Thoughts on China's Constitutional Amendments

           This past April, China's National People's Congress (NPC) voted to ratify amendments to the country's Constitution for the fifth time in less than 50 years.  Unlike in the United States where we tend only to amend one part of our Constitution at a time, Chinese officials prefer to tinker with many different parts in one go.  Some amendments were minor adjustments in wording.  Others may have wide ranging consequences. 

            The most famous change by far has been the elimination of term limits for President Xi Jinping, accompanied by headlines in Western media proclaiming him "Emperor for Life".  But this amendment procedure saw over 20 other articles edited as well.  If America's Constitution is a living, breathing document, then China's is living, breathing, going for a jog and then cooking dinner.

            Of course, that isn't necessarily a good thing.  America's Constitution has worked pretty well for the last couple centuries with relatively few changes over the years, and it's been working pretty well.  The whole idea is that it's the bedrock of the law, and the longer the document's lasted, the more robust public trust in its authority has been.

            By contrast, China's constitutional history has been tumultuous.  Communist China's first Constitution was ratified in 1954, but citizens' rights outlined in the text were quickly violated during the political movements of the late fifties.  After the Cultural Revolution began in 1966, many of its laws were effectively shredded up and thrown into the backyard blast furnace.  A new Constitution, heavily influenced by Mao's personality cult, was ratified in 1975.  With only about 30 articles, this Constitution was heavy on revolutionary rhetoric, light on substance.  Once Mao died, a new, slightly more conventional Constitution was drawn up, only to be replaced again five years later in 1982.

            That makes the 1982 Constitution the current and fifth in Communist China's history, and the longest-lived so far.  Perhaps this turbulent history is part of the reason why officials are so willing to hack away at their Constitution; any pretense of the document's purity or sanctity was given up decades ago.  Or maybe, as current Chinese officials would have us believe, Western standards and norms, like a robust constitution, just can't be applied to a modern China and its fast-paced social and economic transformations.

            So what are some of the changes besides the lift on Presidential term-limits?  The other big Xi-related amendment was the insertion of his trademark theoretical contribution, "Thought on Socialism with Chinese Characteristics for a New Era."  It's normal for top Chinese leaders to put the names of their theories in the Constitution, but Xi had his own name included in the amendment as well, a distinction previously reserved for Mao and Deng. 

            This speaks to one of the major purposes of amending the Constitution in China; it's a simply a way for the government to signal to Chinese people as well as the world outside.  There isn't any material outcome of putting Xi's name in the Constitution, but it signals that he's putting himself on the same level as Deng and Mao.  It gives people an idea of what Xi's role may look like in the near future.  This is a clear difference with American constitutional amendments, which are never simply tools of communication, but rather always have some kind of material implications.

            Many of the changes in wording go along with recent changes to what's known as China's "Principal Contradiction".  According to the Chinese Communist Party's interpretation of Marxism, every society is defined by a Principal Contradiction.  The Party defines this Contradiction and uses it as a way to understand Chinese society.  This year, the party changed the wording of the Principal Contradiction for the first time in 36 years, and it now reads as: "the contradiction between unbalanced and inadequate development and the people's ever-growing needs for a better life".  Contrast that with how it was defined before, as "the ever-growing material and cultural needs of the people and backward social production". In a nutshell, the Party is saying that by now the most basic needs of most Chinese people have been met.  For society to continue developing the people need to be provided a wider range of more abstract necessities of the good life:  "democracy, rule of law, fairness and justice, security, and a better environment" as Xi himself put it.

            And so the NPC threw these things into the Constitution this past April.  Parts of the preamble that used to refer to the "legal system" (法制) were revised to read "rule of law" (法治).  The preamble now calls on the Chinese people to transform China into a "democratic, culturally advanced, harmonious, and beautiful" country.  Other wording adjustments play a similar signaling role, vaguely foreshadowing potential changes in policy as society and the economy change.

            Thinking about these amendments, and Chinese government in general, there are some parallels between China and the US that might not be so obvious at first.  In the US we don't change the actual words of the constitution so often, but changes in interpretation are common and have consequences that are just as significant.

            Take one famous example.  The Supreme Court case Plessy vs Ferguson in the 1890s established that "separate but equal" facilities for Blacks and Whites didn't violate the Fourteenth Amendment's Equal Protection Clause, setting up decades of segregation.  58 years later in 1954, the Court reinterpreted the meaning of the Fourteenth Amendment in Brown vs Board of Education, and decided to outlaw separate but equal facilities for Blacks and Whites.  Over those 58 years, public opinion had shifted towards a belief that segregation wasn't morally defensible.  And while the court didn't change the words of the Fourteenth Amendment, the consequences of their change in interpretation were far-reaching.

            American courts change the meanings of constitutional articles while the Chinese NPC changes the words themselves.  Both are approaches to the same problem: adapting the texts to shifting attitudes and norms.

            One might ask, are these elite Chinese officials really considering the shifting attitudes of the public when they are making these changes?  Do a majority of Chinese really want the President not to have term limits?  Or do they care whether or not the Constitution pays lip service to values like democracy and rule of law?  It's difficult to know what a majority of Chinese people really think.  But in landmark American court cases that reinterpret the Constitution, rarely are all parties left satisfied; a significant portion of southerners were completely unprepared to let go of segregation in 1954, and in many places compliance came slowly. 

            There are huge differences in transparency of the respective countries' procedures and the role of public discourse on changes to the Constitution.  In the end though, both countries have a few people collectively making a decision that hundreds of millions of others have to follow.

            There are various narratives that try to capture the Chinese Communist Party.  It is often described as an authoritarian, illiberal entity with far-reaching powers, mostly just interested in expanding those powers.  It's made strides in developing the country's economy but at a huge cost to human rights, the environment, rule of law, democracy etc.  Another narrative holds that the Party is a benevolent force that has already lifted vast numbers of citizens out of poverty, and that needs full control of all political, economic and social levers in order to keep development moving forward.  Both are true in some respects.

            The biggest change in my thinking regarding the Party has been towards its general intent.  It is hard for me to believe that many of the top members of the Party don't sincerely want to develop China for the betterment of everyday people's lives.  The way they go about doing that raises eyebrows in the West, and with reason.  Many of the policies we see as backwards or Orwellian (the Social Credit System, jailing of dissidents, internet censorship....) are genuinely done in the name of social stability.  Good intent does not excuse these practices, but often in casual discussions, the intentions of officials are at best not seriously considered and at worst deemed malevolent.
            With that in mind, the other major change to the Constitution is the inclusion of an entirely new section outlining new supervision commissions, essentially a fourth branch of government.  While overshadowed in the media by the lifting of Xi's term limits, experts seem to think this new organization is seriously problematic.  Analysts believe it answers to the Party, unlike previous anti-corruption structures.  It takes supervision privileges away from the State Council, a body operating outside of the Party, and gives the Party more control.  The scale of those allowed to be investigated has expanded to include not only Party members, but all employees of public universities, state-owned enterprises and other public institutions.  Those under investigation can be held in detention for months without seeing a lawyer.  These changes prompted rare outspokenness among prominent legal scholars and lawyers in China.

            The contrast in coverage in the West (and, I'm guessing, in China as well) between the Xi-focused amendments and the wonkier supervision commissions also recalled America's current political moment.  I'd say most Americans can quote Trump's words from the Access Hollywood tapes, but few could tell you a single environmental protection regulation that Scott Pruitt's EPA lifted.

            It does seem ironic that so many of the wording changes in this set of amendments are concerned with values like rule of law, which experts suggest is directly threatened by the new supervision commissions.  But then, maybe that's the point.  Speak loudly and beautifully about rule of law, justice, growing wealth and democracy.  That way you can distract people from the dull, devilish details.