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Constitution of the People's Republic of China

Constitution of the
People's Republic of China
People's Republic of China 1978 Constitution.pdf
Cover of the 1978 constitution
Original title中华人民共和国宪法
JurisdictionPeople's Republic of China (including Hong Kong and Macau)
RatifiedDecember 4, 1982
Date effectiveDecember 4, 1982
SystemUnitary Marxist-Leninist
single-party socialist republic
BranchesSix (Legislative, Executive, Military, Supervisory, Judicial, Procuratorial)
Head of statePresident
ChambersUnicameral (National People's Congress)
Owing to the NPC's large size and infrequent meetings, the De facto legislature is its Standing Committee
ExecutivePremier led State Council
JudiciarySupreme People's Court
Supreme People's Procuratorate
FederalismUnitary with special administrative regions
Electoral collegeYes – the National People's Congress, which is elects all other state authorities, is itself elected by two layers of Indirect election: County and Township People's Congresses elect the members of Provincial People's Congresses, who in turn elect the NPC deputies.
First legislatureSeptember 21, 1949 (Chinese People's Political Consultative Conference)
September 27, 1954 (National People's Congress)
First executiveSeptember 27, 1954 (Chairman)
October 1, 1949 (Premier)
First courtOctober 22, 1949
Amendments5
Last amended11 March 2018
LocationBeijing
Commissioned by11th Communist Party Central Committee
Supersedes1978 Constitution of the People's Republic of China
Constitution of the People's Republic of China
Traditional Chinese中華人民共和國憲法
Simplified Chinese中华人民共和国宪法
National Emblem of the People's Republic of China (2).svg
This article is part of a series on the
politics and government of
China

The Constitution of the People's Republic of China is nominally the supreme law within the People's Republic of China. It was adopted by the 5th National People's Congress on December 4, 1982, with further revisions in 1988, 1993, 1999, 2004 and 2018. It is the fourth constitution in the country's history, superseding the 1954 constitution, the 1975 constitution, and the 1978 constitution.

Though technically the "supreme legal authority" and "fundamental law of the state", the ruling Chinese Communist Party has a documented history of violating many of the constitution's provisions and censoring calls for greater adherence to it.[1][2][3] Furthermore, claims of violations of constitutional rights cannot be used in Chinese courts, and the National People's Congress Constitution and Law Committee, the legislative committee responsible for constitutional review, has never ruled a law or regulation unconstitutional.[4][5]

History

The first Constitution of the People's Republic of China was declared in 1954. After two intervening versions enacted in 1975 and 1978, the current Constitution was declared in 1982. There were significant differences between each of these versions, and the 1982 Constitution has subsequently been amended five times. In addition, changing Constitutional conventions have led to significant changes in the structure of Chinese government in the absence of changes in the text of the Constitution.

Structure

The Constitution is divided into five sections. They are the:

  1. Preamble
  2. General Principles (Chapter 1)
  3. The Fundamental Rights and Duties of Citizens (Chapter 2)
  4. The Structure of the State (Chapter 3) — which includes such state organs as the National People's Congress, the State Council, the Local People's Congress and Local People's Governments and the People's Courts and the People's Procuratorates
  5. The National Flag, the National Anthem, the National Emblem and the Capital (Chapter 4).[6]

1982 Constitution

The 1982 Constitution reflects Deng Xiaoping's determination to lay a lasting institutional foundation for domestic stability and modernization. The new State Constitution provides a legal basis for the broad changes in China's social and economic institutions and significantly revises government structure. The posts of President and Vice President (which were abolished in the 1975 and 1978 constitutions) are re-established in the 1982 Constitution.

There have been five major revisions by the National People's Congress (NPC) to the 1982 Constitution.

Much of the PRC Constitution is modeled after the 1936 Constitution of the Soviet Union, but there are some significant differences. For example, while the Soviet constitution contains an explicit right of secession, the Chinese constitution explicitly forbids secession. While the Soviet constitution formally creates a federal system, the Chinese constitution formally creates a unitary multi-national state.

The 1982 State Constitution is a lengthy, hybrid document with 138 articles.[7] Large sections were adapted directly from the 1978 constitution, but many of its changes derive from the 1954 constitution. Specifically, the new Constitution de-emphasizes class struggle and places top priority on development and on incorporating the contributions and interests of non-party groups that can play a central role in modernization.

Article 1 of the State Constitution describes China as "a socialist state under the people's democratic dictatorship"[8] meaning that the system is based on an alliance of the working classes—in communist terminology, the workers and peasants—and is led by the Communist Party, the vanguard of the working class. Elsewhere, the Constitution provides for a renewed and vital role for the groups that make up that basic alliance—the CPPCC, democratic parties, and mass organizations.

The 1982 Constitution expunges almost all of the rhetoric associated with the Cultural Revolution incorporated in the 1978 version. In fact, the Constitution omits all references to the Cultural Revolution and restates Chairman Mao Zedong's contributions in accordance with a major historical reassessment produced in June 1981 at the Sixth Plenum of the Eleventh Central Committee, the "Resolution on Some Historical Issues of the Party since the Founding of the People's Republic." [9]

Emphasis is also placed throughout the 1982 State Constitution on socialist law as a regulator of political behaviour. Unlike the 1977 Soviet Constitution, the text of the Constitution itself doesn't explicitly mention the Communist Party of China and there is an explicit statement in Article 5 that the Constitution and law are supreme over all organizations and individuals.

Thus, the rights and obligations of citizens are set out in detail far exceeding that provided in the 1978 constitution. Probably because of the excesses that filled the years of the Cultural Revolution, the 1982 Constitution gives even greater attention to clarifying citizens' "fundamental rights and duties" than the 1954 constitution did, like the right to vote and to run for election begins at the age of eighteen except for those disenfranchised by law. The Constitution also guarantees the freedom of religious worship as well as the "freedom not to believe in any religion" and affirms that "religious bodies and religious affairs are not subject to any foreign domination."

Article 35 of the 1982 State Constitution proclaims that "citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession, and of demonstration."[8] In the 1978 constitution, these rights were guaranteed, but so were the right to strike and the "four big rights", often called the "four bigs": to speak out freely, air views fully, hold great debates, and write big-character posters. In February 1980, following the Democracy Wall period, the four bigs were abolished in response to a party decision ratified by the National People's Congress. The right to strike was also dropped from the 1982 Constitution. The widespread expression of the four big rights during the student protests of late 1986 elicited the regime's strong censure because of their illegality. The official response cited Article 53 of the 1982 Constitution, which states that citizens must abide by the law and observe labor discipline and public order. Besides being illegal, practising the four big rights offered the possibility of straying into criticism of the Communist Party of China, which was in fact what appeared in student wall posters. In a new era that strove for political stability and economic development, party leaders considered the four big rights politically destabilizing. Chinese citizens are prohibited from forming new political parties.[10]

Among the political rights granted by the constitution, all Chinese citizens have rights to elect and be elected.[11] According to the later promulgated election law, rural residents had only 1/4 vote power of townsmen (formerly 1/8). As Chinese citizens are categorized into rural resident and town resident, and the constitution has no stipulation of freedom of transference, those rural residents are restricted by the Hukou (registered permanent residence) and have fewer political, economic, and educational rights. This problem has largely been addressed with various and ongoing reforms of Hukou in 2007.[citation needed] The fore-said ratio of vote power has been readjusted to 1:1 by an amendment to the election law passed in March 2010.[12]

The 1982 State Constitution is also more specific about the responsibilities and functions of offices and organs in the state structure. There are clear admonitions against familiar Chinese practices that the reformers have labelled abuses, such as concentrating power in the hands of a few leaders and permitting lifelong tenure in leadership positions. On the other hand, the constitution strongly oppose the western system of separation of powers by executive, legislature and judicial. It stipulates the NPC as the highest organ of state authority power, under which the State Council, the Supreme People's Court, and the Supreme People's Procuratorate shall be elected and responsible for the NPC.

In addition, the 1982 Constitution provides an extensive legal framework for the liberalizing economic policies of the 1980s. It allows the collective economic sector not owned by the state a broader role and provides for limited private economic activity. Members of the expanded rural collectives have the right "to farm private plots, engage in household sideline production, and raise privately owned livestock." The primary emphasis is given to expanding the national economy, which is to be accomplished by balancing centralized economic planning with supplementary regulation by the market.

Another key difference between the 1978 and 1982 state constitutions is the latter's approach to outside help for the modernization program. Whereas the 1978 constitution stressed "self-reliance" in modernization efforts, the 1982 document provides the constitutional basis for the considerable body of laws passed by the NPC in subsequent years permitting and encouraging extensive foreign participation in all aspects of the economy. In addition, the 1982 document reflects the more flexible and less ideological orientation of foreign policy since 1978. Such phrases as "proletarian internationalism" and "social imperialism" have been dropped.

2004 Amendments

The Constitution was amended on March 14, 2004 to include guarantees regarding private property ("legally obtained private property of the citizens shall not be violated") and human rights ("the State respects and protects human rights"). The government argued that this represented progress for Chinese democracy and was a sign from the Communist Party that they recognised the need to adapt to the booming Chinese economy, which had created a growing middle class who wanted private property protections.

Premier Wen Jiabao was quoted by The Washington Post as saying, "These amendments of the Chinese constitution are of great importance to the development of China. We will make serious efforts to carry them out in practice."[citation needed]

2018 Amendments

The Constitution was amended on March 11, 2018, with 2,958 votes in favour, two against, and three abstentions.[13][14] It includes an assortment of revisions that further cement the Communist Party’s control and supremacy,[15] including setting up the National Supervisory Commission, establishing a new anti-graft agency, extending the powers of the Communist Party’s graft watchdog, adding Hu Jintao's Scientific Outlook on Development and Xi Jinping Thought to the Preamble of the Constitution, and removing term limits for both the President and Vice President, enabling Xi Jinping to remain president indefinitely.[16][17][18] The amendment also adds the phrases “Communist Party of China” and its “leadership” into the main body of the Constitution; prior to the amendment, the CCP and its leadership were only mentioned in the preamble. Constitutional preambles are often not legally binding (as with the United States constitution[19]), and as the legal applicability of the Chinese constitution is debated,[20] the amendment may be seen as providing a constitutional basis for China’s status as a one-party state and formally rendering any competitive multi-party system unconstitutional.[16]

Constitutional enforcement

The constitution stipulates that the National People's Congress (NPC) and its Standing Committee have the power to review whether laws or activities violate the constitution.[21] Unlike a number of Western legal systems, courts do not have the power of judicial review and cannot invalidate a statute on the grounds that it violates the constitution.[22]

Since 2002, a special committee within the NPC called the National People's Congress Constitution and Law Committee has been responsible for constitutional review and enforcement.[21] The committee has never explicitly ruled that a law or regulation is unconstitutional. However, in one case, after media outcry over the death of Sun Zhigang the State Council was forced to rescind regulations allowing police to detain persons without residency permits after the Standing Committee of the National People's Congress (NPCSC) made it clear that it would rule such regulations unconstitutional.[5]

As the basis for reform

In early 2013, a movement developed among reformers in China based on enforcing the provisions of the constitution.[23][24]

The Open Constitution Initiative was an organization consisting of lawyers and academics in the People's Republic of China that advocated the rule of law and greater constitutional protections. It was shut down by the government on July 14, 2009.[25]

References

Citations

  1. ^ "Constitution of the People's Republic of China" (PDF). Purdue University. Archived (PDF) from the original on May 23, 2018. Retrieved November 14, 2019.
  2. ^ Estes, Adam Clark (February 3, 2013). "China's Still Having a Hard Time Obeying Its Own Constitution". The Atlantic. Retrieved November 14, 2019.
  3. ^ Allen-Ebrahimian, Bethany (December 5, 2014). "On First Annual Constitution Day, China's Most Censored Word Was 'Constitution'". Foreign Policy. Archived from the original on September 17, 2018. Retrieved November 14, 2019.
  4. ^ Matthieu, Burnay (November 2018). Global Constitutionalism from European and East Asian Perspectives. Cambridge University Press. pp. 225–244. ISBN 9781108264877.
  5. ^ a b Keith J., Hand (2006). "Using Law for a Righteous Purpose: The Sun Zhigang Incident and Evolving Forms of Citizen Action in the People's Republic of China". Columbia Journal of Transnational Law. 45.
  6. ^ "Constitution of the People's Republic of China (2018 Amendment)". webcache.googleusercontent.com. Retrieved March 28, 2019.
  7. ^ "China 1982 (rev. 2004)". Constitute. Archived from the original on July 17, 2015. Retrieved April 22, 2015.
  8. ^ a b "CONSTITUTION OF THE PEOPLE'S REPUBLIC OF CHINA". People's Daily. December 4, 1982. Archived from the original on August 12, 2010. Retrieved June 25, 2010.
  9. ^ "Resolution on certain questions..." marxists.org. Archived from the original on August 3, 2018. Retrieved December 22, 2018.
  10. ^ Worden, Robert L.; Savada, Andrea Matles; Dolan, Ronald E., eds. (1987). "The Government". China: A Country Study. Washington DC: Government Printing Office. Archived from the original on May 14, 2011. Retrieved March 22, 2014.
  11. ^ "China 1982 (rev. 2004)". Constitute. Archived from the original on July 17, 2015. Retrieved April 22, 2015.
  12. ^ "城乡居民选举首次实现同票同权(Chinese)". Archived from the original on July 17, 2015. Retrieved July 17, 2015.
  13. ^ Nectar Gan (March 12, 2018). "Xi Jinping cleared to stay on as China's president with just 2 dissenters among 2,964 votes". South China Morning Post. Archived from the original on October 25, 2018. Retrieved October 25, 2018.
  14. ^ Liangyu, ed. (March 11, 2018). "China's national legislature adopts constitutional amendment". Xinhuanet. Archived from the original on October 25, 2018. Retrieved October 25, 2018.
  15. ^ Babones, Salvatore (March 11, 2018). "China's Constitutional Amendments Are All About The Party, Not The President". Forbes. Archived from the original on April 7, 2019. Retrieved November 18, 2019.
  16. ^ a b "Translation: 2018 Amendment to the P.R.C. Constitution". npcobserver.com. March 11, 2018. Archived from the original on December 22, 2018. Retrieved December 22, 2018.
  17. ^ Liangyu, ed. (February 25, 2018). "CPC proposes change on Chinese president's term in Constitution". Xinhuanet. Archived from the original on October 25, 2018. Retrieved October 25, 2018.
  18. ^ Buckley, Chris; Meyers, Steven Lee (March 11, 2018). "China's Legislature Blesses Xi's Indefinite Rule. It Was 2,958 to 2". The New York Times. Archived from the original on October 26, 2019. Retrieved November 14, 2019.
  19. ^ "The U.S. Constitution: Preamble". United States Courts. Archived from the original on March 3, 2019. Retrieved November 18, 2019.
  20. ^ Zhang, Qianfan (October 1, 2010). "A constitution without constitutionalism? The paths of constitutional development in China". International Journal of Constitutional Law. 8 (4): 950–976. doi:10.1093/icon/mor003. Archived from the original on July 27, 2018. Retrieved November 18, 2019.
  21. ^ a b "坚决贯彻宪法精神 加强宪法实施监督_中国人大网". www.npc.gov.cn. Archived from the original on April 2, 2018. Retrieved April 2, 2018.
  22. ^ Zhu, Guobin (2010). "Constitutional Review in China: An Unaccomplished Project or a Mirage?". Suffolk University Law Review. 43: 625–653.
  23. ^ Edward Wong; Jonathan Ansfield (February 3, 2013). "Reformers Aim to Get China to Live Up to Own Constitution". The New York Times. Archived from the original on February 5, 2013. Retrieved February 4, 2013.
  24. ^ Langfitt, Frank (September 18, 2013). "China's Debate: Must The Party Follow The Constitution?". NPR. Archived from the original on December 3, 2018. Retrieved November 14, 2019.
  25. ^ "Open Constitution closed". The Economist. July 23, 2009. Archived from the original on August 8, 2019. Retrieved November 14, 2019.

Sources

External links

See also