Constitution of the People's Republic of China
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Template:Politics of the People's Republic of China The Constitution of the People's Republic of China (中华人民共和国宪法; pinyin: Zhōnghuá Rénmín Gònghéguó Xiànfǎ) is the highest law within the People's Republic of China. The current version was adopted by the National People's Congress on December 4, 1982 with further revisions in 1988, 1993, 1999, and 2004. Three previous state constitutions--those of 1954, 1975, and 1978--were superseded in turn. The Constitution has five sections: the preamble, general principles, the fundamental rights and duties of citizens, the structure of the state, and the national flag and emblems of state.
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1982 document
The 1982 document 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 and procedures.
There have been four major revisions by the National People's Congress to the 1982 Constitution.
Much of the PRC Constitution is modelled 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. Large sections were adapted directly from the 1978 constitution, but many of its changes derive from the 1954 constitution. Specifically, the new Constitution deemphasizes class struggle and places top priority on development and on incorporating the contributions and interests of nonparty 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" 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 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."
There also is emphasis throughout the 1982 State Constitution on socialist law as a regulator of political behavior. 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. The right to vote and to run for election begins at the age of eighteen except for those disenfranchised by law. The Constitution 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." 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, practicing 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. Except for the ostentatious and puppetized so-called six democratic parties,Chinese citizens are prohibited from organization of parties,which is to ensure the totalitarianism of CCP. As the strict censorship of speech and press, strike association and demonstration should be granted first, these rights are more formalistic than real bestowal. The suppression of journalists and harassment of dissidents are quite frequent in China. Furthermore, websites are often blocked for restriction of free flow of information.
Among the political rights granted by the constitution, all Chinese citizens have rights for election or got elected. But as free election is confined to the village level, it is strictly limited too. Although some orthodox scholars argue that this is some kind of Electoral College system, people appoint representatives who are going to vote for them. But the question is as most of the candidates picked by CCP, how can people ensure those who got elected can protect their interests. Furthermore, according to the later promulgated election law, rural residents have only 1/4 vote power of townsmen. 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 less rights on politics, economy and education. Under this mechanism, the gap between rural areas and towns is widening day by day.
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 labeled 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 division of power by executive, legislature and judicial. It stipulates NPC as the highest organ of state authority power, under which the State Council, as the highest organ of state administration;the Supreme People's Court and the Supreme People's Procuratorate as the highest organ of state judicial shall be elected and responsible for NPC. But with all candidates for these important positions shall be first submitted and granted by CCP, and financing for all these organs coming from CCP, it is impossible to keep the independence of these organs.
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.
Who has ultimate authority?
It is very commonly believed in the West that China's Constitution is subordinate to the party. However this is formally incorrect as the Chinese Constitution explicitly states that the all Chinese organizations are subordinate to the Constitution, and the view that party is subordinate to the Constitution is universal among Chinese legal scholars and party officials.
In response, many argue that the distinction is meaningless because the Communist Party is able to maintain overwhelming control of the Chinese political system through the appointment of key officials. And the CCP could control the legislation or amendment of constitution by making proposal to NPC first. All of the four amendments were first discuss in the Plenary Meeting of National Congress of CCP or even National Congress of CCP itself. Then CCP submitted the opinions on amendment to NPC, which would passed by NPC later. However, most Chinese officials would argue that the formal subordination of the Party to the Constitution and Chinese law is important as it provides a systematic and predictable framework for decisions to be made, and that this rule of law limits arbitrary decisions and the establishment of a cult of personality. In addition, there have been a few cases in which the subordination of the party to the constitution has had some practical consequences, as in 1993, when the NPC refused to allow the Party to directly submit constitutional amendments on the grounds that it was not a state organization.
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.") This is a progress for Chinese democracy and compromise from CCP, because booming Chinese economy brought up a new class of rich and middle class who care about protection of their own properties than ever. Although they cry for the slogan of Property Being Sacred and Inviolable as Bill of Rights,their proposal was accepted partly.The government still keep the right of nationalization or condemnation. The article is the government can use the measure of nationalization of private porperty when it think time is right and necessary. The government will give appropriate compensation, not the generally accepted standard of fair, sufficient and punctual compensation, and the Due Process for nationalization is not mentioned in this constitution at all. As China hasn't ratified United Nations Agreements on Human Rights yet, Chinese citizen have enough reasons not to be free from fear. Especially with recent years' booming economy, local governments are zealous in requisition of lands and houses by using force and without fair compensation,which raise great tension. Also, according to the New York Times, "The constitutional changes of March, 2004 were unlikely to have any direct influence on the outcomes of court cases, said Chinese legal experts, because the courts here usually do not test laws and government decisions for fidelity to the Constitution" [1] The Washington Post took a more optimistic view, quoting Premier Wen Jiabao 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." [2].
Constitutional Enforcement
There is no special organ established for the enforcement of constitution. Although in the constitution it stipulates that the National People's Congress and its Standing Committee have the power to review laws or activities whether violate the constitution, it is quite difficult for NPC to review for it being held only once a year and the Standing Committee being rather a rubber stamp than powerful organ. Furthermore,under the legal system of the People's Republic of China, courts do not have the power of judicial review and cannot strike down a law for violation of constitution,they also can't quote the articles of the constitution for a judgment. The only exception was in 2001, in the Supreme People's Court's official reply given to Shandong Higher People's Court on the case of Qi Yuling, it first quoted the articles of constitution on education rights as base for judgement. Nonetheless, since 2002, there has been a special committee of the Standing Committee of the National People's Congress which has reviewed laws and regulations for constitutionality. Although this committee has not yet explicitly ruled that a law or regulation is unconstitutional, in one case, after the subsequent 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 NPCSC made it clear that it would rule such regulations unconstitutional if they were not rescinded.
See also
External links
References
- This article contains material from the Library of Congress Country Studies which, as a United States government publication, is in the public domain. - Chinafr:Constitution de la République populaire de Chine