Keeping Up With The Times

By Wang Hairong

Thirty years ago on December 4, the current Constitution of the Peoples Republic of China (PRC), the fourth one since the PRC was founded in 1949, was adopted at the Fifth Full Session of the Fifth National Peoples Congress (NPC), the countrys top legislature.

In a meeting marking the 30th anniversary of the Constitutions promulgation, Xi Jinping, General Secretary of the Central Committee of the ruling Communist Party of China (CPC), said, “A country ruled by law should be first ruled by the Constitution, and lawful governance should be based on the Constitution.”

Xi said all citizens are equal before the law, human rights should be respected and safeguarded, and peoples extensive rights and freedoms should be guaranteed.

“We should endeavor to let the people experience fairness and justice in every judicial case, and should never allow unjust judgment infringing peoples rights and interests,” Xi said.

A milestone

The Constitution is the fundamental law of the state.

In the initial years of the PRC, the Common Program of the Chinese Peoples Political Consultative Conference (CPPCC), adopted by the First Plenary Session of the First CPPCC in September 1949, served as a temporary constitution for the country.

In September 1954, right after the peoples congress system was established in China through general elections, the First Plenary Session of the First NPC adopted the PRCs first constitution. It established peoples democracy, basic socialist principles, the Partys general political lines in the countrys transitional period, as well as the state system and the basic rights and obligations of citizens.

The second constitution of the PRC was enacted in 1975, during the “cultural revolution” (1966-76) that threw the country into chaos. It omitted the principle of “all people are equal before the law,” which was enshrined in the 1954 Constitution.

In 1978, the PRC had its third constitution, which, however, soon proved inconsistent with social changes in the country after the implementation of reform and opening-up policy.

The NPC set up a Constitutional Amendment Committee in 1980. In April 1982, a draft of the new Constitution was released for a four-month-long nationwide debate, which eventually involved nearly 80 percent of Chinese citizens and resulted in around 100 changes.

“In the 1982 Constitution, the chapter on the fundamental rights and duties of citizens is put ahead of the chapter on the structure of the state, which marks a significant departure from previous constitutions,” said Han Dayuan, President of the Constitutional Law Institute of the China Law Society and Dean of the Law School of Renmin University of China in Beijing.

Han said that the Constitution adds some new stipulations regarding the fundamental rights and duties of citizens that were not included in the 1975 and 1978 constitutions.

“The change in the sequence of chapters suggests that state power is subordinate to citizens rights, that is, the state cannot infringe upon citizens rights,” said Guo Daohui, a consultant at the Jurisprudence Research Association of the China Law Society.

In addition, the 1982 Constitution terminates the lifelong tenure of top state leaders.“Regular leadership reshuffles ensure overall social stability,” Han said.

Subsequent amendments

In the past three decades, the 1982 Constitution has contributed significantly to the development of the country, Han said.

During the period, Chinese society has also undergone dramatic changes. Correspondingly, the text of the 1982 Constitution has been revised in 1988, 1993, 1999 and 2004 to keep up with the rapidly changing times.

In 1988, the non-public sector was officially acknowledged. The first amendment to the Constitution reads: “The state permits the private sector of the economy to exist and develop within the limits prescribed by law... The state protects the lawful rights and interests of the private sector of the economy, and exercises guidance, supervision and control over the private sector of the economy.” In 1993, as China transformed from a planned economy into a market economy, the Constitution was again amended to declare, “The state has put into practice a socialist market economy.” In addition, the national goal described in the preamble of the Constitution, to “turn China into a socialist country with a high level of culture and democracy” was amended to “turn China into a socialist country that is prosperous, powerful, democratic and culturally advanced.”

In 1999, “rule of law” was added to the Constitution. Article 5was thus amended to read: “The Peoples Republic of China governs the country according to law and makes it a socialist country under rule of law.”

In the most recent amendment in 2004, the concept of “human rights” is included. Article 33 provides: “The state respects and protects human rights.”

“The explicit recognition of the constitutional status of ‘human rights is generally seen as significant progress in the development of Chinese constitutional values and ideas,” said Zhang Qianfan, a law professor at Peking University.

Constitutional review

The Constitution has supreme legal authority. No laws or regulations—administrative or local—may contravene the Constitution.

“To uphold the supreme authority of the Constitution, constitutional review is very important,” Han said at a forum to mark the 30th anniversary of the promulgation of the 1982 Constitution in October.

Hans remarks were echoed by Xu Xianming, President of Shandong University, who said that without constitutional review, a constitution is like a scarecrow.

Li Buyun, a 79-year-old renowned legal scholar who has been researching law since the 1960s, has been personally involved in enacting and amending the Constitution.

At a meeting chaired by NPC Standing Committee Chairman Wu Bangguo in June 2003, Li suggested conducting the first constitutional review since the founding of the PRC.

Li made the suggestion after Sun Zhigang, a young college graduate from Hubei Province, was beaten to death in a detainment facility in Guangzhou on March 20, 2003. Sun was detained as a vagrant for not carrying identification.

Suns death triggered a public outcry. Three young legal scholars urged the NPC to review the constitutionality of the Measures for Internment and Deportation of Urban Vagrants and Beggars promulgated by the State Council in 1982.

The measures authorized local governments to detain migrants without a local residence permit and forcefully send them back to their abode of origin as indicated on their housing registration documents.

“In the enforcement stage, this directive was distorted, so anyone who did not carry an identification card, a temporary residence permit or a work permit might be taken into custody,” Zhang said. “It was arbitrary police power running at large, directed solely by the capriciousness of power holders.”

The measures involved compulsory power to restrict personal freedom that were not authorized by the NPC in the form of law, so they did not have firm legal ground, according to Zhang.

In response to public requests, on June 20, 2003, the State Council released the Measures on Aid and Management for Urban Vagrants and Beggars, which stipulated that urban vagrants and beggars can receive temporary relief on a voluntary basis. As the new measures went into force on August 1, 2003, the old measures in question were rescinded.

In May 2004, a special office was set up under the Legislative Affairs Committee of the NPC to review the constitutionality of laws and regulations made by the State Council and local governments. This was the first time that the NPC conducted a constitutional review.

Once a law or regulation is found to violate the Constitution, the office will request correction from a relevant government agency; otherwise, the office will request the NPC to revoke the law or regulation.

The office found that some local regulations contradicted the Constitution. For instance, a forceful property demolition decree issued by the government of Jiahe County, central Hunan Province, was not constitutional according to Article 10, which concerns land use and acquisition.

“No organization or individual has the special right to overstep the Constitution and law, and any violation of the Constitution and the law must be investigated,” Xi said at the meeting marking the 30th anniversary of the Constitutions promulgation.

Xi said that the authority of the Constitution and the rule of law should be promoted, which will allow the public to“fully believe in the law and consciously use the law,” so that they will understand that the Constitution is not only a code of conduct that must be followed by all citizens, but also a“legal weapon” that guarantees their rights.

“As the legislation is conducted by the people under the CPC leadership, the Partys activities should be within the framework of the Constitution and the law so that the CPC takes the lead in enforcing and observing the law,” Xi said.n