The Party's leadership as a living constitution in China

Like most countries, China has a well-written constitution. China's constitution, however, does not tell how the state actually operates (Cohen 1978: 839; Jones 1985: 710). We all know that the state apparatus, the military, and the congresses are subordinate to China's Communist Party (the CCP). Unfortunately, the literature on Chinese constitutional studies has paid only scant attention to this fundamental principle. This has been true even for scholars who demand greater study of China's unwritten constitutions. For instance, in “Written and Unwritten Constitutions: A New Approach to the Study of Constitutional Government in China,” Jiang did not even mention the Party's leadership at all (2010: 12–46). Moreover, according to Clarke (2010: 87–99), Jiang's discussion remains primarily formalistic and thus is limited in capturing the essence of China's living constitution.

If the most important issue in constitutionalism is the division of power, the penetrating nature of the CCP's leadership poses several thorny questions: What is the relationship among the party and the congress, the state administration, and the judiciaries? Is there any meaningful division of power among the state apparatuses in China? What is the relationship between the central and the local? To what extent are the basic rights of citizens provided in the Constitution meaningful? It is the pattern of exercise of the party's power to which the rest of the chapter will turn.