China's Changing Constitution
Tóm tắt
An organization must have rules, and so must a state. A constitution is a set of general rules, it is the fundamental law.… Constitution-making is a matter of science.Mao Tse-tung On 5 March 1978 the People's Republic of China promulgated its second constitution in little more than three years and the third since its establishment in 1949. What functions does a constitution serve in the Chinese political-legal system? Is it a sham not worth the paper on which it is printed? Is it an artifice of propaganda designed to impress and mislead foreigners? Does it have legal as well as political significance? The 1954 Constitution was not revised for two decades – why then was its 1975 successor so quickly overtaken by events? What are the differences among these basic documents?
Từ khóa
Tài liệu tham khảo
1978, People's Daily editorial hails judicial work conference, Peking NCNA Domestic, E1
Sharlet, 1977, The new Soviet constitution, Problems of Communism, 1
See Articles 36, 42 (1978 Constitution).
Takayanagi, 1963, Law in Japan, 5
Article 53.
Article 28 (1978 Constitution).
Article 16.
Article 15.
See Article 22.
Article 25.
See Cohen , “The Party and the courts: 1949–1959,” pp. 141–47.
Article 76.
Article 47.
Article 2.
Article 25 (1975 Constitution).
1978, Shantung provincial Party committee's united front department sends a letter to the Overseas Chinese Affairs Office of the State Council, Jen-min jih-pao, 4
Article 36. This power of local congresses to address inquiries to the procuracy, court and revolutionary committee of the same level is an innovation of the 1978 Constitution. The NPC Standing Committee recently adopted a decision authorizing provincial revolutionary committees to select the chief procurator of the province when the provincial people's congress is in recess. “NPC Standing Committee holds second session 23–24 May,” NCNA Domestic (24 May 1978), in FBIS-CHI-78-101 (24 May 1978), E12, E13.
Quoted in “Ten years of the Chinese people's constitution,” p. 28.
Seikichi, 1975, The judicial system under the new Chinese constitution, 124
Article 22. The new provision makes no reference to a power to declare a general amnesty, and there are other minor differences.
Article 17.
Article 18.
Article 17.
See Berman , Soviet Criminal Law and Procedure, p. 14 and sources cited therein, and
Chiang Hua, 1978, To implement the new constitution is the glorious task of the people's courts, Jen-min, 3
1978, Kirin purges gang follower, compensates victims, Peking NCNA Domestic, L1
Article 25.
Article 12.
Article 81.
Article 9.
Liu Shao-ch'i, 1954, Report on the draft constitution of the People's Republic of China, Documents of the First NPC, 9
Munzel, 1974, Eine Verfassung der Proletarischen Diktatur, WGO-Monatshefte für Osteuropäisches Recht, 4, 243
Bevan, 1917, China's constitutions, The Chinese Social and Political Science Review, II, 89, 92
1975, The internal political scene, Problems of Communism, XXIV, 1, 5
For an example of more scholarly Soviet analysis of the 1975 Constitution, see Gudoshnikov , “Two constitutions of the People's Republic of China.” And for an interesting commentary on a similar Soviet work, by an American expert on Soviet law,
Hsüeh, 1975, The new constitution, Problems of Communism, XXIV, 11
1974, Background on China, 321
Article 36.
Article 15 (1975 Constitution).
Quoted in Miscellany of Mao Tse-tung Thought (1949–1968) (Mao Tse-tung ssu-hsiang wan-sui) (1967, 1969), Joint Publications Research Service (JPRS), No. 61269–1 (20 February 1974), p. 138.
See the discussion in the text infra, after note 107.
1954, Law of the People's Republic of China for the Organization of People's Procuracies, promulgated, Documents of the First Session, 201, 206
Houn, 1955, Communist China's new constitution, The Western Political Quarterly, 199, 10.1177/106591295500800204
Tao-tai Hsia, 1967, Guide to Selected Legal Sources of Mainland China, 261
Vogel, 1969, Canton under Communism, 279
Article 43.
Article 47.
Chien-ying, Report on the revision of the constitution, 204
See Article 17.
Article 78.
See supra, note 75.
Cohen, 1968, The Criminal Process in the People's Republic of China
Instructions of the Central Committee of the Chinese Communist Party and the State Council of the PRC relating to checking the blind outflow of people from rural villages (18 December 1957), The Criminal Process in the PRC, 287
Article 37.
Chien-ying Yeh , “Report on the revision of the constitution,” p. 198.
Article 2, p. 314, Lindsay , The New Constitution of Communist China.
Ming-min, 1971, Political offences in Taiwan: laws and problems, The China Quarterly (CQ), 471
Tung, The Political Institutions of Modern China, 322
See Article 7 of the Arrest and Detention Act of the People's Republic of China, promulgated 20 December 1954. For an English translation of the Act, see Cohen , The Criminal Process in The People's Republic of China, pp. 360–62, 386, 584–85.
For an English translation of the 1946 Constitution, see Ch'ien , The Government and Politics of China, p. 447.
Cohen, The Criminal Process in the People's Republic of China, 15
Article 25 (4) (1978 Constitution).
1917, Law reform in China, The Chinese Social and Political Science Review, II, 13
Ch'ien, The Government and Politics of China, 308
Chien-ying, Report on the revision of the constitution, 212
See Hsia and Haun , The 1975 Revised Constitution, p. 82, for a similar conclusion.
Tche-hao, 1975, Les traits particuliers de la nouvelle constitution chinoise, Revue internationale de droit comparé, 349
Tsao, 1947, The Constitutional Structure of Modern China
Tao-tai, 1978, The Re-emergence of the Procuratorial System in the People's Republic of China, 9
1978, Socialist legal system, China News Analysis, 7
1978, District in Shensi improves public security work-style, Sian Shensi Provincial Service, M1
Chien-ying Yeh , “Report on the revision of the constitution,” pp. 200–201. China's English translation of this passage of Yeh's text omits reference to “reactionary capitalists.” The Chinese text simply refers to fan, which could symbolize either reactionary capitalists or counter-revolutionaries, and the translator chose the latter.
Article 28. Article 27 also authorizes the NPC or its Standing Committee to establish special committees “as deemed necessary,” and this provision could become the basis for investigating committees.
1978, Party justice, China News Analysis, 4
1964, Ten years of the Chinese people's constitution, Bulletin of the International Commission of Jurists, 1, 22
Article 2.
Kuang, 1957, Overcome subjectivist ideology, raise the quality of investigation of cases, Kuang-ming Daily
Article 95.
Chien-ying, 1978, Report on the revision of the constitution, Documents of the First Session of the Fifth NPC, 173
1978, Shenyang, Fushun committees reverse wrong decisions, Shenyang Liaoning Provincial Service, L4
Rowe, 1975, PRC's constitutions and the philosophy of constitutionalism, 2
Mao , “On the draft constitution,” p. 145.
Article 25 (3). One should also note that the power to annul illegal decisions of local government that Article 60 of the 1954 Constitution conferred upon local people's congresses has not been revived by Article 36 of the 1978 Constitution.
1978, Liberation Army Daily on observance of law, discipline,, Peking Domestic Service, E6
Wang, 1908, Law reform in China, 14
Recall text discussion beginning at note 113.
Supra, note 47.
Article 27.
Article 28.
1978, Reportage on national judicial conference held in Peking, Peking NCNA Domestic, E1
Article 35. Article 34 also established various permanent committees.
Gudoshnikov, 1975, Two constitutions of the People's Republic of China, 72
Chang Hui, 1958, These are not the basic principles of our country's criminal litigation, Political-Legal Research, 77
1970, Revised draft of the constitution of the PRC
Article 45 (1978 Constitution).
Cohen, The Criminal Process in the People's Republic of China, 11
1978, Nanking court re-examines appeals, Peking NCNA Domestic, E12
Zurcher, 1951, Constitutions and Constitutional Trends since World War II, 191
Berman, 1972, Soviet Criminal Law and Procedure, 10
1975, An English translation of the 1975 version can be found in The Constitution of the People's Republic of China
Blaustein, 1962, Fundamental Legal Documents of Communist China, 104
1962, Communist China 1955–1959, Policy Documents with Analysis, 273
An English translation can be found in Blaustein, Fundamental Legal Documents of Communist China, 266
Hazard, 1975, A Soviet model for Marxian socialist constitutions, Cornell Law Quarterly, 60, 985
Ch'un-ch'iao, 1975, Documents of the First Session of the Fourth National People's Congress of the People's Republic of China, 36
Chien-ying Yeh , “Report on the revision of the constitution,” p. 197.
Mao Tse-tung, 1954, On the draft constitution of the People's Republic of China, V, 141, 145
Compare Article 4 of the 1978 Constitution and Article 3 of the 1954 Constitution with Article 3 of the 1975 document, which lacks the two quoted passages.
An English translation of the 1954 document can be found in Documents of the First National People's Congress of the People's Republic of China (Peking: Foreign Languages Press, 1955), pp. 131–63. All quotations from these constitutions are from those translations unless otherwise indicated, but the term “procuracy” has been substituted for the more awkward and less familiar “procuratorate.”
Tung, The Political Institutions of Modern China, 344
Bevan , “China's constitutions,” p. 90.
Mao , “On the draft constitution,” p. 142.
1978, Documents of the First Session of the Fifth National People's Congress of the People's Republic of China, 125
Article 11.
Fu-shun, 1966, Chinese Law, Past and Present, 49
Michael, 1976, The New Constitution of Communist China: Comparative Analyses, 312
Chien-ying Yeh , “Report on the revision of the constitution,” p. 197. The restoration of the procuracy is but one of a number of measures taken by the regime to increase the likelihood of discovering violations of law and discipline. Others include: revival of the Party disciplinary commissions; renewed emphasis on letters to newspapers and visits to government offices as important means of airing grievances; and re-establishment of the Chinese People's Political Consultative Conference as a forum for discussion and protests by intellectuals.
Ch'ien, The Government and Politics of China, 436
Chien-ying Yeh , “Report on the revision of the constitution,” p. 211.
1978, Cases of infringing on rights noted in Heilungkiang, Harbin Heilungkiang Provincial Service, L1
1978, Shanghai resumes open-court hearings after 10 years, Peking NCNA, G5
1978, American reflects on his rise and fall in China, Los Angeles Times, 1
See Article 45 (1978 Constitution).
Fukushima, 1960, Chinese legal affairs (second discussion), 47
Tung, 1956, Adjudication work of the people's courts in the preceding year, Hsin-hua pan-yüeh k'an, 10
MacFarquhar, 1960, The Hundred Flowers Campaign and the Chinese Intellectuals, 48
Cohen, The Criminal Process in the PRC, 13
1978, Socialist legal system, China News Analysis, 4
1978, Liaoning Daily on need to reverse incorrect verdicts, Shenyang Liaoning Provincial Service, L4
Article 3 (1978 Constitution).
Article 3. In his commentary on the 1975 Constitution, Gudoshnikov pointed out that the phrase “democratic consultation” was used to describe the process of selecting delegates not only to the government congresses but also to the ninth and 10th Party congresses. Under this arrangement, he stated, “the will of the electorate was not brought out, the deputies or delegates being appointed by the corresponding local agencies (‘revolutionary committees’ or Party committees) following consultations with the centre.” See Gudoshnikov, “Two constitutions of the People's Republic of China,” p. 73. See also Article 9 of the 1977 Party Constitution, infra, note 172, p. 20.
Article 54 of the new constitution specifically guarantees the just rights and interests not only of “overseas Chinese,” as in previous constitutions, but also of “their relatives,” that is, those actually residing in China. The Soviet Union has long struggled to define the boundary between earned and unearned income, and Article 13 of the 1977 Soviet Constitution maintains the distinction.
Ch'un-ch'iao Chang , “Report on the revision of the constitution,” p. 38.
Article 16 (1975 Constitution).
Article 19.
Article 14 (1975 Constitution).
Article 18 (1978 Constitution).
Article 100 of the 1954 Constitution had required citizens not only to uphold labour discipline but also to abide by the constitution and the law, keep public order and respect social ethics.
Cohen, 1978, Will China have a formal legal system?, American Bar Association Journal, 64
Preamble (1978 Constitution).
See Hazard , “A soviet model for Marxian socialist constitutions,” p. 991, and
Berman , supra, note 49, p. 90.
Chien-ying Yeh , “Report on the revision of the constitution,” pp. 200–201.
Compare Article 18 of the 1978 Constitution with Article 14 of the 1975 version and Article 19 of the 1954 version (the English translations of the same Chinese phrase in the two latter documents vary slightly – the quotation is from 1954).
Chien-ying Yeh , “Report on the revision of the constitution,” p. 201.
Compare Article 90 of the 1954 Constitution with Article 28 of the 1975 version and Article 45 of 1978.
Compare Article 88 of the 1954 version with Article 28 of 1975 and Article 46 of 1978. The latter version is similar to Article 52 of the 1977 U.S.S.R. Constitution and its 1936 predecessor.
Article 87 (1954 Constitution); Article 28 (1975 Constitution); Article 45 (1978 Constitution).
Ch'un-ch'iao Chang , “Report on the revision of the constitution,” pp. 39–40.
1969, Long Live Mao Tse-tung's Thought, 93
Article 57 (1978 Constitution). Article 101 of the 1954 Constitution had established the duty of every citizen to protect public property.
Chien-ying Yeh , “Report on the revision of the constitution,” p. 191.
Chang, 1958, Smash permanent rules, go 1,000 li in one day, Political-Legal Research, 60
Chien-ying Yeh , “Report on the revision of the constitution,” p. 216.
Chiang Hua , “To implement the new constitution,”
Article 27.
Communist China 1955–1959, p. 279.
Article 52.
Chien-ying Yeh , “Report on the revision of the constitution,” pp. 211–12.
Loewenstein, Reflections on the value of constitutions in our revolutionary age
1977, Constitution of the Communist Party of China, Peking Review, 16
1978, Peking wall posters appeal cases to authorities, Paris AFP, F19
Cohen, 1978, The China Difference, D2
Hsia, 1975, The 1975 Revised Constitution of the People's Republic of China, 2
1978, Kyodo: former jurist, first secretaries reinstated, Tokyo Kyodo, D3
Ch'eng-wen, 1958, Absorb experience and teaching, impel a great leap forward in procuratorial work, Cheng-fa yen-chiu, 34
Article 28 of the 1975 Constitution established the right to strike.
Article 3.
Article 5.
Nathan, 1976, Peking Politics 1918–23, Factionalism and the Failure of Constitutionalism
1978, Party to drop charges against 100,000 right-wingers, Tokyo Kyodo, E18
Supra, note 122.
For an interesting discussion of this document by Dean Roscoe Pound, who served as adviser to the Chinese Ministry of Justice, see “The Chinese constitution,” New York University Law Quarterly Review, Vol. 23, No. 3 (1948), pp. 194–232.
Article 12.
Article 75.
For translation of the relevant passage of Mao's speech, see Communist China 1955–1959, p. 290.