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Constitution of China
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] HistoryThe 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 originally inserted in 1975. 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
1982 ConstitutionThere 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 amendments7th National People's Congress (1988)The National People's Congress amended Articles 10 and 11 of the Constitution to allow the emergence of a private sector and the transfer of the land use to private industry.[12] 8th National People's Congress (1993)9th National People's Congress (1999)10th National People's Congress (2004)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)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]
Constitutional enforcementThough 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] CriticismsThe 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
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