Abstract
The 1982 Constitution has been continuously enforced for three decades in mainland China. For China, it is indeed a miracle, even a miracle of miracles because it has created a historical record timewise. In China’s modernization process, the ruler or the people, or the ruler and the people together rolled out many constitutions or constitutional legal documents at each historical stage, but was there any one valid for more than three decades?
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Notes
- 1.
As stated in “the Imperial Edict of the Abdication of the Qing Emperor” that was issued on the 25th day of the 12th month of the third lunar year of the reign of Emperor Xuantong (February 12, 1912), almost the whole nation preferred the Republic, which was advocated firstly by southern provinces and then by northern generals, and this demonstrated that the Republic accorded the will of the people and the destiny of the nation, so there would be no necessity to go against the will of the people by staying committed to the rank and honor of the imperial family but giving the ruling power to the whole nation and turning the nature of state from monarchy to constitutional government after reviewing the situation and the public interests. At this point, the constitutionalism movement started since the thirtieth year of the reign of Emperor Guangxu ended in failure. Refer to Zou [1]. Jing [2].
- 2.
Bian [3], p. 129.
- 3.
Bian [3], p. 136.
- 4.
The Central Committee of the CPC issued a statement on December 21, saying that the Chinese people would never admit the “bogus constitution” formulated by the government of Chiang Kai-shek and condemning that this constitution adopted by the “illegal national assembly” was no better than Yuan Shih-kai’s Tiantan Constitution and Cao Kun’s constitution. According to the statement, without abolishing the dictatorship of Chiang Kai-shek reactionary group, it is impossible for the people to realize democracy no matter how it is stated literally in the constitution. In early 1949, given Chiang Kai-shek’s statement of taking the maintenance of the bogus constitution and illegally constituted authority as the condition for peace talks, Mao Zedong on behalf of the CPC published an article titled On the War Criminals’ Sue for Peace. In the article, Mao Zedong politically criticized Chiang Kai-shek’s legal right requirement article by article. Mao Zedong pointed out the intention of Chiang Kai-shek to ensure the ruling status of the Chinese reactionary class and reactionary government and the non-interruption of the constituted authority of this class and this government. In case of the interruption of this constituted authority, the KMT bandit gang would perish and all major and insignificant war criminals would be arrested and punished. On January 14, as a tit-for-tat response to Chiang Kai-shek’s proposal, Mao Zedong took the “abolition of the bogus constitution” and “abolition of the bogus constituted authority” as the two conditions for peace talks with the KMT in an article titled the Statement of Chairman Mao Zedong of the Central Committee of the Communist Party of China on the Current Political Situation. The essence of the statement was the requirement for the thorough overthrow of the constituted authority nationwide and complete annulment of all laws enacted by the KMT government. On February 22, 1949, the Central Committee of the CPC issued the Instructions on Abolishing the Six Codes of the KMT and Determining Judicial Principles for the Liberated Areas according to above guiding principles put forward by Mao Zedong. The instructions clearly stated that the Six Codes of the KMT should be abolished under the people’s democratic dictatorship led by the proletariat and based on the alliance of workers and peasants. The Instructions profoundly stated the fundamental differences between the old and new legal systems and pointed out the reactionary essence of the Six Codes of the KMT and the necessity of destroying the old constituted authority. The Common Program of the Chinese People’s Political Consultative Conference adopted in 1949 proposed to annul all KMT reactionary government’s laws, decrees and judicial systems oppressing the people, enact laws and decrees protecting the people and establish a judicial system of the people. This was the formal declaration of the demise of the old constituted authority of the KMT in legal form. Refer to Mao Zedong’s Historical Contribution to the Legal System Building of the People’s Republic of China, published in Studies on the Socialism with Chinese Characteristics, Issue 5 of 2006.
- 5.
As early as November 16, 1946, Zhou Enlai published in behalf of the CPC the Solemn Statement on the Convocation of the National Assembly of the Kuomintang. He pointed out in the article that this “General Assembly” was solely convened by the single-party government, which violated the resolution of the CPPCC and the will of the whole nation, and was resolutely opposed by the CPC. He also noted in the article that the National Assembly should be convened only after the complete halt of the internal war, the implementation of the resolution of the CPPCC, the guarantee of people’s liberties and rights and the reshuffle of the government, and, in this case, it could be called the National Assembly featuring the unity and participation of all political parties. As Zhou Enlai put it in the article, the National Assembly that was being convened not just violated the above-mentioned resolution and its spirit, even the meeting date or adjournment was decided by the single-party government. He pointed out that the number of deputies already released in the morning of November 15 reached 1580, which, if based on the original agreement, already appropriated 410 places of other parties, even appropriated as many as 140 of the 200 places of liberated areas. Zhou Enlai concluded in the article that this General Assembly was a completely dissociated and one-party arranged assembly.
- 6.
After the retreat to Taiwan, the Nanjing National Government had been holding onto the tradition of the Republic of China, which was brought from the mainland. The Nanjing National Government had frozen the implementation of the constitution text by implementing “the system of mobilization for the suppression of rebellion.” Taiwan was not back to normal constitutionalism until the end of the authoritative rule. Therefore, this constitution went through so many difficulties in Taiwan. In the constitutional government reform movement of Taiwan staged in late last century and early this century, some political forces saw the 1946 Constitution stipulating the “one China principle” as a thorn in the eye and flesh and intended to abolish it. Former leader of Taiwan Lee Teng-hui delivered a speech at a “symposium on a new constitution for Taiwan” held in November 2004. In his speech, Lee Teng-hui said that this constitution of the Republic of China, no matter how to amend it, was no longer capable of adapting to and meeting the needs of Taiwan under the current situation. In addition, it had caused obstacles and barriers to the survival and development of Taiwan in the future. The issues could by no means be resolved by constitution amendment. He noted that, after six amendments which returned powers to the people, there was a need to further implement the basic human rights supporting “popular sovereignty,” but this constitution of the Republic of China became the biggest obstacle. Even looking from the idea of constitutionalism and the development of democratic human rights, this constitution of the Republic of China did not conform to modern standards. Viewing from the internationally recognized documents, such as the Universal Declaration of Human Rights, Charter of the United Nations, International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, etc., this constitution could no longer keep up with the trend of the times. To formulate a new constitution, the most important reason was that the constitution being applied was not formulated for the 23 million Taiwanese. No Taiwanese participated in its formulation. Just imposing this constitution without the involvement of Taiwanese in formulation upon the Taiwanese went against the spirit of democracy and the universal value of popular sovereignty and was certainly not approved by the Taiwanese. Such a constitution incompatible with the present needs without the foundation of public opinions and inconsistent with the general idea of constitutionalism had become a shackle and a barrier for the already democratic Taiwan and seriously hindered the survival of Taiwan and restricted the development of Taiwan. Therefore, the Taiwanese had to abandon and reject it. Lee Teng-hui also added that if this improper constitution was actually imposed upon Taiwan and even prohibited Taiwan from having a new constitution of itself, it would nip the right of the Taiwanese to live. On May 20, 2004, Chen Shui-bian further pointed out in his “presidential” inauguration speech that constitution was confined to the time-and-space background of formulation, so most articles of the constitution no longer conformed to the current and future needs of Taiwan. He said that advancing the project of reforming constitutionalism and rebuilding the constitutional government order were not only the will of the people but also the consensus of the ruling and opposition parties. The project of reforming constitutionalism was for the government’s good governance and efficiency improvement, for establishing the foundation of democratic rule of law and for long-term peace and order of the “state.” He also said in the speech that, in order to avoid the repeat of the six amendments within ten years, the project of reforming constitutionalism should be neither dominated by one person or one party nor oriented for temporary convenience. He noted that, going forward, the ruling and opposition parties, the legal community, academic community and representatives of all areas would be invited to jointly prepare for the organization of a constitutionalism reformation committee to maximize the consensus of the society on the scope and procedures of constitutionalism reformation and to accept the supervision of the people and the public opinions. He even proposed to formulate an appropriate, suitable and compatible constitution for the Taiwanese and Taiwan before he left the office in 2008. He also proposed to accomplish the reformation of constitutionalism, abolish the National Assembly and include referendum in the Constitution at the same time so as to lay a foundation for a long-term development of democratic constitutionalism and the people’s referendum for constitutional reform. Refer to Lee Teng-hui’s “Opening Speech at the Symposium on a New Constitution for Taiwan” on November 27, 2004, and Chen Shui-bian’s “Presidential” Inauguration Speech on May 20, 2004.
- 7.
A thorough examination of the 1946 Constitution indicates that this constitution formulated after the World War II has the background of the KMT-CPC cooperation and was purposely retained after being brought to Taiwan by Chiang Kai-shek. Its establishment of the five-power constitutional government system and the authority of the National Assembly became the basic legal basis for Taiwan to maintain the tradition of the Republic of China. In the next 60-plus years, especially after the abolition of the Temporary Provisions, this constitution was amended for seven times. The constitutional government system established by this constitution changed substantially. Under the circumstance of maintaining the “one China principle,” its directly applicable scope of validity was confined to Taiwan. Particularly in the recent 20-plus years, benign interactions and dynamic constitutional government order have taken shape between social changes and constitutional implementation through the interpretations of constitution by justices. The existence of the 1946 Constitution has become the basis for maintaining the basic legal ties between Taiwan and the mainland. The pro-independence groups strongly advocate the annulment of this constitution and the formulation of a new one in an effort to thoroughly cut off the inherent political and legal blood ties and bonds between the two sides of the Taiwan Straits. Against this backdrop, the mainland should reevaluate the status of the 1946 Constitution and recognize its basic values in the process of reunifying the two sides of the Taiwan Straits down the road. Refer to Li [4].
- 8.
Just in July 2012, two new interpretation documents were released by the general justice, namely Interpretation No. 701 and Interpretation No. 702. The former was “discrimination on itemized deductions of medical expenses for long-term care” (July 6, 2012). The arguments over this interpretation were whether it is unconstitutional concerning the stipulation that a deduction for expenses for an individual who is physically handicapped or is mentally defective was only applicable to medical institutions and offices designated by the tax income law. The latter was “lifetime disqualification from teaching due to conduct that is inconsistent with teachers’ morals and dignity” (July 27, 2012). The arguments over this interpretation were whether it is unconstitutional in terms of the stipulation of lifetime disqualification from teaching due to conduct that is inconsistent with teachers’ morals and dignity, and dismissal, appointment termination or no reappointment for those already being employed.
- 9.
Jiao [5].
- 10.
After returning to Chongqing from Yan’an, Huang Yanpei wrote a book titled Return from Yan’an. After being printed and published by the Guoxun Bookstore of the China Vocational Education Association, the book was widely circulated. The book recorded a paragraph of his conversation with Mao Zedong on “cycle.” For related information, refer to Wen Liming: The Third Force and Chinese Politics in the Period of the War of Resistance, Shanghai Bookstore Publishing House, 2004. Zhu [6]. Wikipedia, entry about Huang Yanpei: http://zh.wikipedia.org/wiki/%E9%BB%84%E7%82%8E%E5%9F%B9, lastly visited on April 7, 2014.
- 11.
Mao Zedong once said, “In the past, we waged struggles in rural areas, in factories, in the cultural field, and we carried out the socialist education movement. But all this failed to solve the problem because we did not find a form, a method, to arouse the broad masses to expose our dark aspects openly, in an all-round way and from below.” He looked to find a new path and break out of the cycle, but what’s the new path? “The Great Proletarian Cultural Revolution” can be called an attempt of his. Regarding this practice, someone observed that Mao Zedong’s concept of history showcased some tendency of Populism (or people-centered doctrine). He unconditionally believed in “the masses” and believed that abstract group of “people” was the driving force of history. Refer to He Xin: On the Cultural Revolution and Mao Zedong’s Thought in His Late Years. Some others thought that Mao Zedong advocated great democracy. That is to expose the dark aspects of the Communist Party and Government established under his leadership openly, in an all-round way and from below and evaluate the contributions and faults of leaders of all levels by all means including speaking out freely, airing views fully, writing big-character posters, holding great debates, choosing large-scale exposure and criticism, etc. Before the “Cultural Revolution,” there had never been any democracy like this all over the world. Under this democracy, officials dare not act as tyrants and trample on the people. Therefore, officials have to serve the people wholeheartedly and become servants of the people. Otherwise, they are disqualified for being officials and would be asked for stepping down. This is the real and progressive democracy, an unprecedented democracy and a democracy opening a new era for the humanity. Refer to “Cultural Revolution” was the New Path for Mao Zedong to Break out of the Cycle, http://www.xici.net/d138636387.htm, lastly visited on April 7, 2014.
- 12.
After seizing the political power, was a revolution still needed? Mao Zedong gave a positive answer. Just as Huang Yanpei put it, Mao Zedong started to mobilize the people, but his democracy was to contend for cultural leadership through mass movement, Cultural Revolution, rather than voting. Just as Xiao Wu said, a basic fact was that, during the mass movement period between 1966 and 1968, the ordinary working people took part in the “revolution” only because they were tired of the previous rigid hierarchy system no matter what kind of high-level political power struggles existed. When the promise of giving the people a state of equalitarianism was unfulfilled and only when hierarchical privilege became increasingly threatening to the daily life of ordinary people, how would not they place their hopes on the Cultural Revolution and try to overthrow the establishment? Refer to Xiao Wu’s the Revolution is Dead. Long live the Revolution!
Fei Zhengqing said that all revolutions always had a common destiny: The outbreaks were sudden just like that of a volcano, neither predictable nor controllable. Well, if we look back at them when the circumstances are different, they will be overwhelmed by landscape pictures and the cause and effect could no longer be distinguished, just like the two foots of a hill. Refer to Fei Zhengqing: The Great Chinese Revolution.
- 13.
Xu [7].
- 14.
Chen [8].
- 15.
Chief Editor Li [9].
- 16.
Ma [10].
- 17.
Shen [11].
- 18.
The Chinese mainland has grown rapidly in the recent three decades. Entering the twenty-first century, China’s rank in global economy keeps rising. In 2000, the GDP of the Chinese mainland surpassed that of Italy. Between 2005 and 2007, China surpassed France, Britain and Germany one by one in terms of the economic ranking and became the world’s third largest economy only after the USA and Japan in GDP. When it comes to export, China even surpassed the USA to become the world’s second largest exporter only after Germany in 2007. In 2010, Chinese mainland surpassed Japan and became the world’s second largest economy in GDP.
- 19.
For example, in July 2012, the Chinese mainland witnessed two mass incidents with greater influence. One was the Shifang incident in Sichuan, and the other was the Qidong incident in Jiangsu. The first incident happened in Shifang of Deyang City of Sichuan Province on July 1, 2012. The cause of the incident was the construction of “the project of Hongda Mo-Cu polymetallic deep processing for comprehensive utilization” launched by Shifang. This project was exposed as having significantly negative impact on local environment, which led to the rallies of a large number of people in protest. Shifang government sent police, armed police and regimental police to maintain the stability, triggering serious conflicts between the police and the people and causing many injuries. On July 3, Shifang Public Security Bureau issued a stern notice, ordering all people who instigated, planned or organized illegal assemblies and rallies, or engaged in beating, smashing and looting to turn themselves to the police within three days. On July 4, the Information Office of the People’s Government of Shifang issued a notice, stating that the Public Security Bureau took away 27 personnel suspected of illegal crimes coercively according to law to calm down the incident. Afterwards, the Government of Shifang said the Mo-Cu project would not be constructed. Refer to Wikipedia, http://zh.wikipedia.org/zh/%E4%BB%80%E9%82%A1%E4%BA%8B%E4%BB%B6, lastly visited on April 7, 2014.
The Qidong Incident was also a mass incident happened in Qidong City of Jiangsu Province on July 28, 2012. This incident also caused grave influence. This incident was triggered by the approval of construction of Japanese Oji Paper’s sea drainage project for papermaking by the Government of Nantong City of Jiangsu Province. In the afternoon of the incident, the incident was basically calmed down and an official notice was released in that morning to announce the cancel of the project permanently. Refer to Wikipedia, http://zh.wikipedia.org/wiki/%E6%B1%9F%E8%8B%8F%E5%90%AF%E4%B8%9C%E4%BA%8B%E4%BB%B6, lastly visited on April 7, 2014.
- 20.
In his Speech at the Meeting Marking the 90th Anniversary of the Founding of the Communist Party of China, Hu Jintao clearly pointed out that the entire party must clearly recognize that it is a long-term, complex and arduous job under the new situation of profound changes in world situation, national conditions and party conditions to improve the Party’s leading and governance level, enhance the ability of refusing corruption, preventing changes and resisting risks, strengthen the Party’s building of governing capacity and advancement, face up to unprecedented issues and challenges, and tests to the governance, reform and opening-up, market economy and external environment. The risks of slacking spirit, inadequate capacity, isolation from the people and negativity and corruption have become more acute to the entire party. It is more onerous and urgent to implement the tasks of self-governance and strict self-discipline of the Party than any other times. Website of the Central People’s Government: http://www.gov.cn/ldhd/2011-07/01/content_1897720_3.htm, lastly visited on April 7, 2014.
- 21.
Refer to Tang [12]. Wikipedia, entry about Tang Degang, http://zh.wikipedia.org/wiki/%E5%94%90%E5%BE%B7%E5%88%9A, lastly visited on April 7, 2014.
- 22.
Interpretation of the first clause of Article 13 and Article 19 of the Basic Law of Hong Kong Special Administrative Region by the Standing Committee of NPC (August 26, 2011); interpretation of the second clause of Article 53 of the Basic Law of Hong Kong Special Administrative Region by the Standing Committee of NPC (April 27, 2005); interpretation of Article 7 of Appendix I and Article 3 of Appendix II of the Basic Law of Hong Kong Special Administrative Region by the Standing Committee of NPC (April 6, 2004); interpretation of the fourth clause of Article 22 and the second clause (item III) of Article 24 of the Basic Law of Hong Kong Special Administrative Region by the Standing Committee of NPC (June 26, 1999).
- 23.
Refer to Tang [12].
- 24.
Pygmalion Effect, also known as Rosenthal Effect, or “Expectation Effect,” refers to the phenomenon that a person (usually referring to a kid or student) would perform better after being highly expected. Pygmalion Effect was named after a sculptor called Pygmalion in a Greek myth. He fell in love with his own ivory sculpture of a goddess and talked to it every day. Finally, that statue became a real goddess. Pygmalion Effect is a self-fulfilling prophecy development. From this point of view, those frequently having negative expectations would end up in failure, but those usually having positive expectations are bound to succeed. Refer to Wikipedia, entry about Pygmalion Effect, http://zh.wikipedia.org/wiki/%E7%9A%AE%E6%A0%BC%E9%A9%AC%E5%88%A9%E7%BF%81%E6%95%88%E5%BA%94, lastly visited on April 7, 2014.
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Li, X. (2020). Constitutionalism and Revolution: Reflections on and Outlook for the 1982 Constitution. In: Li, L., Mo, J., Zhai, G. (eds) Constitutional Development in China, 1982-2012. Research Series on the Chinese Dream and China’s Development Path. Springer, Singapore. https://doi.org/10.1007/978-981-32-9261-1_6
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