Constitution of the People's Republic of China
Encyclopedia
The Constitution of the People's Republic of China is the highest law within the People's Republic of China
. The current version was adopted by the 5th 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—were superseded in turn.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 which are the preamble, general principles, fundamental rights and duties of citizens, structure of the state (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), the national flag and the emblems of the state.
'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
There have been four 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. 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
" 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. 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 states 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." 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 six democratic parties, Chinese citizens are prohibited from forming parties.
Among the political rights granted by the constitution, all Chinese citizens have rights to elect and be elected. 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. This problem has largely been addressed with various and ongoing reforms of hukou
in 2007.
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 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.
("legally obtained private property of the citizens shall not be violated,") and human rights
("the State respects and protects human rights.") This was argued by the government to be progress for Chinese democracy and a sign from Communist Party of China
that they recognised the need for change, because the booming Chinese economy had created a new class of rich and middle class, who wanted protection of their own property.
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." http://www.washingtonpost.com/wp-dyn/articles/A58578-2004Mar14.html?referrer=email Some question that there is no clear indication that the changes were leading to increased protection for Chinese citizens in terms of human rights or property rights. Chinese people continue to be arrested for trying to challenge government decisions (whether they are legal or not), even when using the law itself. The censure of the media is still in place, as can be seen by the closure of out-spoken publications, or re-staffing to remove editors and journalists who have annoyed officials, such as was the case with the Freezing Point
magazine.
and its Standing Committee have the power to review whether laws or activities violate the constitution.
Furthermore, under the legal system of the People's Republic of China, courts do not have the general power of judicial review
and cannot invalidate a statute on the grounds that it violates the constitution. 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 Standing Committee of the National People's Congress
(NPCSC) made it clear that it would rule such regulations unconstitutional if they were not rescinded.
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.
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
. The current version was adopted by the 5th National People's Congress
5th National People's Congress
The 5th National People's Congress was in session from 1978 to 1983. It held five plenary sessions in this period.The Congress passed the 1978 Constitution of the People's Republic of China and the current Constitution of the People's Republic of China in 1982.-Elected state leaders:*Chairman of...
on December 4, 1982 with further revisions in 1988, 1993, 1999, and 2004. Three previous state constitutions—those of 1954
1954 Constitution of the People's Republic of China
The 1954 Constitution of the People's Republic of China was promulgated by the 1st National People's Congress meeting in Beijing on September 20, 1954, apparently unanimously in favor....
, 1975
1975 Constitution of the People's Republic of China
The 1975 Constitution of the People's Republic of China was promulgated in the midst of the unrest of the Cultural Revolution by the 4th National People's Congress....
, and 1978
1978 Constitution of the People's Republic of China
The 1978 Constitution of the People's Republic of China was promulgated in 1978. This was the PRC's 3rd constitution, and was adopted at the 1st Meeting of the 5th National People's Congress on March 5, 1978, two years after the downfall of the Gang of Four....
—were superseded in turn. The Constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
has five sections which are the preamble, general principles, fundamental rights and duties of citizens, structure of the state (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), the national flag and the emblems of the state.
History
The first Constitution of the People's Republic of China was promulgated in 1954. After two intervening versions enacted in 1975 and 1978, the current Constitution was promulgated in 1982. There were significant differences between each of these versions, and the 1982 Constitution has subsequently been amended several 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.1982 document
The 1982 document reflects Deng XiaopingDeng Xiaoping
Deng Xiaoping was a Chinese politician, statesman, and diplomat. As leader of the Communist Party of China, Deng was a reformer who led China towards a market economy...
'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
There have been four major revisions by the National People's Congress
National People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
(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
Federation
A federation , also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central government...
system, the Chinese constitution formally creates a unitary
Unitary state
A unitary state is a state governed as one single unit in which the central government is supreme and any administrative divisions exercise only powers that their central government chooses to delegate...
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 de-emphasizes class struggle
Class struggle
Class struggle is the active expression of a class conflict looked at from any kind of socialist perspective. Karl Marx and Friedrich Engels wrote "The [written] history of all hitherto existing society is the history of 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
Socialist state
A socialist state generally refers to any state constitutionally dedicated to the construction of a socialist society. It is closely related to the political strategy of "state socialism", a set of ideologies and policies that believe a socialist economy can be established through government...
under the people's democratic dictatorship
People's democratic dictatorship
"People's democratic dictatorship" is a phrase incorporated into the Constitution of the People's Republic of China by Mao Zedong.The premise of the "People's democratic dictatorship" is that the Communist Party of China and state represent and act on behalf of the people, but possess and may use...
" 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
Cultural Revolution
The Great Proletarian Cultural Revolution, commonly known as the Cultural Revolution , was a socio-political movement that took place in the People's Republic of China from 1966 through 1976...
incorporated in the 1978 version. In fact, the Constitution omits all references to the Cultural Revolution and restates Mao Zedong
Mao Zedong
Mao Zedong, also transliterated as Mao Tse-tung , and commonly referred to as Chairman Mao , was a Chinese Communist revolutionary, guerrilla warfare strategist, Marxist political philosopher, and leader of the Chinese Revolution...
'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
Chinese law
Chinese law is one of the oldest legal traditions in the world. In the 20th and 21st century, law in China has been a complex mix of traditional Chinese approaches and Western influences....
as a regulator of political behavior. Unlike the 1977 Soviet Constitution
1977 Soviet Constitution
At the Seventh Session of the Supreme Soviet of the USSR Ninth Convocation on October 7, 1977, the third and last Soviet Constitution, also known as the "Brezhnev Constitution", was unanimously adopted...
, the text of the Constitution itself doesn't explicitly mention the Communist Party of China
Communist Party of China
The Communist Party of China , also known as the Chinese Communist Party , is the founding and ruling political party of the People's Republic of China...
and there is an explicit statement in Article 5 that states 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
Atheism
Atheism is, in a broad sense, the rejection of belief in the existence of deities. In a narrower sense, atheism is specifically the position that there are no deities...
" 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
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, of the press, of assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, 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
Democracy Wall
The Democracy Wall was a long brick wall on Xidan Street, Xicheng District, Beijing, which became the focus for democratic dissent. Beginning in December 1978, in line with the Communist Party of China's policy of "seeking truth from facts," activists in the Democracy movement—such as Xu...
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
Communist Party of China
The Communist Party of China , also known as the Chinese Communist Party , is the founding and ruling political party of the People's Republic 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 six democratic parties, Chinese citizens are prohibited from forming parties.
Among the political rights granted by the constitution, all Chinese citizens have rights to elect and be elected. 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. This problem has largely been addressed with various and ongoing reforms of hukou
Hukou
A Hukou or huji refers to the system of 'class system' residency permits which dates back to ancient China, where household registration is required by law in People's Republic of China and Republic of China ....
in 2007.
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 separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
by executive, legislature and judicial. It stipulates the NPC as the highest organ of state authority power, under which the State Council
State Council of the People's Republic of China
The State Council of the People's Republic of China , which is largely synonymous with the Central People's Government after 1954, is the chief administrative authority of the People's Republic of China. It is chaired by the Premier and includes the heads of each governmental department and agency...
, the Supreme People's Court, and the Supreme People's Procuratorate
Supreme People's Procuratorate
The Supreme People's Procuratorate is the highest agency at the national level responsible for both prosecution and investigation in the People's Republic of China...
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
Proletarian internationalism
Proletarian internationalism, sometimes referred to as international socialism, is a Marxist social class concept based on the view that capitalism is now a global system, and therefore the working class must act as a global class if it is to defeat it...
" and "social imperialism" have been dropped.
2004 Amendments
The Constitution was amended on March 14, 2004 to include guarantees regarding private propertyPrivate property
Private property is the right of persons and firms to obtain, own, control, employ, dispose of, and bequeath land, capital, and other forms of property. Private property is distinguishable from public property, which refers to assets owned by a state, community or government rather than by...
("legally obtained private property of the citizens shall not be violated,") and human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
("the State respects and protects human rights.") This was argued by the government to be progress for Chinese democracy and a sign from Communist Party of China
Communist Party of China
The Communist Party of China , also known as the Chinese Communist Party , is the founding and ruling political party of the People's Republic of China...
that they recognised the need for change, because the booming Chinese economy had created a new class of rich and middle class, who wanted protection of their own property.
Wen Jiabao
Wen Jiabao
Wen Jiabao is the sixth and current Premier and Party secretary of the State Council of the People's Republic of China, serving as China's head of government and leading its cabinet. In his capacity as Premier, Wen is regarded as the leading figure behind China's economic policy...
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." http://www.washingtonpost.com/wp-dyn/articles/A58578-2004Mar14.html?referrer=email Some question that there is no clear indication that the changes were leading to increased protection for Chinese citizens in terms of human rights or property rights. Chinese people continue to be arrested for trying to challenge government decisions (whether they are legal or not), even when using the law itself. The censure of the media is still in place, as can be seen by the closure of out-spoken publications, or re-staffing to remove editors and journalists who have annoyed officials, such as was the case with the Freezing Point
Freezing Point
Freezing Point is a news journal in the People's Republic of China which has been the subject of controversy over its criticism of Communist Party officials and the sympathetic ear it lent to a Chinese historian who had criticized official history textbooks...
magazine.
Constitutional enforcement
There is no special organization established for the enforcement of the Chinese constitution. Although in the constitution it stipulates that the National People's CongressNational People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
and its Standing Committee have the power to review whether laws or activities violate the constitution.
Furthermore, under the legal system of the People's Republic of China, courts do not have the general power of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
and cannot invalidate a statute on the grounds that it violates the constitution. 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
State Council of the People's Republic of China
The State Council of the People's Republic of China , which is largely synonymous with the Central People's Government after 1954, is the chief administrative authority of the People's Republic of China. It is chaired by the Premier and includes the heads of each governmental department and agency...
was forced to rescind regulations allowing police to detain persons without residency permits after the Standing Committee of the National People's Congress
Standing Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
(NPCSC) made it clear that it would rule such regulations unconstitutional if they were not rescinded.
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
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
and greater constitutional protections. It was shut down by the government on July 14, 2009.
See also
- Constitutional history of the People's Republic of ChinaConstitutional history of the People's Republic of ChinaThe Constitutional history of the People's Republic of China describes the evolution of its Constitutional system. The first Constitution of the People's Republic of China was promulgated in 1954. After two intervening versions enacted in 1975 and 1978, the current Constitution was promulgated in...
- Law of the People's Republic of ChinaLaw of the People's Republic of ChinaLaw of the People's Republic of China is the legal regime of the People's Republic of China, with the separate legal traditions and systems of Mainland China, Hong Kong, and Macau....
- ConstitutionConstitutionA constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
- Constitutional lawConstitutional lawConstitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....