China's Changing Constitution Jerome Alan Cohen An organization must have rules,and so must a state.A constitution is a set of general rules,it is the fundamental law...Constitution-making is a matter of science. Mao Tse-tung On 5 March 1978 the People's Republic of China promulgated its second constitution in little more than three years and the third since its establishment in 1949.?What functions does a constitution serve in the Chinese political-legal system?Is it a sham not worth the paper on which it is printed?Is it an artifice of propaganda designed to impress and mislead foreigners?Does it have legal as well as political significance? The 1954 Constitution was not revised for two decades-why then was its 1975 successor so quickly overtaken by events?What are the differences among these basic documents? Background Some preliminary observations are in order.Self-conscious constitution-making is a 20th-century phenomenon in China.To be sure, the succession of imperial dynasties that ruled the country from the third century B.C.until 1912 had gradually developed a large collection of sophisticated statutes that described the structure,principles, functioning and interrelationships of the various agencies of the empire, and these were supplemented by customs,traditions and precedents.Yet the type of single document charter of government that began to proliferate in the west after the American and French Revolutions did not appear in China until the very last years of the ailing Manchu dynasty.Then,in a desperate effort to stave off collapse,the Manchu .I am grateful to my assistants Paul Theil,Peter Chan and Jane Leifer for their valuable help in preparing this study,and to several colleagues,especially Professor Harold J.Berman of Harvard and Dr Frank Munzel of the Max Planck Institute in Hamburg,for stimulating comments on it.An earlier version was presented at the Northwestern University School of Law in Chicago on 6 April 1976,as the second of my three Julius Rosenthal Lectures. 1.Mao Tse-tung,"On the draft constitution of the People's Republic of China," 14 June 1954 in Selected Works (Peking:Foreign Languages Press,1977),Vol.V, pp.141,145-46. 2.An English translation of the new constitution can be found in Documents of the First Session of the Fifth National People's Congress of the People's Republic of China(Peking: Foreign Languages Press,1978),pp.125-72.An English translation of the 1975 version can be found in The Constitution of the People's Republic of China (Peking:Foreign Languages Press,1975).An English translation of the 1954 document can be found in Documents of the First National People's Congress of the People's Republic of China (Peking:Foreign Languages Press,1955),pp.131-63.All quotations from these constitutions are from those translations unless otherwise indicated,but the term "procuracy"has been substituted for the more awkward and less familiar “procuratorate
China's Changing Constitution Jerome Alan Cohen An organization must have rules, and so must a state. A constitution is a set of general rules, it is the fundamental law. . . . Constitution-making is a matter of science. Mao Tse-tung' On 5 March 1978 the People's Republic of China promulgated its second constitution in little more than three years and the third since its establishment in 1949. 2 What functions does a constitution serve in the Chinese political-legal system? Is it a sham not worth the paper on which it is printed? Is it an artifice of propaganda designed to impress and mislead foreigners? Does it have legal as well as political significance? The 1954 Constitution was not revised for two decades - why then was its 1975 successor so quickly overtaken by events? What are the differences among these basic documents? Background Some preliminary observations are in order. Self-conscious constitution-making is a 20th-century phenomenon in China. To be sure, the succession of imperial dynasties that ruled the country from the third century B.C. until 1912 had gradually developed a large collection of sophisticated statutes that described the structure, principles, functioning and interrelationships of the various agencies of the empire, and these were supplemented by customs, traditions and precedents. Yet the type of single document charter of government that began to proliferate in the west after the American and French Revolutions did not appear in China until the very last years of the ailing Manchu dynasty. Then, in a desperate effort to stave off collapse, the Manchu * I am grateful to my assistants Paul Theil, Peter Chan and Jane Leifer for their valuable help in preparing this study, and to several colleagues, especially Professor Harold J. Berman of Harvard and Dr Frank Munzel of the Max Planck Institute in Hamburg, for stimulating comments on it. An earlier version was presented at the Northwestern University School of Law in Chicago on 6 April 1976, as the second of my three Julius Rosenthal Lectures. 1. Mao Tse-tung, " On the draft constitution of the People's Republic of China," 14 June 1954 in Selected Works (Peking: Foreign Languages Press, 1977), Vol. V, pp. 141, 145-46. 2. An English translation of the new constitution can be found in Documents of the First Session of the Fifth National People's Congress of the People's Republic of China (Peking: Foreign Languages Press, 1978), pp. 125-72. An English translation of the 1975 version can be found in The Constitution of the People's Republic of China (Peking: Foreign Languages Press, 1975). An English translation of the 1954 document can be found in Documents of the First National People's Congress of the People's Republic of China (Peking: Foreign Languages Press, 1955), pp. 131-63. All quotations from these constitutions are from those translations unless otherwise indicated, but the term " procuracy " has been substituted for the more awkward and less familiar " procuratorate
China's Changing Constitution 795 Government,"more ancient and conservative than any other living organization,"grudgingly announced that it would introduce a western-style constitution and become a monarchy of the parliamentary type over the period of a decade. The Manchus appeared to accept the demands of reformers who wished to emulate Japan.That country had gained great strength as a result of the massive changes symbolized by the Meiji Constitution of 1889,which had borrowed from Europe the forms of a conservative constitutional monarchy.Japan had inflicted a stunning defeat in 1895 upon its traditional elder brother,China,had terminated the humiliating extraterritorial privileges of the western imperialist powers in 1899 and had defeated Imperial Russia in 1905.Some type of western constitutionalism,if only of the rather undemocratic Japanese and Prussian variety,seemed to China's reformers not only to symbolize modernity and legitimacy,but also to hold the key to wealth and power in the international society that had ended the isolation of the Central Realm.The Empress Dowager herself was compelled by circumstances to cry:"Our hope too is in a constitution."4 The process of constitution-building had indeed begun.Yet,before long,the disappointed reformers noted that"while promising lavishly the government was steadily concentrating power in the hands of the royal family.Autocracy grew while constitutionalism was held up as the prize."s Because the Manchus kept the promise to the ear but broke it to the hope,failing to move ahead with even the modest innovations that had been contemplated,unsuccessful reform turned into successful revolution,and the Republic of China was born in 1912 with the promulgation of a provisional constitution. So much early republican energy was devoted to constitution-making that in 1917 a leading western expert on constitutional development residing in Peking wrote,with classic British understatement:"One is apt to get confused with the welter of constitutions that have come and gone."7These efforts culminated in the supposedly permanent constitution of 1923,a splendid document that was wholly out of touch with Chinese realities and was promulgated by the government of 3.Wang Chung-hui,Law reform in China,"The Chinese Social and Political Science Review.Vol.II,No.2 (June 1917),p.13. 4.L.R.O.Bevan,China's constitutions,"The Chinese Social and Political Science Review,Vol.II,No.4(December 1917),pp.89,92. 5.Wang,"Law reform in China,"p.14.For English translations of the two principal documents promulgated by the Manchu government,thePrinciples of constitution "of 1908 and"The nineteen articles "of 1911,see William L.Tung.The Political Institutions of Modern China (The Hague:Nijhoff,1964),pp.318-19,320-21. 6.For an English translation of that document,see Tung,The Political Institutions of Modern China,pp.322-25.Literature on the Manchu flirtation with constitutionalism and its Republican sequel is extensive.In addition to the other sources cited in this article, Ch'ien Tuan-sheng,The Government and Politics of China(Cambridge,Mass.:Harvard University Press,1950)is an informative analysis on which I have generally relied. 7.Bevan,China's constitutions,"p.90
China's Changing Constitution 795 Government, " more ancient and conservative than any other living organization," 3grudgingly announced that it would introduce a western-style constitution and become a monarchy of the parliamentary type over the period of a decade. The Manchus appeared to accept the demands of reformers who wished to emulate Japan. That country had gained great strength as a result of the massive changes symbolized by the Meiji Constitution of 1889, which had borrowed from Europe the forms of a conservative constitutional monarchy. Japan had inflicted a stunning defeat in 1895 upon its traditional elder brother, China, had terminated the humiliating extraterritorial privileges of the western imperialist powers in 1899 and had defeated Imperial Russia in 1905. Some type of western constitutionalism, if only of the rather undemocratic Japanese and Prussian variety, seemed to China's reformers not only to symbolize modernity and legitimacy, but also to hold the key to wealth and power in the international society that had ended the isolation of the Central Realm. The Empress Dowager herself was compelled by circumstances to cry: " Our hope too is in a constitution. " 4 The process of constitution-building had indeed begun. Yet, before long, the disappointed reformers noted that " while promising lavishly the government was steadily concentrating power in the hands of the royal family. Autocracy grew while constitutionalism was held up as the prize." 5 Because the Manchus kept the promise to the ear but broke it to the hope, failing to move ahead with even the modest innovations that had been contemplated, unsuccessful reform turned into successful revolution, and the Republic of China was born in 1912 with the promulgation of a provisional constitution. 6 So much early republican energy was devoted to constitution-making that in 1917 a leading western expert on constitutional development residing in Peking wrote, with classic British understatement: " One is apt to get confused with the welter of constitutions that have come and gone. " 7 These efforts culminated in the supposedly permanent constitution of 1923, a splendid document that was wholly out of touch with Chinese realities and was promulgated by the government of 3. Wang Chung-hui, " Law reform in China," The Chinese Social and Political Science Review, Vol. II, No. 2 (June 1917), p. 13. 4. L. R. O. Bevan, " China's constitutions," The Chinese Social and Political Science Review, Vol. II, No. 4 (December 1917), pp. 89, 92. 5. Wang, " Law reform in China," p. 14. For English translations of the two principal documents promulgated by the Manchu government, the " Principles of constitution " of 1908 and " The nineteen articles " of 191 1, see William L. Tung, The Political Institutions of Modern China(TheHague: Nijhoff, 1964), pp. 318-19, 320-21. 6. For an English translation of that document, see Tung, The Political Institutions of Modern China, pp. 322-25. Literature on the Manchu flirtation with constitutionalism and its Republican sequel is extensive. In addition to the other sources cited in this article, Ch'ien Tuan-sheng, The Government and Politics of China (Cambridge, Mass.: Harvard University Press, 1950) is an informative analysis on which I have generally relied. T. Bevan, " China's constitutions," p. 90
796 The China Quarterly President Ts'ao K'un,whose writ did not run far beyond Peking.The best that could be said for this document,which called for a western-style cabinet system of parliamentary democracy,was that it established ideals towards which warlord-ridden China might one day strive.In reality it was largely intended for the edification of the imperialist powers,which had promised to surrender extraterritorial privileges once China adopted government and legal institutions familiar to the west. The rise to at least nominal national power of Chiang Kai-shek's Nationalist Party in 1928 led to further efforts to frame a constitution for the country.This resulted in the Provisional Constitution of 1931, which largely confirmed the existing arrangements according to which all government agencies were controlled by the generalissimo's authoritarian Nationalist Party.The provisional nature of this document and the domination of the Nationalist Party reflected the theory of late great republican leader Sun Yat-sen,who had prescribed that a period of"political tutelage"'should follow the Nationalists' military unification of the country and precede the true constitutional era that would unfold once the ways of democracy had been learned. Nevertheless,before long,the continuing struggle for power led various groups to demand promulgation of a permanent constitution, contrary to Sun Yat-sen's theory of the need for a period of tutelage. During the next 15 years,despite the interruptions required by the war against Japan,enormous amounts of energy were lavished upon what one close observer has called "the futilities of constitution-making.'1 We cannot consider here even a summary of those events,but several points are worth noting. One is that China's republican leaders frequently changed their attitudes towards constitutionalism,depending upon their calculation of political expediency.Thus,the successive draft constitutions often differed drastically from one another.The ruling Nationalist Party seemed especially ambivalent.It was reluctant to embrace constitutionalism for fear of restricting its powers.Yet it was determined,if there was to be a constitution,that the document should become a vehicle for enhancing its rule by creating a strong executive that would operate under firm party control.Opposition leaders,intellectuals and others generally favoured a permanent constitution in the hope of curbing the increasingly dictatorial nationalist regime. 8.For a valuable,in-depth study of the political currents that shaped this document,see Andrew J.Nathan,Peking Politics 1918-23,Factionalism and the Failure of Constitutionalism(Berkeley,Los Angeles and London:University of California Press, 1976).For an English translation of the 1923 Constitution,see Ch'ien,The Government and Politics of China,p.436. 9.For an English translation of the 1931 Provisional Constitution,see Tung.The Political Institutions of Modern China,pp.344-49. 10.Ch'ien,The Government and Politics ofChina,p.308.For an intelligent analysis of some of the Kuomintang's early post-1931 dilemmas concerning constitutionalism,see Lloyd E.Eastman,The Abortive Revolution,China under Nationalist Rule,1927-1937 (Cambridge,Mass.:Harvard University Press,1974),especially pp.159-80
796 The China Quarterly President Ts'ao K'un, whose writ did not run far beyond Peking. The best that could be said for this document, which called for a western-style cabinet system of parliamentary democracy, was that it established ideals towards which warlord-ridden China might one day strive. In reality it was largely intended for the edification of the imperialist powers, which had promised to surrender extraterritorial privileges once China adopted government and legal institutions familiar to the west. 8 The rise to at least nominal national power of Chiang Kai-shek's Nationalist Party in 1928 led to further efforts to frame a constitution for the country. This resulted in the Provisional Constitution of 1931, which largely confirmed the existing arrangements according to which all government agencies were controlled by the generalissimo's authoritarian Nationalist Party. 9 The provisional nature of this document and the domination of the Nationalist Party reflected the theory of late great republican leader Sun Yat-sen, who had prescribed that a period of " political tutelage " should follow the Nationalists' military unification of the country and precede the true constitutional era that would unfold once the ways of democracy had been learned. Nevertheless, before long, the continuing struggle for power led various groups to demand promulgation of a permanent constitution, contrary to Sun Yat-sen's theory of the need for a period of tutelage. During the next 15 years, despite the interruptions required by the war against Japan, enormous amounts of energy were lavished upon what one close observer has called " the futilities of constitution-making." 10 We cannot consider here even a summary of those events, but several . . poznts are worth notlng. One is that China's republican leaders frequently changed their attitudes towards constitutionalism, depending upon their calculation of political expediency. Thus, the successive draft constitutions often differed drastically from one another. The ruling Nationalist Party seemed especially ambivalent. It was reluctant to embrace constitutionalism for fear of restricting its powers. Yet it was determined, if there was to be a constitution, that the document should become a vehicle for enhancing its rule by creating a strong executive that would operate under firm party control. Opposition leaders, intellectuals and others generally favoured a permanent constitution in the hope of curbing the increasingly dictatorial nationalist regime. 8. For a valuable, in-depth study of the political currents that shaped this document, see Andrew J. Nathan, Peking Politics 1918-23, Factionalism and the Failure of Constitutionalism (Berkeley, Los Angeles and London: University of California Press, 1976). For an English translation of the 1923 Constitution, see Ch'ien, The Government and Politics of China, p. 436. 9. For an English translation of the 1931 Provisional Constitution, see Tung, The Political Institutions of Modern China, pp. 344-49. 10. Ch'ien, The Covernment and Politics of China, p. 308. For an intelligent analysis of some of the Kuomintang's early post-1931 dilemmas concerning constitutionalism, see Lloyd E. Eastman, The Abortive Revolution, China under Nationalist Rule, 1927-1937 (Cambridge, Mass.: Harvard University Press, 1974), especially pp. 159-80
China's Changing Constitution 797 A second point to note is that,whatever their position in the struggle to shape the constitution-whether advocates of a presidential or a cabinet system,a strong or a weak central government,unicameralism or bicameralism,direct or indirect elections,a single party or a multi-party system -all sides tended to claim the mantle of Sun Yat-sen's ideology, and his ideas,although distinctively blended,had come from the west. Indeed,the impact of the west had left most Chinese convinced of the superiority of western law and institutions and eager to apply them in China. Yet,from the earliest days of China's concern with constitutions, some western scholars had warned Chinese modernizers against importing western institutions that did not suit the country's conditions and looked forward to"the time when constitutions with a character of their own will come out of the East."And,at least occasionally,the Nationalist Party seemed to be searching for autochthonous Chinese constitutional norms and forms that would be briefly and simply described in a document intelligible to the people. The Constitution of the Republic of China promulgated in 1946, which continues to prevail on Taiwan today,displayed major western influences.Nevertheless,the presidential system that it prescribed also reflected significant Chinese characteristics.For example,it grafted onto the three branches of government familiar to the west two additional branches that have deep roots in Chinese history-the examination and control yuan.? Although the 1946 Constitution is neither brief nor simple,it is an impressive compound of East and West.Unfortunately,experience in its application both before and after the flight of the Republican Government to Taiwan in 1949 suggests that,like its predecessor,it has made little difference to the nature and character of the Nationalist Party's dictatorial rule.The organization and management of the party remain more important than the formal structure and processes of government in the Republic of China.This is especially true because the martial law that has continued to prevail on Taiwan since the communist victory on the mainland has resulted in suspension of certain constitutional provisions and in party allocation to the military and security forces of important aspects of state control. 11.Harold Scott Quigley,"The constitution of China,"The American Political Science Review,Vol.18,No.2(1924),pp.346,350. 12.For an English translation of the 1946 Constitution,see Ch'ien,The Government and Politics of China,p.447.For an interesting discussion of this document by Dean Roscoe Pound,who served as adviser to the Chinese Ministry of Justice,see"The Chinese constitution,"New York University Law Quarterly Review,Vol.23,No.3 (1948), pp.194-232.See also W.Y.Tsao,The Constitutional Structure of Modern China (Melbourne:Melbourne University Press,1947). 13.See Peng Ming-min,Political offences in Taiwan:laws and problems,"The China Quarterly (CO,No.47 (July-September 1971),p.471,for a detailed discussion of the consequences of the"state of siege"proclaimed throughout the island on 19 May 1949 that is still in effect.To be sure,only some aspects of everyday life in Taiwan are affected
China's Changing Constitution 797 A second point to note is that, whatever their position in the struggle to shape the constitution - whether advocates of a presidential or a cabinet system, a strong or a weak central government, unicameralism or bicameralism, direct or indirect elections, a single party or a multi-party system - all sides tended to claim the mantle of Sun Yat-sen's ideology, and his ideas, although distinctively blended, had come from the west. Indeed, the impact of the west had left most Chinese convinced of the superiority of western law and institutions and eager to apply them in China. Yet, from the earliest days of China's concern with constitutions, some western scholars had warned Chinese modernizers against importing western institutions that did not suit the country's conditions and looked forward to " the time when constitutions with a character of their own will come out of the East." " And, at least occasionally, the Nationalist Party seemed to be searching for autochthonous Chinese constitutional norms and forms that would be briefly and simply described in a document intelligible to the people. The Constitution of the Republic of China promulgated in 1946, which continues to prevail on Taiwan today, displayed major western inRuences. Nevertheless, the presidential system that it prescribed also reflected significant Chinese characteristics. For example, it grafted onto the three branches of government familiar to the west two additional branches that have deep roots in Chinese history - the examination and control yuan. 1 2 Although the 1946 Constitution is neither brief nor simple, it is an impressive compound of East and West. Unfortunately, experience in its application both before and after the flight of the Republican Governmento Taiwan in 1949 suggests that, like its predecessor, it has made little difference to the nature and character of the Nationalist Party's dictatorial rule. The organization and management of the party remain more important than the formal structure and processes of government in the Republic of China. This is especially true because the martial law that has continued to prevail on Taiwan since the communost victory on the mainland has resulted in suspension of certain constitutional provisions and in party allocation to the military and security forces of important aspects of state control. 13 11. Harold Scott Quigley, " The constitution of China," The American Political ScienceReview, .Vol. 18, No. 2 (1924), pp. 346, 350. 12. For an English translation of the 1946 Constitution, see Ch'ien, The Government and Politics of China, p. 447. For an interesting discussion of this document by Dean Roscoe Pound, who served as adviser to the Chinese Ministry of Justice, see " The Chinese constitution, " New York University Law Quarterly Review, Vol. 23, No . 3 ( 1948), pp. 194-232. See also W. Y. Tsao, The Constitutional Structure of Modern China (Melbourne: Melbourne University Press, 1947). 13. See Peng Ming-min, " Political offences in Taiwan: laws and problems," The China Quarterly (CQ), No. 47 (July-September 1971), p. 471, for a detailed discussion of the consequences of the " state of siege " proclaimed throughout the island on 19 May 1949 that is still in effect. To be sure, only some aspects of everyday life in Taiwan are affected
798 The China Quarterly Until its decline imperial China had tended to display a high correlation between the forms of power and the actual situation -power had been exercised by a small elite and had been rationalized and justified on that basis.The influx of western ideas during the republican era led to a yawning gap between,on the one hand,constitutional documents that called for representative democratic institutions and individual liberties and,on the other,a personalized party-military dictatorship maintained over a non-western populace that was for the most part poor,illiterate,disorganized and impotent.In these circumstances constitutionalism could not take root,and the documents that were formulated could not lead to the stability for which their advocates hoped. The 1954 Constitution This background gives us some perspective on problems of constitution-making in the People's Republic of China since 1949.As we shall see,Peking's Constitution of 1954,although the charter of a revolutionary system that was radically different from pre-1949 republican regimes,nevertheless confronted similar problems and bore certain general resemblances to its bourgeois predecessors. Like them the 1954 Constitution was essentially a foreign product. Although it was not directly influenced by either Anglo-American or Western European models,it was,nevertheless,a western product in that in large part it was borrowed from the Soviet Union and the Eastern European people's democracies.However exotic these countries may appear to Anglo-American or Western European eyes,to the Chinese the Soviet Union and its Eastern European allies,and especially their legal systems,seemed western.Indeed,many of the institutions and values enshrined in the constitutions of the Soviet-bloc states are derived from the west. The influence of the U.S.S.R.Constitution of 1936 was especially strong,even though that document had been formulated to mark the Soviet Union's entry into the socialist stage of development,while China in 1954 had not yet reached socialism but was at the earlier stage of a people's democracy en route to socialism.Despite the consequent difference in state form between the "people's democratic dictatorship"'of the People's Republic and the"dictatorship of the proletariat''that still prevailed in the U.S.S.R.in 1954,the Chinese Constitution reflected the Soviet model. Like the U.S.S.R.Supreme Soviet,the National People's Congress, although unicameral,became the highest organ of state power.Its Standing Committee,like the Presidium of the Supreme Soviet,was expected to exercise effective legislative power between the infrequent by martial law.Although political activists,intellectuals and the press are acutely aware of dictatorial restraints,the impact on most ordinary people is usually rather modest
The China Quarterly Until its decline imperial China had tended to display a high correlation between the forms of power and the actual situation - power had been exercised by a small elite and had been rationalized and justified on that basis. The influx of western ideas during the republican era led to a yawning gap between, on the one hand, constitutional documents that called for representative democratic institutions and individual liberties and, on the other, a personalized party-military dictatorship maintained over a non-western populace that was for the most part poor, illiterate, disorganized and impotent. In these circumstances constitutionalism could not take root, and the documents that were formulated could not lead to the stability for which their advocates hoped. The 1954 Constitution This background gives us some perspective on problems of constitution-making in the People's Republic of China since 1949. As we shall see, Peking's Constitution of 1954, although the charter of a revolutionary system that was radically different from pre- 1949 republican regimes, nevertheless confronted similar problems and bore certain general resemblances to its bourgeois predecessors. Like them the 1954 Constitution was essentially a foreign product. Although it was not directly influenced by either Anglo-American or Western European models, it was, nevertheless, a western product in that in large part it was borrowed from the Soviet Union and the Eastern European people's democracies. However exotic these countries may appear to Anglo-American or Western European eyes, to the Chinese the Soviet Union and its Eastern European allies, and especially their legal systems, seemed western. Indeed, many of the institutions and values enshrined in the constitutions of the Soviet-bloc states are derived from the west. The influence of the U.S.S.R. Constitution of 1936 was especially strong, even though that document had been formulated to mark the Soviet Union's entry into the socialist stage of development, while China in 1954 had not yet reached socialism but was at the earlier stage of a people's democracy en route to socialism. Despite the consequent difference in state form between the " people's democratic dictatorship " of the People's Republic and the " dictatorship of the proletariat " that still prevailed in the U.S.S.R. in 1954, the Chinese Constitution reflected the Soviet model. Like the U.S.S.R. Supreme Soviet, the National People's Congress, although unicameral, became the highest organ of state power. Its Standing Committee, like the Presidium of the Supreme Soviet, was expected to exercise effective legislative power between the infrequent by martial law. Although political activists, intellectuals and the press are acutely aware of dictatorial restraints, the impact on most ordinary people is usually rather modest
China's Changing Constitution 799 sessions of the parent body.The State Council,like the U.S.S.R.Council of Ministers,functioned under the legislature as the highest state executive organ.Although the U.S.S.R.is a federal state while China is not,the latter's local people's congresses and people's councils were modelled on the local soviets and their executive committees in the union republics of the U.S.S.R. In addition,the judicial system and the procuracy,a prosecutorial institution that was also supposed to have the power to investigate and protest against violations of law by government agencies as well as by others,followed the Soviet system.So too did the 1954 Constitution's long list of fundamental rights and duties of citizens,and,as in the Soviet-bloc countries,China's courts were not granted the power to invalidate legislation on grounds of constitutional violation. Thus we can understand why,in his "Report on the draft constitution,"'Liu Shao-ch'i,who later succeeded Mao as president of the People's Republic,declared that the document was not only the epitome of the historical experience of Chinese constitutionalism" but also a"product of the international socialist movement."4 The constitutions of the U.S.S.R.and the other socialist states had been widely drawn upon as Mao himself conceded,even while contending that the document "sums up [China's]experience in constitution-making since the last years of the Ch'ing Dynasty...."s Moreover,as we have seen,that experience itself had involved the assimilation of western principles and institutions. Few were surprised when the 1954 Constitution was promulgated. Once the initial years of political upheaval,economic reconstruction and consolidation of Party control had passed,it had been anticipated that a formal constitution would replace the temporary documents of 194916 and symbolize the new era of stability and economic growth.As in other communist states and as in Republican China under the Nationalists, although the Party remained the effective power behind the government, a government constitution was seen to be a useful creature of Party convenience.It established the basis for a strong,unifying national government and allocated responsibilities among different agencies, bringing greater clarity and order to a people who have always dreaded, and frequently experienced,political confusion.It also confirmed,both at home and abroad,the legitimacy of a regime that felt understandably insecure about its prestige. 14.Liu Shao-ch'i,Report on the draft constitution of the People's Republic of China,"15 September 1954,in Documents of the First NPC,pp.9,20,28. 15.Mao,"On the draft constitution,"p.142. 16.The first plenary session of the Chinese People's Political Consultative Conference adopted on 27 September 1949"The organic law of the Central People's Government of the People's Republic of China."Two days later the same body adopted"The common programme of the Chinese People's Political Consultative Conference."For English translations of these documents,see Albert P.Blaustein (ed.),Fundamental Legal Documents of Communist China (South Hackensack,N.J.:Rothman Co.,1962), pp.104-114 and 34-53,respectively
China's Changing Constitution 799 sessions of the parent body. The State Council, like the U.S.S.R. Council of Ministers, functioned under the legislature as the highest state executive organ. Although the U.S.S.R. is a federal state while China is not, the latter's local people's congresses and people's councils were modelled on the local soviets and their executive committees in the union republics of the U.S.S.R. In addition, the judicial system and the procuracy, a prosecutorial institution that was also supposed to have the power to investigate and protest against violations of law by government agencies as well as by others, followed the Soviet system. So too did the 1954 Constitution's long list of fundamental rights and duties of citizens, and, as in the Soviet-bloc countries, China's courts were not granted the power to invalidate legislation on grounds of constitutional violation. Thus we can understand why, in his " Report on the draft constitution," Liu Shao-ch'i, who later succeeded Mao as president of the People's Republic, declared that the document was not only the " epitome of the historical experience of Chinese constitutionalism " but also a " product of the international socialist movement." 14 The constitutions of the U.S.S.R. and the other socialist states had been widely drawn upon as Mao himself conceded, even while contending that the document " sums up [China's] experience in constitution-making since the last years of the Ch'ing Dynasty...."15 Moreover, as we have seen, that experience itself had involved the assimilation of western principles and institutions. Few were surprised when the 1954 Constitution was promulgated. Once the initial years of political upheaval, economic reconstruction and consolidation of Party control had passed, it had been anticipated that a formal constitution would replace the temporary documents of 194916 and symbolize the new era of stability and economic growth. As in other communist states and as in Republican China under the Nationalists, although the Party remained the effective power behind the government, a government constitution was seen to be a useful creature of Party convenience. It established the basis for a strong, unifying national government and allocated responsibilities among different agencies, bringing greater clarity and order to a people who have always dreaded, and frequently experienced, political confusion. It also confirmed, both at home and abroad, the legitimacy of a regime that felt understandably insecure about its prestige. 14. Liu Shao-ch'i, " Report on the draft constitution of the People's Republic of Ch ina, " 15 September 1954, in Documents of the First NPC, pp . 9 , 20, 28 . 15. Mao, " On the draft constitution, " p . 142. 16. The first plenary session of the Chinese People's Political Consultative Conference adopted on 27 September 1949 " The organic law of the Central People's Government of the People's Republic of China." Two days later the same body adopted " The common programme of the Chinese People's Political Consultative Conference." For English translations of these documents, see Albert P. Blaustein (ed.), Fundamental Legal Documents of Communist China (South Hackensack, N. J .: Rothman & Co., 1962), pp.104-114and34-53,respectively
800 The China Quarterly This constitution,plainly a transitional document,set forth the goals of a state that was advancing from'people's democracy ''to "socialist transformation'of industry,commerce and agriculture.As Mao emphasized,it was designed to heighten the enthusiasm of and unite the people by prescribing"a clear,definite and correct path to follow."7 Indeed,one of its major uses was as an instrument of indoctrination. Thus,in draft form,it was said to have been discussed by over 150 million people and,following its promulgation,there was a vigorous campaign to further disseminate and explain it to the masses.Pamphlets, law reviews,popular magazines,newspaper and radio commentaries all elaborated upon the tasks prescribed and the terms employed in the document.s Of particular interest were discussions of provisions that were ambiguous and appeared to reflect a political compromise that left the job of defining their meaning to the future.A leading example was Article 78,which stated that "[i]n administering justice,the people's courts are independent,subject only to the law.' The transitional nature of the 1954 Constitution made it evident that, once socialist transformation of the economy had been attained,the document would be in need of revision.Yet socialist transformation came much sooner than many expected;it was substantially completed in agriculture shortly afterwards and in industry and commerce by the end of the 1950s.Late in 1958 Chairman Mao himself noted this problem of constitutional obsolescence with specific reference to the structural changes wrought by the people's communes.He asked: Has the [establishment of the rural]people's commune violated the constitution? The issue of integrating politics and the commune,for example,was not passed by the People's Congress,nor is it in the constitution.Many parts of the constitution are obsolete....? The "anti-rightist"'movement that began in mid-1957 had already virtually ended attempts to implement Chapter VI of the Constitution, which dealt with the courts and the procuracy.As a result,it was no 17.Mao,"On the draft constitution,"p.145. 18.For translations of and commentary on selected excerpts from this literature,see generally J.A.Cohen,The Criminal Process in the People's Republic of China: 1949-1963:An Introduction(Cambridge,Mass.:Harvard University Press,1968).For an English language bibliography of relevant materials,see Fu-shun Lin (ed.),Chinese Law, Past and Present (New York:Columbia University,1966),especially pp.49-55;for a list of relevant Chinese language periodical literature,see Tao-tai Hsia,Guide to Selected Legal Sources of Mainland China(Washington:Library of Congress,1967),esp.pp.261-65.For western analysis of the 1954 Constitution,see H.Arthur Steiner,"Constitutionalism in Communist China,"The American Political Science Review,Vol.XLIV,No.1 (March 1955),pp.1-21;and Franklin W.Houn,"Communist China's new constitution,"The Western Political Quarterly (1955),pp.199-233. 19.For analysis of this provision and the struggle over its application,see J.A.Cohen, The Party and the courts:1949-1959,"CQ,No.38 (April-June 1969),p.120. 20.Quoted in Miscellany of Mao Tse-tung Thought (1949-1968)(Mao Tse-tung ssu-hsiang wan-sui(1967,1969),Joint Publications Research Service (JPRS).No.61269-1 (20 February1974),p.138
800 The China Quarterly This constitution, plainly a transitional document, set forth the goals of a state that was advancing from " people's democracy " to " socialist transformation" of industry, commerce and agriculture. As Mao emphasized, it was designed to heighten the enthusiasm of and unite the people by prescribing " a clear, definite and correct path to follow." 17 Indeed, one of its major uses was as an instrument of indoctrination. Thus, in draft form, it was said to have been discussed by over 150 million people and, following its promulgation, there was a vigorous campaign to further disseminate and explain it to the masses. Pamphlets, law reviews, popular magazines, newspaper and radio commentaries all elaborated upon the tasks prescribed and the terms employed in the document.l8 Of particular interest were discussions of provisions that were ambiguous and appeared to reflect a political compromise that left the job of defining their meaning to the future. A leading example was Article 78, which stated that " [i]n administering justice, the people's courts are independent, subject only to the law. " 19 The transitional nature of the 1954 Constitution made it evident that, once socialist transformation of the economy had been attained, the document would be in need of revision. Yet socialist transformation came much sooner than many expected; it was substantially completed in agriculture shortly afterwards and in industry and commerce by the end of the l950s. Late in 1958 Chairman Mao himself noted this problem of constitutional obsolescence with specific reference to the structural changes wrought by the people's communes. He asked: Has the [establishment of the rural] people's commune violated the constitution? The issue c)f integrating politics and the commune, for example, was not passed by the People's Congress, nor is it in the constitution. Many parts of the constitution are obsolete. . . 2 0 The " anti-rightist " movement that began in mid-1957 had already virtually ended attempts to implement Chapter VI of the Constitution, which dealt with the courts and the procuracy. As a result, it was no 17. Mao, " On the draft constitution, " p. 145. 18. For translations of and commentary on selected excerpts from this literature see generally J. A. Cohen, The Criminal Process in the People's Republic of China: 1949-1963: An Introduction (Cambridge, Mass.: Harvard University Press, 1968). For an English language bibliography of relevant materials, see Fu-shun Lin (ed.) Chinese Law, Past and Presenf (New York: Columbia University, 1966), especially pp. 49-55; for a list of relevant Chinese language periodical literature, see Tao-tai Hsia, Guide to Selected Legal Sources of Mainland China (Washington: Library of Congress, 1967), esp. pp. 261-65. For western analysis of the 1954 Constitution, see H. Arthur Steiner, " Constitutionalism in Communist China,a' The American Political Science Review, Vol. XLIV, No. 1 (March 1955), pp. 1-21; and Franklin W. Houn, " Communist China's new constitution," The Western Political QuarSrly ( 1955), pp. 199-233. 19. For analysis of this provision and the struggle over its application, see J. A. Cohen, " The Party and the courts: 1949-1959," CQ, No. 38 (April-June 1969), p. 120. 20. Quoted in Miscellany of Mao Tse-tang Thought (1949-1968) (Mao Tse-tung ssu-^siang wan-sui) (1967, 1969), Joint Publications Research Service (JPRS), No. 61269-1 (20 February 1974), p. 138
China's Changing Constitution 801 longer feasible to argue against Party interference in the determination of concrete cases,as some courageous officials had done.Nor was there further talk of implementing the rights enshrined in Articles 75 and 76: that an accused is entitled to make a defence,in a public trial,before a tribunal that includes representatives of the people called assessors as well as a professional judge. Of course,little effort had ever been made to implement some provisions of the constitution.For example,during the spring of 1957, during that brief,heady period when it was Party policy to "Let a hundred flowers bloom,''a well-known Shanghai lawyer and journalist, Ku Chih-chung,was one of many who assailed the Party for disregarding the constitutional guaranties of equality before the law,freedom from arrest except with the approval of a court or procuracy,and freedom of speech,press,assembly and association.Actually,some legislative and administrative steps had been taken to protect citizens against arbitrary arrest,but these had only proven partially successful.22 The Hundred Flowers period itself might be regarded as a limited experiment with free speech,but it was soon ended by the"anti-rightist "campaign that was launched shortly after Ku Chih-chung's speech.The Party struck back at its critics.As one Party authority put it: Ku Chih-chung made a shameless attack on the constitution.He will learn that the constitution protects the freedom of the people;but he will be disappointed if he hopes that the constitution will protect the freedom of speech,press and assembly of traitors,counter-revolutionaries and rightist elements.? Ku and his ilk were plainly not considered to be among"the people." The Cultural Revolution of 1966-69,which was nothing less than a disabling attack by Party Chairman Mao upon both the Party and government organizations,left the remaining vestiges of the constitution inoperative.This became evident when the president of the People's Republic,Liu Shao-ch'i,was stripped of his office even though the National People's Congress (NPC),the only organ authorized to take this action,had not met.Indeed,the failure to convene the NPC year after year throughout the entire decade 1965-75,despite the constitutional requirement of annual sessions,was a glaring embarrassment.As the terror of the Red Guards receded and the People's Liberation Army restored order,pressures grew in many quarters for a new constitution.Some groups hoped thereby to introduce a new era of stability,civilian government and greater protection for individual rights.Others,particularly those that had improved their status during the power shifts of the Cultural Revolution,wanted a document that would take account of the vast changes that had occurred 21.See Ten years of the Chinese people's constitution,''Bulletin of the International Commission of Jurists,Vol.1,No.20(1964),pp.22,28. 22.See,e.g.,Cohen,The Criminal Process in the People's Republic of China, pp.11-18,25-35,354-64. 23.Quoted inTen years of the Chinese people's constitution,"p.28
China's Changing Constitution 801 longer feasible to argue against Party interference in the determination of concrete cases, as some courageous officials had done. Nor was there further talk of implementing the rights enshrined in Articles 75 and 76: that an accused is entitled to make a defence, in a public trial, before a tribunal that includes representatives of the people called " assessors " as well as a professional judge. Of course, little effort had ever been made to implement some provisions of the constitution. For example, during the spring of 1957, during that brief, heady period when it was Party policy to " Let a hundred Rowers bloom," a well-known Shanghai lawyer and journalist, Ku Chih-chung, was one of many who assailed the Party for disregarding the constitutional guaranties of equality before the law, freedom from arrest except with the approval of a court or procuracy, and freedom of speech, press, assembly and association. 21 Actually, some legislative and administrative steps had been taken to protect citizens against arbitrary arrest, but these had only proven partially successful.22 The Hundred Flowers period itself might be regarded as a limited experiment with free speech, but it was soon ended by the " anti-rightist " campaign that was launched shortly after Ku Chih-chung's speech. The Party struck back at its critics. As one Party authority put it: Ku Chih-chung made a shameless attack on the constitution. He will learn that the constitution protects the freedom of the people; but he will be disappointed if he hopes that the constitution will protect the freedom of speech, press and assembly of traitors, counter-revolutionaries and rightist elements. 2 3 Ku and his ilk were plainly not considered to be among " the people." The Cultural Revolution of 1966-69, which was nothing less than a disabling attack by Party Chairman Mao upon both the Party alid government organizations, left the remaining vestiges of the constitution inoperative. This became evident when the president of the People's Republic, Liu Shao-ch'i, was stripped of his office even though the National People's Congress (NPC), the only organ authorized to take this action, had not met. Indeed, the failure to convene the NPC year after year throughout the entire decade 1965-75, despite the constitutional requirement of annual sessions, was a glaring embarrassment. As the terror of the Red Guards receded and the People's Liberation Army restored order, pressures grew in many quarters for a new constitution. Some groups hoped thereby to introduce a new era of stability, civilian government and greater protection for individual rights. Others, particularly those that had improved their status during the power shifts of the Cultural Revolution, wanted a document that would take account of the vast changes that had occurred 21. See " Ten years of the Chinese people's constitution," Bulletin of the International Commission of Jurists, Vol. 1, No. 20 (1964), pp. 22, 28. 22. See, e.g., Cohen, The Criminal Process in the People's Republic of China, pp. 11-18,25-35,354-64. 2 3. Quoted in " Ten years of the Chinese people's constitution," p. 28
802 The China Quarterly since 1954 and formally confirm the altered political situation.Party Vice-chairman Lin Piao and his followers were,of course,eager to use the occasion to assure Lin's designation as Mao's successor and promote Lin's policies. Constitution-making in the 1970s The draft of a revised constitution that was approved by the Party Central Committee in 1970,but was not officially adopted,was a document radically different from the 1954 Constitution.It consisted of a mere 30 articles and 2,000 words,instead of the 106 articles and 15,000 words of its predecessor.24 Major internal changes occurred in China between 1970 and 1975, especially the death of Lin Piao,the purge of his followers,the rebuilding of Party,government and mass organizations under the increasingly powerful leadership of Premier Chou En-lai,and the rehabilitation of many veteran leaders,including Teng Hsiao-p'ing,who had been dismissed during the Cultural Revolution.Vast changes also occurred in China's foreign policy and international standing during that period.Yet the revised constitution that was finally adopted in January 1975 in many respects followed the 1970 draft.25 To be sure,a number of significant changes had been made.It is enough to note here,however,that the 1975 revised Constitution eliminated the 1970 draft's repeated references to "the great leader Chairman Mao Tse-tung"'and dropped any mention of the dead Lin Piao,whom the draft had identified as "Chairman Mao's close comrade-in-arms and successor.''26 It also replaced Mao Tse-tung Thought "with "Marxism-Leninism-Mao Tse-tung Thought"as the nation's theoretical guide.It added to the emphasis upon the leadership of the Communist Party of China over the state.And,most important,it inserted the crucial and unique provision that the chairman of the Party Central Committee"commands the country's armed forces,''including the people's militia.27 24.For an English translation of the"Revised draft of the constitution of the PRC," approved by the Party Central Committee 6 September 1970,see Michael Lindsay (ed.), The New Constitution of Communist China:Comparative Analyses (Taipei:Institute of International Relations,1976),pp.312-20. 25.Some observers have stated that there was also a second revised draft adopted by the Party Central Committee in 1973.See,e.g.,Leonid Gudoshnikov,"Two constitutions of the People's Republic of China,"'Far Eastern Affairs,No.3 (Moscow,1975),p.72. Indeed,the Republic of China on Taiwan published an English translation of what purported to be such a document;see Background on China,B.74-13(New York:Chinese Information Service,26 September 1974)and also Lindsay,The New Constitution of Communist China,pp.321-27.Yet two knowledgeable commentators have questioned the authenticity of this document,which will not be discussed here.See Tao-tai Hsia and Kathryn A.Haun,The 1975 Revised Constitution of the People's Republic of China (Washington:Library of Congress,1975),p.2. 26.Article 2,p.314,Lindsay,The New Constitution of Communist China. 27.Article 15 (1975 Constitution)
802 The China Quarterly since 1954 and formally confirm the altered political situation. Party Vice-chairman Lin Piao and his followers were, of course, eager to use the occasion to assure Lin's designation as Mao's successor and promote Lin's policies. Constitution-making in the 1970s The draft of a revised constitution that was approved by the Party Central Committee in 1970, but was not officially adopted, was a document radically different from the 1954 Constitution. It consisted of a mere 30 articles and 2,000 words, instead of the 106 articles and lS,000 words of its predecessor. 24 Major internal changes occurred in China between 1970 and 1975, especially the death of Lin Piao, the purge of his followers, the rebuilding of Party, government and mass organizations under the increasingly powerful leadership of Premier Chou En-lai, and the rehabilitation of many veteran leaders, including Teng Hsiao-p'ing, who had been dismissed during the Cultural Revolution. Vast changes also occurred in China's foreign policy and international standing during that period. Yet the revised constitution that was finally adopted in January 1975 in many respects followed the 1970 draft. 2 5 To be sure, a number of significant changes had been made. It is enough to note here, however, that the 1975 revised Constitution eliminated the 1970 draft's repeated references to " the great leader Chairman Mao Tse-tung " and dropped any mention of the dead Lin Piao, whom the draft had identified as " Chairman Mao's close comrade-in-arms and successor."26 It also replaced " Mao Tse-tung Thought " with " Marxism-Leninism-Mao Tse-tung Thought " as the nation's theoretical guide. It added to the emphasis upon the leadership of the Communist Party of China over the state. And, most important, it inserted the crucial and unique provision that the chairman of the Party Central Committee " commands the country's armed forces," including the people's militia. 2 7 24. For an English translation of the " Revised draft of the constitution of the PRC," approved by the Party Central Committee 6 September 1970, see Michael Lindsay (ed.), The New Constitution of Communist China: Comparative Analyses (Taipei: Institule of International Relations, 1976), pp. 312-20. 25. Some observers hae stated that there was also a second revised draft adopted by the Party Central Committee in 1973. See, e.g., Leonid Gudoshnikov, " Two constitutions of the People's Republic of China," Far Eastern Affairs, No. 3 (Moscow, 1975), p. 72. Indeed, the Republic of China on Taiwan published an English translation of what purported to be such a document; see Background on China, B.74-13 (New York: Chinese Information Service, 26 September 1974) and also Lindsay, The New Constitution of Communist China, pp. 321-27. Yet two knowledgeable commentators have questioned the authenticity of this document, which will not be discussed here. See Tao-tai Hsia and Kathryn A. Haun, The 1975 Revised Constitution of the People's Republic of China (Washington: Library of Congress, 1975), p. 2. 26. Article 2, p. 314, Lindsay, The New Constitution of Communist China. 27. Article 15 (1975 Constitution)
China's Changing Constitution 803 A few months after the 1975 Constitution's promulgation,a Chinese diplomat asked me,in a tone that affected hurt,why the western press had paid so little attention to this important event.In truth,the western media had not given it the broad coverage that so long-awaited a document might have inspired.Perhaps this reflected the widespread belief that in China,as well as in other communist states,constitutions tend to be worthless pieces of paper drafted by hypocrites.Moreover,the brevity of the new constitution and its high slogan content,minimal statement of goals and vague allocations of power only encouraged the cynical to believe that especially in this case the mountain had laboured and brought forth a mouse.Only the Soviet propaganda mill-no stranger to hypocrisy devoted extensive coverage to the 1975 Constitution,castigating it ad nauseam for its alleged violation of the principles of Marxist-Leninist socialist legality.2 What is particularly noteworthy is the fact that,apart from a nationwide campaign to explain why the 1975 Constitution proclaimed China to be a "dictatorship of the proletariat"rather than the "people's democratic dictatorship"'that the People's Republic had originally established,the media in China devoted even less attention to the new document than did the western press.There was virtually none of the detailed exegesis of many constitutional provisions that had appeared in books,magazines and newspapers and on the radio when the 1954 Constitution had been adopted.Indeed,the exclusive emphasis on the "dictatorship of the proletariat suggested that at least those who then commanded China's propaganda organs were not enthusiastic about other aspects of the constitution.And Chairman Mao's highly- publicized absence from the meetings of both the Party Central Committee and the National People's Congress that produced the constitution,and his failure to endorse it,raised further questions about its political support. When compared to its predecessor and to the fundamental charters of other communist states,the 1975 Constitution seemed a radical instrument,despite the claim of then Vice-premier Chang Ch'un-ch'iao- later discredited as one of the 'gang of four"-that it was "the 28.For an example of more scholarly Soviet analysis of the 1975 Constitution,see Gudoshnikov,"Two constitutions of the People's Republic of China."And for an interesting commentary on a similar Soviet work,by an American expert on Soviet law,see John N.Hazard,"A Soviet model for Marxian socialist constitutions,"Cornell Law Quarterly,Vol.60,No.6(1975),pp.985-1004.For the range of western analyses of the 1975 Constitution,in addition to works cited elsewhere in this article,see e.g.,David N. Rowe,PRC's constitutions and the philosophy of constitutionalism"Issues and Studies (Taipei),July 1975,pp.2-23;Chun-tu Hsueh,"The new constitution,"Problems of Communism,Vol.XXIV (May-June 1975),pp.11-19:Tsien Tche-hao,"Les traits particuliers de la nouvelle constitution chinoise,"Revue internationale de droit compare, April-June 1975,pp.349-73;and Frank Munzel,"Eine Verfassung der Proletarischen Diktatur,"WGO-Monatshefte fur Osteuropaisches Recht,Vol.4(1974),pp.243-53
China's Changing Constitution 803 A few months after the 1975 Constitution's promulgation, a Chinese diplomat asked me, in a tone that affected hurt, why the western press had paid so little attention to this important event. In truth, the western media had not given it the broad coverage that so long-awaited a document might have inspired. Perhaps this reflected the widespread belief that in China, as well as in other communist states, constitutions tend to be worthless pieces of paper drafted by hypocrites. Moreover, the brevity of the new constitution and its high slogan content, minimal statement of goals and vague allocations of power only encouraged the cynical to believe that especially in this case the mountain had laboured and brought forth a mouse. Only the Soviet propaganda mill - no stranger to hypocrisy - devoted extensive coverage to the 1975 Constitution, castigating it ad nauseam for its alleged violation of the principles of Marxist-Leninist socialist legality. 2 8 What is particularly noteworthy is the fact that, apart from a nationwide campaign to explain why the 1975 Constitution proclaimed China to be a " dictatorship of the proletariat " rather than the " people's democratic dictatorship " that the People's Republic had originally established, the media in China devoted even less attention to the new document than did the western press. There was virtually none of the detailed exegesis of many constitutional provisions that had appeared in books, magazines and newspapers and on the radio when the 1954 Constitution had been adopted. Indeed, the exclusive emphasis on the " dictatorship of the proletariat " suggested that at least those who then commanded China's propaganda organs were not enthusiastic about other aspects of the constitution. And Chairman Mao's highlypublicized absence from the meetings of both the Party Central Committee and the National People' s Congress that produced the constitution, and his failure to endorse it, raised further questions about its political support. When compared to its predecessor and to the fundamental charters of other communist states, the 1975 Constitution seemed a radical instrument, despite the claim of then Vice-premier Chang Ch'un-ch'iao - later discredited as one of the " gang of four " - that it was " the 28. For an example of more scholarly Soviet analysis of the 1975 Constitution, see Gudoshnikov, " Two constitutions of the People's Republic of China." And for an interesting commentary on a similar Soviet work, by an American expert on Soviet law, see John N. Hazard, " A Soviet model for Marxian socialist constitutions," Cornell Law Quarterly, Vol. 60, No. 6 (1975), pp. 985-1004. For the range of western analyses of the 1975 Constitution, in addition to works cited elsewhere in this article, see e.g., David N. Rowe, " PRC's constitutions and the philosophy of constitutionalism " Issues and Studies (Taipei), July 1975, pp. 2-23; Chun-tu Hsueh, " The new constitution," Problems of Communism, Vol. XXIV (May-June 1975), pp. 11-19; Tsien Tche-hao, " Les traits particuliers de la nouvelle constitution chinoise," Revue internationale de droit compare, April-June 1975, pp. 349-73; and Frank Munzel, " Eine Verfassung der Proletarischen Diktatur," WGO-Monatsheftefur OsteuropaischesRecht, Vol. 4 (1974), pp. 243-53
