1

No. 2/21 (2014)

A Written Constitution without Functioning

Constitutionalism Analysis of Xi Jinpings 2012
Speech on Chinese Constitution
by Keren Wang1

Abstract: This paper examines the 2012 speech by Chinese President Xi Jinping at the
Great Hall of the People (the national parliament building) marking the 30th anniversary
of the adoption of the current version of the Constitution of the Peoples Republic of
China. While Xis speech formally functions in an epideictic capacity, its substantive
content suggests a severely flawed constitutional system. Through the close analysis of
the speech, this paper argues that the text of Xis address exposes many critical tensions
intrinsic to Chinas single-party political system, most notably the flawed implementation
of the constitution. In its substantive capacity, the speech served as a stern warning about
the gaping chasm that separates the written constitution from actual political practices in
China, as well as the pressing need to formalize the Party-state relationship through the
separation of powers between the Party and the state.

1
Ph.D. candidate in Communication Arts & Sciences, Penn State University,
kuw148@psu.edu

Electronic copy available at: http://ssrn.com/abstract=2400727

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Context

China, like the vast majority of states since the 18th century, has adopted a written

constitution (Zhonggua Renmin Gongheguo Xianfa 1982 as amended, the State

Constitution). Like the majority of states, the legitimacy of its government and

governmental actions is assumed to be judged by their conformity to the provisions of

that document. 2 But the PRC is also organized on the basis of Marxist-Leninist

principles,3 under the exclusive leadership of the Chinese Communist Party (CCP)4. The

absence of Western-style multi-party system has raised important constitutional issues in

China. Its single-party rule also raised equally important issues about the relationship

between the CCP, the state, and the nature of constitutionalism in China. In both cases,

the issues can be understood as focusing on two principal questions. The first goes to the

legitimacy of the constitution itself. Legitimacy involves the ways in which Chinese

constitutionalism itself fits within emerging global notions of state legitimacythat is,

whether China is a legitimately constitutional state. The second assumes constitutional

2
Backer, Larry Catand Wang, Keren, State and Party in the Scientific Development of
a Legitimate Rule of Law Constitutional System in China: The Example of Laojiao and
Shuanggui (June 1, 2013). Available at SSRN: http://ssrn.com/abstract=2273044
3
Under the Marxist-Leninist political principle, the state apparatus is understood as an
instrument of oppression for the ruling class. Marx believes that a society organized by
free individuals should be classless, free from oppression, thus obviating the need for a
state. However, in Lenins view, it is impossible to completely bypass the state apparatus
during the proletariat revolution. In order to minimize the potential tension between the
proletariat party and the state, the proletariat must organize a new form of socialist state,
thus facilitating the transition towards communism. See Lenins The State and
Revolution
4
Zhao, Qian. 2011. A Thought of Taking CPPCC as Chinese Professional Supervisory
Institution of Unconstitutional Behavior in Applying Law. Canadian Social Science
7(3): 71-77.

Electronic copy available at: http://ssrn.com/abstract=2400727

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legitimacy but considers whether the actual political and administrative practices of the

CCP and its state organs sufficiently conform to Chinese constitutional requirements.

Constitutional implementation implicates the way in which Chinese normative principles

can constrain the practices of important political institutions.

The issues of constitutional legitimacy and constitutional implementation provide

an important window for understanding the normative structures of Chinese

constitutionalism and its distinct basis for the organization of administrative and political

power. It is well understood that China does not operate as a multi-party democracy.

Since the end of the civil war between the Communists and Nationalists in 1949, China

has been operating as a single-party state under the leadership of the Chinese Communist

Party. Although there is no global consensus on the best terminology to describe the

current Chinese political system, the PRCs leadership commonly refers to it as

Socialism with Chinese characteristics. Legal scholars have suggested that China has

been searching for ways to develop its own distinctive path towards socialist

constitutionalism and rule of law.5 But the question of legitimacy remains a major source

of contention. The majority of constitutional democracies in the world are grounded in

an amalgamation of all administrative and political authority in a government, whose

combined powers are separated on the trias politica basis (executive, legislative and

judicial). 6 The Chinese constitutional order, however, is grounded on a principal of

separation of powers that distinguishes between an administrative power assigned to the

5
Peerenboom, Randall. 2002. Chinas Long March toward Rule of Law (Cambridge
University Press, 2002).
6
Ackerman, Bruce A. 2000. The New Separation of Powers. Harvrad Law Review
633-729.
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government and a political authority assigned to the Chinese Communist Party. Some

would argue that the Chinese approach to the separation of powers fails to satisfy the

basic criteria for checks and balances, rending their constitution illegitimate. Other legal

scholars instead take a more pluralist approach to the question of constitutional

legitimacy, and consider the Chinese mode of separation of powers legitimate.7

Even if one considers the Chinese constitution itself legitimate, it does not mean

that China adheres to the rule of law as defined by its constitution. There is a major gap

between text and reality when it comes to implementation of Chinas constitutional

principles, meaning that the political and administrative practices by state and party

authorities often fail to adhere to Chinese constitutional requirements. One notable

example of systematic constitutional non-compliance in China is the Laojiao system an

extra-judicial form of administrative discipline that operated hundreds of labor camps

across the country. Established in 1957 via an executive order from the State Council (the

highest executive body of the government), the Laojiao system targets those individuals

who have committed minor offences against the state. It is a compulsory

administrative penal system which seeks to reform and correct those individuals

through forced labor and detention.8

Article 37 of the State Constitution specifically provides that:

7
Ginsburg, Tom. 2012. Constitutionalism: East Asian Antecedents. Chicago-Kent Law
Review 88:11-34.
8
Introduction to China's Reeducation Through Labor System (
), Bureau of Reeducation-through-labor Administration, accessed Feb. 9th, 2013:
http://www.legalinfo.gov.cn/moj/ldjyglj/2003-05/28/content_19622.htm
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The freedom of person of citizens of the People's Republic of China is inviolable. No

citizen may be arrested except with the approval or by decision of a people's
procuratorate or by decision of a people's court, and arrests must be made by a public
security organ. Unlawful deprivation or restriction of citizens' freedom of person by
detention or other means is prohibited; and unlawful search of the person of citizens
is prohibited.9

Against this explicitly written constitution provision is the fact that the entire

reeducation through labor process is without judicial review and completely bypasses

all judicial organs of the state (peoples court and peoples procuratorate). Furthermore,

Article 5 of the State Constitution imposes a strict duty upon all state organs to adhere to

constitutional principles.10 Despite these apparently flagrant constitutional violations, the

Laojiao system continued for more than fifty years, notwithstanding growing criticism

from both domestic and foreign observers. It was not until 2013, when the central

authority finally abolished the infamous labor camp system, that this seemingly obvious

violation of the Chinese constitution was stopped..11

In the wake of the once-in-a-decade leadership transition in China at the end of

2012, there has been considerable amount of attention paid to issues of constitutional

integrity and reforms. Unsurprisingly, these issues were being treated with a certain

amount of skepticism and wariness, as it is far from clear if the new leadership will take

9
Constitution of the Peoples Republic of China (Adopted on December 4, 1982), Art.
37: http://english.people.com.cn/constitution/constitution.html
10
See State Constitution, supra, Article 5:
No law or administrative or local rules and regulations shall contravene the constitution. All state organs, the
armed forces, all political parties and public organizations and all enterprises and undertakings must abide by
the Constitution and the law. All acts in violation of the Constitution and the law must be investigated. No
organization or individual may enjoy the privilege of being above the Constitution and the law.

11
Xinhua, China to abolish reeducation through labor, Xinhuanet, last updated 11-15-
2013, available: http://news.xinhuanet.com/english/china/2013-11/15/c_132891921.htm
 6

steps to address the chronic problems of constitutional legitimacy and implementation.12

Xi Jinpings speech on December 4, 2012 signaled the first clear indication that senior

governmental officials were concerned with the constitutional system and its legitimacy.

These concerns touch on the very legitimacy of the political system as a whole and

therefore warrant the attention of scholars interested in Chinese history and politics.

The Speech

Officially titled the Speech at a congress marking the 30th anniversary of the

current version of the Constitution, Xi Jinpings speech of December 4, 2012, was the

second major public address of the new Chinese leader since he assumed the countrys

top position..13 It came less than a month after his inaugural address. With regard to the

timing of the speech, the fact that the speech took place right after the leadership

transition is perhaps much more significant than the ceremonial occasion of the speech

the 30th anniversary of the constitutionsince it provided the new administration an early

opportunity to frame its positions on the issues mentioned above.

The speech was delivered inside the Great Hall of the People, which serves as the

national parliament building housing the National Peoples Congress (NPC). The speech

was not delivered during a full parliamentary session, as the full 2,987 members of the

NPC would only convene once-a-year for a period of two weeks to pass major legislation

12
Carl Minzner, What Direction for Legal Reform under Xi Jinping, Jamestown
Foundation, Jan. 4, 2013. Available: http://law.fordham.edu/28665.htm
13
His inaugural address was delivered on November 14th, 2012, see
Edward Wong, Ending Congress, China Presents New Leadership Headed by Xi
Jinping, New York Times, Published: November 14, 2012. Available:
http://www.nytimes.com/2012/11/15/world/asia/communists-conclude-party-congress-in-
china.html?ref=asia&_r=0
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and budgets. During the rest of the year, legislative activities are handled by the much

smaller NPC Standing Committee, comprised of 150 members. The event proceeded in

accordance with the standard conventions on ceremonial/commemorative congressional

meetings in China, which are attended by the members of the Politburo Standing

Committee (the top seven-member executive organ of China, comprised of the President,

Premiere and vice Premiere, NCP Chairman, head of the national Political Consultative

Conference, and the Secretary of the Central Commission for Discipline and Inspection)

and the NCP Standing Committee. The congress was opened by the Chairman of the

NCP, followed immediately by Xis speech.

The content of the speech can be roughly divided into three sections. The first part

focuses on the past, narrating the history of the development the constitution since the

founding of the Peoples Republic in 1949. The second part focuses on the present,

delineating various challenges of the current State Constitution, followed by a brief

conclusion. The beginning of each section is marked with the greeting remark comrades

and friends, with long pauses and breaks for audience applause between sections.

In the first part of the speech, Xi foregoes a linear historical narrative and instead

talks about the constitutional history of China in a dialectical way, separating the current

State Constitution from the constitution drafted during the time of Mao Zedong:

The current Constitution could trace back to Semi-Constitution document The

Chinese people's Political Consultative Conference Common Program and 1954
Constitution. In the form of the basic law of the land, these documents affirmed
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Chinese historical struggles against domestic and international enemies to pursuit

national independence and peoples freedom and liberty. 14

It is important to note that both the 1954 and the 1982 versions of the constitution are

titled Constitution of the Peoples Republic of China, yet Xi characterizes the 1954

Constitution as a Provisional-Constitution,, juxtaposing it against the current version of

the State Constitution. This unusual characterization of the Mao era constitution implies a

fundamental schism between the current State Constitution and its progenitor. The

sentence immediately follows the genetic statement sets the historical context for the

1954 Constitution, highlighting the revolutionary nature of that document. Although the

speech honored the 1954 Constitution as the founding document of the nation, it did

not present the current State Constitution as merely an updated version of that document.

Rather, it framed the 1982 Constitution as the direct repudiation against the 1957 version:

given the hard lessons learnt from the traumatic decade of Cultural Revolution,
and the failures of other countries socialist institutions, we drafted the current
Constitution that represented Chinas economic reform, which advances Chinas
socialist modernization and the construction of Chinas democratic legal
system .15

It is rare if not unprecedented for top Chinese leaders to repudiate the pre-Deng

era in such explicit terms. The reference to the traumatic decade the Maos Cultural

14

http://cpc.people.com.cn/n/2012/1205/c64094-19793598.html
15

Revolution and the global collapse of socialist regimes highlights the past need to adopt a

completely new constitution. But such statement framing the current constitution as the

replacement of the 1957 Constitution also contains two problematic tensions. First, the

ruling party in China remained the same under both constitutions, so Xis suggestion that

the old constitutional order was completely replaced was misleading. Second, he

continues to describe the current Chinese political framework as a socialist system,

despite economic reforms and his explicit rejection of its socialist past. In his remarks

immediately following the above excerpt, Xi addressed those tensions by suggesting that

the current version of the State Constitution was still a work in progress:

At the same time, the prosperity of the Constitution lies on its capacity of
adjusting to new social realities, incorporating new social experience and
affirming new social achievements. The Constitution amendments in 1988, 1993,
1999 and 2004 were the best example to illustrate how critical adjustments are
needed in order to make our Constitution following the contemporary social
reality without compromise of its legitimacy and authority. 16

These sentences reflect the view that a successful constitutionalist system not only needs

to adhere to core substantive constitutional principles and norms, but also needs to be a

"living constitution"-- one that reflects present socio-political realities and addresses the

various problems and flaws accumulated from the past. Xi made clear that critical

revisions were still needed, but the reference to recent Constitution amendments

insinuates that what is needed is not a completely new constitution but merely relatively

minor reforms to address the problems of the 1982 State Constitution.

16

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In contrast to the celebratory theme of the occasion, Xis speech actually

enumerated an extensive list of the flaws and problems with the current Chinese

Constitution. At the very end of the first section of the speech, Xi transitions into the

second section with the following somber lines:

Although we celebrate the achievements, we shall not forget our weaknesses.

For example: institutional deficiencies and poor oversight for the practice of
Constitution. Other issues concern peoples core interest are quite severe. Abuse
of law, lax enforcement of laws and malpractice, are commonly existed among
local law enforcement departments, which severely harm the integrity of Chinas
legal authority. Moreover, some civilians, including certain cadres need to
improve their respect to Constitution. For these problems, we need to highly
concentrate and find practical solutions.17

The above lines received considerable attention from media and the pundits immediately

following the speech. South Morning China Post, one of the most prominent non-

government-owned newspapers, reported the day after Xis speech that Tuesday's

speech is Xi's first targeting the rule of law and it has sent a strong message. The paper

continued: Xi pointed out some of the most acute problems faced by law enforcement,

problems that are expected to be addressed in future measures.18 The state-owned China

Daily also published comments by Han Dayuan, a well-known legal expert in China, who

noted that Xi has emphasized the rights of the people, which was not mentioned in the

speech delivered by his predecessor Hu Jintao a decade ago, when Hu spoke on the 20th

17

http://cpc.people.com.cn/n/2012/1205/c64094-19793598.html
18
http://www.scmp.com/news/china/article/1157878/xi-jinping-vows-uphold-
constitution-and-rule-law
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anniversary of the Constitution.19 Prominent Chinese constitutional law scholar Tong

Zhiwei also called for top party and state authorities to back up Xis statements on reform

with meaningful action, especially with regard to the separation of power between party

and state organs and the creation of mechanisms to supervise rights guaranteed in the

constitution.20

Being the fundamental organizing principle of the state, the constitution is

assumed to be the highest law of the land. In the contemporary Chinese political

landscape, however, the State Constitution embodies a contradiction: from the

perspective of the state, the constitution enshrines the basic governing principles of the

state and provides political legitimacy for the political system. But from the perspective

of the Chinese citizens, the constitution is often seen little more than a piece of paper

with the empty phrase the rights of the peopler written all over it. Since the end of the

Deng Xiaoping era in the early 1990s, the top state and CCP leaderships have been

reticent on the issue of constitution. Despite the long-felt need for legal reform, the

previous administration under President Hu Jintao (2002-2012) has been characterized by

some legal scholars as a conservative turn against legal reform.21 Since the mid-2000s,

the senior leadership has cooled on the rule-of-law rhetoric that characterized the political

discourse of the late 1990s. 22 Under the leadership the previous head of the Central

Political and Legislative Committee, Zhou Yongkang, a sweeping public security and

19
Zhao, Yinan. 2012. Xi Jinping pledges to implement rule of law. China Daily, last
updated: 2012-12-05 02:22. Available: http://usa.chinadaily.com.cn/china/2012-
12/05/content_15985894.htm
20
See Minzner 2013, supra.
21
Carl Minzner, Chinas Turn Against Law, American Journal of Comparative Law, Vol. 59, No.
4, 2011, p. 935, available online <papers.ssrn.com/sol3/papers.cfm>.
22
Minzner 2013, supra.
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stability campaign drastically increased the power and influence of the state security

apparatus. This led to increased pressures from local authorities against public interest

lawyers, with reports of harassment and periodic disappearances, especially in the region

governed by Bo Xilai, a powerful close ally of Zhou Yongkang. Chinese judges and

courts have been warned by the central CCP authority against the influence of Western
23
legal values. Furthermore, the introduction of the Three Supremes policy

(Supremacy of the enterprise of the CCP, of the interests of the people, and of

constitutional law) by former President Hu Jintao in 2007 was seen by legal scholars as a

further step back from the rule of law, as such judicial policy undermined the legal

supremacy of the constitution.24

Against this background of increased governmental power in the name of state

security, Xis speech marked a remarkable shift in the leadership rhetoric since the

transition to a new government in November. This speech appears to have introduced a

new political tone that not only renewed the calls for authorities to adhere to the

principles of the rule of law, it also framed adherence to the constitution as the basic

prerequisite for the rule of law:

that governing in accordance with the principals of the Rule of Law is the
fundamental way to manage political and state affairs. In order to fully
encouraging Rule of Law and speeding up the construction of socialist rule of law,
we must work towards the complete implementation of the Constitution. 25

23
Ibid.
24
Carl Minzner, What Direction for Legal Reform under Xi Jinping, Jamestown
Foundation, Jan. 4, 2013. Available: http://law.fordham.edu/28665.htm
25

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While the emphasis on the rule of law has been part of the political lexicon of the

senior leadership during the past forty years, Xis speech marked the first time since

Dengs era that the rule of law was discussed in close association with the term

constitution. This is a critical rhetorical development, since previous administrations

and top political-legal authorities have in the past invoked the phrase rule of law as an

umbrella term for the expansion of their influence and extra-constitutional activities.26 It

is important to note that the infamous Laojiao labor camp system was also created in the

name of the rule of law. By framing the complete implementation of the Constitution

as the prerequisite of rule of law, Xi suggested the need to use law (the constitution) to

constrain the way which the authorities rule over peopleas opposed to the use of

law as an instrument by the authority to rule over citizens.

In the second part of the speech, the phrase implementation (shishi) was

invoked seventeen times, a remarkable density for a relatively short speech, especially

given its ostensible epideictic function. The living constitution argument delineated

in the first section of the speech is being signified with the repeated calls for

implementation in the second portion of the speech: The life of Constitution depends

on implementation, and the legitimacy of the constitution also relies on implementation,

we must diligently work on the issue of constitutional implementation, and elevate the

authority of our constitution through its complete implementation. 27 When speaking of

http://cpc.people.com.cn/n/2012/1205/c64094-
19793598.html
26
27

http://cpc.people.com.cn/n/2012/1205/c64094-19793598.html
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constitutional implementation, it refers to the need to transform words written on a piece

of paper into actual practices on the groundto elevate constitution as written document

into a constitution as a life style, where, as XI put it, No organization or individual has

the privilege to overstep the Constitution and the law, and any violation of the

Constitution and the law must be investigated.28

Conclusion

While Xis speech formally functions in an epideictic capacity honoring the 30th

anniversary of the current State Constitution, its substantive content suggests a severely

flawed constitutional system as well as the need for comprehensive constitutional reform.

Through close analysis of the speech, I have shown how Xis address exposes many

critical tensions intrinsic to Chinese constitutionalism, as well as to its single party

political system, most notably the flawed implementation of the constitution. In its

substantive capacity, the speech served as a stern warning that the gaping chasm between

the written constitution and actual political practices in China poses a threat to the

nations future. Xi effectively highlighted the pressing need to formalize the Party-state

relationship through the effective separation of powers between the Party and the state.

As the CCP continues to evolve from a revolutionary party into a political organ

in a rapidly developing modern nation, it faces the practical necessity of adjusting its

political system in accordance with social changes, especially with regard to the will of

28

http://cpc.people.com.cn/n/2012/1205/c64094-19793598.html
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its citizens. A system that was designed in the Revolutionary Period to promote stability

is increasingly becoming a major source of instability. Extra-constitutional systems, such

Laojiao, stand as obvious contradictions to the political spririt manifested by the adoption

of the 1982 State Constitution. A fundamental principle of Chinese constitutionalism is

that the political leadership of the CCP is effectuated through the government and that the

structures of that implementation are set out in the State Constitution. The CCPs

political leadership of the masses, then, is exercised through the work of the government.

Confirming to the State Constitution is a necessary prerequisite for the political

legitimacy of the CCP, as the failure to bridge the gap between constitutional provisions

and actual political practice could ultimately undermine the legitimacy of the entire

Chinese political system.