Steven Lai

Mara Yue Du

HIST 2132: Law and Society in China

18 May 2019

The Significance of the 2018 Amendments

When Xi Jinping revised the constitution in March of 2018 to remove presidential term

limits, little to no resistance occurred. The 2-term statute from 1982 toppled in a vote of 2958 to

2 to a totally compliant legislature, upending Deng Xiaoping’s previous efforts to stymie the

influence of strongmen and cults of personality.1 Western media reacted in an understandably

negative fashion, viewing the abolishment as a step backwards in China’s development towards a

more familiar rule of law.2 Scholars who anticipated the continuation of procedural succession

found their predictions thwarted.3

And yet the presidency has been widely understood as a largely symbolic role, with real

power vested in whoever jointly holds the positions of Chairman of the Central Military

Commission and Chairman of the Communist Party, both of which contain no term limits.4 If

that is the case, then why bother? Why does the party not simply continue to play by its own

1
Bader, Jeffrey A. "7 Things You Need to Know about Lifting Term Limits for Xi Jinping." Brookings. February
27, 2018. Accessed May 18, 2019. https://www.brookings.edu/blog/order-from-chaos/2018/02/27/7-things-you-
need-to-know-about-lifting-term-limits-for-xi-jinping/.
2
Ibid.
3
See Ding Y. Consolidation of the PRC’s Leadership Succession System from Hu Jintao to Xi Jinping. China
Report, 51(1), 49–65. https://doi.org/10.1177/0009445514557389

4
Lin Feng, “The 2018 Constitutional Amendments,” China Perspectives, 2019, 14.
rules, operating through leaders without changing its own constitution’s statutes? I argue that the

amendment may represent the CCP’s effort to bring an element of popular sovereignty into their

extralegal practices- that by codifying its unwritten convention of trinity rule through legislature,

it signals that it takes “rule by law” seriously. I also conjecture that by posturing the NCP as

approving the abolishment, the CCP could also be ‘shielding’ itself from liability should the

trinity system come under future scrutiny. To introduce this argument, I first offer a brief context

towards the passing of the amendment, and the weakness of the legislature that carried out the

abolishment. Then, I evaluate the constitutional significance through the lens of prevailing

constitutional theories, and show that by adopting the language of these two frameworks, we can

better understand the CCP’s motivations behind enacting a seemingly trivial measure.

Why was the amendment able to be carried out?

At this point, it is almost redundant to point out that Chinese constitution has always been

a weakly binding document. The government has consistently adhered to the unwritten

conventions of the Communist party over the written laws of the constitution. This is most

evident in the CCP’s continual practice of the trinity system, in which the top man in China

adopts all three top offices (head of the Central Military Commission, President of the National

People’s Congress, and Chairman of the Communist Party), despite the 1982 Constitution’s

denunciation of strongman rule.5 Moreover, the NPC, symbolically the institutional

manifestation of the constitution, has always functioned a mere “rubber-stamp parliament,”

5
Feng Lin, “The 2018 Constitutional Amendments,” China Perspectives, 2019, 11-21.
historically only approving the decisions of the CCP.6 And even though the presidency is in

theory an democratically elected position of power, the succession process since Deng has been

exclusively strictly managed by a very small group of key power brokers, ensuring the

continuation of CCP interests in the legislature.7 Thus given the weakness of lawmaking

institutions, the malleability of the constitution which governs it, and the insular nature of power

transfers, it comes as no surprise that the abolishment of the 1982 term limits was able to be

carried out.

The more interesting question then becomes “why,” not “how.” Why would the

Communist Party bother to revise its Constitution when it has been and will be acting above the

law in the foreseeable future? Professor Lin Feng at the City University of Hong Kong offers an

expose at this question by evaluating the amendment through the lens of two different

constitutional theories.8

Constitutional theories

In Lin Feng’s 2019 article he introduces Jiang Shigong’s “constitutional political theory”

and Larry Backer’s “dual normative theory.” In short, Jiang argues that China (among other

states, including the US) is governed by both an “unwritten” and “written” constitution. “At the

heart of China’s constitutional regime lies a unique interactive connection between the party and

the state,” Jiang writes, with the party representing the unwritten constitution and the state the

6
John Gardner. “The Chinese Constitution of 1975.” Government and Opposition, vol. 11, no. 2, 1976. JSTOR, 21.
7
Y Ding.. Consolidation of the PRC’s Leadership Succession System from Hu Jintao to Xi Jinping. China Report,
51(1), 62. https://doi.org/10.1177/0009445514557389
8
Feng Lin, “The 2018 Constitutional Amendments,” China Perspectives, 2019, 11-21.
written.9 The unwritten constitution is comprised of the long-standing conventions, doctrines,

and statutes under which the CCP operates. Among these conventions stands the trinity

system.10 On the other hand, the written constitution represents the institutionalization of

popular sovereignty into the government. Under the written constitution, the NPC reviews and

grants legality to the CCP’s decisions, acting essentially as a ‘rubber stamp’ parliament.11 In an

analysis of Jiang’s paper, Backer neatly expounds Jiang’s viewpoint: that “political authority and

the preservation of the ideological basis of state organization must necessarily lie outside the

contour of the framework within which the government itself is created.”12 He concludes that “It

must, because that power is superior to, and a constituting element of, the government itself.”13

The “dual normative theory”, developed separately by Ling Li and Larry Backer,

establishes a more dualistic relationship between the party and state. While the theory does agree

that the CCP exercises greater power over matters compared to the NCP, Li argues that

especially since the 1982 constitution, the NCP and the CCP have acted separately rather than in

fusion, with the CCP making decisions onstage and the NCP legislating backstage. 14 Though the

CCP still possesses near total control over policymaking, a tentative yet significant division of

functions thus still exists. Furthermore, by controlling the decision making process from

inception to inscription, the CCP ensures that the NCP acts as a shield towards its own

9
Shigong Jiang. “Written and Unwritten Constitutions: A New Approach to the Study of Constitutional Government
in China.” 2010. Modern China. 24.
10
Ibid., 24.
11
Ibid., 22.
12
Backer, Larry. “Party, People, Government and State: On Constitutional Values and the Legitimacy of the
Chinese State-Party Rule of Law System.” Boston University International Law Journal. 130.
13
Ibid., 130.
14
Feng Lin, “The 2018 Constitutional Amendments,” China Perspectives, 2019. 18.
accountability; if legislation is deemed faulty, it then comes at the expense of the NCP, the

supposed representative body, rather than the party.15

Feng concludes that the abolishment of term limits “is unlikely to have any substantial

constitutional significance,” instead representing a mere symbolic endorsement of a trinity

system that continued immediately after Deng.16 Feng argues that Jiang’s constitutional theory

uncritically endorses the abolishment of terms, as the party is free to act in its interests given the

primacy of its ‘unwritten’ constitution. Feng also notes that while Jiang’s framework holds real

explanatory power towards today’s government, “no pressure exists under this theory to make

China move towards a thin rule of law,” and that it should be abandoned once China moves on

from its current practice of “rule by law”. Feng considers the “dual normative theory” better

suited towards evaluating the recent amendments, given its greater elaboration towards the

specific decision-making process of the CCP, but notes that the increasing fusion between state

and party makes the theory increasingly less convincing.17

Feng is interested in a different set of questions: do these theories accurately depict the

current system, and do they hold the government accountable to the law? Along these grounds,

Feng rejects both ideas and proposes that a new theory ought to be formulated. But in pursuing

an answer to the question of “why bother,” it may be apt to not so quickly dismiss either theory,

nor treat each argument separately. We can take Feng’s analysis and reformulate it to our

different set of questions. After all, both theories are really not fundamentally dissimilar. It

seems to me that the “dual normative theory” is in fact simply an elaboration of the specific

apparatus between the CCP and NCP, and can be encapsulated within Jiang’s constitutional

15
Feng Lin, “The 2018 Constitutional Amendments,” China Perspectives, 2019. 18.
16
Ibid., 15.
17
Ibid., 19.
political theory. Nor do Jiang, Li, and Backer fundamentally disagree on the role of the

constitution and who possesses the de facto primacy over the state. Therefore by concurrently

adopting the language of both theories, we can perhaps conjecture as to why the CCP bothered to

amend the constitution in the first place.

Why bother?

First, we can propose that the CCP’s actions are a recognition of the symbolic importance

of its own institutions; that even though the CCP possesses total control over a supposedly

separate legislature, the party wishes to signal that it takes “ruling by law” seriously. Jiang’s

analysis is useful here in his depiction of the government as transitioning from a revolutionary

party to an eventual constitutional party, as the “unwritten” practice of the trinity system

manifests within the “written” constitution.18 By doing so, the CCP now modifies the stance of

the 1982 Constitution, bringing its own practices under the law instead of unofficially opposing

the written law’s outright denunciation of strongman rule.

Second, we can conjecture that the CCP wants to “shield” its own trinity convention by

passing the amendment through the NCP. Li’s dualistic approach sheds light here: if the NCP

supposedly represents a separate popular sovereignty from the CCP, then through its approval

the abolishment becomes the people’s decision as well.19 Thus should the trinity system come

under attack in the future, as it did in Deng’s era, the CCP can implicate the NCP for erroneously

codifying the practice, and simply change the written law again. This would preserve the

18
Shigong Jiang. “Written and Unwritten Constitutions: A New Approach to the Study of Constitutional
Government in China.” 2010. Modern China. 41.
19
Feng Lin, “The 2018 Constitutional Amendments,” China Perspectives, 2019. 18.
integrity of the CCP while further weakening the NCP. Given the frequency of amendments in

the past, this does not seem unlikely down the line.

It is also likely that Feng is correct, and the amendments are at most a constitutionally

insignificant gesture, a mere symbolic alignment of three offices that doesn’t hold practical

implications. But even if this is the case, the amendment may inadvertently bite the CCP in the

back: that by codifying the trinity system into a weak constitution, the party’s powerful unwritten

convention joins a body of work that is barely taken seriously today. If Jiang is correct, the

trinity convention was more powerful when unwritten. Now, it is liable to future scrutiny. After

all, if the 1982 constitution is hardly seen as a rigid text today, what is stopping future

governments from rejecting the amendments made in the present? And if Jiang is correct that the

party will continually stand apart from its own constitution, then perhaps Xi, in his pursuit of the

short-term strengthening of his rule, actually weakens the trinity practice in the long-run.

Further implications: an ‘inevitable’ rule of law

Feng also touches on our first conjecture above: that perhaps the abolishment signals an

increasing “rule by law.”20 “The fact that the CCP has made an effort to constitutionalize and

legalise once extra-constitutional/legal measures is evidence that it has at least taken the rule by

law approach,” Feng writes. “It has regarded the law as a tool to be used when it sees fit.”21 Feng

sees this change as a consolidation of party practices into state law. He regards this as a first step

towards a “thin rule of law” that will eventually become a “thick rule of law.”22 This theoretical

timeline colors his entire evaluation of the amendment. It justifies his rejection of both theories

20
Feng Lin, “The 2018 Constitutional Amendments,” China Perspectives, 2019. 19.
21
Ibid., 19.
22
Ibid., 19.
and his dismissal of the amendment’s constitutional significance. But I think this attitude of

regarding a future “rule of law” as an inevitability may obscure our clarity towards current

government efforts.

By definition, a future thin or thick rule of law would require a stronger NPC with

considerably more leverage than the current rubber stamp parliament, since the NPC is the

designated law-making institution. But by formally inserting itself into the legislature, the CCP

may also harm the long-term development of the NPC’s independence. This hardly seems

productive towards an eventual transformation towards a mythical law-based China. At the very

least, Feng’s timeline seems like wishful thinking.

This attitude in facts seems to have colored many a previous scholarship regarding Xi’s

rule. Yijiang Ding of the University of British Columbia incorrectly predicted in 2015 that

institutions would continue strengthen and the two-term limit would become an established

practice.23 Zhengxu Wang and Anastas Vangeli in 2016 pointed out that a regularized system of

succession had more or less established, with institutions playing an increasing role.24 But the

2018 amendments suggest that the CCP is anything but predictable, and hardly follows some

preset timeline. Given our analysis above, it may be more appropriate to regard the Party as a

dynamic and unpredictable entity neither moving closer nor farther from a rule of law, but acting

in its immediate self-interest apart from interpretive models. In this light, Jiang’s scholarship

shows its value: the CCP stands apart, machinating the government as it sees fit.

23
Ding Y. Consolidation of the PRC’s Leadership Succession System from Hu Jintao to Xi Jinping. China Report,
51(1), 49–65. https://doi.org/10.1177/0009445514557389
24
Zhengxu Wang and Anastas Vangeli, "The Rules and Norms of Leadership Succession in China: From Deng
Xiaoping to Xi Jinping and Beyond," The China Journal. 24-40.
Conclusion

Jiang’s scholarship shouldn’t be readily dismissed just because it is an apologetic. It

provides a useful framework towards which we can conjecture towards the party’s motives.

Likewise, Backer and Li can show us why the legislature was incorporated into the amendment

procedure, perhaps as a representation of popular endorsement and perhaps as a shield should

future scrutiny arise.

By analyzing the amendments in this flexible manner, we can thus see what the 2018

Amendments suggest: that the Party treats the constitution as a series of amendments by itself for

itself. It is a living document, the CCP’s manifestation of its self-dialogue, and a method to

change past stances while orienting itself for the future. The difficulty in current scholarship in

anticipating the Party’s future decisions suggest that we ought to not to constrain the government

towards ideologies or models, but instead to treat the structure as a dynamic entity. Through this

method of analysis, we can began to understand the role of popular sovereignty, the symbolic

importance of institutions, and why the CCP bothered to amend the constitution in the first place.
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