Communist state constitution
A communist state constitution is the supreme and fundamental law of a communist state. In Marxist–Leninist theory, a constitution is understood both as a juridical act that establishes the structure of the state and its legal order, and as the formal expression of the prevailing class system controlled by the ruling class. Communist constitutions codify the political and economic programme of the ruling communist party by stipulating its leading role in state and society and are considered to hold supreme legal force, providing the foundation for all legislation and state activity. Unlike liberal constitutional systems, communist state constitutions reject the separation of powers and judicial review. Instead, they posit that popular sovereignty emanates from the people and is bestowed on state leaders undiluted vertically from bottom to top through a pyramid-like structured unified state apparatus emanating from a system of state organs of power headed by a supreme state organ of power at its apex. This structure enables democratic centralism by informing the power relationship between state organs, and turns the highest organs into superior organs and creates a system in which policies adopted by higher-level organs must be implemented downward by inferior state organs. This entails the institution of dual subordination, meaning both vertical accountability from bottom to top in the form of electoral recall and top to bottom in the form of binding character of decisions made by superior organs, and horizontal accountability in the form of inferior state organs being held accountable to state organ of power at the corresponding level. The constitution defines this structure and the functioning of the inferior state organs as an act of the SSOP's self-organisation in accordance with the division of labour of state organs, not as an imposition upon it.
Communist constitutions share a broadly similar structure: a preamble outlining ideological goals; chapters on the political and economic system, often emphasising the leading role of the party, providing a normative framework for the transition to a communist society, public ownership and planned economic development; sections defining the organisation of state power, including the SSOP, its permanent organ, the supreme executive and administrative organ, the supreme judicial organ, the supreme procuratorial organ, and other state organs if needed; and chapters detailing citizens' rights and obligations. Rights are paired with corresponding obligations, reflecting the view that rights are not natural entitlements but contingent upon fulfilling social obligations. Legal systems operate under the principle of socialist law, which requires state organs, transmission belt mass organisations, and citizens to observe the constitution and laws. The procuracy typically supervises legality; constitutional enforcement is ordinarily vested in the SSOP or its permanent organ.
While the basic framework is similar, communist constitutions vary across time and place. Some states introduced distinctive institutions, such as constitutional courts in Yugoslavia and Czechoslovakia or supervisory commissions in China, while others retained the classic Soviet model centred on the SSOP. Draft constitutions were often circulated for mass discussion before adoption, and constitutional amendments were generally reserved to the SSOP.
Theoretical framework
In Marxist–Leninist usage, "constitution" carries two distinct meanings. First, it denotes a de facto juridical act—the supreme and fundamental law regulating social relations, underpinning the social and state order, and defining the individual's role. Second, it signifies the de jure factual basis of the existing order, namely how a country's socio-economic and political system actually operates. From this perspective, constitutions in the first sense have existed since the emergence of the state, whereas de jure constitutions first appeared with the American and French revolutions. Communist constitutions are treated by Marxist–Leninists as de jure constitutions.Communist constitutions are typically said to have two defining features: first, they are the supreme law of the state; second, they codify the communist party's policy programme into state policy. In Marxist–Leninist theory, the constitution is regarded as a legal act that can be distinguished from other laws and legislation in terms of its legal force. Another juridical act of greater legal force determines the legal force of a juridical act. Since the constitution holds supreme legal power, a communist constitution does not require regulation by a superior law. The legal basis for this assertion is that these constitutions serve as the supreme law of the land. Meaning that they establish the fundamental principles of legislation and the legal system. Legislation must adhere completely to the constitution. In the event of any discrepancies, the constitution takes priority over legislative acts. Should any legislative acts be enacted that conflict with the constitution, they will be rendered legally void. This principle also extends to international relations: a communist state cannot enter into an international treaty that contravenes the constitution.
The constitution derives its authority from its adoption by the supreme state organ of power, which is considered the embodiment of popular sovereignty since unified power rests on the assumption that the SSOP's state power is based on, according to scholar John N. Hazard, "the supreme expression of the will of the people and beyond the reach of judicial restraint". This also entails, according to Otto Bihari, that since the SSOP is the embodiment of popular sovereignty, it cannot be constrained by the constitution. In Marxist–Leninist theory, this is taken to mean that judicial review is inadmissible since it is interpreted to mean that an external state institution stands above the SSOP. However, the communist state seeks to safeguard the constitution per the principle of socialist law, understood as the duty of the party, state organs, social organisations and citizens to observe the constitution. In practice, constitutional oversight rests on political supervision by the SSOP, procuratorial control by the supreme and subordinate procuracies, and electoral accountability through non-competitive elections.
According to scholar Georg Brunner, this indicates that communist constitutions codify the state's unlimited political powers, and indirectly, those of the communist party. He believes this is proof that the liberal democratic conception of the rule of law is irreconcilable with communist constitutionalism because they rest on opposing relationships between law and politics. Under the liberal democratic rule of law conception, political processes are constrained by legal norms supervised by an independent judiciary and are viewed as universal and non-ideological. That means that holders of political power are bound by law, and that law takes precedence over politics. By contrast, communist constitutions codify the primacy of politics over judicial authority, as judicial power is also considered a form of political power. That means that communist states formally subjugate judicial power to political power. Marxist–Leninists hold that legislation, not judicial rulings, is the sole source of valid law. As a result, Marxism–Leninism rejects the separation of powers, but supports the demarcation of state responsibilities in accordance with the principle of the division of labour. Other state organs derive their powers from, and are subordinated to, the SSOP.
From a Marxist−Leninist perspective, unlimited political power is held to be righteous since it is imbued with Marxism–Leninism, which is another difference with liberal constitutionalism. Liberal democratic constitutions are written in a way to not directly tie to a specific ideology, according to United States Supreme Court judge Oliver Wendell Holmes. Because of this, Brunner argues that communist states are not rule of law states, but "rule of politics states". As the perceived vanguard of the working class, the party, through socialist law, controls the legal system based on the thesis of the strict observance of laws and the application of law in conformity with the political requirements outlined by them. In this sense, the communist constitutions oppose the liberal concept of limited government since it seeks to limit state power in a bid to prevent the abuse of power. Communist states seek to regulate state power by getting officials to abide by law, but do not try to limit the state's actual powers.
Marxism–Leninism holds that the material base, encompassing the economy and nature, shapes the superstructure, which includes the socio-political system and human culture. Marxism holds that the state and laws it issues are a tool of the ruling class that uses them for its own material interests, and Vladimir Lenin reconfirmed this thesis after gaining power. In communist states, this means that the proletarian communist party wields state power to suppress class enemies and construct socialism. In the early years of Soviet rule, there was debate over whether law would ultimately wither away with the state or remain a tool of the new state. Soviet jurist Andrey Vyshinsky resolved the issue by insisting that law persisted under socialism as an instrument of the proletarian state. Constitutions, therefore, codify the prevailing class order and the political aspirations of the ruling class of the communist state.
As a result, Marxist–Leninists insist that each constitution has a class character: it reflects the prevailing state type, which in turn arises from the existing mode of production, and thus expresses the interests of the ruling class. By adopting a constitution, a state formalises the rule of one class over others. For example, in the slave-owning mode of production, constitutions were formulated in a bid to safeguard the interests of slave-owners. From this perspective, constitutions are altered to reflect changes in the ruling class and material conditions. There is, however, a possibility that the ruling class may decide to amend or adopt a new constitution to reflect material changes, as is frequently done by the communist state ruling class. In most societies, a constitution is affected when one ruling class is replaced or the balance of class forces shifts.
It is commonly understood by Marxist–Leninists that a constitution is a fundamental law establishing the underlying principles and forms of a state's social and state structure. It defines the legal status of citizens and the system of state organs that serve the interests of the ruling class. Marxist–Leninist authors contend that bourgeois theoreticians attribute a decisive role to constitutions in determining a country's social and state system. They reject this proposition, arguing that a constitution cannot in itself create a new social order. They accept, however, that a constitution may alter the form of government—for example, a transition from a parliamentary republic to a presidential republic, as Pakistan in its 1973 constitution—and may reorganise relations among state units, as with the 1979 Nigerian constitution.
The life expectancy of a constitution adopted by a communist state is, according to scholar Christopher Osakwe, "very short in comparison to that of its western counterpart, and each new constitution seeks to consolidate past gains as well as lay out the paths for future growth and thus serves as an effective link between the past, present, and future." Meaning that Marxist–Leninists do not believe the constitution institutes radical change by its own force; rather, it records change already effected through a revolution or counter-revolution as a result of changes in the balance of class forces in a given society. For example, according to Soviet theoretician Veniamin Chirkin, the post-1966 coup d'état constitution of Ghana simply registered the shift that had occurred after the removal of Kwame Nkrumah when the country had been characterised as a state of socialist orientation. Joseph Stalin, a Soviet leader, when reporting on the 1936 Soviet constitution to the SSOP, stressed its function as a recorder: "This draft constitution sums up the distance we have travelled, summarising the achievements already made. In other words, it records and legalises achievements already made and successes actually won."
In communist states, a significant relationship exists between the communist constitution and the communist party programme. The party programme provides the theoretical framework and policy line; the constitution is a legislative instrument that codifies existing political and economic structures and states broad goals derived from the programme. Lenin encapsulated the linkage—"Here is our policy, and you shall find it in our constitution"—but the distinction remains: the programme analyses and prescribes; the constitution formulates binding norms and institutional arrangements.
Communist constitutions represent a normative expression of the fundamental principles outlined in the party's programme. A constitutional provision that establishes the political aim of the state as the construction of socialism or communism is declarative. Nonetheless, it also possesses a normative quality, as it encourages all state, social, and party organisations, as well as officials and individual citizens, to align their actions with this objective. Any deviation from this goal will be regarded as a sanctionable offence by the state for those who violate this standard. This is why communist constitutions often have explicit language defending against their purported enemies. Thus, the 1949 Hungarian constitution empowered courts to defend the people's democratic state against "enemies of the working people", whereas the 1947 Bulgarian constitution used more general language penalising organisations seeking to curtail rights that the communists instituted after seizing power. Academic John N. Hazard cautions that the Hungarian formulation was exceptional; more often, the language was less explicit, as shown by the Bulgarian constitution.