| 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 | People's Republic of China (Mainland China,Hong Kong andMacau) |
| Ratified | September 20, 1954 |
| Date effective | September 20, 1954 |
| System | Unitarycommunist state |
| Government structure | |
| Branches | One[a] |
| Head of state | President[b] |
| Chambers | Unicameral (National People's Congress)[c] |
| Executive | State Council headed by thePremier of the State Council |
| Judiciary | Supreme People's Court Supreme People's Procuratorate National Supervisory Commission |
| 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 ofIndirect 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 | Constitution Drafting Committee |
| Supersedes | Common Program |
| Full text | |
 Constitution of the People's Republic of China atWikisource | |
| Footnote | |
| |
| 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 | ||||||
| |||||||
TheConstitution of the People's Republic of China is acommunist state constitution and thesupreme law of thePeople's Republic of China (PRC).
First attempts at a constitutional system in China started near the end of theQing dynasty, which was overthrown following the1911 Revolution. The newly-establishedRepublic of China adopted aProvisional Constitution in 1912, which provided aparliamentary system. However, the constitution was largely ineffective as China quickly disintegrated intowarlordism. In 1928, theKuomintang unified most of China and promulgated theProvisional Constitution of the Political Tutelage Period in 1931, intended to remain in effect until the country had beenpacified. In 1947, the Kuomintang adopted theConstitution of the Republic of China; however, the constitution was never extensively nor effectively implemented due to the outbreak of theChinese Civil War.
In September 1949, thefirst plenary session of the Chinese People's Political Consultative Conference adopted theCommon Program, which acted as the temporary constitution after the PRC's foundation in October 1949. On 20 September 1954, thefirst constitution was adopted by the first session of the1st National People's Congress. The constitution went through a major revision during the Cultural Revolution in1975. The constitution went through further revisions in1978 following the end of the Cultural Revolution. The current constitution was adopted by the5th National People's Congress on 4 December 1982, which was adopted during thereform and opening up. The 1982 constitution has gone through five subsequent revisions.
The current constitution consists of 4 chapters and 143 articles. It explains the nature and basic policies of the People's Republic of China, highlights the concept ofdemocratic centralism, and states that the People's Republic of China is a "socialist state governed by apeople'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 thesystem of people's congress, and states that China implements basic political systems such as thesystem of community-level self-governance and theregional ethnic autonomy system. The constitution also lists its basic national policies and establishes the leadership of theChinese Communist Party (CCP).
Dynastic China adopted a constitutional system oscillating between a feudal distribution of power and a centralistic autocracy. The idea of aconstitutional monarchy, and a writtenconstitution, became influential towards the end of the 19th century, inspired immediately in large parts by the precedent of theMeiji Constitution in theEmpire of Japan. The first attempt towards constitutionalism in China was during theHundred Days' Reform that took place in 1898 by the youngGuangxu Emperor and his reform-minded supporters, but acoup by conservative monarchists loyal toEmpress Dowager Cixi ended this effort. The same faction, however, eventually adopted a policy of transitioning towards constitutionalism. However, the first constitutional document was only published in 1908, and the first constitutional document with legal force (the "Nineteen Covenants") was not implemented until 1911, after the eruption of the1911 Revolution, which led to the end of the Qing dynasty the next year.[citation needed]
TheProvisional Constitution of the Republic of China was drawn up in March 1912 and formed the basic government document of the Republic of China until 1928. It provided a Western-styleparliamentary system headed by a weak president. However, the system was quickly usurped whenSong Jiaoren was assassinated by the orders of PresidentYuan Shikai.[1] Upon Yuan's death in 1916, China disintegrated intowarlordism and theBeiyang government operating under the Constitution remained in the hands of various military leaders. The Kuomintang underChiang Kai-shek established control over much of China by 1928. The Nationalist Government promulgated theProvisional Constitution of the Political Tutelage Period on 5 May 1931. The Kuomintang intended this constitution to remain in effect until the country had been pacified and the people sufficiently "educated" to participate in democratic government. On 25 December 1946, the Kuomintang ratified theConstitution of the Republic of China during theNational Constituent Assembly. However, it was never extensively nor effectively implemented due to the outbreak of theChinese Civil War inmainland China at the time of the constitution's promulgation.[citation needed]
In September 1949, thefirst plenary session of the Chinese People's Political Consultative Conference adopted theCommon Program to replace the ROC constitution, which was not recognized by theChinese Communist Party (CCP). The Common Program declared in its preamble: "TheChinese People's Political Consultative Conference, representing the will of the people of the whole country, proclaims the establishment of the People's Republic of China and organizes the people's own central government." The Chinese constitutional scholars have maintained that although not a formal constitution, the Common Program acted as a provisional constitution. The program stipulated the composition of the government organs and the new government's military, economic, cultural and educational, ethnic, and foreign policies.[2]
As early as 1949, whenCCP Politburo memberLiu Shaoqi secretly visited theSoviet Union and in early 1950, when ChairmanMao Zedong first visited the Soviet Union, Soviet leaderJoseph Stalin had suggested that the CCP prepare for the drafting of a constitution.[3] In 1952, Stalin urged Chairman Liu Shaoqi, who was visiting the Soviet Union, to draft a constitution as soon as possible to solve the problem of legitimacy and "organize a one-party government".[4] It was only at the end of 1952 that the PRC began to prepare for the drafting of a constitution. Scholar Zhang Ming believes that Stalin suggested that the CCP draft a constitution not only to solve the legitimacy problem of the new government itself, but also because he was worried about China's development towards nationalism. He believes that "completely cutting off the possibility of China following theYugoslav path is the reason why Stalin insisted on China drafting a constitution when the CCP clearly expressed its unwillingness."[3]
On 1 December 1952, theCCP Central Committee issued the Notice on Convening the National Congress of the Party, which stated that the conditions for convening theNational People's Congress was met, and preparations were being made for the drafting of the constitution. On 24 December 1952, at a meeting of the Standing Committee of the1st National Committee of the Chinese People's Political Consultative Conference,Zhou Enlai, on behalf of the CCP, proposed to draft the constitution; the CPPCC passed the proposal. On 1 January 1953, the CCP's official newspaper, thePeople's Daily, listed the drafting of the constitution as one of the three tasks for 1953. On 13 January 1953, theCentral People's Government Council decided to form a Constitution Drafting Committee composed of more than 30 people, including Mao Zedong.[3]
In early March 1953, Mao Zedong said in the revised and approved Explanation of the First Draft of the Constitution: "The basic task of the Constitution is to make correct provisions in terms of the system of the state, the power of the state and the rights of the people, so as to provide a legal guarantee for the completion of the general task of the state during the transition period. The main effort of the draft Constitution is primarily focused on this purpose." This meant that this constitution had a certain transitional nature. The preamble of the constitution stipulated that "during the transition period, the state will gradually realize the socialist industrialization of the state and gradually complete the socialist transformation of agriculture, handicrafts and capitalist industry and commerce."[3]
At the end of 1953, the CCP Central Committee established a drafting group for the constitution. Mao Zedong led core drafting group membersChen Boda,Hu Qiaomu andTian Jiaying toHangzhou to draft the constitution. As none of these four were constitutional law graduates, they based their draft on the1936 Soviet Constitution, the 1952 Romanian Constitution and other constitutions. The drafting group submitted the first draft in February 1954 and reviewed it within the CCP Politburo.[5][3] On 15 March 1954, the Politburo decided that Chen Boda and others would form a constitutional group to make final revisions to the articles of the first draft of the constitution and submit them to the Central Committee for discussion; a Constitution Drafting Committee Office was formed, withLi Weihan as the secretary-general. The Party's constitutional group was responsible for polishing it and obtaining confirmation from the Politburo.[6]
The entire process that followed was basically carried out according to the schedule stipulated by Mao Zedong in his letter to Liu Shaoqi:[7]
About 150 million people participated in the discussion of the first constitution and put forward more than 1.38 million opinions. In addition, more than 5.96 million representatives of the people's congresses of provinces, cities and counties also expressed their opinions. Mao Zedong said, "These opinions can be divided into three parts. One part is incorrect. Another part, although not necessarily very incorrect, is inappropriate and it is better not to adopt it. Since it is not adopted, why collect it? What is the benefit of collecting these opinions? It is beneficial to understand the views on the constitution among these 8,000 people and to make a comparison. The third part is the adopted ones, which is of course very good and very necessary." Based on the opinions collected, the Constitution Drafting Committee revised the original draft and submitted it to the Central People's Government Council for discussion and approval at a temporary meeting, thus forming the draft constitution for review.[8] On 20 September 1954, at the first session of the 1st National People’s Congress, the delegates cast a total of 1,197 votes, with 1,197 votes in favor, and the Constitution of the People’s Republic of China was adopted unanimously.[9]
This constitution declared China to be apeople's democratic state and stipulated that citizens have the freedom of movement and the right to reside, and also includes the clause that all citizens are equal before the law.[10] Mao did not give much importance to the formal constitution. On 21 August 1958, Mao said at an enlarged meeting of the Politburo held in Beidaihe: “We cannot do without laws, but we have our own set of laws. We cannot rely on laws to govern the majority of people. The majority of people must develop good habits. Who can remember so many articles in the Civil Code and the Criminal Code? I participated in the formulation of the Constitution, and I can’t remember it either. Most of our rules and regulations, ninety percent of them, are made by the departments and bureaus. We basically do not rely on those. We mainly rely on resolutions and meetings, which are held four times a year."[3]
After the start of theCultural Revolution in 1966, Liu Shaoqi, the state chairman appointed by the constitution, was imprisoned.[11][12] After Liu Shaoqi was dismissed in 1968, the position of state chairman became vacant, and the original constitutional system. In 1970, Mao Zedong proposed toabolish the position of state chairman, which was opposed by many leaders of the CCP, leading the constitutional amendment was deadlocked.[13] In 1971, after theLin Biao incident, the abolition of the state chairman became a foregone conclusion, and the work of constitutional amendment made some progress. On 17 January 1975, at the first session of the4th National People's Congress, the second constitution was formally adopted, which abolished the positions of state chairman and vice chairman.[12]
This constitution was the first to include the leadership of the Chinese Communist Party in its main text and incorporated a large number of the institutions of the CCP into the system of state institutions. The 1975 constitution stipulated that theChairman of the Chinese Communist Party commanded the armed forces of the whole country, which led to "the party and the state being indistinguishable".Mao Zedong Thought was also written into the main text of the constitution.[12] The constitution abolished the electoral system, changed thepeople's congress system from direct election by the people and indirect election by the lower level people's congresses, and implemented the form of "democratic consultation election".[14]
After the Cultural Revolution ended in 1976, the revision of the constitution was put back on the agenda. In 1977, the CCP Central Committee decided to establish a Constitutional Revision Committee, which was composed entirely of members of the Politburo. The Constitutional Revision Committee was not actually put into operation. The Constitutional Revision Group designated by the Politburo directly undertook the revision of the draft constitution. After the draft constitution was completed, in October 1977, the CCO Central Committee issued a notice to "solicit opinions from the masses inside and outside the Party on revising the constitution." The group solicited this time was mainly composed of Party members, but also included a small number of non-Party members. The new constitution was adopted on 5 March 1978, at the first session of the5th National People's Congress.[15]
The new constitution restored the abolished procuratorial organs, but retained the "four big rights", often called the "four bigs": to speak out freely, air views fully, hold great debates, and writebig-character posters. In addition, the constitution restored some of the civil rights clauses of the 1954 constitution, but did not restore the provision that all citizens are equal before the law. The main text of this constitution continued the relevant provisions on the leadership of the Chinese Communist Party and still included the institutions of the Chinese Communist Party in the operation system of the state institutions. The 1978 constitution stipulated that the Chairman of the CCP commanded the armed forces of the whole country. The main text of the constitution continued to include Mao Zedong Thought. The constitution restored the electoral system, abolished the form of "democratic consultation election", and stipulated that the people's representatives "are elected by secret ballot", but added the restriction that "democratic consultation should be conducted".[15][16]
The 1978 constitution underwent two amendments. On 1 July 1979, the second session of the 5th National People's Congress passed a resolution to amend the constitutional articles, agreeing to establish standing committees for people's congresses at the county level and above, changing local revolutionary committees to local people's governments at various levels, changing the election of county-level people's congress deputies to direct election by voters, and changing the relationship between higher and lower-level people's procuratorates from supervision to leadership.[12] On 10 September 1980, following theDemocracy Wall period, the third session of the 5th National People's Congress passed a resolution to abolish the provision in Article 45 that granted the right to "speak out freely, air views widely, engage in great debates, and issue big-character posters."[17]
In the early 1980s, as the CCP's startedBoluan Fanzheng, revising the constitution was put on the agenda again.[18] On 18 August 1980, Deng Xiaoping delivered a speech entitled Reform of the Leadership System of the Party and the State at an enlarged meeting of the Politburo, proposing a comprehensive constitutional amendment to the National People’s Congress, emphasizing:[19][20][21][22]
In 1980, the National People's Congress decided to formally establish the Constitutional Amendment Committee chaired byYe Jianying,Soong Ching-ling, andPeng Zhen, which included key leaders ofdemocratic parties, social organizations, and legal scholars. Ye said that "the amended constitution should reflect and be conducive to the reform and improvement of China's socialist political, economic, and cultural systems. The democratic, equal, and judicial independence principles of the legal system should be more fully realized, and appropriate provisions should be made in the constitutional amendment." The Constitutional Amendment Committee began operation immediately after its establishment, and the scope of discussion and deliberation for this constitutional amendment surpassed that of the previous two amendments.[18]
During the discussion on constitutional amendment,Hu Qiaomu, Secretary-General of the Constitutional Amendment Committee , proposed to reduce the number of National People's Congress (NPC) deputies to 1,000 and establish two chambers under the NPC , each with 500 deputies, so that the NPC would become a permanent body and change the impression of the NPC as a "rubber stamp". Another member proposed to follow the system of establishing theSoviet of the Union and theSoviet of Nationalities of theSupreme Soviet of the Soviet Union, "forming one chamber according to the representatives generated by the region and the other chamber according to the representatives generated by the industry sector." However, the opponents, led by Deng Xiaoping and Ye Jianying, believed that "if the two sides disagree, it will be very troublesome to coordinate and difficult to operate." In the end, the two sides reached a compromise by greatly expanding the powers of theStanding Committee of the NPC, making it a permanent legislative body with the power to formulate most laws and review laws that should be approved by the NPC. In addition, during the constitutional amendment process, the professional opinions of legal scholars were adopted. For example, economistSun Yefang wrote to the Constitutional Amendment Committee, suggesting the cancellation of the clauses on "the state being led by the Communist Party of China" and "guiding ideology," which was adopted by the Constitutional Amendment Committee. The constitution also restored the clause of "equality before the law". Peng Zhen explained the four principles of amending the constitution at a relevant meeting:[18]
After more than two years of revision, on 4 December 1982, the fifth session of the 5th National People's Congress reviewed and adopted the new constitution.[23]: 82 This constitution was built on the basis of the 1954 constitution and constituted the main body of the current constitution. Its main revisions included:[18][24]
The 1982 constitution has subsequently been amended five times.[30] On 12 April 1988, the constitution wasamended articles 10 and 11 of the constitution to allow the emergence of a private sector.[31] It legalized the separation of land use rights from land ownership.[32]: 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 thereal estate market without changing the underlying title of public land.[32]: 77 On 29 March 1993, the constitution wasamended again. The amendment affected most of the articles and preamble, as well as the election of local people's congress representatives. The termsocialist market economy was formally incorporated, andsystem of multi-party cooperation and political consultation to the preamble of the constitution.[33]
The constitution wasamended further on 15 March 1999. The amendment incorporatedDeng 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."[34] The constitution wasamended on 14 March 2004 to include guarantees regardingprivate property ("legally obtained private property of the citizens shall not be violated")[35]: 48 andhuman rights ("the State respects and protects human rights"). The government argued that this represented progress forChinese democracy and was a sign from the CCP that they recognized the need to adapt to the booming Chinese economy, which had created a growingmiddle class who wanted private property protections.[36]
On 11 March 2018, the constitution wasamended for the first time since 2004.[37] The amendment included establishing theNational Supervisory Commission,[38] a new anti-graft agency, adding Hu Jintao'sScientific Outlook on Development andXi Jinping Thought to the preamble of the constitution,[39] and removingterm limits for both the President and Vice President, enablingXi Jinping to remain president indefinitely. Xi is also theGeneral Secretary of the Chinese Communist Party, thetop position in CCP ruling China without term limit.[40][41] The amendment also restored 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,[42] the amendment may be seen as providing a constitutional basis for China's status as aone-party state and formally rendering any competitivemulti-party system unconstitutional.[40]
The constitution consists of a preamble and 143 articles grouped into 4 chapters. These are:[43]
The Preamble briefly introduces the history of the founding of the nation, the basic policies and fundamental national policies of the Chinese Communist Party, the basic nature and form of the state, and the effectiveness of the constitution.[44] 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."[23]: 82 The preamble dates this revolutionary history as beginning in 1840.[23]: 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 ofreunifying the motherland."[44]
Chapter 1 outlines the basic structure of the People's Republic of China, its form of government and basic national policies. Article 1 of the constitution describes the PRC as "asocialist state under thepeople'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 ofsocialism with Chinese characteristics is the leadership of theCommunist Party of China". It prohibits the disruption of the socialist system by "any organization or individual".[43]
Article 2 outlines thesystem of people's congress, stating that "theNational People's Congress and the local people's congresses at various levels are the organs through which the people exercise State power".[43] 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."[45]: 7–8 Elsewhere, the constitution provides for a renewed and vital role for the groups that make up that basic alliance—theChinese People's Political Consultative Conference, minor political parties, andpeople's organizations.[43]
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 enjoyfreedom of speech, of thepress, ofassembly, of association, of procession, and of demonstration."[43] Among the political rights granted by the constitution, all Chinese citizens have rights to elect and be elected.[43] Chinese citizens are prohibited from forming new political parties.[17] 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 theHukou (registered permanent residence) and have fewer political, economic, and educational rights, though various reforms to the Hukou system have eased the restrictions. The aforementioned ratio of vote power has been readjusted to 1:1 by an amendment to the election law passed in March 2010.[46]
Chapter 3 includes such state organs as theNational People's Congress, thePresident, theState Council, theCentral 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, theCommissions of Supervision, and the People's Courts and People's Procuratorates.[43]
It stipulates that the highest state administrative organ is State Council, which is responsible to the National People's Congress. The President is not responsible for government work, but can nominate thePremier of the State Council as the head of government, which is then approved by the National People's Congress. The Central Military Commission is responsible to the National People's Congress. The highest state judicial organs are theSupreme People's Court and theSupreme People's Procuratorate, which are established by the National People's Congress and are responsible to the National People's Congress.[43]
Chapter 4 specifiesNational Flag, theNational Anthem, theNational Emblem and theCapital of the People's Republic of China.[43]
TheNational People's Congress (NPC) has the sole power to amend the constitution.[47] Amendments to the constitution must be proposed by theNPC Standing Committee or one-fifth or more of the NPC deputies. In order for the Amendments to become effective, they must be passed by a two-thirds majority vote of all deputies.[47] The NPC is also responsible for supervising the enforcement of the constitution.[47]
The CCP leadership plays a leading role in the approval of constitutional amendments. In contrast to ordinary legislation, which the CCP leadership approves the legislation in principle, and in which the legislation is then introduced by government ministers or individual NPC delegates, constitutional amendments are drafted and debated within the party, approved by theCCP Central Committee and then presented by party deputies under the Standing Committee to the whole of the NPC during its yearly plenary session. If Congress is on recess and the Standing Committee is in session, the same process is repeated by either the party leader in the NPCSC or by one of the party deputies, but following the approval by the NPCSC, the amendments will be presented during the plenary session to all of the deputies for a final vote on the matter. If a fifth or more of the CCP party faction deputies will propose amendments either on their own or with the other parties in plenary session, the same process is applied.[48]
In contrast to ordinary legislation, in which the Legislation Law largely directs the process, the process for constitutional revision is largely described by CCP documents; the 2014Decision Concerning Several Major Issues in Comprehensively Advancing Governance According to Law states that "The Party Central Committee submits proposals for amending the Constitution to the National People's Congress".[48]
The constitution stipulates that the National People's Congress (NPC) and itsStanding Committee have the power to review whether laws or activities violate the constitution.[49] Unlike many Western legal systems, courts do not have the power ofjudicial review and cannot invalidate a statute on the grounds that it violates the constitution.[50]
Since 2002, a special committee within the NPC called theConstitution and Law Committee has been responsible for constitutional review and enforcement.[49] The committee has never explicitly ruled that a law or regulation is unconstitutional. However, in one case, after media outcry over thedeath 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.[51]
Though technically the "supreme legal authority" and "fundamental law of the state", the rulingChinese Communist Party (CCP) has a documented history of violating many of the constitution's provisions and censoring calls for greater adherence to it.[52][53] In early 2013, a movement developed among reformers in China based on enforcing the provisions of the constitution.[54][55]
In 2018, Suzuki Ken ofMeiji 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."[56] In 2019, Ling Li of theUniversity of Vienna and Wenzhang Zhou ofZhejiang University wrote that "the constitution appeals to [the CCP] because it doesnot 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."[57]
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This article incorporates text from this source, which is in thepublic domain. "China".Country Studies.Federal Research Division.
