Constitutional Law
The first People’s Republic of China (PRC)’s Constitution was written in 1954. There are three entirely different constitutions enacted by the National People’s Congress subsequently: in 1975, 1978, and finally in 1982. The 1982 Constitution has been amended four times since its enactment. This may seem strange to the westerner, but to the Chinese, this is necessary because of the rapid political and social changes during the last 60 years of the PRC.
The Chinese constitutional progress marks a unique transformation of an ancient feudalistic nation to a socialist market economy wishing to be ruled by law. In 1949, the People’s Republic of China officially announced its existence to the world on October 1st. At the time, China was operating under a Constitution of the Nationalist Party (GMD). The Communist party, however, felt the necessity to assert its own identity and its own Marxist and Socialist ideals. Before the 1954 Constitution, China was held in legitimacy by the Chinese People’s Political Consultative Conference (CPCCC).
In 1954, the Chinese Communist Party sought to solidify its power and created a Constitution that was deeply influenced by the Soviet Union. Just emerging from WWII and the civil war, China was not focused on its economic developments but on its ideological developments. The 1954 Constitution specifically focused on the People’s Congress as the fundamental power of the political system in PR and emphasized the importance of socialist principles.
The Chinese constitutions gave power and legitimacy to the National People’s Congress, but the NPC is confusingly supreme to the Chinese Constitution The NPC is responsible for amending or rewriting the constitution as necessary and it retains the power of judicial review and other significant powers. (It must be pointed out here that it is a common understanding of the Chinese PRC culture that everything is “under the leadership of the CCP,” therefore, how much power the NPC may exercise freely is an open question for debate.) Because China is a unitary state, the Constitution does not allow separation of power. This may be a remaining attitude from the feudalistic days where there was no separation of power in an emperor’s court. The NPC therefore is the highest organ of the state but subject to the NPC under the Communist “leadership”.
The Standing Committee is in session year round to supplement the power of the NPC while the NPC is not in session. The State Council is the primary authority for all things administrative, and acts as the executive branch. This branch of the government seems to exercise power almost exclusively from the NPC but under the leadership of the Communist government. (In essence, one can argue that in a unitary system where there is no check and balances, there is a dualist governing structure and the power is separated between the Standing Committee and the State Council.) It must be noted here that in 1989 it was the State Council, which had the power to issue martial law for regions below a province, that issued the order to for the use of military forces against student protestors on Tiananmen.
Under the NPC, there are other functionary state powers such as the President, the Supreme Court, the Central Military Commission, etc. At the grassroots level, there is the local people’s Congress which is the unified power of the various grassroots levels. This is an interesting structure to note along side of the Chinese Communist Party (CCP) because the CCP keeps a very tight reporting structure on its local party sectaries. On a national level, the power of the party is legitimized by the NPC and the State Council and reinforced by the Central Military Commission (whose chair is the same person as the CCP National Party Sectary). But the grassroots level where the CCP supervises the local people’s Congress in its elections and operations, the CCP is able to maintain a very powerful and centralized control.
This is a reverse centralization of power where the grassroots CCP reinforces the NPC by its delegation/deputies. This is one of the reasons why China is able to not only easily amend its Constitution, but also completely rewrite its constitutions. Following the notice on reversed centralization of power, I want to account for some of the changes through China’s Constitution to bring some concrete examples of the immensely powerful political structure China has in place: Following the beginning of the Cultural Revolution, all laws of the Chinese 1954 Constitution were abolished. It was a period of chaos and the concept of constitutionalism did not emerge until the end of the Cultural Revolution in the mid 1970s. In 1975, with a heavy influence of the remnant leftist thoughts, a new constitution was adopted by the NPC.
Another constitution was enacted in 1978
These two changes reflected the immaturity of the Chinese legal and political structure at the time, and the instability from the famine of the late 50s and early 60s leading into the Cultural Revolution. Finally in 1982, with the understanding of social order taking roots in a rule of law, the NPC finally enacted a modern constitution that not only supported a socialist model, but also adapted to the needs of economic reform and the opening up. In every step of the way, the government, or the Communist Party, depended on the responses of its grassroots structure to enforce these amendments. The Red Guard need not be explained in detail, it is enough to note that they are responsible for carrying out political attacks on existing party members that opposed the CCP on fundamental grounds.
It is worth the attention to note that China was capable of overturning generations of established political structure on a whim simply because of the easy of corruption of its reverse centralization of power. Developing an economy in a socialist structure was a novel thing in the early 1980s and China, although had a modern constitution, still had to amend it to fit with the need of market evolution. Therefore, in 1988, the NPC adopted amendments aimed to legitimize the private economy to increase productive use of land by allowing transfer of land use. This was significant because at the time, China was based on an agricultural economy and the lands were collective owned. But because of the failure of planned economy, and increasing need for industrialization, China needed to be able to transfer state owned land to parties with the knowledge and necessary capital to invest and transform unusable land into factories.
This was also motivated by an increased interests in foreign investments
In 1993, the NPC again amended the 1982 constitution by officially changing from a traditional planned economy to a socialist market economy. There were also amendments to change State owned operations to “State run” operations and changing the nature of rural collective responsibility system to a system linked to production. These changes were made because China had experienced significant corruptions and common lack of communal efforts during the failed planned economy. In theory, a Marxist ideal socialist structure is motivated for each according to their ability. But if there were no market initiatives and equal pay for all skill and motivations levels, the economy was doomed to quickly deteriorate. Officials were not concerned with productions at the time and are more concerned with generating imaginary numbers on paper to please the authorities.
This led to a crash of China’s economy, a brain drain, amongst other things. So the 1993 amendment were aimed to address these critical shortfalls. China experience unprecedented growth as well as further corruptions given the 1983 amendments that allowed land use transfers. Changing the internal motivating force of the economy became the reason why the NPC again amendment the constitution in 1999 to address the importance of “rule of law.” This amendment promoted private ownership thus reducing the redundant public bureaucracy. At this time, we also saw the elimination and combining of many ministries under the State Council. This amendment is aimed to truly make meaningful progress in reforming the economy, China’s politics, and its social welfare. The most recent amendments to the Constitution were adopted in 2004 after China became a member of the WTO. This is a significant change because China officially recognized the existence of human rights in its Constitution.
This reflected over 20 years of public legal education and media campaign, progressive outside legal influences on China’s domestic law, and the urge for China to become a leading power in the global economy. Moving forward, we see the benefit of having a centralized power structure through the NPC and the CCP’s grassroots. China is able to quickly transform its economy from a planned economy to a market economy while preserving its socialist structure without violence.
It is able to rapidly adopt policies that deals with corruptions, adopt laws to conform to WTO agreements, etc. This is the strength of the confusing Chinese Constitution. However, the down side is that we are not clear as to the exact power and force behind China’s Constitution. It seems that the CCP controls over 2/3 of the NPC which can amend the constitution by over 2/3 vote; the Constitution really has no force beyond what the CCP desires. Given that there is lack of awareness of people’s constitutionally protected rights, it is difficult to say if the amendment in 2004 on human right really has any meaning.
Chinese government, the CCP, wants to protect its social order and stability for economic developments while the Chinese people are increasingly becoming aware of their inherent right and power to exercise their freedom against the party. As the middle class grows, there will be an eventual clash of interest between the people and the power. At that point, we will see the Chinese Constitution tested and we shall see if China is a true constitutional state.
Learning Chinese
Plugin for translation
Simply put, this is the #1 ultimate online tool for learning Chinese! Just install the plugin, turn it on, go to a site with any Chinese (it handles both Simplified & Traditional), and hover over any of the characters to see the pinyin, tones, and English translation. It’s like surfing the web with x-ray glasses!
Google TranslateWhat can I say? Google is pretty much awesome at whatever they do and Google Translate is no exception. Not only can it handle English -> Chinese & Chinese -> English, but any other language combination as well. I must say however, that I don’t recommend this tool for translating more than simply words or phases, especially if you’re thinking of sending someone a note in your foreign language – they’d could probably decipher your intended meaning, but it will not be spoken like a native speaker. So is there room for improvement? Certainly, but seeing as how they’ve already made cars that can drive themselves it’s only a matter of time before they figure this out too.
Chinese Video WebsitesHere in the West, we have YouTube and Vimeo, but China has its own set of popular video hosting sites such as YouKu and Sohu. Whether you prefer watching movies or TV shows, here not only can you watch them in Chinese, but you can be sure that they’ll all have subtitles (Chinese subtitles that is, not necessarily English!).