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The Constitution of China: A Historical Overview Qianfan Zhang Peking University. Historical Review. Constitutional Tradition in West Ancient Chinese Constitutional Tradition Establishing New Constitutionalism Preparatory Period (1895-1911) Trial Period (1912-1926)
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The Constitution of China: A Historical OverviewQianfan ZhangPeking University
Historical Review • Constitutional Tradition in West • Ancient Chinese Constitutional Tradition • Establishing New Constitutionalism • Preparatory Period (1895-1911) • Trial Period (1912-1926) • Nationalist Period (1927-1948) • Contemporary Period (1949-Present) • Constitutions in 1954, 1975, and 1978 • 1982 Constitution and Four Amendments
Ancient Chinese Tradition • Prevailing view: State ruled by emperor and aided by administrative bureaucracy, society ruled by virtue not law. • Contrary view: Confucian virtues were not decided according to personal whim, but laid down as rules of propriety （礼记）. • Li is “higher law” between natural law and human law, ossified and outdated.
Searching for New Constitutionalism • Challenge and Response: China struck by Opium Wars（鸦片战争）in 1840s and 1860s; western commercial and military invasions. • Small minority of Chinese thinkers and officials realized crux of problem: lack of modern constitution. • Myopic pragmatism: prosperity and military strength first, constitutionalism secondary. • Compare Japan: Meiji Reformation in 1860s, establishment of legal system, Meiji Constitution in 1889. • Japanese wars helped China realized importance of constitutionalism: War at Year Jiawu (甲午战争，1895) and Russian Japanese conflict over Korea (1904-05).
Preparatory Stage (1895-1911) • Qing (清）dynasty grappled with institutional restructuring through limited reforms. • Emperor Guangxu （光绪）promulgated New Policy program, lasted for over 100 days, proposed to reform education, streamline bureaucratic system, modernize army, establish press freedom, eliminates special treatment for Manchuria race. • Strong oppositions from status quo （满族）.
Imperial Constitutions • 1908 Outline of Imperial Constitution (23 articles) imitated Meiji Constitution in highlighting power of Emperor and perpetuity of Qing dynasty; 9 articles on rights and obligations of subjects. • Doctrine of Nineteen Articles（十九信条）: first constitution, outline for constitutional monarchy, limit Emperor to nominal powers, transfer substantive power to Senate, which is to make Constitution; PM elected by Congress and appointed by Emperor; offices and positions determined by laws; code about imperial house may not contradict Constitution. • Delay in reform led to 1911 Revolution （辛亥革命）.
Trial Stage (1912-1926) • Struggles and compromises between Nationalist (Sun Yatsen，孙中山) Party and Yuan Shikai （袁世凯）led to several (provisional) constitutions, adopted western model of separation of powers, attempt to limit presidential power by parliamentary system, but quickly failed. • Warlord period after Yuan failed to return to monarchism and died, many constitutions but none enforced. • Few provinces (e.g. Hunan) enacted state constitutions.
Causes of Constitutional Failures • Institutional building lacked cultural support. • Lacked popular participation, reduced to court struggles, e.g. Dowager suppressed the 100-day Reformation, Yuan Shikai repressed the KMT, Cao Kun election bribery, none invited general public reaction. • Result: Power holders were free to deviate from institutional constraints, without effective sanctions. • Zhang Jian（张謇）: “Constitutionalism requires practice under direction of government with constitutional consciousness, but eventually people must push for it together.”
Nationalist Stage (1928-48) • Sun’s constitutional theory: constitutionalism through government tutelage in 3 stages. 1924 Outline of Establishing National Government（《建国大纲》）: • Military politics (government of military law): use revolutionary force to sweep away all warlords and impediments to constitutionalism. Any province that finishes with first stage should enter next stage. • Tutelage politics (government of tutelage law): practice of self-government by counties. Any county that has learned how to exercise basic rights and hold elections is deemed to have autonomy; any province with all counties acquiring autonomy has finished tutelage stage and enter initial period of constitutionalism, and should have right to elect its governor; if over half of provinces have finished second stage, national government should “return power to people”, hold national assembly. • Constitutional politics: government of constitutional law.
Nationalist Practices • 1927 Northern Expedition under Jiang Kaishek（蒋介石）defeated warlords and united China, KMT entered tutelage stage. • 1925 KMT organizational reform began rule of party（党治）for first time in China, only one legitimate party. No party outside party, no politics outside party, no party outside politics, Party run government. • Basic logic of tutelage: people don’t know how to exercise rights and freedom, need to be taught. • Basic dilemma: Presuppose altruistic quality of ruling party, reflect Confucian tradition of rule of virtue, lack of checks against abuse of power.
Intellectual Debates • China need to create preconditions for democratic constitutionalism, e.g. rural improvements and education of peasants. • Democracy is a capacity to be acquired through practice; best way to learn to exercise rights is to allow people to exercise rights. Hu Shih （胡适）and Independence Review （《独立评论》）; Mencius: marriage and giving birth example; guitar and swimming examples. • Continued contemporary debates on peasants and right to election.
Five Powers Constitution • 1946 Nationalist Constitution: originally participated by Communist and other parties, later withdraw, essentially KMT Constitution: • Sun’s Three-People Doctrine: nationalism (民族）, livelihood （民生）, rights （民权） as basis of state (Art. 1). • Rule of party diluted by “democratic republic that is of people, by people, for people”. • Five-Power structure: five councils under President, executive council responsible to legislative; Combined presidentialism with parliamentary system, guarantee judicial independence. • Unitary system by name, but incorporate federalist features: divide power according to scope of matter. • Promulgated and enforced in Taiwan after defeat in 1949.
Communist Constitutions • 1949 Common Program • 1954 Constitution • 1975 Constitution • 1978 Constitution • 1982 Constitution • Amendments in 1988, 1993, 1999, and 2004.
1949 Common Program • CCP formed new Political Consultative Committee（政治协商会议，PCC，政协）representing different party groups. • PPC Common Program with 60 articles: prototype for later constitutions, class distinctions of “people” and enemies. • Preface: enforcement of “people’s democratic dictatorship”, United Front（统一战线）formed by various classes: workers, peasants, petit and national bourgeoisie, led by working class. • Art. 3: protect economic interest and private property held by classes covered in UF, but not enemies. • Art. 4: protect “people’s right” to election, • Art. 5: protect people’s freedom of expression. • Art. 12: State power belongs to the people, exercise power through national and local congresses.
1954 Constitution • 4 chapters, 106 articles based on Common Program: • Ch. 1: defined socialist transition period, inclusive productive ownership system: state (national), collective (local), individual laborer, capitalist, led by state-operated economy, priority of which is guaranteed by state. • Ch. 2: state structure similar to 1982 Constitution; • Ch. 3: citizen’s basic rights and obligations. • 1957 leftist move: soon lost legal force, e.g. irregular meetings, Disruption of Cultural Revolution（文化大革命）, e.g. NPC supposed to be highest power, but never discussed major state policies like Anti-Rightist Movement and Great Leap Forward（大跃进）; Liu Shaoqi（刘少奇） was removed from state presidency by the CPC Central Committee, while Constitution required removal by NPC only.
1975 Revolutionary Constitution • Only 30 articles: product of the Cultural Revolution, reflected Leftist ideology: • Deleted major provisions in 1954 Constitution, e.g. legal protection of succession to private property, judicial independence, state president, dramatically reduced provisions for rights protection (from 15 to 3); • Confused party and state: mandate direct CCP leadership as supreme Constitutional organ, Chairman of CCPCC was Chief Commander of armed forces, Premier appointed and dismissed by NPC according to recommendation of CCPCC, but Hua Guofeng was appointed in 1976 to succeed Zhou as Premier by CCP Politburo rather than NPC.
1978 Interim Constitution • Fall of Gang of Four (“四人帮”，1976), but retained CR influence, e.g. class struggle, • Preserved revolutionary rhetoric and direct party control: Premier nominated by CCPCC and its Chairman being military leader; • Shifted focus to economic modernization, added provisions for rights protection. • Quickly out of force due to Hua’s demise in third plenum of eleventh CCPCC (1978).
1982 Constitution • Back to pragmatist mainstream reflected in 1954 Constitution, 138 articles. • Preface insists on Four Basic Principles（四项基本原则）: Communist leadership, Marxism etc., people’s democratic dictatorship, and socialism. • Deleted Four Great Freedoms, suppress Democracy Wall. • Constitution is “fundamental law of state, having highest force of law”. • General Guideline (Ch. 1) defines nature of state: all power belong to people, to be exercised through NPCs and LPCs. • Art. 3 provides for “democratic centralism principle”: NPC and LPC to be generated from direct or indirect elections, create and supervise other state organs.
1988 Amendments • Constitutional amendments: most in Preface and General Guideline, directed to economic system. • 1988 Amendment (2 articles) recognized: • legitimacy of private-operated economy as “supplement” to public ownership system; • Right to use land can be legally transferred.
1993 Amendments • Based on new doctrine: socialism with Chinese characteristics announced by 14th Party Congress in 1992 (9 articles). • Reform momentum stalled by 1989 Tiananmen Incident, gradual recovery following Deng Xiaoping’s South Tour, expressed need to deepen economic reform and open-door policy. • Back away from orthodox ideology: preliminary stage of socialism has many capitalist characters, state has task to establish “socialism with Chinese characters”, change Art. 15 from plan economy to “socialist market economy”. • Distinguish state ownership（国有）from state-operated（国营）company (separation between ownership and management), recognize macro economic regulation as a necessity for market economy.
1999 Amendments • Based on 15th Party Congress in 1997 (6): • China will stay in preliminary stage for long time; • Formally recognize “governing state according to law” (依法行政）and establish “socialist rule of law”（法治国家）as a state objective; • Enhance status of the private sector as “important part of socialist economy” as opposed to mere “supplement”; • Explicitly recognize co-existence of different ownership systems; • Delete anti-revolutionary crime, change to more legalistic concept of crime that harms state security.
2004 Amendments • Based on the 16th Party Congress in 2002 (14 articles): • Preface adds three-represents（“三个代表”）theory: CCP should represent advanced productive force, advanced culture and civilization, most fundamental interest of broadest range of people, follow Minben tradition and imitate utilitarian principle. • Collective land and private property can be taken for public interest, but must provide compensation; • Art. 13: state protect lawful private property from infringement; Compare Art. 12 public property “holy inviolable”. • Art. 33: State respect and protect human rights（人权）, first time in Communist Constitution. • Art. 67: change “marshal law” to “emergency state”, help to legally tackle SARS events.
Amendment Process • All constitutional amendments were proposed first by CCP, become part of CCP Charter before submitted to NPC, adopted verbatim without change as constitutional amendments. • 2004 amendment process is relatively most democratic: collect social opinion first, rather than decided within CCP, and minor corrections on wording. 2903 votes, only 10 opposition votes (government), 17 abstentions.
Currency and Stability • Are amendments too frequent? They are necessary as • 1982 Constitution is created at beginning of economic reform and open door policy, based on 1954 Constitution, and economy and society experienced fast developments. • People’s conception changed dramatically since 1982, • But frequent changes undermine stability and authority of Constitution. • Solution: should not define economic system in Constitution because • It may change fast and is hard to define; • Ownership can change through market transaction (Weber); • Legislative initiatives should not be arrested (Holmes).
