The Constitution of the People's Republic of China (中华人民共和国宪法) is the highest law within the People's Republic of China. The current revision 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 Three previous state constitutions--those of 1954, 1975, and 1978--were superseded in turn.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.
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. 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. 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 artibrary 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.
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. Accordingly, Article 1 of the State Constitution describes China as a "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.
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. 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.
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.") 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] http://www.nytimes.com/2004/03/15/international/asia/15CHIN.html?th 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] http://www.washingtonpost.com/wp-dyn/articles/A58578-2004Mar14.html?referrer=ema
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External link
- An English translation of the Constitution of 1982 http://www.oefre.unibe.ch/law/icl/ch00000_.html
Reference
Last updated: 05-06-2005 01:27:49
