutional acts. I don’t think
that the NPC has ever used this power. I don’t think that the NPC has ever used
the power to resolve questions, important or not, concerning the highest state
organs directly concerned with constitutional or unconstitutional acts.
From the above we can see that the NPC as a whole is supposed to fulfill some functions exercised in other countries by constitutional courts. Only: it doesn’t. And there is no constitutional court in the PRC.
The session of the NPC takes place once a year in the first quartile of the year. After preparations the SC meets one month before the beginning of the NPC session to discuss the order of the meeting, the programm of the presidium and the secretariat and the content of the laws proposed to be enacted by the NPC. Electoral units of the NPC elect the presidium and the secretariat before the session.
At present the NPC has 7 specialized commissions who can gather outside the yearly sessions of the NPC: the national minority commission, the Law commission, the financial-economic commission, the commission for education and science, the commission for foreign affairs, the commission for Overseas Chinese, the commission for internal affairs and justice.
During the time that the NPC is not
in session its Standing Committee fulfills the majority of its functions. The
SC is elected for the same term as the NPC. During that time (when the NPC is
not in session) the SC is the highest state organ of China. This is in
particular the case concerning the legislative activities and the control
functions of the state organs. Significant is the interpretation of the
Constitution and supervision of its enactment. SC is subordinate to the NPC and
must rapport on its work to the NPC. There is no legal rule on the size of the
SC but in 1983-2003 number of its members was fixed at 155 with 175 from March
2003.
The members of the SC are not allowed to hold office in the administrative, judicial or procuratorial organs of the state.
The constitutional review was not one of the prerogatives of the SC and the NPC under the new constitution in 1954. That prerogative was introduced in the constitution of 1982. Article 67 says that the SC of the NPC exercises the following functions and powers:
“1. To interpret the Constitution and supervise its enforcement;
(…)
7. To annul those administrative rules and regulations, decisions or orders
of the State Council that contravene the Constitution or the law.
8. To annul those local regulations or decisions of the organs of state
power of provinces, autonomous regions, and municipalities directly under the
Central Government that contravene the Constitution, the law or the
administrative rules and regulations;“
The SC can, during the time that NPC is not in session annul those administrative regulations, decisions or orders of the State Council that contravene the Constitution, the law or the administrative rules and regulations.
The SC can annul those local regulations or decisions of the organs of state power of provinces, autonomous regions, and municipalities directly under the Central Government that Contravene the Constitution, the law of the administrative rules and regulations.
The SC can decide, when the NPC is in not in session, on the choice of Ministers in charge of ministries of commissions, the Auditor-General of the Secretary-General of the State Council upon nomination by the Premier of the State Council,
Can decide, upon nomination by the Chairman of the Central Military Commission, on the choice of other members of the Commission, when the People’s Congress is not in session.
The same applies to the appointment of the highest functionaries of the People’s Supreme Court and the President of the Military Court and the highest functionaries of the Supreme and Military Procurate. SC can also decide on the appointment of plenipotentiary representatives abroad.
The SC is convened every two months at the end of the month for a session of ten days. The following persons can participate in the session and submit proposals and remarks without having voting rights: State Councilors, members of the Central Military Commission, the President of Supreme People’s Court, the Procurator-General of the Supreme People’s Procurate, members of commissions of the NPC who are not members or councilors, the SC Chairmen or vice-chairmen of provincial people’s congresses; “responsible officers of other state organs and public organizations” whose presence is deemed necessary by the chairman of the SC. The last includes the president of China.
The day-to-day work of the Standing Committee is handled by the Council of the Chairman composed of the SC Chairman, Vice-Chairman and the Secretary-General of the SC. Among the duties of the Council are the drafting of the agenda of each SC session, directing and coordinating the day-to-day work of the special committees of the NPC and deciding whether the bills, proposals and questions submitted to the Standing Committee should be referred to the relevant special committees or submitted to a general meeting of the Standing Committee for deliberation.
The overwhelming majority of the central legislation in the PRC is passed through the SC of the NPC. The preparatory work of the legislation takes place in specialized committees, usually assisted by legal experts in the field concerned. Some laws are subjected to a public debate. As a result of this debate those laws are amended or never put to a vote in the SC of the NPC. The law becomes valid when the president of the PRC promulgates it.
The State Council is also called the Central People’s Government of the People’s Republic of China. It is the highest “executive body” of “ highest organ of state power” (the NPC) and the highest organ of state administration. That, at least, is what the official English translation of the constitution says but 机关, used in all these three cases, can mean: establishment or office or body or organ.
There is no correspondence between the organs of the State Council and that of the NPC. We can describe the the NPC as an organ (body) of state power of the first degree and the State Council as of the second degree but we can not say that the State Council is subordinate to the NPC. It is responsible to the NPC and reports to it. The constitution does not say so but we can induce that the SC is subordinate to the President of the PRC.
During its yearly session the NPC can remove from power the following persons:
1. The President and the Vice-President of the People’s of China.
2. The Premier, Vice Premiers, State Councilors, Ministers in charge of
ministries and commissions, the Auditor General and the Secretary-General of
the State Council;
3. The Chairman of the Central Military Commission and other members of the
Commission;
4. The President of the Supreme People’s Court;
5. The Procurator-General of the Supreme People’s Procurator.
The scope of these removal powers is limited the meetings of the NPC once a year only. These powers have never been exercised.
There are no provisions about executions of instructions of the NPC by the State Council. The only relevant provision in the constitution is the rather vague article 67, paragraph 6 about the SC NPC:
“To supervise the work of the State Council, the Central Military Commission, the Supreme People’s Court and the Supreme People’s Procurate.”
Although the constitution clearly states that the State Council is the highest executive organ of the state the are no concrete clear specifications nor laws as to how the execution should take place. Nowhere is it defined if the “executive nature” of the State Council has any meaning apart that of executing the laws. Probably the expression “highest executive organ” remains from times where the Party participated in the daily matters of government sometimes to the point when the party was the government. Or just a mistake made by those who copy other constitutions.
The official name of the government at the establishment of the PRC on October 1st 1949 was: the Central People’s Government of the People’s Republic of China. At that time it consisted of 31 ministries, commissions and bureaus.
The State Council was established by the first NPC on September 15th 1954. It consisted of 64 ministries, commissions and bureaus. At the end of 1956 that number was 86. The amount of people employed by the State Council was then 50 thousand. In 1959 that number of ministries etc. was reduced to 39 and the number of people employed was brought down to 36 thousand.
At the end of 1965 the number of units of the central government grew to 49 and the number of people employed to 41 thousand. At the end of 1970 the number of units was 32 and the amount of people employed was 10 thousand. At the end of 1975 the amount of ministerial units was 29 and the number of central government employees was 23 thousand. At the end of 1978: 52 and 51 thousand. 1982: 61 and 39 thousand. In March 1988 there were 41 ministerial units.
In the course of the following 15 years the amount of ministerial units was gradually reduced as a result of market reforms. These reforms were aimed at state enterprises independence and although this independence has not been realized yet from the financial point of view the enterprises ceased to be subordinate units of specialized ministries and as the result the number of those was brought down by march 2003 to 29. In March 2003 the Ministry of Foreign Trade and Economic Relations and the State Economic and Trade Commission were merged in the Ministry of Commerce bringing the amount of ministerial units to 28.
Here are some relevant articles from the 1982 Constitution, which are valid now.
Article 86 of the 1982 constitution:
“The State Council is composed of the following:
The Premier;
The vice-premiers;
The State Councilors;
The Ministers in charge of ministries
The ministers in charge of commissions;
The Auditor-General; and
The secretary-General.
The premier assumes overall responsibility for the work of the State Council. The Ministers assume overall responsibility for the work of the ministries and commissions.
The organization of the State Council is proscribed by law” (the organic law of the State Council of the PRC, MK).
(Article 88) “The executive meeting of the State Council are to be attended by the Premier, the vice-Premiers, the State Councilors and the Secretary General of the State Council.”
The premier convenes and presides over the executive meetings and plenary meetings of the State Council. No rules are known about the frequency of these meetings at present.
Article 89: “The State Council exercises the following functions and powers:
1. To adopt administrative measures, enact administrative rules and
regulations and issue decisions and orders in accordance with the Constitution
and the law;
2. To submit proposals to the National People’s Congress or its Standing
Committee.
3. To formulate the tasks and responsibilities of the ministries and commissions
of the State Council, to exercise unified leadership over the work of the
ministries and commission and to direct all other administrative work of a
national character that does not fall within the jurisdictions of the
ministries and commissions;
4. To exercise unified leadership over the work of local organs of state
administration at various levels throughout the country, and to formulate the
detailed division of functions and powers between the Central Government and
the organs of state administration of provinces, autonomous regions, and
municipalities directly under the Central Government;
5. To draw up and implement the plan for national and social development
and the state budget;
6. To direct and administer civil affairs, public security, judicial administration,
supervision, and other related matters.
7. To direct and administer the affairs of education, science, culture,
public health, physical culture and family planning.
8. To direct and administer civil affairs, public security, judicial
administration, supervision and other related matters.
9. To conduct foreign affairs and conclude treaties and agreement with
foreign states, to direct and administer the building of national defense;
10. To direct and administer affairs concerning the ethnic groups and to safeguard
the equal rights of ethnic minorities and right to autonomy of the ethnic
autonomous areas;
11. To protect the legitimate rights and interests of Chinese nationals
residing abroad and protect the lawful rights and interests of returned
overseas Chinese and of the family members of Chinese nationals residing
abroad;
12. To alter or annul inappropriate orders, directives and regulations
issued by the ministries or commissions;
13. To alter of annul inappropriate decisions and orders issued by local
organs of state administration at various levels;
14. To approve the geographic division of provinces autonomous regions and
municipalities directly under the Central Government, and to approve the
establishment and geographic division of autonomous prefectures, counties, autonomous
counties, and cities;
15. To decide on the imposition of martial law in parts of provinces,
autonomous regions and municipalities directly under the Central Government;
16. To examine and decide on the size of administrative organs and, in
accordance with the law, to appoint or remove administrative officials, train
them, appraise their performance and reward or punish them; and
17. To exercise such other functions and powers as the National People’s
Congress or its Standing Committee may assign to it.
Paragraph 1 gives the State Council legislative powers. Article 90 gives such powers also to ministries and commissions under the State Council:
“The ministries and commissions issue orders, directives and regulations within the jurisdiction of their respective departments and in accordance with the law and the administrative rules and regulations, decisions and orders issued by the State Council.” Both legislative powers (and the corresponding powers of local governments) form the vast and complicated area of the administrative law in the People’s Republic of China.
Administrative law is a relatively young branch of law in the Anglo-Saxon countries where it was accepted after the 2d World War. In China after 1949 administrative organs issued a vast amount of law-like rules and regulations without calling it administrative law. The rules and regulations became an important substitute for law during the time of ‘legal nihilism’. The lack of coordination between sources of administrative law led to a system of conflict of laws and chaotic law making.
We can classify the administrative legislation in China into three kinds:
1. According to the source of administrative law making. We can distinguish between functional powers
of legislation and delegated powers (shouquan – received powers) of
legislation. Functional powers are derived from the constitution and laws to
establish legislation. Delegated powers are given by specific laws by
authorized state organs to be delegated to lower placed organs who do not have
legislative powers by themselves. These kind of legislative powers are also
called ‘specially delegated legislation’. For example in the “Law on the coal
resources of the PRC” article 48 says: “This law is implemented according to
the decision of the State Council”.
Another example: after 1985 the State Council
according to the decision of the SC NPC about reform and opening to the outside
world delegated the power to make ‘specially delegated legislation’ to make
rules and regulations in this field to subordinate bodies.
2. According to the content of the administrative legislation. The division
here is between “executive legislation” and “ creative legislation “. Executive
legislation is the implementation of the constitution, laws or issued from
above standardized documents. In cases case when the highest organs of the
state have been empowered to legislate by themselves without limitation about
the scope of this power one speaks about creative legislation.
3. According to the subject of administrative legislation one can
distinguish between central legislation and local legislation. Ministries and
commissions of the State Council and the State Council itself make central
legislation. Local legislation includes rules of the provinces, autonomous
regions, and municipalities directly under Central Government, cities defined
and approved by the State Council as ‘rather big cities’.
There
are three types of administrative laws: administrative laws and regulations (xingzheng
fagui. ), administrative rules (xingzheng guizhang) and
administrative measures (xingzheng cuoshi)
1. Administrative rules and regulations are documents issued by the State
Council. They are called tiaoli (ordinances), guiding
(provisions) or banfa (method). Generally speaking the name ordinances refer
to instructions about administrative activity and have a relatively
all-encompassing, permanent and systematic character. Provisions have a scope
more limited in subject and time. ‘Methods’ are usually explanations on the
ways that the problems encountered when applying ordinances and provisions must
be solved. In all three cases the legal document must be preceded by the name
People’s Republic of China.
The administrative rules and regulations issued
by the State Council undergo first a process of review by relevant ministries
and edited into a legal document by the Bureau for Legislative Affairs. The
last step in the legislative process before issue (and publication in the
Bulletin of the State Council) is the acceptation of the document by the SC of the
NPC.
2. Administrative rules. The organic law of the State Council says:
“According to the law and decisions of the State Council the main ministries
and commissions can, within the authority of these organs, issue orders,
instructions and rules”. The administrative rules are therefore standardized
documents originating in by organs subordinate to the State Council but subject
for approval by the state council. These documents are valid for a longer
period.
3. Administrative measures. These measures are detailed implementations of fagui
and guizhang. They are called mingling (order), yian
(proposals), jueding (decision), zhishi (instruction), gonggao
(announcement), tonggao (notice), baogao (report), tongzhi
(circular), tongbao (circular), qingshi (clarification), pifu (official
reply), han (official letter), huiyi jiyao (meeting notes) etc..
The nature of the measures is concrete and explanatory.
More about the meaning of the above will be said in Chapter III of this
book: Administrative Law and Administrative Lawlessness.
The
Chinese state created since 1978 by policy, law and non-action a scattered
economy (at the first sight roughly, but only roughly, isomorphic with the
urban-rural division). Different rules apply within the scattered segments.
They are relatively isolated when we talk about the factors of production and
actors. At the same time they are directed at a mutual recompensation of
tensions and at stabilization. This duality in the form of existence: spatial
and material isolation and harmonization of different logics of the two
segments is present in the cultural traditions of China and fits well in the
Taoist concept of control.
Modernization
of society is not the same as modernization of the state. The premodern system
of rule (such as American federalism) is a more useful instrument of rule in
the era of globalization than a modern state based on rationality, whatever
present day emphasis on modernization in China might advocate. Premodern
structures of government fit better in the neoimperial project. Therefore what
we observe in China is not an (unconscious) neotraditionalization but a
conscious modeling on a premodern formula of rule which, such as is the case in
the USA could be able to modernize society and economy.
The separation of government from the party
which in reality means the absorption of the party by the state will probably
be replaced by the project (vision) of the party as the nucleus of fuzzy
steering, defining relations with other subjects in state administration and
political system. Steerability instead of control.
Political reforms take place within two
parallel systems of imperfect representation: party and state. In both systems
an evolution takes place from a unified rule of law (rechtsstaat) to
harmonization.
The present form of government in the People’s Republic of China is not the substance but merely a Hegelian “moment in the historical development” of Our State.
[1] I have
been inspired to write this thanks to an e-mail exchange with Bob Kapp,
president of the US-China Business Council.
There was within PRC’s own public relations machine a
distinction between the emphasis on China as ‘a developing country that is
moving forward’ conveyed for the
benefit of the outside world (‘international communication’) and the image of
‘socialist China’ meant for internal consumption. That duality still exists but
the announcement of 三个代表 (three represents) by Jiang
Zemin in 2002 gives rise to the question what socialism means in the PRC and
many intriguing sub-questions such as: can the Chinese Communist Party still be
called a socialist party?
I think, since I am by
training a theoretical physicist, of the Chinese State as a changing matrix.
Each square matrix has at each moment only one determinant. But one determinant
corresponds to a multitude of many different matrices. It is therefore
perfectly reasonable to describe the PRC with one of the abovementioned “a word
or two” as long as we understand that these words are determinants referring not
to idealtypes but each to a family of far cousins. In that sense, and that
sense only, can one describe both the
PRC of Mao Zedong and that of Hu Jintao as ‘leninist’. In that sense, and that
sense only, one can describe the present PRC and the USA as ‘polyarchic’ or
‘plutocratic’.
Comparative political
science has much more expressions which could be added to these “a word or
two”. I mentioned only the expressions which I consider particularly relevant
to present day People’s Republic or China since, according to Ockam’s razor: ``Pluralitas non est ponenda sine neccesitate'', which
translates as ``entities should not be multiplied unnecessarily'
[2] See June
Teufel Dreyer, China’s Political System, Modernization and Tradition
(Fourth edition), Longman, 2004.
[3] See Max M. Elding A Revolution in Favor of
Government – Origins of the U.S. Constitution and the Making of the American
State. Oxford University Press, 2003.
[4] Cited in Ian Buruma, Bad Elements – Chinese Rebels
from Los Angeles to Beijing, Vintage
Books, New York 2001, p. 110 .
[5] Samuel P. Huntington, Political Order in Changing
Societies, p. 96.
[6] Jadwiga Staniszkis, The Power of Globalization,
Chapter 3.
[7] With a few exceptions one of which is the Huanglao (黄老) school, a combination of Legalism and Daoism which
came close to being an official ideology during the beginning of the Han
dynasty. It was abandoned by the emperor Wu at the end of his reign in favor of
Confucianism. Subsequently lost and forgotten the Huanglao silk documents were
discovered in 1973 by Chinese archeologists at Mawangdui Han Tomb Three, near
Changsha in Hunan province. See chapter 2 of this book. See Robin D.S. Yates
(translation, with an introduction and commentary), Five Lost Classics –
Tao, Huang-Lao, and Yin-Yang in Han China, Ballantine Books, New York 1997.
See also Randall Peerenboom, Law and Morality in Ancient China: The Silk
Manuscripts of Huang-Lao, State University of New York Press, 1993. See
also Bodde, Derk. 1957. Evidence for ‘Laws of Nature’ in Chinese Thought. Harvard Journal of Asiatic Studies, 20: 709-727. Issue published 1959. In that article Bodde took issue with
Joseph Needham, who doubted that the word law is applicable to Chinese natural
conceptions. He concluded that at least a few early Chinese thinkers viewed the
universe in terms strikingly similar to those underlying the Western concept of
laws of nature. In this debate I consider the last word to have been spoken by
Peerenboom though not the very last.
[8] Dreyer, ibid p.42.
[9] Dreyer, e-mail communication and Andrew Walder, Communist
Neotraditionalism: Work and authority in Chinese Industry (Berkeley:
University of California Press, 1986).
[10] The education campaigns on subjects ranging from
law-abidance to non-spitting pervade the television and the billboards but the
do not invade, as the campaigns in bygone days, the private life of Chinese
citizens. The majority of the present Chinese population cannot even imagine
how life was in ‘class struggle’ and mass mobilization times.
[11] The starkest (and unknown even among most Chinese
citizens) example that China is not a representative democracy is the election
law whereby rural dwellers are allocated four times (used to be eight) less
representatives in the National People’s Congress than urban dwellers. See
later in this chapter. For the discrimination of the rural population in the
most general sense see the epilogue of this book.
[12] According
to Bruce Gilley this overemphasis on procedures may be counterproductive for
steerability:
“But my main point to be made is that I think China is
going through depoliticization at the elite level as well as the sub-elite
level. The contestation (a la Dahl) once allowed among elites has ended. The
polity is now being run along lines of proceduralism that leaves no room for
politics. To me this is a damaging form of depoliticization since it signals a
lack of faith in inter-elite trust, a key element of state capacity in an
authoritarian regime.” Bruce Gilley, e-mail
communication. See also, Bruce
Gilley and Andrew Nathan, China’s New Rulers: The Secret Files, New York
Review of Books Publications, New York October 2003.
To illustrate the recent and profound meaning of this
‘procedural revolution’ I reproduce here the words of Sidney Rittenberg Sr.
about the ‘two meetings’ (the 16th Party Congress in November 2002
and the National People’s Congress in March 2003):
„Until November of last year, and then March of this
year, when a major shift in the national party and government leadership took
place peacefully through political consultation by the ruling party,
culminating in election by secret ballot among the several thousand delegates
at the Party Congress and the National People’s Congress. Now this may not be
our idea of an ideal democratic election, but for old China it was a momentous
step forward. It shows a kind of institutionalization; it shows a kind of
stability and maturity that is enormously important. The world has not yet
realized what has taken place. Interesting, originally all the great China
experts -- including this one -- were saying that the new leading team, headed
by party General Secretary and President, Hu Jintao, and Premier, Wen Jiabao,
would do nothing new for at least two or three years while they consolidated
the power of the new leading team. How wrong we all were. Actually, immediately
after taking their new seats, new things began to happen, including -- but not
limited to, as our American lawyers like to say -- the following: for the first
time, the time, the place and the agendas of meetings of the top leaders are
published in the newspaper.Now this sounds like a simple thing, but I assure
you, if previously you had asked if there was such a meeting taking place, and
if so where and what it was about, you would soon find out that it was not
right to ask questions like that. Now, it is published in the paper.”
Sidney Rottenberg, Remarks at the Asia Society Hong
Kong Center, Hong Kong, September 23, 2003.
www.asiasociety.org/speeches/rittenberg.html
[13] Since
this observation is bound to be disputed by some I reproduce here the following
tables:
Percentage of Counter-revolutionaries in the Prison
Population in Shaanxi Province 1953-1983
Year Percentage Year Percentage
1953 39,1 1968 34,3
1955 37,9 1975 26,1
1957 34,5 1979 11,5
1959 32,5 1980 6,8
1961 34,8 1981 5,2
1963 30,8 1982 3,0
1965 31,7 1983 1,9
Percentage of Counter-revolutionaries in the Prison
Population in China 1980-1989
Year Percentage
1980 13,35
1981 4,3
1984 1,19
1985 1,13
1985 0,51
Minxin Pei, ‘ China’s evolution toward soft
authoritarianism’ in Edward Friedman and Barret L. McCormick (ed.) What if
China doesn’t democratize? Sharpe 2000, pp. 77-78 .
‘Counterrevolutionary crime’ was scrapped from the
Criminal Law in 1997 and redefined as ‘crime endangering state security’. Two
activities previously named counterrevolutionary have been redefined as
‘violations against public order’: inciting the masses to resist or to sabotage
the implementation of the laws and regulations, and organizing and and using of
superstitious sects and secret organizations in violation of law. The relevant
articles are:„Whoever instigates the masses to use violence to resist the
enforcement of state laws and administrative regulations is to be sentenced to
not more than three years of fixed-term imprisonment, criminal detention,
control, or deprivation of political rights; when serious consequences have
been caused, the sentence is to be not less than three years but not more than
seven years of fixed-term imprisonment.” (Article 278)
„ Whoever organizes and utilizes superstitious sects,
secret societies, and evil religious organizations or sabotages the
implementation of the state's laws and executive regulations by utilizing
superstition is to be sentenced to not less than three years and not more than
seven years of fixed-term imprisonment; when circumstances are particularly
serious, to not less than seven years of fixed-term imprisonment.” (Article
300)
[14] For example in Randall Peerenboom China’s Long
March toward the rule of Law, Cambridge University Press 2002. Others,
including several of the contributors to the book Remaking the Chinese State
– Strategies, Society and Security (Edited by Chien-min Chao and Bruce J.
Dickson, Routlegde, London and New York 2001) argue, I think more accurately,
that “the CCP has initiated a variety of political and administrative reforms
that give the state more flexible control over economy and society and also
preserve central influence over local governments” (p. 3).
[15] „Inadvertent
transition” was an expression used by Murray Scott Tanner in The Politics of
Lawmaking in China (Clarendon Press Oxford, Oxford 1999) in the context of a
description how the National People’s Congress and its Standing Committee
ceased to be a mere rubber stamp bodies for the decisions of the Communist
Party of China and started to function like more independent legislatures.
[16] Some think that a state-party is
still a totalitarian party. I don’t What is a totalitarian party without
mass-mobilization?
[17] Legalization might be a more correct word in English
than ‘enlawment’ but the last is a better expression of the meaning of fazhihua.
[18] For an
elaboration on the origins and meanings of the words fazhi (法治) and fazhi (法制) see chapter 2 of this book.
[19] Deng Xiaoping said in Shanghai in 1992: “If any
problem arises in China, it will arise from inside the Communist Party. We must
keep clear heads. We must pay attention to training people, selecting and
promoting to positions of leadership persons who have both ability and
political integrity, in accordance with the principle that they should be
revolutionary, young, well educated and professionally competent. This is of
vital importance to ensure that the Party's basic line is followed for a
hundred years and to maintain long-term peace and stability. It is crucial for
the future of China.” In: Excerpts from Talks Given in Wuchang, Shenzhen,
Zhuhai and Shanghai – January 18 – February 21 1992 , www.english.peopledaily.com.cn /dengxp
/contents3.html
[20] This
was already known to Karl Marx who adhered to the terms ‘Oriental Despotism’ or
‘Asiatic Mode of Production’ when referring to China or India. The crowing development
of the concept of Oriental Despotism (probably coined by French philosophes
of the Enlightment if not by ancient Greeks) was a monumental book (1957) of
the same name by Karl Wittfogel. The book and his author was detested and
vilified by all academic and non-academic, real (rarely) and selfimagined
(overwhelmingly), victims of “McCarthysm” in the Western world.
[21] Huabei , Beijing, Dongbei, Zhongnan, Huadong, Xibei,
Xinan. These six regions were
originally military territorial divisions led by Military Administrative
Committees later called Administrative Committees.
[22] See, for
example, 喻希来 （Yu Xilai) and others, 中国行政区划改革研究 - 历史，现况与改革模式 （Research into the Reform of
Chinese Administrative Division – History, present and Reform Experiments),
internal publication of the Beijing Institute of Contemporary Chinese language,
2003.
[23] Li Shouchu Zhongguo zhengfu zhidu (The
government system of China), Zhongyang
mizu daxue chubanshe, Beijing 1997, p. 109.