Constitution of China

The Constitution of the People's Republic of China is a communist state constitution and the supreme law of the People's Republic of China (PRC).

First attempts at a constitutional system in China started near the end of the Qing dynasty, which was overthrown following the 1911 Revolution. The newly established Republic of China adopted a Provisional Constitution in 1912, which provided a parliamentary system. However, the constitution was largely ineffective as the country quickly disintegrated into the Warlord Era. In 1928, the Kuomintang unified most of China and promulgated the Provisional Constitution of the Political Tutelage Period in 1931, intended to remain in effect until the country had been pacified. In 1947, the Kuomintang adopted the Constitution of the Republic of China; however, the constitution was never extensively nor effectively implemented due to the outbreak of the Chinese Civil War.

In September 1949, the first plenary session of the Chinese People's Political Consultative Conference adopted the Common Program, which acted as the temporary constitution after the PRC's foundation in October 1949. On 20 September 1954, the first constitution was adopted by the first session of the 1st National People's Congress. The constitution went through a major revision during the Cultural Revolution in 1975. The constitution went through further revisions in 1978 following the end of the Cultural Revolution. The current constitution was adopted by the 5th National People's Congress on 4 December 1982, which was adopted during the reform and opening up. The 1982 constitution has gone through five subsequent revisions.

The current constitution consists of 4 chapters and 143 articles. It explains the nature and basic policies of the PRC, establishes the leadership of the Chinese Communist Party (CCP), highlights the concept of democratic centralism, and states that the PRC is a "socialist state governed by a people's democratic dictatorship that is led by the working class and based on an alliance of workers and peasants". It stipulates the central and local state institutions operate under a system of people's congresses, community-level self-governance and regional ethnic autonomy.

History

Dynastic China adopted a constitutional system oscillating between a feudal distribution of power and a centralistic autocracy. The idea of a constitutional monarchy, and a written constitution, became influential towards the end of the 19th century, inspired immediately in large parts by the precedent of the Meiji Constitution in the Empire of Japan. The first attempt towards constitutionalism in China was during the Hundred Days' Reform that took place in 1898 by the young Guangxu Emperor and his reform-minded supporters, but a coup by conservative monarchists loyal to Empress Dowager Cixi ended this effort. The same faction, however, eventually adopted a policy of transitioning towards constitutionalism. However, the first constitutional document was only published in 1908, and the first constitutional document with legal force (the "Nineteen Covenants") was not implemented until 1911, after the eruption of the 1911 Revolution, which led to the end of the Qing dynasty the next year.

The Provisional Constitution of the Republic of China was drawn up in March 1912 and formed the basic government document of the Republic of China until 1928. It provided a Western-style parliamentary system headed by a weak president. However, the system was quickly usurped when Song Jiaoren was assassinated by the orders of President Yuan Shikai. Upon Yuan's death in 1916, China disintegrated into warlordism and the Beiyang government operating under the Constitution remained in the hands of various military leaders. The Kuomintang under Chiang Kai-shek established control over much of China by 1928. The Nationalist Government promulgated the Provisional Constitution of the Political Tutelage Period on 5 May 1931. The Kuomintang intended this constitution to remain in effect until the country had been pacified and the people sufficiently "educated" to participate in democratic government. On 25 December 1946, the Kuomintang ratified the Constitution of the Republic of China during the National Constituent Assembly. However, it was never extensively nor effectively implemented due to the outbreak of the Chinese Civil War in mainland China at the time of the constitution's promulgation.

Common Program

In September 1949, the first plenary session of the Chinese People's Political Consultative Conference adopted the Common Program to replace the ROC constitution, which was not recognized by the Chinese Communist Party (CCP). The Common Program declared in its preamble: "The Chinese People's Political Consultative Conference, representing the will of the people of the whole country, proclaims the establishment of the People's Republic of China and organizes the people's own central government." The Chinese constitutional scholars have maintained that although not a formal constitution, the Common Program acted as a provisional constitution. The program stipulated the composition of the government organs and the new government's military, economic, cultural and educational, ethnic, and foreign policies.

1954 constitution

As early as 1949, when CCP Politburo member Liu Shaoqi secretly visited the Soviet Union and in early 1950, when Chairman Mao Zedong first visited the Soviet Union, Soviet leader Joseph Stalin had suggested that the CCP prepare for the drafting of a constitution. In 1952, Stalin urged Chairman Liu Shaoqi, who was visiting the Soviet Union, to draft a constitution as soon as possible to solve the problem of legitimacy and "organize a one-party government". It was only at the end of 1952 that the PRC began to prepare for the drafting of a constitution. Scholar Zhang Ming believes that Stalin suggested that the CCP draft a constitution not only to solve the legitimacy problem of the new government itself, but also because he was worried about China's development towards nationalism. He believes that "completely cutting off the possibility of China following the Yugoslav path is the reason why Stalin insisted on China drafting a constitution when the CCP clearly expressed its unwillingness."

The entire process that followed was basically carried out according to the schedule stipulated by Mao Zedong in his letter to Liu Shaoqi:

The first draft of the Constitution was completed two months ago, and the draft was then sent to the central comrades for review.
The first draft was reviewed in the first half of February, with Deng Xiaoping and Li Weihan participating. It was then submitted to the Politburo (and the Central Committee members in Beijing) for discussion and preliminary approval.
It was submitted to the Constitution Drafting Committee for discussion in early March, and the discussion was completed and it was initially approved within March.
The Constitution was reviewed and amended again by the Constitutional Committee within April, then submitted to the Politburo for discussion, and finally passed by the Constitutional Drafting Committee.
On May 1, the Constitution Drafting Committee published the draft constitution and submitted it to the people of the whole country for discussion for four months. In September, after necessary revisions based on the opinions of the people, it was submitted to the National People's Congress for final adoption.

About 150 million people participated in the discussion of the first constitution and put forward more than 1.38 million opinions. In addition, more than 5.96 million representatives of the people's congresses of provinces, cities and counties also expressed their opinions. Mao Zedong said, "These opinions can be divided into three parts. One part is incorrect. Another part, although not necessarily very incorrect, is inappropriate and it is better not to adopt it. Since it is not adopted, why collect it? What is the benefit of collecting these opinions? It is beneficial to understand the views on the constitution among these 8,000 people and to make a comparison. The third part is the adopted ones, which is of course very good and very necessary." Based on the opinions collected, the Constitution Drafting Committee revised the original draft and submitted it to the Central People's Government Council for discussion and approval at a temporary meeting, thus forming the draft constitution for review. On 20 September 1954, at the first session of the 1st National People's Congress, the delegates cast a total of 1,197 votes, with 1,197 votes in favor, and the Constitution of the People's Republic of China was adopted unanimously.

thumb|Delegates to the [[1st National People's Congress voting for the Constitution in 1954]]

This constitution declared China to be a people's democratic state and stipulated that citizens have the freedom of movement and the right to reside, and also includes the clause that all citizens are equal before the law. Mao did not give much importance to the formal constitution. On 21 August 1958, Mao said at an enlarged meeting of the Politburo held in Beidaihe: “We cannot do without laws, but we have our own set of laws. We cannot rely on laws to govern the majority of people. The majority of people must develop good habits. Who can remember so many articles in the Civil Code and the Criminal Code? I participated in the formulation of the Constitution, and I can’t remember it either. Most of our rules and regulations, ninety percent of them, are made by the departments and bureaus. We basically do not rely on those. We mainly rely on resolutions and meetings, which are held four times a year." After Liu Shaoqi was dismissed in 1968, the position of state chairman became vacant, and the original constitutional system. In 1970, Mao Zedong proposed to abolish the position of state chairman, which was opposed by many leaders of the CCP, leading the constitutional amendment was deadlocked. In 1971, after the Lin Biao incident, the abolition of the state chairman became a foregone conclusion, and the work of constitutional amendment made some progress. On 17 January 1975, at the first session of the 4th National People's Congress, the second constitution was formally adopted, which abolished the positions of state chairman and vice chairman.

1978 constitution

After the Cultural Revolution ended in 1976, the revision of the constitution was put back on the agenda. In 1977, the CCP Central Committee decided to establish a Constitutional Revision Committee, which was composed entirely of members of the Politburo. The Constitutional Revision Committee was not actually put into operation. The Constitutional Revision Group designated by the Politburo directly undertook the revision of the draft constitution. After the draft constitution was completed, in October 1977, the CCP Central Committee issued a notice to "solicit opinions from the masses inside and outside the Party on revising the constitution." The group solicited this time was mainly composed of Party members, but also included a small number of non-Party members. The new constitution was adopted on 5 March 1978, at the first session of the 5th National People's Congress.

The new constitution restored the abolished procuratorial organs, but retained 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 addition, the constitution restored some of the civil rights clauses of the 1954 constitution, but did not restore the provision that all citizens are equal before the law. The main text of this constitution continued the relevant provisions on the leadership of the Chinese Communist Party and still included the institutions of the Chinese Communist Party in the operation system of the state institutions. The 1978 constitution stipulated that the Chairman of the CCP commanded the armed forces of the whole country. The main text of the constitution continued to include Mao Zedong Thought. The constitution restored the electoral system, abolished the form of "democratic consultation election", and stipulated that the people's representatives "are elected by secret ballot", but added the restriction that "democratic consultation should be conducted".

The 1978 constitution underwent two amendments. On 1 July 1979, the second session of the 5th National People's Congress passed a resolution to amend the constitutional articles, agreeing to establish standing committees for people's congresses at the county level and above, changing local revolutionary committees to local people's governments at various levels, changing the election of county-level people's congress deputies to direct election by voters, and changing the relationship between higher and lower-level people's procuratorates from supervision to leadership.

1982 constitution

In the early 1980s, as the CCP's started Boluan Fanzheng, revising the constitution was put on the agenda again. On 18 August 1980, Deng Xiaoping delivered a speech entitled Reform of the Leadership System of the Party and the State at an enlarged meeting of the Politburo, proposing a comprehensive constitutional amendment to the National People's Congress, emphasizing:

The Constitution should guarantee that the people enjoy full civil rights and truly have the power to manage state organizations at all levels and various enterprises and undertakings;
In areas where ethnic minorities live in concentrated communities, regional ethnic autonomy will be implemented, and the system of people's congresses will be improved.
The principle of not allowing excessive concentration of power must be reflected;
It is necessary to clarify which issues should be discussed and decided collectively. When making decisions, the principle of majority rule and one person, one vote must be strictly implemented. Each secretary has only one vote and the decision cannot be made by the first secretary.

In 1980, the National People's Congress decided to formally establish the Constitutional Amendment Committee chaired by Ye Jianying, Soong Ching-ling, and Peng Zhen, which included key leaders of the eight non-oppositional democratic parties, social organizations, and legal scholars. Ye said that "the amended constitution should reflect and be conducive to the reform and improvement of China's socialist political, economic, and cultural systems. The democratic, equal, and judicial independence principles of the legal system should be more fully realized, and appropriate provisions should be made in the constitutional amendment." The Constitutional Amendment Committee began operation immediately after its establishment, and the scope of discussion and deliberation for this constitutional amendment surpassed that of the previous two amendments. This constitution was built on the basis of the 1954 constitution and constituted the main body of the current constitution. Its main revisions included:

The 1982 constitution expunges almost all of the rhetoric associated with the Cultural Revolution originally inserted in 1975. In fact, the constitution omits all references to the Cultural Revolution and restates CCP Chairman Mao Zedong's contributions in accordance with a major historical reassessment produced in June 1981 at the Sixth Plenum of the 11th Central Committee, the Resolution on Certain Questions in the History of Our Party since the Founding of the People's Republic of China. Among the changes from the Cultural Revolution era is that the 1982 constitution no longer describes the state as a proletarian dictatorship, inside describing it as "a people's democratic dictatorship, which is in essence a proletarian dictatorship."
Provisions streamlined the relationship between the Party and the state, and between the executive, legislative, and judicial branches, separating the Party affairs organs of the CCP from the state institutional operation system.
The clause stating that "the state is led by the Chinese Communist Party" has been removed, and the words "Chinese Communist Party" no longer appeared directly in the legally binding text of the Constitution.
It achieved the separation of party and government, distinguishing between legislative, judicial, and executive powers.
It stipulated that "no organization or individual, including the Chinese Communist Party, may have privileges that transcend the Constitution and the law". The 1982 constitution included the birth planning policy known as the one-child policy.
The positions of President and Vice President, which were abolished in the 1975 Constitution, were re-established as the head of state, but the Supreme State Council and the National Defense Commission were abolished, and the President became a figurehead. A two-term limit (10 years total) was imposed on all state positions but the chair of the Central Military Commission, though no similar restrictions were put on CCP posts.
Regarding the crucial issue of military affiliation, the provisions of the 1975 and 1978 Constitutions that the Chairman of the CCP commanded the army were abolished. It included the establishment of the Central Military Commission of the People's Republic of China to lead the national armed forces, which is parallel to the Central Military Commission of the CCP. The chairman was given absolute control over the CMC per the chairman responsibility system.

Amendments

The 1982 constitution has subsequently been amended five times. On 12 April 1988, the constitution was amended articles 10 and 11 of the constitution to allow the emergence of a private sector. It legalized the separation of land use rights from land ownership. This was the constitutional foundation for the 1990 Regulation of Urban Land Use Rights, which allowed land use rights to be bought and sold in the real estate market without changing the underlying title of public land.

The constitution was amended further on 15 March 1999. The amendment incorporated Deng Xiaoping Theory to the constitution. The revisions included a guarantee of private property ("legally obtained private property of the citizens shall not be violated").

In addition, it added: "The People's Republic of China shall implement the rule of law and build a socialist country under the rule of law." It abolished the clause of "counter-revolutionary crimes". The amendment included establishing the National Supervisory Commission, a new anti-graft agency, 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. Xi is also the General Secretary of the Chinese Communist Party, the top position in CCP ruling China without term limit. The amendment also restored 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 and as the legal applicability of the Chinese constitution is debated, 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.

Preamble
General Principles (Chapter 1)
The Fundamental Rights and Duties of Citizens (Chapter 2)
The Structure of the State (Chapter 3)
The National Flag, the National Anthem, the National Emblem and the Capital (Chapter 4).

Preamble

The Preamble briefly introduces the history of the founding of the nation, the basic policies and fundamental national policies of the Chinese Communist Party, the basic nature and form of the state, and the effectiveness of the constitution.

It defines states that "Taiwan is part of the sacred territory of the People's Republic of China. It is the inviolable duty of all Chinese people, including our compatriots in Taiwan, to accomplish the great task of reunifying the motherland."

General principles (Articles 1–32)

Chapter 1 outlines the basic structure of the People's Republic of China, its form of government and basic national policies. Article 1 of the constitution describes the PRC as "a socialist state under the people's democratic dictatorship led by the working class and based on the alliance of workers and peasants" and establishes the socialist system as the PRC's "basic system". It states that the "defining feature of socialism with Chinese characteristics is the leadership of the Communist Party of China". It prohibits the disruption of the socialist system by "any organization or individual". Elsewhere, the constitution provides for a renewed and vital role for the groups that make up that basic alliance—the Chinese People's Political Consultative Conference, democratic parties, and people's organizations.

The structure of the state (Articles 57–140)

Chapter 3 includes such state organs as the National People's Congress, the President, the State Council, the Central Military Commission, the Local People's Congresses at All Levels and Local People's Governments at All Levels, the Autonomous Organs of Ethnic Autonomous Areas, the Commissions of Supervision, and the People's Courts and People's Procuratorates. Amendments to the constitution must be proposed by the NPC Standing Committee or one-fifth or more of the NPC deputies. In order for the Amendments to become effective, they must be passed by a two-thirds majority vote of all deputies.

In contrast to ordinary legislation, in which the Legislation Law largely directs the process, the process for constitutional revision is largely described by CCP documents; the 2014 Decision Concerning Several Major Issues in Comprehensively Advancing Governance According to Law states that "The Party Central Committee submits proposals for amending the Constitution to the National People's Congress". Unlike many 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.

Since 2002, a special committee within the NPC called the Constitution and Law Committee has been responsible for constitutional review and enforcement.

Analysis

Though technically the "supreme legal authority" and "fundamental law of the state", the ruling Chinese Communist Party (CCP) has a documented history of violating many of the constitution's provisions and censoring calls for greater adherence to it. In early 2013, a movement developed among reformers in China based on enforcing the provisions of the constitution.

In 2018, Suzuki Ken of Meiji University wrote that "With authority thus concentrated in the hands of a single individual, the law becomes little more than an expedient, a tool to be applied (or not) according to the interests or whims of the individual in power." In 2019, Ling Li of the University of Vienna and Wenzhang Zhou of Zhejiang University wrote that "the constitution appeals to [the CCP] because it does not provide solutions to fundamental issues of governance. Instead, such issues are kept out of the constitution so that they can be addressed by the Party through other regulatory mechanisms outside of the constitutional realm."

References

Citations

Sources

External links

Official Translation of the Constitution of the People's Republic of China
The Constitution of the People's Republic of China - Official Chinese text
English version of the Constitution of the People's Republic of China, incorporating amendments up to 2004
The National People's Congress of the People's Republic of China: Constitution of the People's Republic of China (Full text after amendment on March 14, 2004)