Presentation On CHINESE CONSTITUTION

By-

Rani Aishwarya Lahiri

Commonly known as China

It is the largest country in East Asia and the most populous in the world with over 1.3 billion people

Approximately one-fifth of the world's population

It is a socialist republic ruled by the Communist Party of China under a single-party system

The PRC's capital is Beijing.

The People's Republic of China (PRC)

China, unified in 221 BC, became the People’s Republic of China on 1 October 1949.

Its present Constitution was promulgated on 4 December 1982. Chapter Two of the Constitution sets out the fundamental rights and duties of citizens of the People’s Republic of China.

According to Section VII, Article 123 of the Constitution, the peoples’ courts are the judicial organs of the state.

These courts comprise:-

1. Supreme Peoples’ Court- The highest judicial organ is the Supreme Peoples’ Court, which according to Article 127, supervises the administration of justice by the local peoples’ courts at different levels and by the special

peoples’ courts.

2. Local peoples’ courts- The local peoples’ courts hear criminal, economic, civil and administrative cases and operate on a three-tier level of first instance,

intermediary and higher courts.

3. special peoples’ courts- Special courts are established for a specific subject matter, such as military courts.

INTRODUCTION…....

A WRITTEN DOCUMENT

The constitution of people Republic of China is written in nature .

It is a brief document containing 138 articles , which comprises of four chapters.

The political, social and economic objectives of the regime.

It deals not only with the structure of the state machinery but it also embodies a program for future.

According to Article 1 of the Chinese constitution People Republic of China (PRC) is a socialist state .

The socialist system is the basic system of People Republic of China. No individual or organization is allowed to sabotage the socialist system.

FLEXIBLE CONSTITUTION

The Chinese constitution of 1982 is a flexible . Article 64 of the constitution declares “Amendments to the constitution are to be propose by the standing committee of National People Congress(NPC) sand by more than 1/5th of the deputies to the NPC and adopted the majority vote of more than 2/3rd of all the deputies to the congress. Statues and resolutions are adopted by simple majority of deputies of National Peoples Congress.

UNITARY CONTITUTION

The 1982 Constitution like the previous ones ( 1954, 1975, 1978) provides for a unitary system. It provides for the centralization of powers at the centre . Though there are provinces autonomous regimes and municipalities , but they are given powers by the central government , which can be taken always whenever it is so desired.

PEOPLES REPUBLIC

Article -2 of the constitution sys that all powers of the Peoples Republic of China belong to the people , which are exercised through National Congress and Local Peoples Congress . The people administer the state affairs and manage their economic , social and other affairs through various channels in various ways in accordance with laws .

The Article-3 of the constitution lays down that the state organs of the People Republic of China apply the principle of democratic centralism.

The National People at different levels is instituted through democratic election and responsible to the people.

All the states organs are created by the peoples congresses.

The division of powers between the center and the local state organs are guided by the principle of giving full play to initiative and enthusiasm of local authorities under the unified leadership of central authorities.

DEMOCRATIC CENTRALIZATION

The political system of China is a also characterized by one party system i.e. the Communist Party of China (CPC) under the leadership of Mao Zedong and Marxist and Leninist thought is the guiding and controlling force and agency (in China). Though the constitution doesn’t emphatically and clearly declares the supreme position of the communist party, yet in practice the party exercises complete control over the machinery of the government. The party occupies the position of permanently not only in the legislative and executive but also to the judicial branch.

COMMUNIST PARTY OF CHINA

The constitution of Peoples Republic of China declares that there will be a unicameral legislature to be known as National Peoples Congress(NPC). It is the highest organ of the state power and the sole legislative assembly of China. It is repository of all powers and authority in the country and people exercise their powers through it. Its deputies are directly elected by the people.

UNICAMERAL LEGISLATURE

PUBLIC INTEREST

The state forbids any person to use his private property to the detriment of the public interest. Again , it must be noted that in China, it is the government and in ultimate sense, the Communist party that wholly determines what that “Public Interest is”.

NO DISCRIMINATION AND EXPLOITATION

The constitution of China declares that all nationalities are equal which a major characteristic of Chinese constitution is. All types of discrimination or oppression with any nationality and acts , which undermine the unities of the nationalities are prohibited. It also disbands the exploitation of man by the state.

FUNDAMENTAL RIGHTS AND DUTIES

While economic and social controls have been greatly relaxed in China since the 1970s, political freedom is still tightly controlled by both central and local governments.

The Constitution of the People's Republic of China states that the "fundamental rights" of citizens include freedom of speech, freedom of the press, the right to a fair trial, freedom of religion, universal suffrage, and property rights.

However, these provisions do not afford significant protection in practice against criminal prosecution by the State.

Suffrage - hlasovací právo

Provision - ustanovení (např. zákona ap.)

Prosecution - žaloba

In accordance with the Common Program, preparations soon began for convening the first National People's Congress and the drafting of the first permanent Constitution of the People's Republic of China.

On 24 December 1952, a resolution was moved by Premier Zhou Enlai on behalf of the Communist Party of China at the 43rd meeting of the first CPPCC Standing Committee to draft the new, permanent, Constitution.

The resolution was passed, and on 13 January 1953, the Central People's Government appointed a thirty-person drafting committee led by Mao Zedong.

The drafting process was dominated by the Communist Party, and was almost exclusively restricted to the Politburo.

In March 1954, the draft Constitution was passed to the CPPCC and discussed in a national education campaign in the spring and summer of 1954

1954 Constitution

1975 Constitution In 1975, the Anti-Rightist Movement marked the beginning of a series of

political movements and purges during which the Constitution's protections against Party interference in the judiciary largely failed to be respected.

These culminated in the Cultural Revolution (1966-1976), a period in which the normal operation of government virtually ceased.

In 1966, President Liu Shaoqi was political denounced, and from 1967 was placed under house arrest. After suffering two years of persecution, Liu died, unreported, in 1969, and the position of President was left unfilled.

In 1975, Mao Zedong and his supporters sought to formalise their power through the promulgation of a new Constitution. Under the 1975 Constitution, the office of the President (officially translated as "Chairman" during this period) was abolished, leaving Mao, as the Chairman of the Communist Party, as the sole power centre.

Mao died in 1976, and the Gang of Four who had dominated Chinese politics were driven out of power by October 1976.

The 1978 Constitution was promulgated in March 1978 under the chairmanship of Hua Guofeng. It contained 60 sections organized into four Chapters.

The new Constitution in many places maintained the ideological tone of the 1975 Constitution, such as in -

1. Article 16 ("State officials must diligently study Marxism, Leninism, and Mao Zedong Thought, serve the people whole-heartedly ...")

2. Article 19 ("The fundamental role of the Armed Forces is: [...] defending against destabilization and invasion from Socio-Imperialism, Imperialism, and their running dogs").

At the same time, the need for "Socialist democracy" was emphasized (Article 3), and the 1954 system of government was largely restored, including its significant checks on executive power.

1976 Constitution

The 1982 Constitution was born in a political environment where the past, including Mao's "errors" and almost all of the Communist Party's policies from 1949, were relatively objectively re-examined, and the country's future, including the pursuit of market economic reforms, was being openly debated.

As a result, the 1982 Constitution returned the government structure to broadly that set up in 1954, with the Presidency restored.

The Fundamental Rights and Duties of Citizens were greatly expanded, and elevated to Chapter Two, ahead of the provisions for the structure of the government.

The 1982 Constitution was subsequently amended in 1988, 1993, 1999 and 2004, generally modifying the Constitution in accordance with economic and political reforms over that period. The current compilation dates from 14 March 2004.

The 1982 Constitution contemplated that the power of the state would be distributed amongst the General Secretary of the Communist Party of China, the Premier of the State Council, and the Chairman of the Central Military Commission. The President, as nominal head of state, would be a symbolic role with little substantive power.

1982 Constitution

The Supreme People's Procuratorate consists of the following departments:

Criminal Procuratorial Department. Procuratorial Department for Embezzlement and Bribery. Procuratorial Department for Dereliction of Duty and

Infringement of Citizens' Rights. Procuratorial Department for Railways. Procuratorial Department for Prisons and Reformatories. Procuratorial Department for Civil and Administrative Cases. Procuratorial Department for Accusations and Petitions.

Supreme People's Court of the PRC

The Supreme People's Court is the highest judicial organ in China and responsible to the NPC and its Standing Committee.

It independently exercises the highest judicial power according to the law and (supposedly) without any “interruption” by administrative organs, social organizations or individuals.

Its structure comprises a judicial committee, or the highest judicial organization, and following courts: The No.1 Criminal Tribunal and the No.2 Criminal Tribunal, The Civil Tribunal, The Economic Tribunal, The Administrative Tribunal, The Complaint and Appeal Tribunal and The Communication and Transportation Tribunal.

CONTINUE……

First, trying cases that have the greatest influence in China, hearing appeals against the legal decisions of higher courts, and trying the cases the Supreme People's Court claims are within its original jurisdiction.

Second, supervising the work of local courts and special courts at every level, overruling wrong judgments they might have made, and deciding interrogations and reviewing cases tried by the lower courts.

Third, giving judicial explanations of the specific utilization of laws in the

judicial process that must be carried out nationwide.

Responsibilities……

Incorporation and status of international law in domestic law

China has ratified the following relevant international treaties:

A. Geneva Conventions (28 December 1956)

B. CEDAW (4 November 1980, 3 September 1981)

C. CERD (29 December 1981, 28 January 1982)

D. Genocide Convention (18 April 1983)

Additional Protocols I and II to Geneva Conventions (14 September 1983)

Convention against Torture

(4 October 1988; 3 November 1988; Reservations to Art. 20 and 30)

CRC (3 March 1992; 1 April 1992)

ICESCR (27 March 2001; 27 June 2001)

Article 67(14) of the Constitution stipulates that in order for a treaty to become binding under Chinese law, accession to the treaty must be approved by the Standing Committee of the National People’s Congress.

REPARATION FOR TORTURE: CHINA

The people of all of China's nationalities have jointly created a culture of grandeur and have a glorious revolutionary tradition.

After 1840, feudal China was gradually turned into a semi-colonial and semi- feudal country.

The Chinese people waged many successive heroic struggles for national independence and liberation and for democracy and freedom.

Great and earthshaking historical changes have taken place in China in the 20th century.

The Revolution of 1911, led by Dr. Sun Yat-sen, abolished the feudal monarchy and gave birth to the Republic of China.

THE PREAMBLE……

i. Article 1 The Peoples Republic of China is a peoples democratic state led by the

working class and based on the alliance of workers and peasants.

ii. Article 2 The Peoples Republic of Chines is a single multi-national state.All the nationalities are equal. Discrimination against or oppression of,

any nationality, and acts which undermine the unity of the nationalities are prohibited.

iii. Article 3All power in the People’s Republic of China belongs to the people. The organs through which the people exercise power are the National

People’s Congress and the local people’s congresses.The National People’s Congress, the local people’s congresses and other organs of state practice democratic centralism.

+

SOME ARTICLES……

“The rule of law” which constitutes the basis of the English constitution has not been closely followed by the Chinese people generally.

The freedom of person (the Habeas Corpus Act) was long stipulated in Article 8 of the Provisional Constitution of the Political Tutelage Period, promulgated at Nanking on 1 June 1931, it has been often violated by governmental authority

The majority of the people are not sufficiently legal minded. In their daily conduct, there is a distinct disregard of law. If constitutional government is our object, both the government and the people must be law abiding.

The educational standard of the Chinese people is generally low and illiteracy remains a serious problem. Without universal education of the great mass of the people, constitutional government would be devoid of its indispensable substance.

A living constitution should be molded and shaped, through a lengthy process of trial and error, enriched by experiences and experiments, to conform to the actual need of the nation.

No constitution can be made to provide for all time; its growth depends upon the ingenuity and efforts of the Chinese themselves.

CONCLUSION…….