The Constitution of The Constitution of China: China:

A Historical OverviewA Historical Overview

Qianfan ZhangQianfan ZhangPeking UniversityPeking University

Historical ReviewHistorical Review Constitutional Tradition in WestConstitutional Tradition in West Ancient Chinese Constitutional Ancient Chinese Constitutional

TraditionTradition Establishing New Constitutionalism Establishing New Constitutionalism

Preparatory Period (1895-1911)Preparatory Period (1895-1911) Trial Period (1912-1926)Trial Period (1912-1926) Nationalist Period (1927-1948)Nationalist Period (1927-1948) Contemporary Period (1949-Present)Contemporary Period (1949-Present)

Constitutions in 1954, 1975, and 1978Constitutions in 1954, 1975, and 1978 1982 Constitution and Four Amendments1982 Constitution and Four Amendments

Ancient Chinese Ancient Chinese TraditionTradition

Prevailing view: State ruled by emperor Prevailing view: State ruled by emperor and aided by administrative bureaucracy, and aided by administrative bureaucracy, society ruled by virtue not law. society ruled by virtue not law.

Contrary view: Confucian virtues were Contrary view: Confucian virtues were not decided according to personal whim, not decided according to personal whim, but laid down as rules of propriety but laid down as rules of propriety （礼（礼记）记） . .

LiLi is is ““higher lawhigher law”” between natural law between natural law and human law, ossified and outdated.and human law, ossified and outdated.

Ancient Character of Ancient Character of LiLi

Searching for New Searching for New ConstitutionalismConstitutionalism

Challenge and Response: China struck by Opium WarsChallenge and Response: China struck by Opium Wars（鸦片战争）（鸦片战争） in 1840s and 1860s; western commercial in 1840s and 1860s; western commercial and military invasions. and military invasions.

Small minority of Chinese thinkers and officials Small minority of Chinese thinkers and officials realized crux of problem: lack of modern constitution.realized crux of problem: lack of modern constitution.

Myopic pragmatism: prosperity and military strength Myopic pragmatism: prosperity and military strength first, constitutionalism secondary. first, constitutionalism secondary.

Compare Japan: Meiji Reformation in 1860s, Compare Japan: Meiji Reformation in 1860s, establishment of legal system, Meiji Constitution in establishment of legal system, Meiji Constitution in 1889. 1889.

Japanese wars helped China realized importance of Japanese wars helped China realized importance of constitutionalism: War at Year Jiawu (constitutionalism: War at Year Jiawu ( 甲午战争，甲午战争， 1895) 1895) and Russian Japanese conflict over Korea (1904-05). and Russian Japanese conflict over Korea (1904-05).

1894 Year of Jiawu 1894 Year of Jiawu Sino-Japanese WarSino-Japanese War

Preparatory Stage (1895-Preparatory Stage (1895-1911)1911)

Qing (Qing ( 清）清） dynasty grappled with dynasty grappled with institutional restructuring through limited institutional restructuring through limited reforms. reforms.

Emperor Guangxu Emperor Guangxu （光绪）（光绪） promulgated promulgated New Policy program, lasted for over 100 New Policy program, lasted for over 100 days, proposed to reform education, days, proposed to reform education, streamline bureaucratic system, modernize streamline bureaucratic system, modernize army, establish press freedom, eliminates army, establish press freedom, eliminates special treatment for Manchuria race.special treatment for Manchuria race.

Strong oppositions from status quo Strong oppositions from status quo （满（满族）族） ..

Guangxu and Guangxu and DowagerDowager

Imperial ConstitutionsImperial Constitutions 1908 Outline of Imperial Constitution (23 articles) 1908 Outline of Imperial Constitution (23 articles)

imitated Meiji Constitution in highlighting power imitated Meiji Constitution in highlighting power of Emperor and perpetuity of Qing dynasty; 9 of Emperor and perpetuity of Qing dynasty; 9 articles on rights and obligations of subjects.articles on rights and obligations of subjects.

Doctrine of Nineteen ArticlesDoctrine of Nineteen Articles （十九信条）（十九信条） : first : first constitution, outline for constitutional monarchy, constitution, outline for constitutional monarchy, limit Emperor to nominal powers, transfer limit Emperor to nominal powers, transfer substantive power to Senate, which is to make substantive power to Senate, which is to make Constitution; PM elected by Congress and Constitution; PM elected by Congress and appointed by Emperor; offices and positions appointed by Emperor; offices and positions determined by laws; code about imperial house determined by laws; code about imperial house may not contradict Constitution. may not contradict Constitution.

Delay in reform led to 1911 Revolution Delay in reform led to 1911 Revolution （辛亥革（辛亥革命）命） ..

Sun Yatsen & Yuan Sun Yatsen & Yuan ShikaiShikai

Trial Stage (1912-1926) Trial Stage (1912-1926) Struggles and compromises between Struggles and compromises between

Nationalist (Sun YatsenNationalist (Sun Yatsen ，孙中山，孙中山 ) Party and ) Party and Yuan Shikai Yuan Shikai （袁世凯）（袁世凯） led to several led to several (provisional) constitutions, adopted western (provisional) constitutions, adopted western model of separation of powers, attempt to model of separation of powers, attempt to limit presidential power by parliamentary limit presidential power by parliamentary system, but quickly failed. system, but quickly failed.

Warlord period after Yuan failed to return to Warlord period after Yuan failed to return to monarchism and died, many constitutions but monarchism and died, many constitutions but none enforced. none enforced.

Few provinces (e.g. Hunan) enacted state Few provinces (e.g. Hunan) enacted state constitutions.constitutions.

Causes of Constitutional Causes of Constitutional FailuresFailures

Institutional building lacked cultural support. Institutional building lacked cultural support. Lacked popular participation, reduced to court Lacked popular participation, reduced to court

struggles, e.g. Dowager suppressed the 100-struggles, e.g. Dowager suppressed the 100-day Reformation, Yuan Shikai repressed the day Reformation, Yuan Shikai repressed the KMT, Cao Kun election bribery, none invited KMT, Cao Kun election bribery, none invited general public reaction.general public reaction.

Result: Power holders were free to deviate from Result: Power holders were free to deviate from institutional constraints, without effective institutional constraints, without effective sanctions.sanctions.

Zhang JianZhang Jian （张謇）（张謇） : : ““Constitutionalism requires Constitutionalism requires practice under direction of government with practice under direction of government with constitutional consciousness, but eventually constitutional consciousness, but eventually people must push for it together.people must push for it together.””

Nationalist Stage (1928-Nationalist Stage (1928-48) 48)

SunSun’’s constitutional theory: constitutionalism through s constitutional theory: constitutionalism through government tutelage in 3 stages. 1924 Outline of government tutelage in 3 stages. 1924 Outline of Establishing National GovernmentEstablishing National Government （（《《建国大纲建国大纲》》）） :: Military politics (government of military law): use revolutionary Military politics (government of military law): use revolutionary

force to sweep away all warlords and impediments to force to sweep away all warlords and impediments to constitutionalism. Any province that finishes with first stage constitutionalism. Any province that finishes with first stage should enter next stage. should enter next stage.

Tutelage politics (government of tutelage law): practice of self-Tutelage politics (government of tutelage law): practice of self-government by counties. Any county that has learned how to government by counties. Any county that has learned how to exercise basic rights and hold elections is deemed to have exercise basic rights and hold elections is deemed to have autonomy; any province with all counties acquiring autonomy has autonomy; any province with all counties acquiring autonomy has finished tutelage stage and enter initial period of finished tutelage stage and enter initial period of constitutionalism, and should have right to elect its governor; if constitutionalism, and should have right to elect its governor; if over half of provinces have finished second stage, national over half of provinces have finished second stage, national government should government should ““return power to peoplereturn power to people””, hold national , hold national assembly.assembly.

Constitutional politics: government of constitutional law. Constitutional politics: government of constitutional law.

Nationalist PracticesNationalist Practices 1927 Northern Expedition under Jiang Kaishek1927 Northern Expedition under Jiang Kaishek（蒋介石）（蒋介石） defeated warlords and united China, defeated warlords and united China,

KMT entered tutelage stage.KMT entered tutelage stage. 1925 KMT organizational reform began rule of 1925 KMT organizational reform began rule of

partyparty （党治）（党治） for first time in China, only one for first time in China, only one legitimate party. No party outside party, no legitimate party. No party outside party, no politics outside party, no party outside politics, politics outside party, no party outside politics, Party run government.Party run government.

Basic logic of tutelage: people donBasic logic of tutelage: people don’’t know how t know how to exercise rights and freedom, need to be to exercise rights and freedom, need to be taught. taught.

Basic dilemma: Presuppose altruistic quality of Basic dilemma: Presuppose altruistic quality of ruling party, reflect Confucian tradition of rule ruling party, reflect Confucian tradition of rule of virtue, lack of checks against abuse of power.of virtue, lack of checks against abuse of power.

Chiang Kaishek & Chiang Kaishek & Hu ShiHu Shi

Intellectual DebatesIntellectual Debates China need to create preconditions for China need to create preconditions for

democratic constitutionalism, e.g. rural democratic constitutionalism, e.g. rural improvements and education of peasants.improvements and education of peasants.

Democracy is a capacity to be acquired Democracy is a capacity to be acquired through practice; best way to learn to through practice; best way to learn to exercise rights is to allow people to exercise exercise rights is to allow people to exercise rights. Hu Shih rights. Hu Shih （胡适）（胡适） and Independence and Independence Review Review （（《《独立评论独立评论》》）） ; Mencius: marriage ; Mencius: marriage and giving birth example; guitar and and giving birth example; guitar and swimming examples. swimming examples.

Continued contemporary debates on peasants Continued contemporary debates on peasants and right to election. and right to election.

Five Powers ConstitutionFive Powers Constitution 1946 Nationalist Constitution: originally participated by 1946 Nationalist Constitution: originally participated by

Communist and other parties, later withdraw, essentially Communist and other parties, later withdraw, essentially KMT Constitution: KMT Constitution:

SunSun’’s Three-People Doctrine: nationalism (s Three-People Doctrine: nationalism ( 民族）民族） , , livelihood livelihood （民生）（民生） , rights , rights （民权） （民权） as basis of state (Art. as basis of state (Art. 1).1).

Rule of party diluted by Rule of party diluted by ““democratic republic that is of democratic republic that is of people, by people, for peoplepeople, by people, for people””..

Five-Power structure: five councils under President, Five-Power structure: five councils under President, executive council responsible to legislative; Combined executive council responsible to legislative; Combined presidentialism with parliamentary system, guarantee presidentialism with parliamentary system, guarantee judicial independence.judicial independence.

Unitary system by name, but incorporate federalist Unitary system by name, but incorporate federalist features: divide power according to scope of matter. features: divide power according to scope of matter.

Promulgated and enforced in Taiwan after defeat in Promulgated and enforced in Taiwan after defeat in 1949.1949.

National Assembly National Assembly voted for Nationalist voted for Nationalist

ConstitutionConstitution

Communist ConstitutionsCommunist Constitutions 1949 Common Program1949 Common Program 1954 Constitution1954 Constitution 1975 Constitution1975 Constitution 1978 Constitution1978 Constitution 1982 Constitution1982 Constitution

Amendments in 1988, 1993, 1999, and Amendments in 1988, 1993, 1999, and 2004.2004.

1949 Common Program1949 Common Program CCP formed new Political Consultative CommitteeCCP formed new Political Consultative Committee （政治（政治协商会议，协商会议， PCCPCC ，政协），政协） representing different party representing different party

groups.groups. PPC Common Program with 60 articles: prototype for PPC Common Program with 60 articles: prototype for

later constitutions, class distinctions of later constitutions, class distinctions of ““peoplepeople”” and and enemies.enemies.

Preface: enforcement of Preface: enforcement of ““peoplepeople’’s democratic s democratic dictatorshipdictatorship””, United Front, United Front （统一战线）（统一战线） formed by various formed by various classes: workers, peasants, petit and national classes: workers, peasants, petit and national bourgeoisie, led by working class.bourgeoisie, led by working class.

Art. 3: protect economic interest and private property Art. 3: protect economic interest and private property held by classes covered in UF, but not enemies.held by classes covered in UF, but not enemies.

Art. 4: protect Art. 4: protect ““peoplepeople’’s rights right”” to election, to election, Art. 5: protect peopleArt. 5: protect people’’s freedom of expression. s freedom of expression. Art. 12: State power belongs to the people, exercise Art. 12: State power belongs to the people, exercise

power through national and local congresses. power through national and local congresses.

First New PCC First New PCC AssemblyAssembly

1954 Constitution1954 Constitution 4 chapters, 106 articles based on Common Program:4 chapters, 106 articles based on Common Program: Ch. 1: defined socialist transition period, inclusive Ch. 1: defined socialist transition period, inclusive

productive ownership system: state (national), collective productive ownership system: state (national), collective (local), individual laborer, capitalist, led by state-(local), individual laborer, capitalist, led by state-operated economy, priority of which is guaranteed by operated economy, priority of which is guaranteed by state.state.

Ch. 2: state structure similar to 1982 Constitution; Ch. 2: state structure similar to 1982 Constitution; Ch. 3: citizenCh. 3: citizen’’s basic rights and obligations.s basic rights and obligations. 1957 leftist move: soon lost legal force, e.g. irregular 1957 leftist move: soon lost legal force, e.g. irregular

meetings, Disruption of Cultural Revolutionmeetings, Disruption of Cultural Revolution （文化大革（文化大革命）命） , e.g. NPC supposed to be highest power, but never , e.g. NPC supposed to be highest power, but never discussed major state policies like Anti-Rightist discussed major state policies like Anti-Rightist Movement and Great Leap ForwardMovement and Great Leap Forward （大跃进）（大跃进） ; Liu ; Liu ShaoqiShaoqi （刘少奇） （刘少奇） was removed from state presidency by was removed from state presidency by the CPC Central Committee, while Constitution required the CPC Central Committee, while Constitution required removal by NPC only. removal by NPC only.

First NPC AssemblyFirst NPC Assembly

1975 Revolutionary 1975 Revolutionary ConstitutionConstitution

Only 30 articles: product of the Cultural Only 30 articles: product of the Cultural Revolution, reflected Leftist ideology:Revolution, reflected Leftist ideology: Deleted major provisions in 1954 Constitution, e.g. Deleted major provisions in 1954 Constitution, e.g.

legal protection of succession to private property, legal protection of succession to private property, judicial independence, state president, dramatically judicial independence, state president, dramatically reduced provisions for rights protection (from 15 to reduced provisions for rights protection (from 15 to 3); 3);

Confused party and state: mandate direct CCP Confused party and state: mandate direct CCP leadership as supreme Constitutional organ, leadership as supreme Constitutional organ, Chairman of CCPCC was Chief Commander of Chairman of CCPCC was Chief Commander of armed forces, Premier appointed and dismissed by armed forces, Premier appointed and dismissed by NPC according to recommendation of CCPCC, but NPC according to recommendation of CCPCC, but Hua Guofeng was appointed in 1976 to succeed Hua Guofeng was appointed in 1976 to succeed Zhou as Premier by CCP Politburo rather than NPC. Zhou as Premier by CCP Politburo rather than NPC.

Trial of Gang of Trial of Gang of FourFour

1978 Interim 1978 Interim ConstitutionConstitution

Fall of Gang of Four (Fall of Gang of Four (““ 四人帮四人帮””，， 1976), but 1976), but retained CR influence, e.g. class struggle,retained CR influence, e.g. class struggle,

Preserved revolutionary rhetoric and direct Preserved revolutionary rhetoric and direct party control: Premier nominated by party control: Premier nominated by CCPCC and its Chairman being military CCPCC and its Chairman being military leader; leader;

Shifted focus to economic modernization, Shifted focus to economic modernization, added provisions for rights protection.added provisions for rights protection.

Quickly out of force due to HuaQuickly out of force due to Hua’’s demise in s demise in third plenum of eleventh CCPCC (1978). third plenum of eleventh CCPCC (1978).

1978 Year of 1978 Year of Reform: Xiaogang Reform: Xiaogang

Village, AnhuiVillage, Anhui

1982 Constitution1982 Constitution Back to pragmatist mainstream reflected in 1954 Back to pragmatist mainstream reflected in 1954

Constitution, 138 articles.Constitution, 138 articles. Preface insists on Four Basic PrinciplesPreface insists on Four Basic Principles （四项基本原（四项基本原则）则） : Communist leadership, Marxism etc., people: Communist leadership, Marxism etc., people ’’s s

democratic dictatorship, and socialism.democratic dictatorship, and socialism. Deleted Four Great Freedoms, suppress Democracy Deleted Four Great Freedoms, suppress Democracy

Wall.Wall. Constitution is Constitution is ““fundamental law of state, having fundamental law of state, having

highest force of lawhighest force of law””.. General Guideline (Ch. 1) defines nature of state: all General Guideline (Ch. 1) defines nature of state: all

power belong to people, to be exercised through power belong to people, to be exercised through NPCs and LPCs.NPCs and LPCs.

Art. 3 provides for Art. 3 provides for ““democratic centralism principledemocratic centralism principle””: : NPC and LPC to be generated from direct or indirect NPC and LPC to be generated from direct or indirect elections, create and supervise other state organs. elections, create and supervise other state organs.

Deng Xiaoping & Peng Deng Xiaoping & Peng ZhengZheng

NPC passed new NPC passed new constitutionconstitution

1988 Amendments1988 Amendments Constitutional amendments: most in Constitutional amendments: most in

Preface and General Guideline, Preface and General Guideline, directed to economic system.directed to economic system.

1988 Amendment (2 articles) 1988 Amendment (2 articles) recognized: recognized: legitimacy of private-operated economy as legitimacy of private-operated economy as ““supplementsupplement”” to public ownership system; to public ownership system;

Right to use land can be legally Right to use land can be legally transferred. transferred.

1993 Amendments1993 Amendments Based on new doctrine: socialism with Chinese Based on new doctrine: socialism with Chinese

characteristics announced by 14th Party Congress in characteristics announced by 14th Party Congress in 1992 (9 articles).1992 (9 articles).

Reform momentum stalled by 1989 Tiananmen Incident, Reform momentum stalled by 1989 Tiananmen Incident, gradual recovery following Deng Xiaopinggradual recovery following Deng Xiaoping’’s South Tour, s South Tour, expressed need to deepen economic reform and open-expressed need to deepen economic reform and open-door policy. door policy.

Back away from orthodox ideology: preliminary stage of Back away from orthodox ideology: preliminary stage of socialism has many capitalist characters, state has task socialism has many capitalist characters, state has task to establish to establish ““socialism with Chinese characterssocialism with Chinese characters””, change , change Art. 15 from plan economy to Art. 15 from plan economy to ““socialist market socialist market economyeconomy””..

Distinguish state ownershipDistinguish state ownership （国有）（国有） from state-operatedfrom state-operated（国营）（国营） company (separation between ownership and company (separation between ownership and management), recognize macro economic regulation as management), recognize macro economic regulation as a necessity for market economy. a necessity for market economy.

1999 Amendments1999 Amendments Based on 15th Party Congress in 1997 (6): Based on 15th Party Congress in 1997 (6): China will stay in preliminary stage for long time; China will stay in preliminary stage for long time; Formally recognize Formally recognize ““governing state according to governing state according to

lawlaw”” ( ( 依法行政）依法行政） and establish and establish ““socialist rule of socialist rule of lawlaw”” （法治国家）（法治国家） as a state objective; as a state objective;

Enhance status of the private sector as Enhance status of the private sector as ““important part of socialist economyimportant part of socialist economy”” as opposed as opposed to mere to mere ““supplementsupplement””; ;

Explicitly recognize co-existence of different Explicitly recognize co-existence of different ownership systems; ownership systems;

Delete anti-revolutionary crime, change to more Delete anti-revolutionary crime, change to more legalistic concept of crime that harms state legalistic concept of crime that harms state security. security.

2004 Amendments2004 Amendments Based on the 16th Party Congress in 2002 (14 articles):Based on the 16th Party Congress in 2002 (14 articles): Preface adds three-representsPreface adds three-represents （（““三个代表三个代表””）） theory: theory:

CCP should represent advanced productive force, CCP should represent advanced productive force, advanced culture and civilization, most fundamental advanced culture and civilization, most fundamental interest of broadest range of people, follow interest of broadest range of people, follow MinbenMinben tradition and imitate utilitarian principle.tradition and imitate utilitarian principle.

Collective land and private property can be taken for Collective land and private property can be taken for public interest, but must provide compensation;public interest, but must provide compensation;

Art. 13: state protect lawful private property from Art. 13: state protect lawful private property from infringement; Compare Art. 12 public property infringement; Compare Art. 12 public property ““holy holy inviolableinviolable””..

Art. 33: State respect and protect human rightsArt. 33: State respect and protect human rights （人（人权）权） , first time in Communist Constitution., first time in Communist Constitution. Art. 67: change Art. 67: change ““marshal lawmarshal law”” to to ““emergency stateemergency state””, help , help

to legally tackle SARS events. to legally tackle SARS events.

Amendment ProcessAmendment Process All constitutional amendments were All constitutional amendments were

proposed first by CCP, become part of proposed first by CCP, become part of CCP Charter before submitted to NPC, CCP Charter before submitted to NPC, adopted verbatim without change as adopted verbatim without change as constitutional amendments. constitutional amendments.

2004 amendment process is relatively 2004 amendment process is relatively most democratic: collect social opinion most democratic: collect social opinion first, rather than decided within CCP, and first, rather than decided within CCP, and minor corrections on wording. 2903 minor corrections on wording. 2903 votes, only 10 opposition votes votes, only 10 opposition votes (government), 17 abstentions.(government), 17 abstentions.

Currency and StabilityCurrency and Stability Are amendments too frequent? They are Are amendments too frequent? They are

necessary as necessary as 1982 Constitution is created at beginning of economic 1982 Constitution is created at beginning of economic

reform and open door policy, based on 1954 reform and open door policy, based on 1954 Constitution, and economy and society experienced fast Constitution, and economy and society experienced fast developments.developments.

PeoplePeople’’s conception changed dramatically since 1982,s conception changed dramatically since 1982, But frequent changes undermine stability and But frequent changes undermine stability and

authority of Constitution.authority of Constitution. Solution: should not define economic system in Solution: should not define economic system in

Constitution becauseConstitution because It may change fast and is hard to define;It may change fast and is hard to define; Ownership can change through market transaction Ownership can change through market transaction

(Weber);(Weber); Legislative initiatives should not be arrested (Holmes). Legislative initiatives should not be arrested (Holmes).