Explainer: China to Amend the Constitution for the Fifth Time (UPDATED)

UPDATE (Jan. 25, 2018): This post has been updated to reflect recent developments.

The official Xinhua News Agency reported on December 27 that the Politburo decided to convene the Second Plenum of the 19^th Central Committee of the Communist Party in January 2018. The main agenda of the Plenum is to “discuss and study proposals for amending part of [China’s current] Constitution,” which was adopted in 1982 and later amended four times in 1988, 1993, 1999, and 2004. Under Chinese law (and a key CPC policy document), the constitutional amendment process essentially includes three steps. In this post, we will explain each step in turn and point out the key events to watch during the next several months.

Constitutional Amendment Process under Chinese Law

To quote a previous blog post:

The P.R.C. Constitution and the NPC Rules of Procedure prescribe minimal procedural requirement for amending the Constitution. (The Legislation Law doesn’t govern this process.) All that is required is that any amendment must be proposed by the NPC Standing Committee (NPCSC) or by one-fifth or more of all NPC delegates, and must be adopted, by ballot (as opposed to, say, a show of hands), by affirmative votes of two-thirds or more of all incumbent NPC delegates. The law otherwise doesn’t require public consultation (and indeed none was ever undertaken) or advance distribution of draft amendments to the delegates (though it seems that the NPCSC still distributes the drafts ahead of time, from as late as 13 days to as early as over two months before an NPC session).

In practice, some additional rules are followed as a result of the Communist Party’s monopoly on power.

Constitutional Amendment Process Actually in Use

Step 1: The Party (through its Central Committee) adopts and submits to the NPCSC proposals for amending the Constitution.

Neither the Constitution nor any national law requires this first step. Yet, the NPCSC has each time started the constitutional amendment process after and only after receiving from the Party a set of proposals for amending the Constitution. In other words, despite what the Constitution says, only the Party can initiate the constitutional amendment process. In 2014, this long-standing practice was memorialized in a key Party policy document, the Decision Concerning Several Major Issues in Comprehensively Advancing Governance According to Law. The Decision states:

The Party Central Committee submits proposals for amending the Constitution to the National People’s Congress [likely a general reference meant to include the NPCSC], and constitutional revision is conducted according to the procedure provided for in the Constitution.

党中央向全国人大提出宪法修改建议，依照宪法规定的程序进行宪法修改。

(Note that the quoted sentence also effectively forecloses any possibility that the NPC would consider any constitutional amendment proposed by a group of NPC delegates, as allowed under the Constitution.)

In its decision yesterday, the Politburo did not announce an exact date for the Second Plenum, and thus it will meet again, likely in mid-January, to set the date. The Party’s proposals won’t be released until the process enters Step 2. [UPDATE: The Second Plenum took place from January 18–19, 2018.]

(As a side note, Second Plenums typically take place in late February once every five years and are the occasions where the Party finalizes decisions on appointments to state offices which a new NPC will then endorse the following March. In fact, this January Second Plenum would be the earliest in 30 years, according to the South China Morning Post. This probably also means that the Party will convene an early Third Plenum (usually held in the fall) in late February to discuss the personnel decisions.)

Step 2: At a single session, the NPCSC studies the Party’s proposals, and then approves and submits to the NPC a draft constitutional amendment.

On the first day of a (likely) multiday session, the NPCSC will hear an explanation of the Party’s proposals, which will likely be released on the same day. The NPCSC will then proceed to draft a constitutional amendment based on the proposals. In fact, we expect the draft amendment to use exactly the same words as the proposals would, as the NPCSC has never deviated from the Party’s proposals in any way (except in how it numbers the articles, for a new constitutional amendment continues the numbering of articles in the last) in drafting constitutional amendments. On the last day of the session, the NPCSC will unanimously decide to submit the draft constitutional amendment to the 1^st Session of the 13^th NPC for deliberation. There probably won’t be any opportunity for public comments.

[UPDATE: The NPCSC will hold a special session from January 29–30, 2018.] When will the NPCSC meet then? The answer would normally be late February, when its next regularly scheduled session would take place. But because the NPCSC did not decide to convene the 2018 NPC session at the close of its session yesterday, it will have to hold an unscheduled session shortly after the Second Plenum to comply with article 6 of the NPC Rules of Procedure. That article requires the NPCSC to notify the NPC delegates of the date and agenda of an NPC session and to distribute to them any draft law submitted for deliberation at least a month in advance. Because the NPC has convened annually on March 5 since the early 1990s, we assume that the 2018 NPC session would be no exception. We thus expect that the NPCSC will by February 5 decide to convene the 1^st Session of the 13^th NPC on March 5, 2018 and to submit to this NPC session a draft constitutional amendment (alongside the draft Supervision Law).

Step 3: The NPC deliberates and adopts the constitutional amendment.

During the ten-plus day session next March, the NPC delegates will first hear an explanation on the draft constitutional amendment at a plenary meeting. They will then break into delegations, and further into smaller groups, to discuss the draft amendment. There is precedent for revising a draft constitutional amendment during an NPC session, but expect the number of changes (if any) to be minimal. It will be up to the Presidium (the presiding body of an NPC session of which most senior Party leaders are members) to decide, based on the delegates’ opinions, whether to revise the draft amendment. On the last day of the session, the delegates will vote on the draft amendment by written ballot (as opposed to electronically). This vote will not be unanimous (none of the constitutional amendments was adopted unanimously), but will be well above the required two-thirds majority. The NPC will then issue a public notice announcing that a constitutional amendment has been adopted, effective immediately.

What Constitutional Provisions Will Be Amended?

First, there is no doubt that this constitutional amendment will focus on granting constitutional status to supervision commissions. This will involve changing an array of existing constitutional provisions and adding a few new ones. A new section titled “Supervision Commissions” will probably be added to “Chapter III: The Structure of the State.” And the following is a non-exhaustive list of constitutional provisions that some argue must be amended for the Supervision Law to be constitutional:

• Article 3, paragraph 3 (on the creation of other state organs by the people’s congresses)
• Article 37, paragraph 2 (on the authority to approve and carry out arrest of citizens)
• Article 40 (on the authority to inspect citizens’ private communications)
• Article 62 (on the NPC’s functions and powers)
• Article 63 (on the NPC’s removal power)
• Article 67 (on the NPCSC’s functions and powers)
• Article 89, item 8 (on the State Council’s authority to direct and manage supervision)
• Article 101 (on local people’s congresses’ appointment and removal powers)
• Article 104 (on the functions and powers of the standing committees of local people’s congresses)
• Article 107 (on local governments’ authority to conduct administrative work concerning supervision)

Second, there is also no doubt that President Xi Jinping’s tongue-twisting political theory, the Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, along with his predecessor President Hu Jintao’s Scientific Outlook on Development, will be written into the Preamble to the Constitution.

Third, many have speculated that Article 79’s two-term limit on the Presidency would be removed to allow Xi to stay on as President after his term will otherwise expire in March 2023.

What other provisions will be amended is anyone’s guess.

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