Constitution of the Popular republic of China
The Constitution of the Popular republic of China (中华人民共和国宪法; pinyin: Zhōnghuá Rénmín Gònghéguó Xiànfǎ) is the constitutional law of the Popular republic of China. The current version was adopted by the National People's Assembly on December 4th 1982 with other revisions in 1988, 1993, 1999, and 2004. Three other constitutions of state - those of 1954,1975 and 1978 - were supplanted. The constitution has five sections: the preamble, principles general, rights and fundamental duties of the citizens, the structure of the state and the national flag as well as the emblems of the Chinese state.
Separation of the capacities
It is very widespread in occident to think that the Chinese constitution is subjected to the party. However this is erroneous, because the Chinese constitution establishes clearly that all the Chinese organizations are subjected to the constitution.
However, much consider that this distinction is without effect because the PCC is able to maintain a total control on the Chinese political system by the nomination of the most important persons in charge. And the PCC can control the legislation, or the amendments with the constitution by making proposals with the APN.
There is no trade to make respect the application of the constitution. Although the constitution stipulates that the Popular national assembly and her Standing Committee have the capacity to revise the laws and the activities which violate the constitution, the ANP which meets only once per annum and the Standing Committee which is only one rubber plug, do not have a true role of control.
Document of 1982
The document of 1982 reflects the determination of Deng Xiaoping to establish the durable foundations of the institutions for a domestic stability allowing modernization of the state. The new constitution of the state offers a legal base for deep changes in the social and economic institutions of China and for major revisions of the structures and procedures of the government.
There were four major revisions of the Constitution of 1982 by the National People's Assembly (APN).
Most of the constitution of the RPC is copied according to that of the Soviet Constitution of 1936 but contains significant differences. For example, whereas the Soviet constitution includes/understands an explicit right of secession, the Chinese constitution explicitly prohibited the secession. While the Soviet constitution creates a federal system formally, the Chinese constitution creates a unit multinational state.
The constitution of 1982 is a hybrid document of 138 articles. Many sections result directly from the constitution of 1978, but of many changes take again the constitution of 1954. In particular, the new constitution decreases the emphase on the Class struggle, and places the priority on the development and the incorporation of the interests and contributions of the groups nonin favor which can play a big role in modernization.
Article 1 of the constitution describes China like a `' dictatorship democratic of the people'', which wants to say that the system founded on the alliance of the working classes - workmen and peasants - and is directed by the Communist party, before guard of the working class. Elsewhere, the constitution allows the groups forming basic alliance - CCPPC, democratic parties and organizations of mass - to play a new and vital part. The constitution of 1982 expurge any rhetoric associated with the Cultural revolution built-in the version with 1978. In fact the constitution omits any reference to the Cultural revolution and repeats the contributions of Mao Zedong according to the major re-examination carried out in June 1981 during the Sixth Plenum of the Eleventh Central committee (" Resolution about some historical questions since the base of the republic populaire").
The constitution of 1982 met the accent on the socialist law like regulator of the political power. Thus, the rights and the obligations of the citizen are expressed in details largely exceeding those granted in the constitution of 1978. Probably because of excesses of the Cultural revolution, the constitution of 1982 attempts to clarify the " fundamental rights and duties " citizens more still than did it the constitution of 1954. The right to vote and that to arise to the elections are acquired as of the old one eighteen years except for those which are private right to vote by the law. The constitution guarantees the freedom of religious belief as well as the freedom not to have a religion and stipulates that the organizations and the religious affairs cannot be subjected to a foreign domination.
Article 35 of the constitution of 1982 proclaims that the citizens of the Popular republic of China enjoy the freedoms of expression, of press, meeting, association, procession and demonstration. In the constitution of 1978 these rights were also guaranteed, as well as the Right to strike and the " four large droits" : to speak freely, propagate its ideas, to hold of the great debates and to write posters with big letterss. In February 1980, following the period of the Wall of the democracy, " four large droits" were abolished by a decision of the party ratified by the National People's Assembly. The right to strike was also eliminated from the constitution from 1982. Actually, except for the six democratic parties fantoches, the Chinese do not have the right to organize themselves in party, nor freedom of press or of word.
Among the political rights granted by the constitution, all the Chinese citizens have the right to vote or be elected. But the free elections being confined on the level of the village, it is a very limited right. The citizens elect representatives who vote for them. At the most raised levels, the candidates are selected by the PCC, which does not guarantee the protection of the rights of the voters. In addition, according to a law on the elections promulgated later on, the rural residents have only the quarter of the power of vote of the urban ones. As the Chinese are divided between urban and rural and that the constitution does not stipulate any freedom of migration to them, the rural ones, restricted by the `' hukou'' (户口, family recording), have less rights in policy, economy and education. With this mechanism, the gap between rural and urban from goes away growing.
The constitution of 1982 is also more precise on the responsibilities and functions of the various bodies of the structure of state. There is a warning clear against some practical familiar Chinese, that the reformers qualified abuse, as the concentration of being able by certain leaders who keep positions with life. On the other hand, the constitution is opposed to the Western system of division capacities between the executive, the legislature and the legal one. It stipulates that the APN is more the high ranking authority of the state, under which seat the Council of State supervising the administration; the supreme popular Court and the supreme popular Parquet floor, bodies higher of legal, are elected by and responsible in front of the APN. The candidates for these high positions being preselected by the PCC, the independence of these bodies is impossible.
Another important difference between the constitutions of 1978 and 1982 is the approach with respect to the outside assistance for the modernization programs. Whereas the constitution of 1978 underlines the car sufficiency in the efforts of modernization, the constitution of 1982 allows the constitutional bases for the whole of the laws voted by the APN in the years which follow allowing and encouraging the foreign participation in all the aspects of the economy. Moreover, the constitution of 1982 reflects a more flexible and less doctrinary orientation as regards foreign politics. Expressions such as international proletariat or social imperialism were eliminated.
Amendments of 2004
The constitution was amended on March 14th, 2004 to include guarantees concerning the private property ( the private property obtained legally cannot be violated ) and the Human rights ( the state respects and protects the human rights ). It is a progress for the democracy in China and a compromise for the PCC, because of the rise of the Chinese economy a new middle-class worries about the protection of its goods. The government still keeps the right of nationalization. The article specifies that the government can nationalize a private property when he thinks that it is the good moment and that it is necessary. The government will give adequate compensations, but not necessarily the equitable, sufficient and specific compensations. As China did not ratify the agreement of the United Nations on the human rights, the Chinese citizen has good reasons not to be without fear. In particular, in the recent years of economic expansion, the local authorities requisitioned grounds and houses by using the police force without giving equitable compensation, which results in strong tensions.
- a translation in English of the constitution of 1982
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