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The Erosion of Communist Party Control over Lawmaking in China*

  • Murray Scot Tanner

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This article examines the organizational evolution of Communist Party control over lawmaking processes and institutions in post-Mao China. In particular, it charts the erosion and decentralization of Party control which has accompanied the rise of lawmaking since 1978. The unity of Party control over lawmaking has frayed and dissipated dramatically in these years, as more and more important policy issues are resolved outside the arena of the Party's central decision-making organs (such as the Politburo, the Secretariat, and so on). This decentralization has been matched by a corresponding increase in the institutional power, autonomy and assertiveness of the government (executive) lawmaking offices, and other more open policy-making arenas, most notably the National People's Congress, but also including the Supreme People's Court.

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1. “Zhonggong zhongyang guanyu jiaqiang dui Ufa gongzuo lingdao de ruogan yijian” (“Several opinions of the CCP Central Committee on strengthening leadership over lawmaking work”), CCP Central Committee Document Number 8 [1991]. The text of the document, obtained by the author, will be translated in a forthcoming issue of Chinese Law and Government (Armonk, NY: M. E. Sharpe).

2. I have argued for this “multi-arena” view of lawmaking in much more detail in Tanner, Murray Scot, “The legislative process,” in Potter, Pitman B. (ed.), China's Domestic Legal Reforms (Armonk, NY: M. E. Sharpe, 1993).

3. My basic view of the Chinese policy-making system as one of “fragmented authoritarianism” and inter-agency bargaining is heavily influenced by the work of Kenneth Lieberthal, Michel Oksenberg and David Lampton. See, in particular, Lieberthal, Kenneth and Oksenberg, Michel, Policy Making in China, Leaders, Structures, and Processes (Princeton: Princeton University Press, 1988); also Lieberthal, Kenneth G. and Lampton, David M. (eds.) Bureaucracy, Politics and Decision Making in Post-Mao China (Berkeley: University of California Press, 1992).

4. Xiaoping's, Deng clearest discussion of the evils of over-centralized decision-making power is “On the reform of the system of party and state leadership,” Selected Works of Deng Xiaoping (1975–1982) (Beijing: Foreign Languages Press, 1984). pp. 302326.

5. Lieberthal, Kenneth, Central Documents and Politburo Politics in China, Michigan Papers in Chinese Studies, No. 33 (Ann Arbor: University of Michigan, 1976).

6. Zhen, Peng, “Jiaqiang minzhu yu fazhi jianshe, jiaqiang renda changweihui gongzuo” (“Strengthen construction of democracy and the legal system, strengthen the work of the NPC Standing Committee”), speech at an NPC Standing Committee delegates work meeting, 27 June 1986, in Zhen, Peng, Lun xin shiqi de shehui zhuyi minzhu yu fazhi (On the Construction cf Socialist Democracy and the Legal System in the New Period) (Beijing: Zhongyang wenjian cfaubanshe, 1989) pp. 324331. See also Deng Xiaoping's December 1978 Third Plenum address, “Emancipate the mind, seek truth from facts, and unite as one in looking to the future,” Selected Works of Deng Xiaoping (1975–1982), especially pp. 157–58.

7. “In political reforms, we can affirm one thing: We have to insist on implementing the system of the National People's Congress and not the American system of the separation of three powers.” Deng's speech to the military commanders in Beijing, 9 June 1989, Beijing Review, 10–16 July 1989, pp. 18–21. Also see Shambaugh, David, “Deng Xiaoping: The Politician,” The China Quarterly (September 1993), pp. 457490.

8. See, for example, Solinger, Dorothy, “The Fifth NPC and the process of policy-making,” Asian Survey, Vol. XXII, No. 12 (December 1982), pp. 1238–275; also Lieberthal and Oksenberg, Policy Making in China, pp. 252–54.

9. For an excellent discussion of this assumption that all interests can be made compatible through the democratic process, see Nathan, Andrew, Chinese Democracy (New York: Alfred A. Knopf, 1985), especially pp. 4566.

10. See Li, Wan, “Making decision-making more democratic and scientific is an important part of reforming the political system,” Renmin ribao, 15 August 1986, translated in Foreign Broadcast Information Service, China: Daily Report (hereafter FBIS-CHI), 19 August 1986, p. K22.

11. “Wan Li zai qijie Quanguo Renda Changweihui di shisanci huiyi shang de jianghua” (“Wan Li's speech at the Thirteenth Meeting of the Seventh NPC Standing Committee”), 15 March 1990, personal copy. In arguing this last point, Wan Li may have been engaged in a public debate with Party General Secretary Jiang Zemin over the proper relationship between the Party and the NPC, a point to which I will return.

12. Interview 26–17–13–33/TWS, Beijing, 1992.

13. This paper is limited to a discussion of the Party's lawmaking institutions. For readers who are interested, I have described the organizational development of State Council and NPC lawmaking offices in much greater detail in Tanner, “The legislative process.”

14. This was stressed by a high-ranking trade union legal scholar. Interview 27–22–13–33/TSE, Beijing, 1989 and 1992.

15. These leading groups {lingdao xiaozu), divided up by issue-area, are usually chaired by the Politburo member holding the appropriate policy portfolio, and bring together leading policy specialists in that issue area.

16. The organization's title has changed twice since 1978. Until 1979 it was called the “Central Political-Legal Group” (Zhongyang Zhengfa Xiaozu); that name was changed to the “Central Political-Legal Commission” (Zhongyang Zhengfa Weiyuanhui) in late 1979. In 1988, the name changed again to the “Central Political-Legal Leading Group” (Zhongyang Zhengfa Lingdao Xiaozu).

17. This section relies in particular on interviews 11–19–13–33/OKE, Beijing, 1989; 11–19–13–33/ADH, Beijing, 1989 and 1992; and 26–17–13–33/TWS, Beijing, 1992.

18. According to a 1984 Central Committee nomenklatura list obtained by John P. Burns, the Central Committee's control extends no lower than the NPC Standing Committee and its chief staff officers. Nomenklatura control over the nearly 3,000 regular NPC delegates is unclear, but is probably worked out in consultation between the Centre and the provincial Party committees and the PLA, since the delegates are formally elected to the National Congress at the provincial/army level. See Burns, John P., The Chinese Communist Party's Nomenklatura System (Armonk, NY: M. E. Sharpe, 1989) pp. 122, 123.

19. Beijing Xinhua English (BXE), 1 April 1988 in FBIS-CHI, 1 April 1988, p. 11. This same system was used in selecting the Eighth NPC Standing Committee in 1993.

20. I have documented this trend in more detail in Tanner, “The legislative process.“

21. Interview 27–22–13–33/TSE, Beijing, 1992.

22. This information is taken from CCP Central Organization Department Research Office (comp.), Dang de zuzhi gongzuo dashiji, 1978–1988 (A Chronology of Major Events in the Party's Organizational Work, 1978–1988) (Beijing: Beijing daxue chubanshe, 1990).

23. Interviews 26–17–13–33/TWS, and 15–21–31–33/AEDH, Beijing, 1992.

24. Peng Chong, “Guanyu jianquan renda jiguan he jigou de baogao” (“Report on perfecting the work and structure of the NPC's work organs”), Report to the NPC Standing Committee Committee Chairmen's Group, 7 July 1987. A translation of this report is forthcoming in Chinese Law and Government (Armonk, NY: M. E. Sharpe).

25. CCP Organization Department, Dang dezuzhigongzuodashiji, 1978–1988, p. 267. The Hatty Group members were Wan Li, Xi Zhongxun, Peng Chong, Ye Fei, Liao Hansheng, Ni Zhifu, Cben Muhua, Wang Hanbin and Cao Zhi.

26. Among the Chairman, Vice-Chairpersons, and Secretary General of the Eighth NPC Standing Committee, the CCP members, who presumably comprise the new Party Group, are: Chairman Qiao Shi, Vice-Chairpersons Tian Jiyun, Wang Hanbin, Ni Zhifu, Chen Muhua, ffin Jiwei, Li Ximing, Lu Jiaxi, Bu He, Tomur Dawamat and Gan Ku, and Secretary General Cao Zhi.

27. Interviews 11–19–13–33/ADH, and 11–19–13–33/OKE, Beijing, 1989.

28. “Speak no evil. The Party puts a lid on criticism,” The Far Eastern Economic Review, 30 March 1989, p. 11.

29. A summary of Jiang's speech to the 1993 NPC Party members meeting was published in Wen hui boo (Hong Kong), 15 March 1993, p. 2, in FBIS-CHI, 15 March 1993, pp. 13–15.

30. This change in norms was noted by several interviewees, but most stressed by interview 26–17–13–33/TWS, Beijing, 1992.

31. At the March 1989 Second Session of the Seventh NPC, for example, 274 delegates voted “no” and 805 abstained on Zhao Ziyang's proposal to grant the Shenzhen Special Economic Zone (SEZ) special legislative autonomy from Guangdong province, defying a strong request by Party leaders that they pass the measure. For this and other examples of the new opposition in the NPC, see Sutang, Zhang and Ping, He, “The light boat has swiftly passed through the mountains — looking back on the Seventh National People's Congress,” Beijing Xinhua Domestic Service (BXDS) 8 March 1993, in FBIS-CHI, 9 March 1993, pp. 14–17.

32. Interviews 27–22–13–11–13–17/BNH; 27–13/15–16–32/BC; and 26–17–13–33/TWS, Beijing 1992.

33. English translations of the term zhengfa often reflect the problems Chinese and Westerners have in communicating the breadth of the concept. The official Chinese translation of “Political Science and Law” is a deceptively — even humorously — benign translation for any organization which includes the secret police. “Administration and Law” might be closer to the mark, but is still too vague. I will use the more standard translation “Political-Legal.”

34. Baum, Richard, “Modernization and legal reform in post-Mao China: the rebirth of socialist legality,” Studies in Comparative Communism, Vol. XIX, No. 2 (Summer 1986), pp. 69104.

35. See Paltiel, Jeremy T., “China: Mexicanization or market reform,” in Caporaso, James A. (ed.), The Elusive State: International and Comparative Perspectives (Newbury Park, CA.: Sage Publications, 1989), pp. 255278.

36. Two excellent lawmaking studies which exemplify this view of the CPLG are: Tao-tai Hsia and Constance Axinn Johnson, “Law making in the People's Republic of China: terms, procedures, hierarchy, and interpretation,” Law Library, Library of Congress, Washington D.C., 1986, p. 27; and O'brien, Kevin J., “Legislative development and Chinese political change,” Studies in Comparative Communism, Vol. XXII, No. 1 (Spring 1989), p. 59.

37. Among the public security “enforcers” who have previously served on the CPLG are Luo Ruiqing, Li Kenong, Peng Zhen, Kang Sheng, Xie Fuzhi, Peng Chong, Liu Fuzhi, and more recently, Qiao Shi, Wang Fang and Tao Siju.

38. The meeting was reported in Renmin ribao, 29 October 1978, pp. 1–2; see also BXDS, 29 October 1978 in FBIS-CHI, 1 November 1978, p. 2.

39. Interviews 11–19–13–33/OHK; 11–19–13–33/ADH; and 15–35–19/QXX (all Beijing, 1989); and interviews 26–17–13–33/TWS; 27–22–13–11–13–17/BNH, Beijing, 1992.

40. Interview 15–35–19/QXX, Beijing, 1989.

41. The Working Group members were An Zhiwen, Zhang Yanning, Gu Ming, Ma Hong and Li Hao. See FBIS-CHI, 23 May 1985, p. Kl 1.

42. In addition to the interview sources used in this study, see the following Hong Kong press sources: Guangjiao jing, 16 January 1988, p. 1; Wen hui bao, 11 March 1988, p. 1.

43. This scholar and other sources believed Zhao enjoyed Deng Xiaoping's backing in trying to close down the Leading Group. Interview 15–35–19/QXX, Beijing, 1989.

44. Intriguingly, when asked, the source of this information indicated he had not heard of any evidence that Qiao Shi, at that time CPLG's Chairman, had opposed the abolition of the Group.

45. Interview 26–17–13–33/TWS, Beijing, 1992.

46. It is important not to put too fine an organizational edge on this picture of Party procedure, however. The relevant “Party leadership” which must approve of a law can also include Party elders who, though not formally members of the Politburo, still have the personal power to involve themselves in policy-making on some issues.

47. Interviews 26–17–13–33/TWS, 27–13/34–19–28/XWQ, and 27–22–13–11–13–17/BNH, all Beijing, 1992.

48. These three possibilities were discussed by interviewee 11–19–13–33/ADH, Beijing, 1989 and 1992.

49. Interview 11–19–13–33/OKE, Beijing, 1989. I have discussed the process of drafting the Bankruptcy Law in some detail in The Politics of Lawmaking in Post-Mao China (unpublished Ph.D. dissertation, the University of Michigan, 1991), pp. 181–260.

50. The document carries the designation jimi (roughly equivalent to “secret” in the U.S. classification system) and indicates that circulation is restricted to officials with rank equal to or higher than a State Council minister.

51. The two speeches are: “Wan Li zai qijie Quanguo Renda Changweihui di shisanci huiyi shang de jianghua” (“Wan Li's speech at the Thirteenth Meeting of the Seventh NPC Standing Committee”), 1S March 1990; and Jiang Zemin, “Guanyu jianchi he wanshan renmin daibiao dabuizhidu” (“On maintaining and perfecting the people's congress system”), 18 March 1990. Both documents are contained in an internal circulation collection of NPC documents, compiled by the NPC Standing Committee Research Office, which was made available to the author during a visit to China in 1992. Copies of the speeches are available from the author on request.

52. By comparison, the language “support and guarantee” seems to suggest an even stronger grant of NPC autonomy than the language used in 1988 to define the new, rather powerful position of state factory managers vis-à-vis enterprise Party committees, which were ordered to “guarantee and supervise“ the manager. See Chapter One, Article 8 of the State Owned Industrial Enterprises Law, which orders the Party committee to “guarantee and supervise” (baozhang jiandu).

53. It is unclear what is intended by the term “important laws” (zhongyao falu), and the term is not repeated in the document. Perhaps this is a synonym for “basic codes,” ceiled jiben falu, such as the Criminal, Administrative and Civil Codes and their corresponding procedural codes.

54. The inclusion of both the Standing Committee and its Party Group reflects standard protocol, which would require Party units to submit their reports directly to the NPC Party Group, and non-Party units to submit theirs to the NPC Standing Committee, which would in turn submit the reports to its Party Group.

55. Interview 27–22–13–11–13–17/BNH, Beijing, 1992.

56. Interview 27–13/34–19–28/XWQ, Beijing, 1992.

57. Interview 26–17–13–33/TWS, Beijing, August 1992.

58. These delegates' new perceived constituencies are beyond the scope of this article, though they must be a prime topic on the future research agenda of students of Chinese politics. Some excellent recent interview research by Kevin O'Brien seems to confirm that many national and local people's congress delegates are abandoning their past roles as “agents” of the Party Centre, and are feeling much freer to represent lower level interests, casting themselves in something like the traditional Confucian role of “remonstrators” to the government. See O'Brien, “Agents and remonstrators” in this issue of The China Quarterly.

* This article is part of a much larger study of the Chinese lawmaking system, with data drawn from Chinese documentary sources (both internal and open source). Western press sources, and interviews with Chinese legislative officials and scholars conducted during 1988–89 and 1992.1 am grateful to the Committee on Scholarly Communications with the People's Republic of China and to Western Michigan University's Faculty Research and Creative Activities Fund for financial support for my interviewing in China. I also gratefully acknowledge the helpful comments on earlier drafts of this paper by Professors Jim Butterfield, Sushi Datta-Sandhu, Elizabeth Dalton, Carolyn Lewis, Kenneth Lieberthal, Michel Oksenberg, William Ritchie and Lawrence Ziring.

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The Erosion of Communist Party Control over Lawmaking in China*

  • Murray Scot Tanner

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