Abstract
This article aims to historically explore the political and ideological structure of the 1982 Constitution, both of which are multiple and can, therefore, be examined from various angles. This includes, first of all, the historical changes of the United Front and the Political Consultative Conference as well as the political implications and the isolation function of their non-politicization. Second, it includes the distinction between and the unification of the leadership principle and the representation principle. Lastly, it includes the introduction of a new design of constitutionalism with rule of law, private property rights and human rights at the core, which to some extent altered the societal and ideological basis of the original structure. Because of these components, the 1982 Constitution was able to respond to the complex societal changes in the last 30 years, the secret of which lies in the multiple complex structure created by this history.

I. Introduction

Whether in terms of the main text or in terms of the amendments, the 1982 Constitution is a reflection of the layering of history. Of course, every constitution can be considered as a product of history, since none of them can truly be considered a ‘genesis’. However, what sets the Chinese Constitution apart from other constitutions is that it did not grow naturally and continuously in a coherent period of history. Instead, its historical layers comprise numerous breaks and contradictions which indicate that the 1982 Constitution is of a multi-faceted complex structure.

Three decades after the proclamation of the 1982 Constitution, in fact, it is possible to explore this constitution form a historical perspective. The radical shifts in Chinese societal and economic structure in the last thirty years were internally reflected by the 1982 Constitution through four amendments comprising 31 articles, thereby creating a new design for Chinese constitutionalism. However, if the historical perspective is limited only to these thirty years, we will still not be able to comprehensively understand the essence and the multiple dimensions of the 1982 Constitution. Although the text of the 1982 Constitution was enacted after the Third Plenary Session of the Eleventh Central Committee of the Chinese Communist Party and the passing of the “Resolution on Certain Questions in the History of Our Party Since the Founding of the People’s Republic of China”, both of which provided for its guiding ideology, when viewed as a whole, the 1982 Constitution is retrospective in nature and a reiteration and reconstruction of the history of constitutionalism since 1949. The passing of the 1982 Constitution was preceded by more than two years of discussions (from September 1980 to December 1982), and the wording of each article and paragraph was chosen deliberately, with great care, and meticulously. Therefore, the articles and paragraphs of this constitution would be rather difficult to understand if they are isolated from their historical background and context. If one does not know the intentions of the constituents, should one deeply elaborate on the essence and the internal structure of the constitution? This is best explained with a simple example: “The State protects sites of scenic and historical interest, valuable cultural monuments and relics and other significant items of China’s historical and cultural heritage.” This article seems to be rather insignificant and it even appears that there would be no need for this to be included in the 1982 Constitution. However, a review of the drafting history shows that the constituents consciously included this article, in order to dissolve the awareness and actions of the large-scale destructions of historical relics during the Cultural Revolution, while at the same time to appease some religious circles. Therefore, the perspective of historical research has to be extended to the constitutions of 1978, 1975 and 1954 and even the Common Program of The Chinese People’s Political Consultative Conference (hereinafter Common Program).

The 1982 Constitution is often considered the continuation and development of the 1954 Constitution. Not only does its form generally follow the patterns of the 1954 Constitution (with the exception of two chapters, “The Structure of the State” and “The Fundamental Rights and Duties of Citizens” which were interchanged) but the general principles also originated from the 1954 Constitution. According to a statistic by Han Dayuan: “From the 138 articles of the 1982 Constitution, a combined 98 articles draw upon identical or similar parts from the 1954 Constitution, constituting 87.6 %.” This statement, however, needs to be treated with caution, since the same concepts in the 1982 Constitution and the 1954 Constitution do not necessarily hold the same meaning. Peng Zhen, for instance, said: “With respect to the people’s democratic dictatorship as stated in the current draft constitution, it should not be interpreted as a simple restoration of the wording and content of the 1954 Constitution [...].” Therefore, the 1982 Constitution and the 1954 Constitution are only similar in appearance, but different in essence. Thus, while pointing out the similarities between the constitutions of 1982 and 1954, one needs to bear in mind the disparities between the two, since it is precisely these disparities that illustrate the distinctive character of the 1982 Constitution. In addition to these disparities, the Common Program and the Constitutions of 1975 and 1978’s positive and negative influences on the 1982 Constitution also need to be taken into consideration.

The following simple examples will illustrate this point. Whereas none of the constitutions of 1954, 1975 and 1978 provided for regulations on the Political Consultative Conference, the 1982 Constitution positioned the Political Consultative Conference within the constitution, which is due to the eminent role the Political Consultative Conference played during the establishment of the state. Furthermore, when article 24 of the 1982 Constitution stresses the “love of the motherland, of the people, of labor, of science and of socialism,” which originated from the passage “love of the motherland, of the people, of labor, of science and taking good care of public property” from article 42 of the Common Program. As another example, the Common Program and the 1954 Constitution both defined the new China as a people’s democratic state, whereas the 1982 Constitution defined the state as a socialist state with a people’s democratic dictatorship. The Common Program and the 1954 Constitution did not touch upon class struggles, while the 1982 Constitution states that, “The exploiting classes as such have been abolished in our country. However, class struggle will continue to exist within certain bounds for a long time to come.” The Common Program and the 1954 Constitution did not mention the dictatorship of the proletariat. The 1982 Constitution, on the other hand, although rephrasing the dictatorship of the proletariat in its article 1 to the people’s democratic dictatorship, nonetheless declares in its preamble that, “the people’s democratic dictatorship [...] is in essence the dictatorship of the proletariat”. These references are actually remnants of the elements of the Cultural Revolution from the constitutions of 1975 and 1978. In fact, many of the 1982 Constitution’s new sections were added as a result of the lessons of the Cultural Revolution. An example can be found in article 38, which states: “The personal dignity of citizens of the People’s Republic of China is inviolable. Insult, libel, false accusation or false incrimination directed against citizens by any means is prohibited.” This section is mainly addressing the large-scale denunciations that were utilized during the Cultural Revolution. As opposed to this, many provisions were not regulated in the constitution, even though they were also based on a reflection of the Cultural Revolution, such as the freedom of movement or the freedom to strike.

The 1982 Constitution needs to be set in a historical context and compared with its preceding constitutions. Only then can a comprehensive understanding be achieved. However, the historical perspective alone might not be sufficient, since the history itself can only provide us with useful material. Rather, this material needs to be dealt with in a philosophical way and the 1982 Constitution needs to be interpreted from the political and ideological structure in place, both of which developed from history.

Historically, the 1982 Constitution needs to be placed in the context of the history of Chinese constitutionalism that begins with the Common Program and dealt with accordingly. However, Chinese constitution has undergone four re-enactments, and there were numerous contradictions and breaks among different constitutions. At the core of the 1982 Constitution is, therefore, the question of how these contradictions and breaks can be brought into a balance to tell the whole story, and the key for this balance lies in the multiple complex structures of the constitution.

Most of Chinese constitutional scholars focus on the studies on normative constitution and methodology of constitutional dogmatics, which almost have nothing to do with Chinese constitutionalist history and practice. But recently, some constitutional scholars, such as Gao Quanxi, Chen Duanhong, Jiang Shigong, have begun to discuss the political dimension of Chinese constitution, especially the relationship between Chinese communist party and the Chinese people, and the relationship between the constitution of CCP and the constitution of PRC. This article will further explore the political and ideological structure of 1982 Constitution. What makes it different is that it will inquire into this question from historical perspective, concentrating on the process of making and growth of 1982 Constitution.

In sum, this article aims to explore the political and ideological structure of the 1982 Constitution from historical angle. This includes, first of all, the historical changes of the United Front and the Political Consultative Conference as well as the political implications and the isolation function of their non-politicization. Second, it includes the distinction between and the unification of the leadership principle and the representation principle, where the key for unification is the absorption of the representation principle by the leadership principle. Lastly, it includes the introduction of a new design of constitutionalism with rule of law, private property rights and human rights at the core, which to some extent altered the societal and ideological basis of the original structure. Because of this, the 1982 Constitution was able to respond to the complex societal changes in the last 30 years, the secret of which lies in the multiple complex structure created by this history.