User:PalaceGuard008/Constitution of the People's Republic of China

''This page is User:PalaceGuard008's incomplete draft re-write of the article Constitution of the People's Republic of China. If you have any comments or suggestions, please leave them at User talk:PalaceGuard008 or User talk:PalaceGuard008/Constitution of the People's Republic of China.''

The Constitution of the People's Republic of China is the supreme law of the People's Republic of China. The Constitution governs the structure and operation of the government, provides for a set of fundamental rights and duties of the citizen, and defines the state's name and symbols.

The first Constitution was adopted by the first National People's Congress in 1954. There have been three subsequent versions, and the current verioni was adopted by the 5th National People's Congress on December 4, 1982, with further amendments in 1988, 1993, 1999, and 2004. The Chinese Constitution is not entrenched, and can be amended by a two-thirds majority of the National People's Congress.

The power of Constitutional interpretation and review is vested by legislation in the Standing Committee of the National People's Congress. While the Supreme People's Court has shown a willingness to revisit the issue in recent cases, it has not overruled its two decisions from 1955 and 1988 in which the Court refused to consider the Constitutional validity of laws. Instead, courts, procuratorial and administrative bodies may request, and other bodies and individuals may suggest, a Constitutional review by the Standing Committee of the National People's Congress.

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.

The Common Program (1949)
In 1949, the Chinese Civil War was turning decisively in favour of the Communist Party of China. In June, the Communist Party organised a "Chinese People's Political Consultative Conference" (CPPCC) to prepare for the establishment of a new regime to replace the Kuomintang-dominated Republic of China government.

The first meeting of the CPPCC opened on 21 September, 1949, and was attended by the Communist Party along with eight aligned parties. The first CPPCC served in effect as a Constitutional Convention. The meeting approved the Common Program, which was effectively an interim Constitution, specifying the structure of the new government, and determining the name and symbols of the new state. It also elected leaders of the new central government, including Mao Zedong as Chairman of the Central People's Government. After the end of the conference, the People's Republic of China was proclaimed on 1 October, 1949.

The People's Republic of China government functioned for the next five years under the Common Program, with a degree of democracy and inclusion that was not seen again in Chinese government to the present day. Among the provisions of the Common Program were those guaranteeing protection of private property (Article 3), "uniting" the bourgeoisie (Article 13), and assisting private enterprise (Article 30). The first People's Government, elected in 1949, comprised of a significant number of representatives from parties other than the Communist Party.

1954 Constitution
In accordance with the Common Program, preparations soon began for convening the first National People's Congress and the drafting of the first premanent Constitution of the People's Republic of China. On 24 December, 1952, a resolution was moved by Premier Zhou Enlai on behalf of the Communist Party of China at the 43rd meeting of the first CPPCC Standing Committee to draft the new, permanent, Constitution. The resolution was passed, and on 13 January, 1953, the Central People's Government appointed a thirty-person drafting committee led by Mao Zedong.

The drafting process was dominated by the Communist Party, and was almost exclusively restricted to the Politburo. In March 1954, the draft Constitution was passed to the CPPCC and also dsitributed within the Communist Party. On 20 September, 1954, exactly five years after the passage of the Common Program, the first meeting of the first National People's Congress. unanimously approved the new Constitution. This version has subsequently been called the "1954 Constitution"

The 1954 Constitution included a Preamble and 108 Articles organised into four chapters. It specified a government structure remarkably similar to the current system. Chapter Two of the 1954 Constitution set up a system of government comprised of six structural parts. The highest organ of government was the legislature, the National People's Congress. The executive was comprised of the President and the State Council. Sub-national government was to be comprised of people's congresses and people's committees of various levels. Autonomous ethnic areas would decide on their forms of government according to the wishes of the "majority of the people"in these areas. Finally, a hierarchy of courts headed by the Supreme People's Court and a procuratorial system headed by the Supreme People's Procuratorate formed the judicial system.

Chapter Three, Fundamental Rights and Duties of Citizens, guaranteed a relatively comprehensive set of human rights, but also imposed the duty to pay taxes, undertake national service, and to obey the law.

1975 Constitutions
However, the Chinese government functioned more or less as envisaged for only a short time. In 1957, the Anti-Rightist Movement marked the beginning of a series of political movements and purges during which the Constitution largely failed to be respected. These culminated in the Cultural Revolution (1966-1976), a period in which the normal operation of government virtually ceased. In 1966, President Liu Shaoqi was politicall denounced, and from 1967 was placed under house arrest. After suffering two years of persecution, Liu died, unreported, in 1969, and the position of President was left unfilled. During this period, most government bodies around the country ceased operation; various levels of people's governments were replaced by Revolutionary Committees. Instead of (formally) by election, power passed via public denunciations and, in many cases, violent clashes.

In 1975, Mao Zedong and his supporters sought to formalise their power through the promulgation of a new Constitution. Under the 1975 Constitution, the office of the President (officially translated as "Chairman" during this period) was abolished, leaving Mao, as the Chairman of the Communist Party, as the sole power centre. Formal duties of the President as Head of State were to be preformed by the Chairman of the National People's Congress (who was, at the time, Zhu De). The replacement of local government by Revolutionary Committees was also formalised. The Constitution was shorted to 30 articles, and the Fundamental Rights and Duties of Citizens was greatly shortened. Guarantees removed included the rights to property and privacy, freedom from political discrimination, freedom of movement, speech, and artistic freedom, among other human rights. Concurrently, the duty to pay taxes was also removed. The 1975 Constitution also saw a significant shift in tone compared to the 1954 Constitution, and saw the insertion of a significant number of ideological sloganeering provisions.

1978 Constitution
Mao died in 1976, and the Gang of Four who had dominated Chinese politics were driven out of power by October 1976. The 1978 Constitution was promulgated in March 1978 under the chairmanship of Hua Guofeng. It contained 60 sections organised into four Chapters. In many ways, the 1978 Constitution was a compromise between the interim leadership's desire to consolidate power using Mao's moral authority, while responding to the popular desire to reverse the Leftists extremes of the previous period. On the one hand, the new Constitution in many places maintained the ideological tone of the 1975 Constitution, such as in Article 16 ("State officials must diligently study Marxism, Leninism, and Mao Zedong Thought, serve the people whole-heartedly ...") and Article 19 ("The fundamental role of the Armed Forces is: [...] defending against destabilisation and invasion from Socio-Imperialism, Imperialism, and their running dogs"). At the same time, the need for "Socialist democracy" was emphasised (Article 3), and the 1954 system of government was largely restored, with the exception of the Presidency, which remained absent.

1982 Constitution
The 1978 Constitution was again short-lived. In December 1978, the third plenary meeting of the 11th Communist Party Central Committee began a series of reviews and reforms that confirmed Deng Xiaoping as the new paramount leader of China, with reform-minded leaders supported by Deng filling the top echelon of government. As part of the Deng faction's political reform agenda, a fourth Constitution was promulgated on 4 December, 1982. The 1982 Constitution was born in a political environment where the past, including Mao's "errors" and almost all of the Communist Party's policies from 1949, were relatively objectively re-examined, and the country's future, including the pursuit of market economic reforms, were being openly debated. As a result, the 1982 Constitution returned the government structure to broadly that set up in 1954, with the Presidency restored. The Fundamental Rights and Duties of Citizens were greatly expanded, and elevated to Chapter Two, ahead of the provisions for the structure of the government. The 1982 Constitution was subsequently amended in 1988, 1993, 1999 and 2004, generally modifying the Constitution in accordance with economic and political reforms over that period. The current compilation dates from 14 March, 2004.

The system of government set up under the 1982 Constitution has undergone some changes, largely due to the evolution of Constitutional conventions rather than textual amendments. The most significant of these occurred in 1989-1993. As drafted, the 1982 Constitution contemplated that the power of the state would be distributed amongst the Chairman of the Central Military Commission, the Premier of the State Council, and the General Secretary of the Communist Party of China. The President, as head of state, would be a symbolic role with little substantive power. Such was the arrangement until 1989. However, during the 1989 Tiananmen Square Protests, the President, Yang Shangkun, used his formal powers under the Constitution to declare a state of emergency and collude in the subsequent violent crackdown in Beijing, against the wishes of Zhao Ziyang, the General Secretary of the Party. In a reaction against the conflict between the two roles, at the expiration of Yang's term, the new General Secretary, Jiang Zemin, also became President, and later took on the position of the Chairman of the Central Military Commission as well. In this way, the centres of power were unified. This convention has continued to this day.

Preamble
The Preamble outlines the recent history of China and the People's Republic of China, the future aspirations of the state, and finally proclaims the Constitution to be the fundamental law of the state and requires all persons and bodies to uphold it.

The Preamble mentions two people by name: Sun Yat-sen and Mao Zedong.

The Central Military Commission
Section 4 comprises only two Articles. Article 93 sets up the Central Military Commission to direct the armed forces of the country, and provides that its term of office is the same as that of the National People's Congress. Article 94 provides that the Chairman of the Central Military Commission is responsible to the National People's Congress and its Standing Committee.

The Local People's Congress and the Local People's Governments at different levels
Section 5 of Chapter III prescribes the system of local government.

The Organs of Self-Government of National Autonommous Areas
Section 6 of Chapter III prescribes the system of government for national autonomous areas of various levels. The autonomous area system formally prescribes a degree of autonomy in areas where a minority nationality other than the Han ethnicity dominates. Under the system envisaged by the Constitution, each autonomous region, prefecture or county is to enjoy "self government" (Article 115). This is expressed in several aspects.
 * The people's congress (Article 113) and the administrative head (Article 114) of an autonomous area should be headed by a member of the dominant ethnicity in that region.
 * Autonomous areas enjoy fiscal autonomy (Article 117), so that revenue collected from these areas are used only by these areas.
 * In development (Article 118), culture, science, and education (Article 119), and administrative regulation (Article 116), autonomous areas are to enjoy substantial autonomy.
 * Local governments in autonomous areas are to employ the local common language or languages (Article 121).
 * Article 120 allows for the possibility of autonomous areas organising their own public security forces, where this does not conflict with the national military system.

Finally, Article 122 requires the state to assist autonomous areas to "accelerate their economic and cultural development".

The People's Court and the People's Procuratorates
Section 7 of Chapter III defines the judicial and procuratorial systems. Articles 123 to 128 deal with the people's courts, headed by the Supreme People's Court. The Supreme People's Court is answerable to the National People's Congress and its Standing Committee.

Articles 129 to 134 provide for the people's procuratorates, headed by the Supreme People's Procuratorate. The procuratorial system combines the functions of public prosecution, investigation and supervision of law enforcement.

Article 135 is an aspirational provision, providing for division of labour and co-ordination between the judiciary, procuratorate, and public security organs.

Whereas in the common law system, the procuratorate is likely to be seen as an aspect of executive power and separate from judicial power, the scheme of the Chinese Constitution in describing the two in the same section of the Constitution reflects the traditional conception that the procuratorate is an aspect of the judiciary. In both the Republic of China and the late Qing Dynasty, the procurator's office was attached to the supreme court.

The National Flag, the National Emblem and the Capital
Chapter IV specifies the National Flag of the People's Republic of China, the National Emblem of the People's Republic of China, and Beijing as the capital city.

1982 document
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 (NPC) to the 1982 Constitution.

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.

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 Constitution of the Soviet Union, the text of the Constitution itself does not 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, as opposed to parallel clauses in the US constitution which forbids foreign-borns to be elected president among other limitations. However since direct election is confined to the village level, the electorial rights of the people are questioned by many critics. Other scholars argue that this is a form of Electoral College system. 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.

2004 Amendments
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.") This was argued by the government to be progress for Chinese democracy and a sign from CCP 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." But subsequently there was 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.

Constitutional Enforcement
There is no special organization established for the enforcement of constitution. Although in the constitution it stipulates that the National People's Congress 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 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 NPCSC made it clear that it would rule such regulations unconstitutional if they were not rescinded.