Is the PRC Constitution a Dead Letter? Well…

Being from the United States, a country which has relied on its Supreme Court to interpret the U.S. Constitution since the time of Chief Justice John Marshall, I have often wondered how the PRC Constitution, which includes important articles on the rights of citizens, is interpreted.

When I lived in China, a Chinese lawyer friend told me that the authority to interpret the PRC Constitution is reserved to the National People’s Congress.

The Chinese democracy activist Hu Jia told me in 2005 that one time when he was under arbitrary house arrest, he challenged the plainclothes police officer blocking his door, “Where does the PRC Constitution give you the right to detain me?” since the PRC Constitution as amended to 2004 includes:

Article 37. The freedom of person of citizens of the People’s Republic of China is inviolable. No citizen may be arrested except with the approval or by decision of a people’s procuratorate or by decision of a people’s court, and arrests must be made by a public security organ. Unlawful deprivation or restriction of citizens’ freedom of person by detention or other means is prohibited; and unlawful search of the person of citizens is prohibited.

The police officer shouted back “The preamble!” since at that time the leadership of the Chinese Communist Party was not in the main body of the Constitution.

That changed with the amendments of 2018. Even back in 2005, Article One might have worked as a reply unless Hu was being detained on order of the Party rather than the state. Article One then:

Article 1. The People’s Republic of China is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants. The socialist system is the basic system of the People’s Republic of China. Sabotage of the socialist system by any organization or individual is prohibited.

Perhaps a democracy activist might be considered to be sabotaging the socialist system of the PRC!

In China’s the people’s democratic dictatorship — one of the bedrock structures that goes back to the founding of the PRC, even continuing past the refounding of the PRC under Deng’s reform and opening policy — dictatorship is a noun and democratic is an adjective modifying it. Dictatorship is exercised democratically but only by those who agree with the Party. China’s own form of democracy. Some Chinese officials argue “You don’t need two parties to have a democracy” and “The Chinese people need a period of tutelage before they will be ready to make decisions for themselves.”

Some Chinese legal scholars in the 1990s hoped that the PRC Constitution could be a tool promoting the democratic evolution of the PRC. They were disappointed.

Tracked changes to the PRC Constitution made in 2018 on the NPC Observer website and the discussion of the 2018 changes in the Wikipedia article on the PRC Constitution gives us something of a sense of where things stand today. The Wiki article notes that

The amendment also adds the phrases “Communist Party of China” and its “leadership” into the main body of the Constitution; prior to the amendment, the CCP and its leadership were only mentioned in the preamble. Constitutional preambles are often not legally binding (as with the United States constitution[19]), and as the legal applicability of the Chinese constitution is debated,[20] the amendment may be seen as providing a constitutional basis for China’s status as a one-party state and formally rendering any competitive multi-party system unconstitutional.[16]

Here is how Article one changed in the PRC Constitution as amended in 2018:

Article 1 The People’s Republic of China is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants.   第一条 中华人民共和国是工人阶级领导的、以工农联盟为基础的人民民主专政的社会主义国家。
The socialist system is the basic system of the People’s Republic of China. The leadership of the Communist Party of China is the defining feature of socialism with Chinese characteristics. Disruption of the socialist system by any organization or individual is prohibited. 社会主义制度是中华人民共和国的根本制度。中国共产党领导是中国特色社会主义最本质的特征。禁止任何组织或者个人破坏社会主义制度。

I looked around online and found a discussion on Zhihu on the question of whether the PRC Constitution is applied by Chinese courts as the fundamental law of the country. The short answer is no.

A Chinese man told me in a long conversation on a train ten years ago, democracy is seen around the world as the emblem of an advanced country and so China needs to be democratic. He added, however that the Party will game the system, as many non democratic (or even democratic people’s republics) around the world do, with its own interpretation called “the people’s democratic dictatorship”.  In China, gaming elections involves in practice restrictions on speech and information, intimidation of potential candidates for the local people’s congresses (which through level after level of elections choose the National People’s Congress that means in Beijing every spring).  I saw this is in 2012 in Chengdu and spoke with one of the beaten-up candidates.  See the Radio Free Asia report  “Chinese Elections in Microcosm –Chengdu Elections 2012: The Many Ways Election Fraud Was Committed in the Chengdu Region People’s Congress Elections”  

Is there judicial interpretation of the PRC Constitution?

Two responses:

Summary: While the National People’s Congress and the NPC Standing Committee have the authority to interpret the PRC Constitution, is this just something formal or does it really interpret the PRC Constitution? How can this situation be improved or is it even possible to improve this situation.

From:

书剑

聆听独角兽远声的北极熊

The Book and The Sword: a polar bear who listens to the voice of the unicorn from afar

The interpretation of the law can be put into three different categories: legislative interpretation, judicial interpretation and interpretation by scholars. Here we will be mostly concerned with the first two kinds of interpretation.

Why:

In China’s present day party-led people’s democratic dictatorship, the state organ that has the authority to interpret the constitution – the National People’s Congress and its standing committee – must keep itself tightly aligned with the Central Committee of the Chinese Communist Party. This is a task that is very difficult to do in practice. A far easier and much more flexible arrangement that keeping interpretations in line with Chinese Communist Party overall policy and guidelines is to have those overall policies and guidelines drive government policy. Therefore very little interpretation of the PRC Constitution is done.

Therefore, the PRC Constitution is not justiciable and is highly abstract. Therefore there is great effort to handle constitutional issues the same way as departmental laws are interpreted. Therefore there is very little need to interpret the PRC Constitution. This excludes the possibility of a judicial interpretation of the PRC Constitution.

Scholars, however, have found that the National People’s Congress Standing Committee has made over twenty decisions interpreting the PRC Constitution. However the original text of those decisions for the time being [sic]

Room for Improvement:
Many people believe that the PRC Constitution should be applied to legal cases. That would to a certain extent promote the Constitution and make it less vague and would involve interpretation of the Constitution.

When we look at the history of the application of the PRC Constitution, we don’t find any clear instances of constitutional interpretation. It is to be found only in the explanation of a verdict.

Recently there has been discussion of this issue in connection with the [1990] Qi Yuzhen case. You can refer to the question on Zhihu “Why have no cases applying the PRC Constitution since the Qi Yuzhen case? 为什么中国自齐玉苓案后几乎没有再引用过宪法条例?https://www.zhihu.com/question/29337309/answer/44043659

From: Zhong Erhuo later I finally realized that it is not my flower, I merely passed by its flowerpot

This excerpt is from the fifth edition of Constitutional Law edited by Zeng Xianyi and Wang Liming: “It is generally considered that the “Decision on the authority of the state security organs to investigation, pre-trial detention, interrogation and arrest” passed by the National People’s Congress Standing Committee on September 2, 1983 was an interpretation of the PRC Constitution.

In addition, there are

  • The 1979 “Resolution concerning the permission granted to provinces, autonomous regions and their directly subordinate cities to established people’s congress standing committee in 1979 and to transform the revolutionary committees into people’s governments” passed by the National People’s Congress Standing Committee;
  • The September 10, 1980 “Resolution Concerning the Revision of the PRC Constitution and the establishment of a Committee on revising the PRC Constitution” passed by the Fifth National People’s Congress Standing Committee;
  • The June 10, 1981 “Resolution on Strengthening Work on Interpretation of the Laws” passed by the Fifth National People’s Congress Standing Committee.

There are some but not are not many instances of legal interpretations of the PRC Constitution.

Posted on November 8, 2014.

From Zhihu, translated above. The pen names of the erudite contributors are fun.

中国的宪法解释存在吗

人大及其常委会作为法定的解释机关有没有在形式或实际上解释过宪法。怎么样改善这种局面或者说有没有存在改善的可能。关注者13被浏览5,110关注问题写回答​邀请回答​添加评论​分享​

2 个回答

默认排序

书剑

书剑聆听独角兽远声的北极熊2 人赞同了该回答

法律解释从解释的主体来说可以分为立法解释、司法解释和学理(学者)解释等,想必题主关心的是前两个。

原因:
在中国现时党领导下的人民民主专政政治下,宪法的有权解释机构——全国人大及其常委会受党中央保持高度一致。从实现的难以程度来说,以党的方针政策带动的政府政策比解释宪法容易得多,灵活得多,因此很少对宪法进行解释。
因为我国的宪法目前来说不具有可司法性,高度抽象,宪法问题被努力以部门法问题的解决方式进行解决,因此很少需要对宪法进行解释,也杜绝了产生司法解释的可能。但也有学者总结过全人常确实作出过宪法解释,也有20多条之多,但是原文暂时
同时,因为宪法制定的具体制度较少,基本上很少用于实践,因此也很少需要对宪法进行解释。
改进:
很多人在主张宪法在司法中进行适用,那么会相当程度地推进宪法减低其模糊性,即进行宪法解释。
从我国宪法运行的历程来看,没有作出明确的、单行的宪法解释,一般依附于具体问题的决议之中。最近又在绕回来思考齐玉苓案的问题,可以参阅最近本人回答的问题为什么中国自齐玉苓案后几乎没有再引用过宪法条例? – 知乎用户的回答编辑于 2016-04-02​赞同 2​​18 条评论​分享​收藏​感谢

钟二火

钟二火后来我终于知道 , 它并不是我的花 ,我只是恰好途径了它的盛放。1 人赞同了该回答以下内容来自曾宪义,王利明任总主编的《宪法(第五版)》:一般认为,1983年9月2日全国人大常委会通过的《关于国家安全机关行使公安机关的侦查、拘留、预审和执行逮捕的职权的决定》属于宪法解释。…此外1979年全国人大常委会通过的:《关于省、自治区、直辖市可以在一九七九年设立人民代表大会常务委员会和将革命委员会改为人民政府的决议》,1980年9月10日五届全国人大三次会议通过《关于修改宪法和成立宪法修改委员会的决议》,1981年6月10日五届全国人大常委会第十九次会议通过《关于加强法律解释工作的决议》……关于宪法的法定解释不多,但不是没有。发布于 2014-11-08

About 高大伟 David Cowhig

Now retired, translated Liao Yiwu's 2019 "Bullets and Opium", and studying some things. Worked 25 years as a US State Department Foreign Service Officer including ten years at US Embassy Beijing and US Consulate General Chengdu and four years as a China Analyst in the Bureau of Intelligence and Research. Before State I translated Japanese and Chinese scientific and technical books and articles into English freelance for six years. Before that I taught English at Tunghai University in Taiwan for three years. And before that I worked two summers on Norwegian farms, milking cows and feeding chickens.
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