1975 constitution was overwhelmingly ideological in character, extolling
Marxism–Leninism–Mao Zedong thought as well as proletarian internationalism
(and containing a promise that China would never become a superpower), the 1982
constitution de-emphasizes the Party and emphasizes constitutional supremacy.
Today, much discourse in China concerns whether and how the Chinese
constitution “matters.” On the one hand, the PRC constitution has been described
as theleastimportant document in the Chinese legal system,^16 and, except for the
mention of the right to education in a single case,Qi Yulingin 2001 , it has not been
treated as judicially enforceable. This case was itself repealed by the Supreme
Court in 2009 with great fanfare.^17 Thus, if one limits one’s view of constitutional
“mattering” to legal enforceability, socialist constitutionalism is a non sequitur.
On the other hand, there is clearly tremendous symbolic value in the Consti-
tution which is true for both the regime and the people. For the regime, if the
document did not matter in any sense, why would the Chinese Communist
Party amend the document four times since 1982 (in 1988 , 1993 , 1999 , and 2004 )?
The Constitution plays an important role as an authoritative ideological statement
and communicative act.
18
The Chinese Communist Party uses constitutional
amendments to signal new directions in policy. Elevation of a particular policy
into the constitutional text marks it as a legitimate basis for governance, and usually
follows, rather than precedes, implementation. The constitution thus serves as a
co-ordination device for internal discourse within the authoritarian regime.
The four revisions of the Constitution reflect China’s economic reforms.
This process is in the exclusive hands of the party-state both as a formal and an
informal matter. In 1988 , the Constitution was revised to make reference to a private
sector to complement the “socialist public economy.”^19 It also provided for transfer
of land-use rights, even though land remained owned exclusively by the state or
collectives. The 1993 amendments added the phrase “socialism with Chinese
characteristics” to the preamble and introduced the “socialist market economy,”
incorporating Deng Xiaoping’s formula for a market-friendly economy. In 1999 ,a
reference to the recently deceased Deng Xiaoping was incorporated into the
preamble. In 2004 , the Constitution was amended to guarantee private property
rights and provide for compensation for expropriated land, an important signal for
both foreign investors and China’s own market sector.^20 Human rights are also
included, reflecting the Party’s ideological pushback against critics of its practices.
21
(^16) Donald Clarke, “Puzzling observations in Chinese law: when is a riddle just a mistake?,”
in C. Stephen Hsu, ed.,Understanding China’s Legal System: Essays in Honor of Jerome
Cohen(New York: New York University Press, 2003 ), p. 93.
(^17) Qianfan Zhang, “A constitution without constitutionalism? The paths of constitutional
development in China” ( 2010 ) 8 ( 4 )International Journal of Constitutional Law 950.
(^18) Andrew Nathan,Chinese Democracy(Berkeley: University of California Press, 1986 ); Deborah
Cao,Chinese Law: A Language Perspective(Farnham: Ashgate Publishing, 2004 ), p. 122.
(^19) Art. 11. (^20) Art. 13. (^21) Art. 23.