Ten
The Movement for
Constitutionalism and
Constitutions in
Twentieth-Century China
Pu Zengyuan
Compared with those earliest countries that established constitutional
governments in the world, the movement for constitutionalism in
China began rather late. This was determined by the nature of society
in old China. ‘Feudal’ society there lasted for more than 2000 years.
After the Opium War in 1840, China was gradually reduced to the
status of a semi-colonial and semi-feudal society. Under the rule of im­
perialism and feudalism, China had no democracy, to say nothing of
constitutionalism. Constitutionalism is, as Mao Zedong said insepara­
ble from democracy: ‘As far as the constitutional governments the
world has so far known are concerned, whether in Britain, France, the
United States of America or the Soviet Union, a body of basic laws,
that is, a constitution, has generally been promulgated after a success­
ful revolution to give recognition to the actual establishment of democ­
racy.’1^ reshape China’s destiny, the progressive sections of the
Chinese society started to struggle for democratic constitutionalism to­
wards the end of the nineteenth century. In the twentieth century, great
and earthshaking historical changes have taken place in China. The
Revolution of 1911, led by Dr Sun Yat-sen, overthrew the Qing Dy­
nasty, abolished the feudal monarchy and gave birth to the Republic of* 1
* Professor of Law, Institute of Law, Shanghai Academy of Social Sciences, PRC.
1 Mao Zedong, Selected Works, Vol.II, Beijing: Foreign Languages Press (1965),
p.411.
162
Constitutionalism & Constitutions in 20th Century China
China. But the historic mission of the Chinese people to overthrow im­
perialism and feudalism remained unaccomplished. In 1949, the Chi­
nese people, led by the Communist Party of China, after waging
protracted revolutionary struggles, ultimately overthrew the Kuomintang (Nationalist Party) reactionary government which represented the
rule of imperialism, feudalism and bureaucratic-capitalism, won a
great victory in the New-Democratic Revolution and founded the Peo­
ple’s Republic of China. Since then the Chinese people have taken
control of their own destiny and become masters of die country.
It was also in the twentieth century that China began to have consti­
tutions. In less than one hundred years, from the final days of the Qing
Dynasty to the People’s Republic of China, there have been several
constitutions of different nature. The constitutions of the People’s Re­
public of China summed up historical experience on the movement for
constitutionalism in China. The current Constitution of 1982 is a so­
cialist constitution with Chinese characteristics.
L The Movement for Constitutionalism and
Constitutions in Old China
1. The Movement for Constitutionalism and the Constitutions
in the Last Years of the Qing Dynasty
Following China’s defeat by Japan in 1894-1895, a group of reformists
headed by Kang Youwei made efforts to learn from Western capitalist
countries with a view to carrying out institutional reform in China.
They wanted China to have a constitution that would allow capitalism
to develop without fundamentally changing the feudal system. They
advocated constitutional monarchy on the principle of separation of
powers. This Reform Movement for constitutional government came
to naught in 1898 because of repression by the reactionary clique
headed by Empress Dowager Ci Xi. The year 1900 saw the outbreak of
the anti-imperialist patriotic movement of the Yi He Tuan (known to
the West as the Boxers) which shocked the country and the whole
world. Though the movement was strangled by Chinese and foreign re­
actionaries, a revolutionary storm swept over the whole country. There
also developed the movement for constitutionalism of the revolutionar­
ies headed by Sun Yat-sen. Unlike the reformists, Sun Yat-sen insisted
on the realisation of democratic constitutionalism by means of revolu­
tion for the overthrow of the feudal rule of the Qing Dynasty.
Facing the rapid expansion of revolutionary forces, die Qing gov­
ernment, in an attempt to maintain its sway, to deceive the people and
head off their revolution, promulgated the Principles of Constitution
made by Imperial Order in 1908 and announced a nine-year ‘prepara-
163
Bulletin of the Australian Society ofLegal Philosophy
tory period for constitutionalism’. The aim of the Principles of Consti­
tution was the consolidation of perpetual rule by and absolute authority
of the Qing Emperor and the maintenance of feudal autocracy. The
revolutionaries led by Sun Yat-sen took a resolute stand against such
fraudulent ‘constitutionalism’, while the reformists came out in its sup­
port In consequence, the latter met with opposition from the revolu­
tionary group and were rejected by the people.
Following the Revolution of 10 October 1911, led by Sun Yat-sen,
the Qing government, being in imminent danger, promulgated the
Nineteen Constitutional Articles. The basic feature of that document
was to establish a constitutional monarchy on the premise of maintain­
ing the imperial power of feudal rule so as to save the Qing Dynasty
from perishing. Under the impact of revolutionary forces, the Qing
Dynasty — the last feudal monarchy that ruled China for more than
260 years — was overthrown in the long run. On 12 February 1912,
the last Emperor, Puyi, abdicated. Both the Principles of Constitution
and the Nineteen Constitutional Articles became funerary objects of
the Qing Dynasty.
2. The Provisional Constitution of the Republic of China
Promulgated by the Provisional Government at Nanjing
On 1 January 1912, the Provisional Government of the Republic of
China was established at Nanjing with Sun Yat-sen as its Provisional
President. On 11 March, the Provisional Constitution of the Republic
of China was promulgated. Being the fruit of victory of the Revolution
of 1911, it was tire only constitution which had the character of the
constitution of a bourgeois republic in China’s constitutional history.
The Provisional Constitution had the same effect as a formal constitu­
tion before the proclamation of the latter. It confirmed the bourgeois
democratic principle that sovereign rights belonged to the whole peo­
ple and announced the ultimate collapse of the feudal monarchy that
had lasted for over 2000 years in China. It proclaimed a state system of
bourgeois republic adopting the principle of separation of powers. It
implanted the idea of a democratic republic in people’s minds. The
revolutionaries at that time, however, had their shortcomings. They did
not have any thoroughly anti-imperialist and anti-feudal program, nor
did they mobilise and organise on a broad basis of popular forces on
which they could rely. As a result, they could not win complete victory
over imperialism and feudalism. The Provisional Government at Nan­
jing made only a brief appearance in history. Finally the revolution
failed, and the reactionaries led by Yuan Shikai seized power. In April
1912, Yuan Shikai established his anti-revolutionary regime in Beijing
and thus began the rule of China by Beiyang (Northern) warlords. The
164
Constitutionalism & Constitutions in 20th Century China
‘Republic of China’ became merely an empty name. In 1914 Yuan
Shikai annulled the Provisional Constitution. The revolutionaries led
by Sun Yat-sen carried on their struggle against the Beiyang warlord
government and launched a campaign for ‘protecting the Constitution’,
but without success. Mao Zedong remarked, ‘The Provisional Consti­
tution of the Republic of China in 1912 was a fairly good one for its
time. Of course it had its imperfections and faults and was bourgeois in
nature, but there was something revolutionary and democratic about
it.’2
3. The Constitution-Making of the Beiyang Warlords
Under the rule of the Beiyang warlords, China sank into utter confu­
sion. One warlord after another, backed by their respective imperialist
masters, seized the reins of power in Beijing. In order to maintain war­
lord control, the nominal President Cao Kun, the last of the Beiyang
warlords, proclaimed in 1923 the Constitution of the Republic of
China. Since Cao Kun had himself elected President by bribery, the
constitution came to be known as ‘The Constitution of Bribery’. This
was the first constitution that had ever been formally promulgated by
the reactionary rulers of old China. Its striking feature was that it main­
tain the reactionary rule of comprador-feudal class and the dictatorship
of warlord under the disguise of democracy. The people rejected the
‘constitution’ promptly. The Kuomintang, led by Sun Yat-sen, and the
Communist Party of China were against it and regarded it as a fake.
Mao Zedong once said: ‘China has already had a constitution. Did not
Cao Kun promulgate one? But where were democracy and freedom to
be found?’3 The government of Cao Kun collapsed in less than one
year after the proclamation of this fake constitution.
4. The Constitution-Making of the Kuomintang Government
Headed by Chiang Kai-shek
In 1927 when the revolutionary Northern Expedition carried out
jointly by the Kuomintang and the Chinese Communist Party was ad­
vancing towards victory, the Kuomintang, dominated by Chiang Kaishek, renounced Sun Yat-sen’s Three Great Policies of alliance with
the Soviet Union, cooperation with the Communist Party and assis­
tance to the workers and peasants, and betrayed the revolution. The
2 Mao Zedong, Selected Works, Vol.V, Beijing: Foreign Languages Press (1977),
p.142.
3 Mao Zedong, Selected Works, Vol.II, Beijing: Foreign Languages Press (1965),
p.412.
165
Bulletin of the Australian Society ofLegal Philosophy
Kuomintang government headed by Chiang Kai-shek was the last of
the reactionary governments that ruled China in the past In its consti­
tution-making, there were mainly the Provisional Constitution of the
Republic of China in the Period Under Political Tutelage of 1931 and
the Constitution of the Republic of China of 1947.
The Provisional Constitution in the Period Under Political Tutelage
openly proclaimed the political system of one-party dictatorship of the
Kuomintang and Chiang Kai-shek’s autocratic ride. It stipulated that
the National Congress of the Kuomintang should exercise central rul­
ing powers on behalf of the National Assembly, and confirmed that the
National Government should be subordinated to the Kuomintang
headed by Chiang Kai-shek, thus guaranteeing the ‘legally constituted
authority’ of the Chiang Kai-shek’s reactionary rule.
After victory in the War of Resistance Against Japan, the relations
among the different classes in China turned clearly in favour of the
people. In January 1946, the Kuomintang government, under the pres­
sure of the demand of the entire people for peace and democracy, con­
vened in Chongqing the Political Consultative Conference with the
participation of the Communist Party of China and other democratic
parties. The Conference adopted a series of agreements on the Draft
Constitution, on the National Assembly, on government organisation,
and so on. These agreements provided for the conclusion of one-party
dictatorship of the Kuomintang, the establishment of a coalition gov­
ernment formed by democratic parties, principles for revision of the
constitution, and the framing and adoption of a constitution by the Na­
tional Assembly on a democratic basis. But Chiang Kai-shek soon tore
up these agreements, launched an all-out civil war, and in November
1946 convened the illegal ‘National Assembly’. The Constitution of
the Republic of China was adopted by that body on 25 December and
promulgated on 1 January 1947.
This Constitution of the Republic of China was a bogus constitution
illegally fabricated by the Kuomintang reactionary clique. It confirmed
the state system of fascist dictatorship of Chiang Kai-shek and was the
last constitution of the reactionaries in old China. According to this
Constitution and the ‘Provisional Amendments for the Period of Mobi­
lization of the Communist Rebellion’ of 1948, the President, placing
himself above all other organs and not responsible to any of them, be­
came a dictator. It provided that the National Assembly ‘shall exercise
political powers on behalf of the whole body of citizens’, but it was ac­
tually not the highest organ of state power, since it might neither de­
cide the important policies of the state, nor supervise the National
Government. It only met once every six years and had no permanent
166
Constitutionalism & Constitutions in 20th Century China
body. The function of the National Assembly was only to elect and re­
call the President and the Vice President, to amend the Constitution
and to vote on proposed constitutional amendments. In March 1948,
Chiang Kai-shek was elected President. Less than one year later, how­
ever, when the People’s Liberation Army advanced south of the
Yangtse River, Chiang Kai-shek fled to Taiwan and his regime finally
collapsed.
Besides the fact that the Provisional Constitution which came out of
the Revolution of 1911 led by Sun Yat-sen, and which was immedi­
ately scrapped by Yuan Shikai, was the only constitution of a bour­
geois democratic republic, all the constitutions, from the Principles of
Constitution made by the Emperor of the Qing Dynasty in 1908 up to
the Constitution of the Republic of China proclaimed by the Kuomin­
tang in 1947, were bogus constitutions fabricated by die reactionary
rulers. From these historical events we can see that the reactionary rul­
ers of old China were opposed to bourgeois democracy and never re­
ally wanted a constitution at all. Only when their doom was in sight,
did they hastily concoct fraudulent ‘constitutions’ in the hope that by
so doing they could prolong their moribund reactionary rule behind the
decorative fagade of a bourgeois constitution. Naturally, they failed.
5. The Constitutional Documents of the Revolutionary Base Areas
Under the influence of the October Revolution, in 1919 the May 4th
Movement against imperialism and feudalism broke out in China. In
1921 the Communist Party of China was founded. Since then the
movement for new democratic constitutionalism came into being. It
was a component part of the new democratic revolution, that is, an
anti-imperialist and anti-feudal revolution of the broad masses of the
people under the leadership of the Chinese Communist Party. Its goal
was not to establish a democratic republic of the bourgeoisie, but a
people’s republic of joint dictatorship of several revolutionary classes.
Since Chiang Kai-shek’s Kuomintang betrayed the revolution and
massacred the revolutionary people, the responsibility for leading the
Chinese revolution has been taken over completely by the Chinese
working class and its party, the Communist Party of China alone. In
the course of the Agrarian Revolutionary War, the War of Resistance
Against Japan and the People’s War of Liberation, the Chinese people
gradually created vast revolutionary base areas where they established
the people’s democratic power.
The constitutional documents adopted by the people’s repre­
sentative organs of the revolutionary base areas, such as the Principles
of Constitution of the Soviet Republic of China of 1934 and the Princi­
ples of Constitution of the Shaanxi-Gansu-Ningxia Border Region of
167
Bulletin of the Australian Society ofLegal Philosophy
1946, summed up the experience in the building up of the state organs
and democratic movement for constitutionalism in China’s Liberated
Areas. There was a historical connection between these constitutional
documents and the constitution-making after the founding of the Peo­
ple’ s Republic of China.
n.
The Constitutions of the People’s Republic of China
In September 1949 the Chinese People’s Political Consultative Confer­
ence adopted a Common Program, which summed up the revolution­
ary experience of the past especially the experience in the
revolutionary base areas, proclaimed the founding of the People’s Re­
public of China and defined the fundamental policies of the People’s
Republic. The Common Program played the role of a provisional con­
stitution.
Since the founding of the People’s Republic of China, there have
been four constitutions:
1. The Constitution of 1954
The Constitution of 1954, the first constitution of the socialist type in
China, was adopted at the First Session of the First National People’s
Congress in September 1954. It was based on the Common Program
and was an advance on the Common Program. It consisted of Pream­
ble and 4 chapters, 106 articles. Its main feature was that it combined
principle with flexibility. There were two basic principles, the princi­
ple of democracy and the principle of socialism. Our democracy is not
bourgeois democracy but people’s democracy, that is, a people’s
democratic dictatorship led by the working class and based on the alli­
ance of workers and peasants. The Constitution stipulated that the state
must accomplish socialist transformation and realise the socialist in­
dustrialisation of the country. In carrying out socialist transformation
there was much flexibility as to its concrete steps and measures. For
instance, the Constitution admitted ‘capitalist ownership’ and stipu­
lated that state capitalism ‘in various forms’ should be put into practice
‘gradually’. Regarding the material guarantees for civil rights, it pro­
vided that they would only ‘gradually expand’. Another feature lay in
the combination of domestic and international experience. The Consti­
tution was based mainly on our own experience in revolution and con­
struction, and the experiences of the movement for constitutionalism in
modem China. It also drew upon the experiences of other countries,
especially the constitutions of the Soviet Union and the People’s De­
mocracies.
168
Constitutionalism & Constitutions in 20th Century China
2. The Constitution of 1975
The Constitution of 1975 was a socialist constitution. Being the off­
spring of the Cultural Revolution, this Constitution stressed class
struggle as the key link, removed those fundamental principles such as
‘All citizens are equal before the law’. Its provisions for the structure
of the state were extremely imperfect The number of articles of the
Constitution was reduced to 30. It was a constitution containing seri­
ous errors.
3. The Constitution of 1978
It was promulgated not long after the Cultural Revolution with the
number of articles totalling 60. Some new and comparatively good
content was added to the Constitution. For instance, it stipulated that
‘The state adheres to the principle of socialist democracy, and ensures
to the people the right to participate in the management of state affairs’
and so on. But there were still obvious mistakes in this Constitution,
such as affirming ‘the achievements of the Cultural Revolution’, and
not reinstating the principle of ‘All citizens are equal before the law’.
4. The Constitution of 1982
As the current Constitution, the Constitution of 1982 is the best since
the founding of the People’s Republic. It was adopted at the Fifth Ses­
sion of the Fifth National People’s Congress and promulgated for im­
plementation on 4 December 1982. It maintained and developed the
fundamental principles of the 1954 Constitution. Its draft had also been
discussed by the people of all nationalities throughout the country.
Through nationwide discussion, the wisdom of the people had been
more effectively pooled for revising the Constitution. It not only
summed up the rich experience of China’s socialist development but
also drew on international experience. It took into account both the
current situation and the prospects for development. It is a new Consti­
tution that is distinctively Chinese and meets the needs of our socialist
modernisation in the new historical period. It consists of a Preamble
and 4 chapters, 138 articles. The following are some of the new fea­
tures of the Constitution:
(1) The 1982 Constitution takes the four Cardinal Principles as the
overall guidance. The Constitution in its Preamble confirms the four
Cardinal Principles, namely, adherence to the socialist road, to the peo­
ple’s democratic dictatorship, to leadership by the Communist Party of
China, and to Marxism-Leninism and Mao Zedong Thought. The four
Cardinal Principles are both a reflection of the law of historical devel­
opment that is independent of human will and the decisive choice of
hundreds of millions of Chinese people in the course of long years of
169
Bulletin of the Australian Society ofLegal Philosophy
struggle. These Cardinal Principles form the common political basis
for the united advancement of the people of all our nationalities and
are the fundamental guarantee for the smooth progress of our socialist
modernisation. Under the new historical conditions, these principles
have acquired new and richer content. For instance, adherence to the
principle of reform and the open policy has added to the four Cardinal
Principles new content appropriate to our time. The four Cardinal Prin­
ciples are interrelated and mutually dependent, they permeate through­
out the whole Constitution.
(2) The 1982 Constitution develops socialist democracy. The Con­
stitution takes the high level of democracy as a fundamental task of the
nation. It stipulates, ‘All power in the People’s Republic of China be­
longs to the people.’ This is the kernel of our state system and a funda­
mental principle governing it. Apart from ‘The National People’s
Congress and the local people’s congresses at various levels there are
the organs through which the people exercise state power’; the Consti­
tution provides ‘The people administer state affairs and manage eco­
nomic, cultural and social affairs through various channels and in
various ways’ (e.g. congresses of workers and staff, the residents’ and
villagers’ committees). The Constitution strengthens the basic political
system of our country — the system of people’s congresses, expands
the functions and powers of the Standing Committee of the National
People’s Congress. Both the National People’s Congress and its Stand­
ing Committee exercise the legislative power of the state. The local
people’s congresses at and above the county level establish standing
committees. The Constitution adds new content in the provisions on
the fundamental rights of citizens. In the light of the lessons of the
Cultural Revolution, for example, it provides, ‘The personal dignity of
citizens of the People’s Republic of China is inviolable. Insult, libel,
false accusation or false incrimination directed against citizens by any
means is prohibited.’ Citizens have the right to criticise and make sug­
gestions, complaints, charges or exposures regarding any state organ or
functionary. It stipulates, ‘The state protects the right of citizens to
own lawfully earned income, savings, houses and other lawful prop­
erty’ and ‘the right of citizens to inherit private property’. In order to
safeguard and promote socialist democracy, the Constitution upholds
the function of the state as an instrument of dictatorship. It provides
that our people must still fight against those forces and elements, both
at home and abroad, that are hostile to China’s socialist system and try
to undermine it.
(3) The Constitution improves the socialist legal system. In the Pre­
amble, the Constitution proclaimed the ‘supreme legal authority’ of the
170
Constitutionalism & Constitutions in 20th Century China
Chinese legal system and stipulates, ‘The people of all nationalities, all
state organs, the armed forces, all political parties and public organisa­
tions and all enterprises and institutions in the country must take the
Constitution as the basic standard of conduct, and they have the duty to
uphold the dignity of the Constitution and ensure its implementation.’
In the chapter on General Principles, it stipulates, ‘The state upholds
the uniformity and dignity of the socialist legal system. No laws or ad­
ministrative or local rules and regulations may contravene the Consti­
tution. All state organs, the armed forces, all political parties and
public organisations and all enterprises and institutions must abide by
the Constitution and the law. All acts in violation of the Constitution or
the law must be investigated. No organisation or individual is privi­
leged to be beyond the Constitution or the law.’ The Constitution rein­
stated the principle of ‘All citizens are equal before the law’ and
provides, ‘Every citizen is entitled to the rights and at the same time
must perform the duties prescribed by the Constitution and the law.’
‘Citizens in exercising their freedoms and rights may not infringe upon
the interests of the state, of society or of the collective, or upon the
lawful freedoms and rights of other citizens.’ The improvement of so­
cialist legal system ensures the further development of socialist de­
mocracy.
(4) The Constitution strives to build a socialist society with an ad­
vanced culture and ideology while achieving immense material pro­
gress. The Constitution stipulates, ‘The basic task of the nation in the
years to come is to concentrate its effort on socialist modernisation’,
stressing economic development as the focus of our work, and ‘to
modernise the country’s industry, agriculture, national defence and sci­
ence and technology step by step to turn China into a socialist country
with a high level of culture and democracy.’ The Constitution enriches
the content on socialist culture and ideology, including the promotion
of education in high ideals, ethics, general knowledge, discipline and
legality, and education among the people in patriotism and collectiv­
ism, in internationalism and communism, and so on. It also provides
that the state ‘expands the ranks of intellectuals and creates conditions
to give full scope to their role in socialist modernisation.’
(5) The Constitution safeguards the unification of the country, gives
expression to the principle of ‘one country, two systems’. The Consti­
tution in its Preamble proclaims, ‘It is the inviolable duty of all Chi­
nese people, including our compatriots in Taiwan, to accomplish the
great task of reunifying the motherland.’ It will be highly conducive to
the prosperity of the Taiwan region and the country as a whole, and to
the maintenance of peace in the Far East and in the whole world. Con-
171
Bulletin of the Australian Society ofLegal Philosophy
sidering the needs arising from such a particular situation, the Consti­
tution stipulates, ‘The state may establish special administrative re­
gions when necessary. The system to be instituted in special
administrative regions shall be prescribed by law enacted by the Na­
tional People’s Congress in the light of specific conditions.’ After
peaceful reunification, Taiwan can enjoy a high degree of autonomy as
a special administrative region. This autonomy means, among other
things, that the current social and economic systems in Taiwan, its way
of life and its economic and cultural relations with foreign countries
will remain unchanged. According to the above-mentioned provision
of the Constitution and the Joint Declaration on the Question of Hong
Kong signed by the Chinese and British governments, the National
People’s Congress in 1990 adopted the Basic Law of the Hong Kong
Special Administrative Region, affirming that the Government of the
People’s Republic of China will resume the exercise of sovereignty
over Hong Kong with effect from 1 July 1997, with the previous capi­
talist system and way of life remaining unchanged for fifty years. Re­
cently, the Draft Basic Law of the Macao Special Administrative
Region (for Solicitation of Opinions) has been published. According to
the Joint Declaration of the Chinese and Portuguese Governments,
China will resume the exercise of sovereignty over Macao with effect
from 20 December 1999. We believe the relations of both sides of the
Taiwan Strait will develop in a direction favourable to the unification
of the country. It is an inevitable trend in accord with the desire of the
people, a trend which no force can resist.
(6) The Constitution strengthens the unity of all nationalities, ex­
pands the power of autonomy of national autonomous areas. The Peo­
ple’s Republic of China is a unitary multi-national state. The
Constitution stipulates, ‘The state protects the lawful rights and inter­
ests of the minority nationalities and upholds and develops a relation­
ship of equality, unity and mutual assistance among all of China’s
nationalities.’ Regional autonomy is practised in areas where people of
minority nationalities live in concentrated communities; in these areas
organs of self-government are established to exercise the power of
autonomy. ‘The chairman of an autonomous region, the prefect of an
autonomous prefecture or the head of an autonomous county shall be a
citizen of the nationality exercising regional autonomy in the area con­
cerned.’ National autonomous areas have the power to enact regula­
tions in the exercise of autonomy and other separate regulations. The
organs of self-government independently administer local economic
and cultural development, and the state provides assistance in various
aspects.
172
Constitutionalism & Constitutions in 20th Century China
(7) The Constitution develops the united front and affirms the role
of die Chinese People’s Political Consultative Conference. The Pream­
ble to the Constitution provides, ‘In building socialism it is essential to
rely on workers, peasants and intellectuals and to unite all forces that
can be united.’ ‘Under the leadership of the Communist Party of China
a broad patriotic united front which is composed of the democratic par­
ties and people’s organisations and which embraces all socialist work­
ing people, all patriots who support socialism and all patriots who
stand for the reunification of the motherland’ ‘will continue to be con­
solidated and developed’. ‘The Chinese People’s Political Consultative
Conference, a broadly based representative organisation of the united
front which has played a significant historical role, will play a still
more important role in the country’s political and social life, in pro­
moting friendship with other countries and in the struggle for socialist
modernisation and for the reunification and unity of the country.’
(8) The Constitution embodies the principle of reform and opening
to the outside world. The Constitution stipulates that we must ‘steadily
improve socialist institutions’, and confirms the policy of opening to
the outside world while adhering to the principle of independence. Our
reform and opening mean self-improvement and self-development of
the socialist system. In restructuring the economy, the Constitution
provides for the various economic sectors, including individual econ­
omy, and Chinese-foreign joint ventures, cooperative enterprises and
foreign-capital enterprises. While enforcing a planned economy, the
Constitution affirms the role of regulation by the market. It provides
for improving the systems of economic administration and enterprise
operation and management, and instituting the socialist system of re­
sponsibility in various forms. It also provides for the decision-making
power and democratic management of the enterprises, and so on. In re­
forming the political structure especially restructuring the state organs,
the Constitution provides for the strengthening of the system of peo­
ple’s congresses, restoring the posts of President and Vice-President of
the People’s Republic, establishing the State Central Military Commis­
sion and stipulates that the Premier has overall responsibility for the
State Council, that state leaders shall not serve more than two consecu­
tive terms (thus abolishing the de facto system of life-long tenure of
leading posts), that all state organs carry out the principle of simple
and efficient administration, the system of responsibility for work and
the system of training functionaries and appraising their performance,
and so on. In April 1988, an Amendment to the Constitution was
adopted by the National People’s Congress. The Amendment consists
of a new provision for the private economy, permitting the private sec-
173
Bulletin of the Australian Society of Legal Philosophy
tor of the economy to exist and develop within the limits prescribed by
law as a complement to the socialist public economy. The Amendment
also stipulates that the right to the use of land may be transferred ac­
cording to law. These provisions are conducive to die further develop­
ment of restructuring our economy and opening to the outside world.
In short, the present Constitution of the People’s Republic of China
is a summing-up of the historical experience in the movement for con­
stitutionalism and the question of constitutions in twentieth-century
China as well as a summing-up of the historical experience of pro­
tracted revolutionary struggles waged by the Chinese people, and also
a summing-up of the new historical experience gained since the found­
ing of the People’s Republic of China. The historical experience dem­
onstrates that, in semi-colonial and semi-feudal China, the Chinese
bourgeoisie was incapable of leading the people to defeat the com­
bined forces of foreign imperialists and domestic reactionaries and
turning China into a bourgeois republic, and therefore it was impossi­
ble to bring forth a bourgeois constitution in China. The People’s Re­
public established after the victory of the people’s revolution led by
the working class (through the Communist Party) would only take the
socialist road and consequently bring forth the constitution of the so­
cialist type. The great historical changes which took place in twenti­
eth-century China led the Chinese people to the fundamental
conclusion that, but for the Chinese Communist Party, there would be
no New China and that only socialism can save China and only social­
ism can make the country develop. The current Constitution of the
People’s Republic of China affirms the achievements of the struggles
of the Chinese people of all nationalities and defines the basic system
and basic tasks of the state. It is the fundamental law of the state, the
general law for good administration, that gives China peace and stabil­
ity in the new historical period. It has played and will continue to play
a great role in bringing success to China’s socialist modernisation.
174