Constitution of China

For other uses, see Constitution of China (disambiguation).

Constitution of the People's Republic of China
Cover of the current constitution
Overview
Original title	中华人民共和国宪法
Jurisdiction	China
Ratified	December 4, 1982
Date effective	December 4, 1982
System	Unitary Marxist-Leninist one-party socialist republic
Government structure
Branches	Six (Legislative, Executive, Military, Supervisory, Judicial, Procuratorial)
Head of state	President [a]
Chambers	Unicameral (National People's Congress) [b]
Executive	State Council headed by the Premier of the State Council
Judiciary	Supreme People's Court Supreme People's Procuratorate
Federalism	No - Decentralization within a Unitary State (special administrative regions)
Electoral college	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.
History
First legislature	September 21, 1949 (Chinese People's Political Consultative Conference) September 27, 1954 (National People's Congress)
First executive	September 27, 1954 (1st National People's Congress) October 1, 1949 (Central People's Government)
First court	October 22, 1949
Amendments	5
Last amended	11 March 2018
Location	Beijing
Commissioned by	11th Communist Party Central Committee
Supersedes	1978 Constitution of the People's Republic of China
Full text
Constitution of the People's Republic of China at Wikisource
Footnote
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 de facto legislature is the Standing Committee of the National People's Congress

Constitution of China
Simplified Chinese	中华人民共和国宪法
Traditional Chinese	中華人民共和國憲法
Transcriptions Standard Mandarin Hanyu Pinyin Zhōnghuá Rénmín Gònghéguó Xiànfǎ

The Constitution of the People's Republic of China is the supreme law of the People's Republic of China. It was adopted by the 5th National People's Congress on December 4, 1982, with five subsequent revisions. It is the fourth constitution in PRC history, superseding the 1954 constitution, the 1975 constitution, and the 1978 constitution. ^[1]

History

Main article: Constitutional history of the People's Republic of China

The first Constitution of the People's Republic of China was declared in 1954. The current Constitution was declared in 1982, ^{[2] : 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.^{[ citation needed ]}

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 CCP Chairman 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 Certain Questions in the History of Our Party since the Founding of the People's Republic of China. ^[3]

Structure

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

1982 Constitution

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.^{[ citation needed ]}

Prior to 1982 there were no term limits on key leadership posts. Deng imposed a two-term limit (10 years total) on all but the chair of the Central Military Commission. ^[5]

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.^{[ citation needed ]}

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." ^{[2] : 82} The preamble dates this revolutionary history as beginning in 1840. ^{[2] : 82}

Article 1 of the Constitution describes China as "a socialist state under the people's democratic dictatorship" ^[6] 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 Chinese Communist Party (CCP), 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 Chinese People's Political Consultative Conference, minor political parties, and people's organizations.

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." ^{[7] : 7–8}

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." ^[6] 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. ^[8]

Among the political rights granted by the constitution, all Chinese citizens have rights to elect and be elected. ^[9] 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. ^[10]

The 1982 constitution included the birth planning policy known as the one-child policy. ^{[11] : 63}

Revisions and amendments

7th National People's Congress (1988)

See also: 7th National People's Congress

The National People's Congress amended Articles 10 and 11 of the Constitution. Allow the emergence of the private sector and allow the transfer of the Land tenure. ^[12]

8th National People's Congress (1993)

See also: 8th National People's Congress

9th National People's Congress (1999)

See also: 9th National People's Congress

10th National People's Congress (2004)

See also: 10th National People's Congress

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") 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. ^[13]

Chinese leader Hu Jintao said that "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." ^[13]

13th National People's Congress (2018)

See also: 13th National People's Congress

The Constitution was amended on 11 March 2018, with 2,958 votes in favor, two against, and three abstentions. ^[14] It includes an assortment of revisions that further cement the CCP's control and supremacy, including setting up the National Supervisory Commission, ^[15] establishing a new anti-graft agency, extending the powers of the CCP's graft watchdog, adding Hu Jintao's Scientific Outlook on Development and Xi Jinping Thought to the Preamble of the Constitution, ^[16] 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 facto top position in CCP ruling China without term limit. ^{[17] [18]}

The concept of ecological civilization building was also added to the Constitution. ^{[19] : 1}

The amendments also add 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, ^[20] 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. ^[17] Xi "now has the distinction of being the first Chinese leader ever to have his theories enshrined in the constitution during his own lifetime." ^[5] The leadership of the CCP is now constitutionally enshrined as the "defining feature of socialism with Chinese characteristics", and therefore it establishes one-party rule as an end-in-itself. ^[5] Xi says: ^[5]

Party, government, military, civilian, and academic, north, south, east, west, and center, the Party leads everything.

Constitutional enforcement

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. ^{[21] [22]}

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. ^{[23] [ non-primary source needed ]} 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. ^[24]

Since 2002, a special committee within the NPC called the Constitution and Law Committee has been responsible for constitutional review and enforcement. ^{[23] [ non-primary source needed ]} 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. ^[25]

Criticisms

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. ^[26]

In early 2013, a movement developed among reformers in China based on enforcing the provisions of the constitution. ^{[27] [28]}

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." ^[29]

See also

• China portal
• Politics portal
• Law portal
• Communism portal

• Constitutional economics
• Constitutional history of the People's Republic of China
• Constitutional law
• Constitutionalism
• Law of the People's Republic of China
• Constitution of the Chinese Communist Party

References

Citations

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2. Laikwan, Pang (2024). One and All: The Logic of Chinese Sovereignty. Stanford, CA: Stanford University Press. doi:10.1515/9781503638822. ISBN   9781503638815.
3. "Resolution on certain questions..." marxists.org. Archived from the original on August 3, 2018. Retrieved December 22, 2018.
4. "Constitution of the People's Republic of China (2018 Amendment)". en.pkulaw.cn. Archived from the original on December 29, 2019. Retrieved March 28, 2019.
5. Suzuki, Ken (November 27, 2018). "China's New "Xi Jinping Constitution": The Road to Totalitarianism". Nippon Communications Foundation. Archived from the original on July 28, 2020. Retrieved June 2, 2020.
6. "CONSTITUTION OF THE PEOPLE'S REPUBLIC OF CHINA". People's Daily. December 4, 1982. Archived from the original on August 12, 2010. Retrieved June 25, 2010.
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8. 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.
9. "China 1982 (rev. 2004)". Constitute. Archived from the original on July 17, 2015. Retrieved April 22, 2015.
10. "城乡居民选举首次实现同票同权(Chinese)". Archived from the original on July 17, 2015. Retrieved July 17, 2015.
11. Klára, Dubravčíková (2023). "Living Standards and Social Issues". In Kironska, Kristina; Turscanyi, Richard Q. (eds.). Contemporary China: a New Superpower?. Routledge. doi:10.4324/9781003350064. ISBN   978-1-03-239508-1.
12. "中国共产党中央委员会关于修改中华人民共和国宪法个别条款的建议". 中国人大网. February 28, 1988. Archived from the original on March 9, 2018. Retrieved March 10, 2018.
13. Zhong, Huang; Qian, Cheng (2014). "The Disappearance of Hong Kong in Comics, Advertising and Graphic Design". In Plantilla, Jefferson R. (ed.). Bridging Human Rights Principles and Business Realities in Northeast Asia (PDF). Malaysia: Vinlin Press. pp. 21–53.
14. Nectar Gan (March 12, 2018). "Xi Jinping cleared to stay on as China's president with just 2 dissenters among 2,964 votes". South China Morning Post . Archived from the original on October 25, 2018. Retrieved October 25, 2018.
15. Gao, Charlotte (December 28, 2017). "China Plans to Amend Its Constitution". The Diplomat . Archived from the original on July 28, 2020. Retrieved June 2, 2020.
16. Huang, Joyce (September 19, 2017). "China's Constitution to Include Xi Jinping Thought". Voice of America . Archived from the original on June 19, 2020. Retrieved June 2, 2020.
17. "Translation: 2018 Amendment to the P.R.C. Constitution". npcobserver.com. March 11, 2018. Archived from the original on December 22, 2018. Retrieved December 22, 2018.
18. Buckley, Chris; Myers, Steven Lee (March 11, 2018). "China's Legislature Blesses Xi's Indefinite Rule. It Was 2,958 to 2". The New York Times . ISSN   0362-4331. Archived from the original on October 26, 2019. Retrieved July 27, 2024.
19. Rodenbiker, Jesse (2023). Ecological States: Politics of Science and Nature in Urbanizing China. Environments of East Asia. Ithaca, NY: Cornell University Press. ISBN   978-1-5017-6900-9.
20. Zhang, Qianfan (October 1, 2010). "A constitution without constitutionalism? The paths of constitutional development in China". International Journal of Constitutional Law . 8 (4): 950–976. doi: 10.1093/icon/mor003 .
21. Estes, Adam Clark (February 3, 2013). "China's Still Having a Hard Time Obeying Its Own Constitution". The Atlantic . Archived from the original on May 8, 2022. Retrieved November 14, 2019.
22. Allen-Ebrahimian, Bethany (December 5, 2014). "On First Annual Constitution Day, China's Most Censored Word Was 'Constitution'". Foreign Policy . Archived from the original on September 17, 2018. Retrieved November 14, 2019.
23. "坚决贯彻宪法精神 加强宪法实施监督_中国人大网". www.npc.gov.cn. Archived from the original on April 2, 2018. Retrieved April 2, 2018.
24. Zhu, Guobin (2010). "Constitutional Review in China: An Unaccomplished Project or a Mirage?". Suffolk University Law Review . 43: 625–653. SSRN   1664949.
25. Keith J., Hand (2006). "Using Law for a Righteous Purpose: The Sun Zhigang Incident and Evolving Forms of Citizen Action in the People's Republic of China". Columbia Journal of Transnational Law . 45. doi:10.4324/9781315240664-16 (inactive November 1, 2024). SSRN   1972011.
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28. Langfitt, Frank (September 18, 2013). "China's Debate: Must The Party Follow The Constitution?". NPR . Archived from the original on December 3, 2018. Retrieved November 14, 2019.
29. 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. S2CID   213533678.

Sources

• This article incorporates text from this source, which is in the public domain."China". Country Studies. Federal Research Division.

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)