Yes – the National People's Congress, which 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 members of the National People's Congress.
↑China does not have a head of state constitutionally, but a "state representative". While the President of China has many of the characteristics of the head of state, the Chinese constitution does not define it as such.
The current constitution consists of 4 chapters and 143 articles. It explains the nature of the People's Republic of China, highlights the concept of democratic centralism, and states that the People's Republic of China 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 work under the system of people's congress, and states that China implements basic political systems such as the system of community-level self-governance and the regional ethnic autonomy system. The constitution also lists its basic national policies and establishes the leadership of the Chinese Communist Party (CCP).
The first constitution of the People's Republic of China was declared in 1954. The current constitution was declared in 1982,[1]:82 after two intervening versions enacted in 1975 and 1978. There were significant differences between each of these versions, and the 1982 constitution has subsequently been amended five times.[2]
There had been five major revisions by the National People's Congress (NPC) to the 1982 constitution. The 1982 state constitution provided a legal basis for the broad changes in China's social and economic institutions and significantly revised 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.[4] Prior to 1982 there were no term limits on key leadership posts. Deng imposed a two-term limit (10 years total) on all state positions but the chair of the Central Military Commission, though no similar restrictions were put on CCP posts.[5] The 1982 constitution included the birth planning policy known as the one-child policy.[6]:63
Structure
The constitution consists of a preamble and 143 articles grouped into 4 chapters. These are:[7]
Preamble
General Principles (Chapter 1)
The Fundamental Rights and Duties of Citizens (Chapter 2)
The preamble describes China as "a country with one of the longest histories in the world. The people of all of China's nationalities have jointly created a culture of grandeur and have a glorious revolutionary tradition."[1]:82 The preamble dates this revolutionary history as beginning in 1840.[1]:82 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."[8]
General principles (Articles 1–32)
Chapter 1 outlines the basic structure of the People's Republic of China. 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".[7]
Article 2 outlines the system of people's congress, stating that "the National People’s Congress and the local people’s congresses at various levels are the organs through which the people exercise State power".[7] Article 3 describes the relationship between the central government and local governments: "The division of responsibility and power between the central and local government is governed under the unified leadership of the central government, while fully encouraging the principle of local government initiative and proactivity."[9]:7–8 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, minor political parties, and people's organizations.[7]
The fundamental rights and duties of citizens (Articles 33–56)
Chapter 2 outlines the fundamental rights and duties of Chinese citizens. Article 35 of the 1982 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."[7] 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 CCP, 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.[7] 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 aforementioned ratio of vote power has been readjusted to 1:1 by an amendment to the election law passed in March 2010.[11]
The constitution was amended on 12 April 1988. The amendment affected articles 10 and 11 of the constitution to allow the emergence of a private sector.[12] It legalized the separation of land use rights from land ownership.[13]:77 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.[13]:77
The constitution was amended on 15 March 1999. The amendment incorporated Deng Xiaoping Theory to the constitution. The revised Constitution further improved the status of private enterprises and abolished the clause of "counter-revolutionary crimes". 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."[15]
The constitution was amended on 14 March 2004 to include guarantees regarding private property ("legally obtained private property of the citizens shall not be violated")[16]:48 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 CCP that they recognized the need to adapt to the booming Chinese economy, which had created a growing middle class who wanted private property protections.[17]
The constitution was amended on 11 March 2018.[18] The amendment included establishing the National Supervisory Commission,[19] a new anti-graft agency, adding Hu Jintao's Scientific Outlook on Development and Xi Jinping Thought to the preamble of the constitution,[20] 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 de factotop position in CCP ruling China without term limit.[21][22] The amendment also added 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,[23] 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.[21]
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.[24] 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.[25]
Since 2002, a special committee within the NPC called the Constitution and Law Committee has been responsible for constitutional review and enforcement.[24] 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.[26]
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.[27][28] In early 2013, a movement developed among reformers in China based on enforcing the provisions of the constitution.[29][30]
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."[31] 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."[32]
↑Lan, Xiaohuan (2024). How China Works: An Introduction to China's State-led Economic Development. Translated by Topp, Gary. Palgrave MacMillan. ISBN978-981-97-0079-0.
↑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.
↑Li, Ling; Zhou, Wenzhang (November 21, 2019). "Governing the "Constitutional Vacuum" – Federalism, Rule of Law, and Politburo Politics in China". China Law and Society Review. 4 (1): 1–40. doi:10.1163/25427466-00401001. S2CID213533678.
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