The Communist Party as Polity and the Chinese Party-State Constitutional Order

Abstract

Chinese Marxist Leninist constitutional theory has produced a constitutional order that is quite distinct from that common to the West and its baseline liberal democratic constitutional orders. Where the later starts from the premise that all sovereign power is vested in a government whose authority is ordered and constrained by a constitutional document, Chinese constitutional theory starts from the premise of the delegation of sovereign authority from the people to its leading forces constituted as a vanguard party. Administrative authority is then vested in the organs of state which accept the leadership of the Party and its guidance in the governance of the nation. This contribution examines the Chinese constitutional system within the parameters of its own political assumptions. China has moved toward a legitimately constitutionalist governance system in which power is divided between a vanguard party, which serves as the repository of political power, and the administrative organs of government. The CPC serves an institutional role within Chinese constitutionalism and also represents the political power of the Chinese polity directly in the political ordering of the government. The CPC, in turn, is constrained by the normative basis on which Chinese constitutionalism is ordered -- Marxist Leninism and Mao Zedong Thought, Deng Xiaoping Theory, the important Thought of Three Represents, the Scientific Outlook on Development, and Xi Jinping Thought on Socialism with Chinese Characteristics in the New Era Theory. These serve as the ideological basis for the Chinese political model and a constraint on the exercise of authority within both Party and state organs. Thus framed the Chinese constitutional system can be understood as both distinctly and legitimately constitutionalist. The contribution embeds the substantive political theory of Leninist constitutionalism on which the political order is organized with its expression in the organization of the state. It starts with a consideration of the Chinese state constitution. It then turns to a consideration of the constitution of the political order institutionalized within the Constitution of the Communist Party of China. In that context it examines the anti-arbitrary assertion of power principle of constitutionalism in the relationship between the administrative organs of state and the organs of CPC governance. Lastly, it situates both constitutions within the hierarchies of Chinese constitutional authority, one in which the state constitution provides the cage of regulation that embodies the Chinese Communist Party core Basic Line,. This last contributes to the accountability mechanisms built into the system of Chinese constitutionalism grounded on the operating premise that the CPC is at the center, the navigator and helmsman of the nation. The published version of this contribution is submitted for inclusion in Ngoc Son Bui, Stuart Hargreaves, and Ryan Mitchel (eds.) Handbook of Constitutional Law in Greater China (Routledge, forthcoming 2022).

Keywords: China, Communist Party, Marxism, Leninism, constitutionalism, jurisprudence

JEL Classification: P26, K39