Analyses
Xi Jinping Is About to Face a Constitutional Crisis
By Thomas Kellogg, FP, September 7, 2017
Sep 10, 2017 - 11:14:30 AM

The Chinese president is making a massive bid for total power — unless the law trips him up.

In China, the first weeks of September are the calm before the storm. The People’s Republic is about to enter the peak of its political calendar. The Chinese Communist Party’s 19th National Congress, one of the quinquennial meetings that determine the nation’s future leadership, has been set for October 18, kept deliberately obscure until the last minute as usual. That’s when the Party Congress in Beijing will unveil a new Politburo, including a new Politburo Standing Committee (PSC), the small group of elites who control the country.

Speculation has centered on whether anti-corruption czar Wang Qishan, a close ally of Chinese President and CCP General Secretary Xi Jinping, will remain on the Standing Committee, despite the fact that he, at 69, has already passed the informal retirement age of 68 for PSC members at the start of their term. But there’s far more at stake in this outcome than a single senior leadership post. It could mark the beginning of an open confrontation between Xi and China’s constitutional order.

If Wang is able to stay on — and the evidence for this is piling up — his reappointment will further fuel speculation that Xi intends to keep his own seat on the PSC after the 20th Party Congress in 2022, and with it his tight hold on the CCP, despite a 10-year term limit that mandates he step down at that time. After all, the logic goes, if Wang could break the retirement rule, than surely Xi, the most powerful Chinese leader since Deng Xiaoping in the 1980s, could do the same?

Xi has already broken another relevant prior practice: Five years into his projected 10-year tenure, he has not yet anointed an heir apparent who will take his place after 2022. In contrast, by most accounts, Xi was marked as China’s next leader as early as October 2007, when he joined the PSC at the 17th Party Congress. Less than six months later, in March 2008, Xi was named vice president of the People’s Republic, further solidifying his position as next in line to the CCP throne. To many, the absence of a revolutionary successor clearly shows that Xi has no plans to leave office once his second five-year term ends in October 2022.

The 10-year term limit for CCP general secretaries has been followed for more than 20 years and is considered one of the most important political reforms of the post-Mao Zedong era, but it isn’t actually written down anywhere. The same can’t be said, however, of the term limits for the office of the presidency. Under Article 79 of the Chinese Constitution, the president — the head of state in China’s system — is limited to two terms. Xi was appointed president just six months after he became party secretary, in March 2013. Which means that, by mandate of China’s supreme law, he must step down by March 2023.

This is a rule clearly codified in national law and thus can’t be so easily avoided. If Xi wishes to change it, he will have to address it — and the associated risks — head on.

To be sure, China’s constitution promises lots of things that have never been delivered.

To be sure, China’s constitution promises lots of things that have never been delivered. Legally speaking, the constitution carries little weight — its core precepts are regularly violated, in part because there is no enforcement mechanism in place to address violations. And yet the constitution does matter as a political document; the CCP itself touts it regularly to boost its own governing legitimacy. Others have gotten in on the game as well: Party members, academics, and members of the public all regularly wrap themselves in the constitution in order to advance their own pet political causes.

And for Chinese constitutional law scholars, Article 79 matters. It is one of the few provisions that scholars can point to that — on paper at least — is fully enforced and has been since the adoption of the 1982 constitution. A number of scholars in China have pointed to Article 79 as evidence that the country is genuinely making progress on constitutional development. Some optimistically argue that the CCP itself is on board with making the constitution the binding law of the land; Article 79 and other key provisions will come first, and other provisions — including those protecting basic rights to expression, association, and assembly — will come later on.

I think they’re wrong: The lack of progress on developing some sort of constitutional interpretation mechanism, for example, is one of many indications that the CCP doesn’t want its freedom of action restricted by binding legal institutions.

That said, the views of mainstream Chinese constitutional law scholars — and, by extension, many politically engaged moderate intellectuals — are a political reality that Xi will have to deal with, one way or another. Like most people, they won’t like to see their own prior scholarly writings, and their own prior statements in support of the party, so viscerally flouted. Their views carry at least some influence, which means that he will have to consider their concerns as he plots his course.

For Xi, the Article 79 term limit creates a real conundrum. The state presidency, though secondary to the party leadership post, holds significant political weight: It is the highest executive office in China and carries with it a number of official powers and duties. Though Xi’s political power flows first and foremost from his CCP leadership post, he is very much aware of the symbolic value of the state presidency and the many important domestic and international political opportunities it affords him.

Should he choose to honor the clear constitutional term limit, no doubt Xi could find a way to include himself in future high-flying global confabs, just as he could insert himself into key national meetings usually chaired by the Chinese president. But doing so would be made more difficult and create a potential rival in the form of the new president.

True, Xi could seek to have Article 79 amended in order to eliminate the potential conflict. There are plenty of international precedents for him to draw upon. Many other authoritarian rulers — including now-deceased Venezuelan President Hugo Chávez, Russia’s Vladimir Putin, and, most recently, Turkish President Recep Tayyip Erdogan — have pushed constitutional amendments to extend their tenure in office or to otherwise expand their own power. Xi might well choose this route later in his second term. But tweaking Article 79 would paint Xi in a less-than-flattering light: He would look like yet another authoritarian ruler much more interested in preserving his own rule than in, as he repeatedly promises, developing the legal framework and institutions needed to launch China into the next phase of its political development.

This political problem would be accentuated by inevitable reference to Xi’s own regular use of constitutionalist rhetoric; in 2012, for example, in a speech marking the 30th anniversary of China’s 1982 constitution, Xi called on his fellow Communist Party members to uphold the constitution and to strengthen its enforcement. “We must firmly establish, throughout society, the authority of the constitution and the law and allow the overwhelming masses to fully believe in the law,” Xi said. He also declared Dec. 4 to be National Constitution Day and has published annual exhortations urging the public to study the constitution and to contribute to its implementation. Were Xi to hold on to the Chinese presidency after 2023, it would be much more difficult for him to draw on constitutionalist and rule-of-law ideals to bolster Beijing’s political legitimacy.

Xi might try to avoid this problem altogether by handing the presidency over to a (as yet unnamed) trusted lieutenant. He could then govern China from his perch as party secretary. Or he could relinquish both his state and party positions, thus preserving CCP norms and constitutional law, and rule the country completely bereft of senior titles. (Some experts have predicted that this is Xi’s most likely play.) There are recent precedents for both approaches: Mao himself, the Great Helmsman, held no state office from 1959 until his death in 1976. Deng Xiaoping, the leader who brought China into the reform era, held neither state nor party office for the last 7 years of his life.

That said, Xi will likely think twice before embracing the risks inherent in such an approach.

First, Xi would have to weigh whether the CCP leadership and the rank and file would put up with a move that would so clearly smack of regression in Chinese politics. Many senior leaders — including Xi himself — lived through the chaotic years of the Cultural Revolution and thus have mixed feelings about Mao’s legacy. Many among the party’s more than 85 million members might resist any move that suggested too openly a return to the cult-of-personality politics of that era. China is no democracy, of course, but Xi would also have to weigh whether the Chinese public would resent his decision to stay on. Any loss of public support would weaken Xi’s own political standing inside Zhongnanhai.

Xi would also have to ask whether he could fully trust the man — or, if he were to let go of both titles and split the positions, the men — who would succeed him as president and party secretary. (And it definitely will be a man; the top party and state posts have never included a woman.) Authoritarian rulers must constantly worry about whether their top lieutenants will seek to gain political advantage by betraying their own political patron, and Xi would be no exception. Article 79 makes it less easy for Xi to duck this problem altogether by declining to name any successor.

Yet at the end of the day, Article 79’s limits will not be a decisive factor for Xi. (The fact that it won’t be speaks all too clearly to the lack of meaningful constitutional development in China over the past 35 years.) Instead, Xi will make a political determination as to what works best, given the exigencies of the moment and his own long-term strategy and goals. How he handles the Article 79 conundrum may well be an early bellwether of Xi’s post-2022 plans.

What will Xi do? Thus far, Xi has presented himself to both the CCP and the nation as a firm and decisive leader. It is also clear that he has no particular love for sharing the limelight — witness the downgrading of Premier Li Keqiang’s role as No. 2 over the past several years. Given Xi’s preference to be the clear and uncontested primus, and to push down any potential pares, it seems likely that he will look to extend his hold on power and also seek to keep both the party leadership post and the state presidency. China’s next round of constitutional revisions, the fifth such since the document was adopted in 1982, may well focus on eliminating the sole explicit textual barrier to Xi’s continued rule, weak and ineffectual though it may be.