Visiting Professor of Chinese Law, China-EU School of Law

Dr. Björn Ahl

Visiting Professor of Chinese Law, China-EU School of Law

Comparative Public Law and International Law

Sem A 2008-09

Lecture Notes on Introduction to Chinese Law

2. Constitution and the political system: historical review, nature and fundamental principles, party and state relationship, socialist rule of law

Reading:

Albert Chen, An Introduction to the Legal System of the People's Republic of China, Hong Kong, 2004, 22-36, 39-52, 81-94; Albert Chen, Toward a Legal Enlightenment: Discussions in Contemporary China on the Rule of Law, UCLA Pacific Basin Law Journal 17 (1999/2000), 125-165; Jianfu Chen, Chinese Law: Context and Transformation, Leiden 2008, 77-111; Daniel Chow, The Legal System of the People’s Republic of China, Nutshell Series, St Paul, 2009, 118-144; David Shambaugh, China’s Communist Party: Atrophy and Adaptation, Washington, 2009; Randall Peerenboom, China’s Long March Toward Rule of Law, Cambridge 2002.

Notes:

History of constitutional law

·  Constitutional development started at the end of the Qing Dynasty

·  Qing Court intended to transform the autocratic empire into a constitutional monarchy in order to maintain its power

·  1905 establishment of Special Commission to investigate foreign systems of government and to travel abroad

·  1908 Principles of Constitution, Outlines of Parliamentary Procedure and Outlines of Election Law, modelled on the Japanese Constitution of 1889

·  1911 Nineteen Articles Constitution

Establishment of the Republic by Sun Yatsen, imperial laws remained effective

·  11 March 1912 promulgation of the Provisional Constitution of the Republic

o  Change of the presidential system to a cabinet system in order to prevent abuse of wide presidential powers

o  Provisional President had to convene the Parliament to adopt a permanent constitution

o  1913 Temple of Heaven Draft modelled on the French Constitution with cabinet members responsible to the Parliament

o  1914 promulgation of Constitutional Compact backed by Yuan Shikaii

§  Presidential system with wide powers of the President

§  1915 restoration of the monarchy with Yuan Shikai as emperor

§  1916 parliament resumed constitution-making under the 1912 Provisional Constitution for some time

o  1923 promulgation of the Constitution of the Republic of China (‘Bribery Constitution’), no effects in practice

·  1927 establishment of Nationalist Government in Nanjing, draft codes of Qing reforms re-examined, ‘Six Codes’ of the Republic, Continental-style judicial system

·  Guomindang lawmaking based on the ‘Three principles of the People’:

o  Nationalism: reconstructing China into a unified state on an equal footing with other nations (liberty of the nation more important than individual liberty)

o  People’s sovereignty: practice of Western ideas of democracy in Chinese context (people need guidance)

o  People’s livelihood: welfare system, redistribution of wealth

·  1931 Provisional Constitution for the Political Tutelage Period

o  Guomindang exercised all governing powers on behalf of the National Assembly

o  Party dominated over the state

·  Permanent Constitution of the Republic of China was adopted on 25 December 1946

o  Temporary Provisions Effective during the Period of Communist Rebellion

§  Formally terminated in 1991 (on Taiwan)

·  Pre-1949 communist constitutional law

o  Principles borrowed from the Soviet Union were practiced such as:

§  People’s democratic dictatorship

§  People’s congress system

§  Public ownership

·  1949 Common Programme adopted by the Chinese People’s Political Consultative Conference (CPPCC)

o  Provisional constitution

o  Republic of the People’s Democratic Dictatorship

o  Powers vested with the People’s Congress

o  United front composed of workers, peasants, bourgeoisie, other ‘patriotic democratic elements’

o  CPPCC as organisation of representatives of Communist Party of China (CPC), democratic parties, groups and people’s organisations, People’s Liberation Army, national minorities, overseas Chinese

o  Protection of private property as ‘democratic elements’ of the property-owning class were included in the united front

o  Different forms of ownership co-existed under the leadership of the state-owned economy

o  Protection of citizen’s rights

·  1954 first formal constitution

o  Modelled on Soviet law

o  Continued moderate policy of social transformation

o  Created office of Chairman of the PRC

·  Moderate policy ended by the 1957 ‘Anti-Rightists Movement’

o  Mass campaigns

o  Popular justice

o  Political turmoil

·  Cultural revolution (1966-1976)

·  1975 Constitution

o  No meaningful purpose apart from political propaganda

o  Skeleton of previous constitutions

o  Embodied Mao’s revolutionary ideas instead of those of the Soviets

o  More honest reflection of Chinese reality than other constitutions

o  Affirmation of direct Party rule over legislature, government and armed forces

·  1978 Constitution

o  Restoration of Soviet type constitutional structure

o  Abolition of more radical provisions

o  Partial return to he 1954 Constitution

o  Radical ideology such as ‘continuing revolution under the dictatorship of the proletariat’ remained

o  Provisions on direct Party control over executive and armed forces were retained

o  Amendments of the 1978 Constitution due to Deng Xiaoping’s ascendancy and policy of restoration of social order and economic development

§  1979 revision re-established People’s Governments to replace Revolutionary Committees

§  1980 amendment abolished the ‘Four Great Rights’ (right to speak out freely, air views fully, hold great debates, write big-character posters)

Constitutional law in present-day China

·  Guidelines for drafting the 1982 Constitution

o  The constitution must address Chinese reality and take into consideration foreign experience

o  The constitution should only contain most fundamental provisions, focus on strengthening national unity, social stability and facilitating the construction of the ‘Four Modernizations’ (modernization in the four sectors of agriculture, industry, science and technology and national defense)

o  The 1954 Constitution should be used as a foundation for the revision

o  The ‘Four Fundamental Principles’ (Leadership of the CPC, insistence on the socialist road, insistence on the people’s democratic dictatorship, insistence on Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and, according to the 2004 amendment, the ‘theory of the three representations’) must be used as a guideline of the revision

§  Theory of three representations: CPC represents China’s advanced productive forces, orientation of China’s advanced culture and the fundamental interests of the overwhelming majority of the Chinese People

·  Constitution reflects Deng Xiaoping’s ideas of modernizing China: social stability, economic development and opening to the outside

o  Certain institutions and provisions from the 1954 Constitution are restored

o  Formal separation of Party and state, leadership role of CPC only recognized in the Preamble, actual exercise of power through extra-constitutional methods

·  1988 amendment legalised the existence of a private economy as a supplement to the economy of socialist public ownership and provided basis for commercial transfer of land use rights

·  1993 amendment replaced the term of ‘planned economy’ by ‘socialist market economy’ and ‘state-operated enterprises’ by ‘state-owned enterprises’, it also described China as being in the ‘preliminary stage of socialism’

·  1999 revision introduced the notion of the ‘socialist rule-of-law state’ and stated that non-publicly owned sectors of the economy ‘constitute important components of the socialist market economy’

·  2004 amendment introduced the ‘theory of three representations’, protection of citizens’ private property rights, encouragement of the non-public sector of the economy, protection of human rights

Nature of the Chinese constitution

·  Attributes of constitutions of liberal democracies

o  Supremacy of the constitution, human rights, liberty, rule of law, formal separation of powers, sovereignty of the people, social contract, representative government

o  State power regarded as potentially dangerous, must be defined, limited and regulated by law

o  Safeguards against the abuse of governmental power

o  Free electoral competition for political power, different political parties

o  Rules on resolving conflicts between different power holders

·  Nature of the current Chinese Constitution

o  Marxist ideology has no respect for the idea of the supremacy of law and the constitution, law is mere superstructure

o  Supremacy of the CPC (only functional division of powers among state organs, all organs subject to the leadership of the CPC)

o  Document on past and future as perceived by the present leadership of the CPC, reflects changes in CPC leadership

o  Constitution of ‘restricted normativity’, ‘semantic’ constitution: most important decisions such as selection of top government officials and making of national policies take place in an informal framework

o  Constitution is meaningful, it provides the terminology and language to describe the operation of the government

o  Constitutional form is derived from Western constitutionalism, substance does not reflect liberal ideas

o  State institutions have gained authority and legitimacy during the reform and opening period

Fundamental constitutional principles

·  Traditional view stresses ‘class element’: constitution expresses the will of the ruling class

o  Capitalist state: mask of capitalist domination

o  Socialist state: true protection of the rights of the masses

·  More recent views see also a ‘social element’: constitution represents will of the whole society, it also has the function of safeguarding human rights

·  Constitution as the ‘mother-law’ from which other laws are derived

·  Formal supremacy of the constitution, socialist rule of law Art 5

·  Rigid constitution, amendment requires two-thirds majority in the National People’s Congress (NPC)

·  Constitutional provisions not directly enforceable, implementing legislation required

·  In general, denial of direct legal effect (decision by the Supreme People’s Court (SPC) in 1955 for criminal cases)

·  Courts have no power to review legislation

·  Four Fundamental Principles (enshrined in the preamble)

·  Concentration of powers

·  Unity of deliberation and execution

o  People’s Congress deliberates and decides, then carries out its decision by an administrative organ that derives its power from the Congress

·  Democratic centralism

o  Individual subordinated to the organisation

o  Minority subordinated to majority

o  Lower-level organ subordinated to higher-level organ

o  Local authority subordinated to central authority

·  Party initiates and controls constitutional amendment

Communist Party

·  CPC founded in 1921

·  Leninist party of professional revolutionary cadres, elite with privileged understanding of the laws of historical development

·  Formal organizational structure specified in the CPC Constitution

·  New orientation under Deng Xiaoping

o  ‘Preliminary stage of socialism’

o  One centre (economic construction) and two basic points (Four Fundamental Principles, reform and opening)

o  Multi-party co-operation and political consultation under the leadership of the CPC

·  Current Chinese political system defined as ‘fragmented authoritarianism’ or ‘consultative authoritarianism’

·  Institutional structure

o  National Party Congress

§  Convened every five years

§  Elects the Central Committee

o  Central Committee

§  Plenary session once a year

§  Elects the Politburo and Politburo Standing Committee (both served by the Central Secretariat)

o  Central Military Commission

o  Central Commission for Discipline Inspection

o  Structure of party organs is similar at the provincial and county levels

o  Party core groups exist in state organs at all levels of the administration, the Standing Committees of People’s Congresses and leading organs of non-party institutions

o  Primary party organisations

·  Nomenclature system

o  Principle of party control of cadres

o  The system also covers personnel in leadership positions outside the Party or the state

o  Nomenclature is a list of posts which my only be filled with the approval of the relevant party committee or core group

o  The system also applies to positions which have to be filled by elections

·  Party and state relationship

o  State and party structure closely connected or fused together

o  President, leading members of the State Council and NPC Standing Committee (NPCSC) are Politburo members

o  Provincial governors are usually vice-secretaries of provincial party committees

o  Policy documents are sometimes jointly issued by party and state organs

Socialist rule of law

·  Art 5 (1) provides: ‘The People’s Republic of China practices ruling the country in accordance with the law and building a socialist country of law.’

·  Constitutional supremacy – Party leadership

·  Rule by law model

o  Instrumentalism in which law is merely a tool to be used by the state to control others without it imposing meaningful restraints on the state itself

o  Distinction between a public and a private sphere is nonexistent

o  Political regime is characterized by single-party rule, no elections, and a totalitarian or authoritarian state

o  Party’s role is not defined in the law and the law is only a tool in the hands of the party-state leadership

o  Law enhances government efficiency and is not meant to protect individual rights

§  Rights exist as programmatic goals only

§  Duties are emphasized, particularly duties to the state

o  Formal legal system is mainly used to suppress enemies

o  Party members are not subject to the courts

o  Party policies supplant and trump laws

o  Courts are not independent, the party determines the outcome of particular cases

·  Socialist rule of law model

o  Combination of a market economy with much state regulation

o  Political system is dominated by single-party rule

o  No elections at all or only at the lowest levels

o  No civil society, or only a very limited one, and rights are granted by the state

o  Unity of thought is preferred to freedom of thought

o  The state has a tendency to exercise strict thought control

o  Party influences the law-making process

o  Judges are subject to adjudicative supervision, courts have to serve party interests

o  Broad laws exist to protect the state and there are harsh administrative penalties such as re-education through labor

·  Liberal-democratic rule of law model

o  Economic regime is characterized by a free market

o  Minimum government interference and regulation

o  Clear distinction between public and private

o  Limited administrative discretion

o  The state is neutral and limited

o  Civil society is independent from the state

o  Emphasis on civil and political rights

o  Freedom is privileged over order and autonomy over social solidarity and harmony

o  Purposes of the rule of law are to limit governmental power, to prevent government arbitrariness, and to ensure predictability and certainty

o  Clear separation between law and politics and an independent and elected legislature

o  Judiciary is independent and the appointment and removal of judges is relatively non-politicized

o  The legal profession is independent and self-governing.

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