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 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 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 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 " 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 , of , 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 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 and 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 , 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.
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