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    University of Chicago Press and Southern Political Science Association are collaborating with JSTOR to digitize, preserveand extend access to The Journal of Politics.

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    The Chinese Communist State System Under the Constitution of 1954Author(s): Yu-Nan ChangSource: The Journal of Politics, Vol. 18, No. 3 (Aug., 1956), pp. 520-546Published by: on behalf of theUniversity of Chicago Press Southern Political ScienceAssociationStable URL: http://www.jstor.org/stable/2127261Accessed: 16-11-2015 02:07 UTC

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  • 7/24/2019 Chinese constitutionalism

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    THE

    CHINESE

    COMMUNISTSTATE

    SYSTEM

    UNDER THE CONSTITUTION OF 1954

    YU-NAN

    CHANG

    I. COMMUNIST IDEOLOGY

    AND

    THE

    CONSTITUTION

    OI ALL

    THE EVENTS that

    have

    taken place in

    China

    in

    the

    past

    six

    years,

    the

    promulgation of the

    Chinese Communist

    Con-

    stitution is

    perhaps the

    most

    significant

    phenomenon.

    The

    Con-

    stitution of the People's Republic of China was adopted on September

    20,

    1954,

    by

    the first

    National

    People's

    Congress (NPC)

    of the

    People's

    Republic

    of China

    (PRC) at its first

    session.' Its

    adoption

    marks a

    logical

    break in the

    course of

    the nation's

    strife for

    power.

    The

    Constitution,

    while

    embarkingupon a

    new stage

    toward social-

    ism, provides

    the nation with a

    state

    form and system

    that is

    meant

    to

    ensure the

    political

    monopolization of

    power by

    the

    Communist

    Party

    of

    China

    (CPC), thereby

    placing

    China closer to the

    camp

    of

    Communism.

    The meaning

    of this

    political development

    can

    best

    be

    apprehendedby

    a

    proper

    appreciation of the

    state form

    and sys-

    tem

    and by the

    understanding

    of

    what

    the

    Chinese

    Communists

    themselves think.

    In

    the first

    place,

    the

    Chinese

    Constitution is

    governed

    by the

    Communist

    ideology

    which

    regards

    a

    constitution as

    a

    fundamental

    law and

    an instrument

    of force.

    In the second

    place,

    the pronounce-

    ment of

    the state form

    of the

    regime as a

    democratic and unified

    multi-national

    state

    implies the

    monopolization of political

    power

    by the CPC. It means the demotion of the minorparties in Chinese

    policies and the

    strengthening

    of

    the

    Communist rule over

    the

    national

    minorities.

    And in

    the third place,

    the

    Communisticclaim

    to a

    one-power

    state

    system

    that is

    led

    by

    the

    NPC

    and

    rests upon

    the four

    types

    of

    state

    organs

    -the

    organs

    of

    legislative author-

    'The

    Chinese

    text is

    in

    Chung-hua

    jen-min

    kung-ho-kuo

    hsien-fa

    [The

    Constitution

    of

    the

    People's

    Republic

    of

    China]

    (Peking,

    1954).

    The

    English

    text

    is

    in

    Liu

    Shao-chi,

    Report

    on

    the

    Draft

    Constitution

    of

    the

    People's

    Republic

    of

    China and

    Constitution

    of

    the

    People's Republic

    of China

    (Peking,

    1954). Comments on the Constitution in the Englizh language are found in

    H. Arthur

    Steiner's

    article,

    ConstitutionaL-sm

    in

    Communist

    China,

    The

    American Political

    Science

    Review,

    XLIX,

    No. 1

    (March,

    1955),

    1-21, and

    in

    Franklin

    W.

    Houn,

    Communist

    China's

    New

    Constitution,

    The

    Western

    Political

    Quarterly,

    VIII, No.

    2

    (June,

    1955),

    199-233.

    4

    520

    ]

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    1956]

    THE CHINESE

    CONSTITUTION

    521

    ity,

    the

    executive organs

    of

    state, the

    people's

    courts, and the

    organs

    of the people's procuratorates is a fallacy. This is evidenced by

    the concentration

    of

    actual

    power in

    the Chairman

    of the PRC

    and

    in 'the executive

    organ

    the State

    Council and

    by

    the

    subordi-

    nation of

    the

    People's Courts

    and

    the People's

    Procuratorates

    to the

    State Council.

    As a

    fundamental

    law

    of China,

    the

    Constitution

    purports

    to

    enjoy full legal

    force

    and is the source

    of law

    sanctioned

    by

    the

    state.2

    In

    contrast

    to

    the Western

    idea

    of a constitution,

    the

    Chinese

    Constitution

    does not intend

    to limit the power

    of the government;

    rather,

    it

    aims to guarantee

    the unrestricted

    rule of the

    government

    and

    to

    augment

    the

    arbitrary

    use of

    power

    for the benefit

    of

    the

    ruling party.

    This can be

    explained

    by

    the fact

    that the Constitu-

    tion is totally

    governed

    by

    the Communist

    ideology

    which

    enter-

    tains

    the idea that

    both

    state (an organ

    of

    class domination)

    and

    law

    (the expression

    of the will

    of the

    dominating

    class)

    are instru-

    ments of force.

    Precisely,

    the Chinese

    Constitution

    is conceived

    as

    a

    weapon

    of the state.

    The Constitution is viewed by the Communistwriters as a super-

    structure above

    a definite

    social-economic

    structure

    of a

    society.3

    It

    is a

    product

    of and an

    instrument

    to serve

    the

    structure.

    The

    Constitution

    thus serves as

    a

    legal document

    formally

    confirming

    the past

    victory

    of the dominating

    class

    and legally

    fixing

    a new

    political

    and social

    system

    under the Constitution.

    Through

    the

    adoption

    of

    the Constitution,

    the draft of which

    was prepared

    by the

    Central Committee

    of

    the

    CPC,

    a

    state

    system

    is

    instituted, pyra-

    midal

    in

    structure

    and extreme

    in

    its

    centralization

    of

    power.

    The

    state

    system

    is

    regarded

    by

    the

    Communists4

    as

    an integrated sys-

    tem

    resting

    upon

    four

    types

    of

    state

    organs.

    Each is a centralized

    'This view is shared by many Chinese writers:

    Mao

    Tse-tung,

    Hsin

    min-chu

    hsien-cheng [New Democratic Constitution]

    (Peking,

    1952);

    Yu

    Kwang-yfian,

    The Conclusion

    of

    a

    Victory,

    Hsiieh

    Hsi, [Study] 7, (July

    2, 1954), 14;

    Editorial,

    Jen-min

    jih-pao [People's Daily,

    JMJP]

    (September

    21, 1954), p. 1.

    'This view is similar to that

    of

    the Soviet writers. For

    the Soviet view,

    see Andrei Y. Vyshinsky,

    The Law

    of the Soviet State (The

    Macmillan

    Company, 1948), p.

    13.

    The Chinese view is expressed

    in

    Ch'in Chuan,

    Effects of the Constitution in the Life of the State, Hsiieh Hsi (July 2, 1954),

    15-17, and Chang Hung, Some Understanding of the Content of the Draft

    Constitution, ibid., pp.

    17-22.

    'Hsiung Hsi-yUan, Principles of Organization and Operation

    of Our State

    System,

    JMJP

    (November 18, 1954), p. 3. Yang Hua-nan,

    State Organs

    in Our Draft Constitution,

    Hsiieh

    Hsi, p. 8, (August 2, 1954), 6-9.

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    522

    THE JOURNAL

    OF

    POLITICS

    [

    Vol.

    18

    unit and is

    under

    the sole leadership of the highest organ

    of

    state

    power, which is the NPC. These organs form a powerful weapon to

    uphold

    the

    Constitution,

    to

    enforce

    the

    laws, and

    to

    carry

    out

    the

    struggle toward

    the

    building up

    of

    a socialist

    state.

    The

    assimilation of the Communist ideology

    in

    the Constitution

    also

    leads

    to

    the inevitable transformation

    of

    the Chinese society

    into a socialist

    society. Such a transformation

    is

    the goal

    and

    the

    spirit of the

    Constitution. To pave the way

    for

    this arduousstrug-

    gle, Chinese people of all nationalities are

    called upon

    for

    unity

    and are required

    to

    uphold discipline

    at work

    and

    to

    respect

    social ethics. 5 These are perhaps

    the most

    decisive obligations

    imposed upon the

    people.

    These

    so-called

    social ethics

    imply

    absolute obedience

    to

    the Communist

    ideology by

    the

    people

    and

    subjugation of

    all

    the

    people's rights,

    as

    guaranteed by the Consti-

    tution,

    to

    Communist ethics.

    By limiting the

    rights

    of

    the people,

    governmental power

    is

    unlimited and

    individual freedom

    is

    de-

    stroyed.

    Indeed, the Communist concept of

    constitution is reproduced in

    the Chinese version. In commenting on the Soviet constitutions,

    Andrei

    Y.

    Vyshinsky stated,

    Soviet

    constitutions

    represent

    the

    sum

    total

    of

    the

    historic

    path along

    which

    the

    Soviet

    state

    has

    traveled.

    At

    the

    same

    time, they

    are

    the

    legislative

    basis

    of the

    subsequent

    development

    of state

    life. 6

    The

    Chinese

    Communist

    writers

    echo

    this

    interpretation

    in stating that the Chinese

    Constitution blazes a

    path

    for

    China,

    recording what has been won in China and what is

    yet to be

    conquered. This reminds us of the nature of the Chinese

    revolution,which, according to Mao-Tse-tung,

    is clearly divided into

    two

    stages

    -

    the

    democratic revolution and

    the socialist revolution

    -

    leading toward the establishment of a

    communist society in China.

    The

    establishment of the PRC on October 1, 1949, marked the

    conclusion of the

    first stage of the

    revolution,7 namely the New

    Democratic

    Revolution. Imperialism,

    feudalism, and bureaucratic

    'Article 100 of the

    Constitution

    should be read

    together

    with

    Article

    19,

    which

    indicates the

    determination of

    the

    state to

    suppress

    all

    treasonable

    and

    counter-revolutionary

    activities and to

    punish all

    traitors

    and

    counter-

    revolutionaries.

    'Vyshinsky,

    op. cit., p.

    87.

    'For

    the

    Chinese

    interpretation of

    the

    revolutionary stages,

    see

    Wang

    Hui-te,

    Concerning

    the Two

    Stages of

    Chinese

    Revolution,

    Hsfieh

    Hsi,

    (January

    2,

    1954), 3-5, and

    Wang

    Po-ming,

    Studying the

    Programmatic

    Documents of

    the

    New

    Democracy, Hsin

    Chien

    She [New

    Construction]

    7,

    (July,

    1953), 1-6.

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    1956]

    THE

    CHINESE

    CONSTITUTION

    523

    capitalism

    were

    largely destroyed;

    the Chinese

    society

    was to be

    converted from one of semi-colonial and semi-feudal society to one

    of New Democratic

    Society.

    The Common

    Programof

    the Chinese

    People's

    Political Consultative

    Conference

    (CPPCC),8

    adopted

    on

    September

    29, 1949,

    spoke of

    what

    was to be acquired

    in

    the future,

    although

    it functioned

    as a constitution

    having the

    force

    of a funda-

    mental law.

    Not

    only did it

    promise

    to continue

    the

    people's war

    of liberation to

    the very

    end, and

    to ensure

    the people's

    rights

    to

    elect and

    be elected ;

    it also

    prescribed the

    organic

    and functional

    principles

    of the

    government.

    However,

    the spirit

    of

    the Common

    Program

    was to

    launch the

    country

    into a stage

    of revolution

    pre-

    paratory

    to the

    systematic

    socialist

    transformation

    of the state.

    The

    entry of the

    country

    into a period

    of planned economic

    con-

    sruction,

    beginning

    in 1953, apparently

    marked the

    conclusion

    of

    the

    preparatory

    period and

    the

    start of the

    systematic

    socialist

    transformation.

    It

    is

    stated9

    that the elections

    up

    to 1953

    of

    13,637,000

    people's

    representatives

    to the

    All-Circle Represen-

    tative Conferences

    at all levels,

    with approximately

    75

    per

    cent

    of the representativesfrom the worker and peasant classes, marked

    the consolidation

    of

    the political

    leadership

    of

    the

    proletariat.

    The

    rapid

    establishment

    of

    more

    than

    40,000 producers'

    co-operatives

    in

    the

    rural communities

    at the end

    of 1953

    and

    the

    gradual

    expan-

    sion

    of

    state-ownership

    in

    the

    industrial and

    business

    sectors of

    the

    economy indicated

    the

    development

    of social

    factors.10 Specifically,

    8The English

    text of the Common Program

    of the Chinese People's

    Political

    Consultative Conference (CPPCC)

    is

    in The

    Important

    Documents

    of

    the

    First Session

    of the

    ChinesePeople's Political ConsultativeConference

    Peking,

    1949). The Constitution is regarded as being based on the Common Program-

    me of the Chinese

    People's Political Consultative

    Conference

    of

    1949, and

    is

    an

    advance on it. (Preamble).

    This legal relationship

    is seen in a law passed

    by the NPC declaring

    that laws and

    decrees enacted

    under

    the Common

    Program

    are valid unless

    they contravene

    the Consitiution. Kuang-min

    jih-

    pao [Enlightenment

    Daily,

    KMJP]

    (September

    27, 1954), p. 1.

    Other aspects

    of their relationship are discussed

    by

    HsU

    P'an-ch'iu, The Relation between

    the Constitution

    and the Common

    Program, Hsueh-hsi hsien-fa

    ts'an-k'ao

    tzu-liao (Canton,

    1954), pp. 15-19.

    9Huan

    Hsiang,

    The Superior Characters

    of the Electoral

    Law of the

    People's Congresses,

    Hsin

    Chien

    She, 4, (April 3, 1953), 37-41.

    0Conditions in China before the promulgation were explained in Chou

    En-lai's report

    of September

    27, 1954, Cheng-fu kung-tso

    pao-kao [Report

    on

    Government

    Work] (Peking, 1954). English

    translation in

    Current Back-

    ground (CB) 296 (November

    28, 1954).

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    524

    THE

    JOURNAL

    OF

    POLITICS

    [Vol.

    18

    the

    development

    of social

    factors

    is

    part

    of the second

    stage

    of

    revo-

    lution. Mao Tse-tung explained this by saying:11

    The entire

    result

    of

    the Chinese

    Revolution is

    on the one

    hand,

    the

    development

    of

    capitalist

    factors,

    whilst on the

    other,

    the

    develop-

    ment of

    Socialist

    factors. What

    are

    these

    Socialist

    factors?

    They

    are

    the

    proportional

    growth of

    the

    proletariat

    and the

    Communist

    Party

    in

    China's

    politics, and the

    possible

    or the actual

    recognition

    of

    the

    leadership

    of

    the

    proletariatand the

    Communist

    Party

    by

    the

    peasan-

    try,

    intelligentsia and

    petty-bourgeoisie.

    All

    these

    are

    the Socialist

    factors.

    After the basic socialist factors are realized and after the neces-

    sary

    conditions are

    met,

    the

    foundation

    is then

    laid for the

    under-

    taking of a

    systematic transformation

    toward the

    completion

    of

    the

    second

    revolution.

    Thus,

    the

    Constitution serves

    in the main

    as

    a

    legal

    document

    outlining the

    fundamental

    tasks of

    the

    state

    in

    the

    transition

    period

    before

    the

    building

    up of a

    socialist

    society.

    In

    the

    Preamble, the Constitution

    sets forth the

    fundamental

    tasks

    of

    the

    state:

    . . .step by step, to bring about the socialist industrialization f the

    country

    and,

    step

    by step,

    to

    accomplish

    the

    socialist

    transformation

    of

    agriculture,

    handicraft and

    capitalist

    industry

    and

    commerce.

    Article 4

    to

    Article

    16

    outline

    the

    basic

    economic

    policies

    during this

    period.

    However,

    the

    Chinese

    Communists

    repeatedly

    urge

    that

    their

    goals

    be

    realized

    over -a

    reasonably

    long

    period.

    The

    Chinese

    people

    are

    not

    to

    hope

    for an

    overnight

    transformation,

    but to

    pro-

    ceed

    step

    by step

    in

    the

    light

    of

    the

    experience

    and

    political con-

    sciousness of

    the

    masses

    and

    in

    accordancewith

    what is

    possible in

    the actual

    situation.

    Perhaps

    the

    adoption

    of

    such

    a

    flexible

    and

    patient

    attitude

    is

    necessary

    because of

    the

    unfavorable

    economic

    conditions in

    China,

    which

    limit

    a

    rapid

    industrialization,

    and

    of

    the

    popular

    resistance

    against

    drastic

    actions.

    Nevertheless,

    the

    Chinese

    Communists are

    determined

    to

    employ

    force

    and

    violence

    for

    the

    realization

    of their

    goals;

    for as

    observed

    by

    Liu

    Shao-chih,

    in his

    expanatory

    report

    on

    the

    Draft

    Constitution,

    the

    idea

    that

    there

    is no

    struggle

    in

    China

    is

    completely

    wrong.

    3.

    Mao

    Tse-tung,

    Chinese

    Revolution

    and the

    Communist

    Party of

    China,

    39.

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    1956] THE CHINESE CONSTITUTION

    525

    II.

    THE

    UNITED FRONT AND

    NATIONALITY POLICIES

    Politically,

    the

    Constitution not only

    endorses the state

    machin-

    ery as a powerful

    weapon but solidifies

    the ever-increasing dominat-

    ing position of the CPC. This is accomplished

    through the

    gradual

    elimination of minor parties and the

    further consolidation

    of Com-

    munist power over

    national minorities.

    Article

    1 of the Constitution declaresthe PRC to be a

    democratic

    state led by the

    working class and based on the alliance

    of workers

    and

    peasants. The Constitution also

    calls for the continued

    func-

    tioning of the people's

    democratic united front led by the

    working

    class and composed

    of

    various democratic

    classes, parties,

    groups,

    and

    people's organizations.

    However,

    these democratic elements in

    China, particularly

    the minor

    parties,

    are rapidly losing their

    iden-

    tity and are sinking

    into obscurity.

    With

    the

    promulgation

    of

    the

    Constitution, the CPPCC

    con-

    tinues

    to be

    the

    organization

    of

    the Chinese people's

    democratic

    united

    front but ceases

    to

    be

    a constitutional

    organization.

    Re-

    organized in December, 1954, it exercises only assigned duties

    and

    its functions are merely administrative.12

    Its previous

    con-

    stutional

    functions are transferred

    to the

    newly

    elected

    NPC.

    However,

    due

    to

    the centralized

    nature of

    the

    NPC

    and

    to the

    greater arbitrary

    power possessed by

    the Chairman of its Standing

    Committee, the importance

    of

    the members

    of the minor

    parties

    in

    the

    NPC

    is

    greatly

    limited.

    Furthermore,

    the

    joint

    selection of can-

    didates through consultation

    between

    the

    CPC

    and

    other

    democratic

    parties and organizations

    for

    the election

    of

    people's representatives

    to the NPC further

    reduces

    the chance

    for

    free

    participation

    of

    minor parties

    in

    political

    matters.

    The

    fact

    that people's

    represen-

    tatives

    are

    accountable

    to the

    people

    and

    not

    to

    their

    parties

    further

    lessens

    the

    political

    influence of the

    minor

    parties.

    During

    the

    systematic transitory

    stage

    of

    revolution under the

    Constitution,

    there

    is

    still

    need for

    the continued existence

    of minor

    parties

    to

    organize

    and

    to

    persuade

    all

    segments

    of

    the

    society-

    the

    industrialists,

    the

    intellectuals,

    and

    businessmen

    to

    participate

    in the revolutionary process. The minor parties are to function

    12The Chinese

    text of the

    Regulations

    of the CPPCC

    is in JMJP

    (December

    26, 1954),

    p.

    2. For

    a

    report

    see

    Ch'en Shu-t'ung's

    in JMJP (December

    22,

    1954),

    p.

    22. Also Ma Hsii-lun,

    Historical

    Mission

    of the Democratic

    Parties,

    Hsin-hua yfieh-pao,

    2, (February

    28, 1955),

    35-36.

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    526 THE JOURNAL

    OF

    POLITICS

    [ Vol.

    18

    as any other mass

    organization for uniting and arousing popular

    support and participation in political activities directed by the CPC.

    Eventually, they will no longer exist as political

    parties in the ordi-

    nary sense, because their political influence

    will be reduced to little,

    if

    any, significance.

    The CPC's effort

    to infiltrate the minor

    parties and to restrict

    their

    activities will

    persist. It is worth

    noting that while the

    CPC has been willing to encourage the minor

    parties to expand,

    it

    is also suggested as

    early as May, 1951,

    that Communist Party

    members be included in the minor parties

    up to ten or twenty

    per cent of the total membership for the

    purpose of assisting them

    in organizational matters.13

    This facilitates

    the CPC's control over

    the minor

    parties

    and

    will bring about

    their gradual extinc-

    tion.

    Furthermore,

    the original restriction

    on the activities

    of the

    minor

    parties will

    continue

    to apply.

    This restriction is

    twofold:

    the

    establishment

    of

    minor

    parties

    is

    allowed only

    at

    national, pro-

    vincial,

    and

    municipal levels;

    and direct

    relationship

    between

    the

    national committee and the local committees

    is

    not

    permitted.

    Na-

    tional and local committees are independent organizations without

    direct

    jurisdiction

    of one over the

    other.

    Furthermore,

    with

    the

    retirement

    of

    their

    aging

    members and

    the

    complete

    absence

    of new

    and

    vigorous young members,

    the

    fate of the minor

    parties'

    ex-

    istence is

    doubtless

    clear.

    The

    way

    is

    thus established for eventual

    proletarian dictatorship

    and

    the

    termination

    of the

    people's

    demo-

    cratic

    united front.

    Article 3

    of the Constitution

    affirms the

    People's Republic

    of

    China as a unified, multi-national state. This multi-national state

    is

    characterized

    by

    the

    promise

    of

    equality

    among

    all

    nationalities,

    the

    freedom

    to

    preserve

    and foster their

    culture,

    and

    the

    grant

    of

    regional autonomy

    in

    areas

    entirely

    or

    largely inhabited by

    national

    minorities.

    Unlike

    the Soviet

    Union,

    where

    the ethnic

    groups

    are

    many

    in number

    and

    form

    the

    backbone

    of the

    Soviet federation,

    the

    sixty-four

    Chinese

    ethnic

    groups

    constitute

    only

    six

    per

    cent

    of

    the whole

    population,

    with

    only

    a few

    groups exceeding

    four to five

    millions

    in

    population.14

    Historically,

    due

    to

    their

    geographical

    13Chang Chih-i's article

    in

    Ch'ang-chiang jih-pao

    [ Yangtze Daily, CCJP]

    (May 10, 1951), p.

    1.

    Official reports

    are

    compiled

    in

    Min-tsu

    cheng-ts'e

    wen-hsien hui-pien

    (Peking, 1953).

    Discussions on the subject are

    in National Minorities

    of

    Our Country,

    HsAeh

    Hsi, 7, (October

    1, 1952),

    34-35.

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    1956]

    THE CHINESE

    CONSTITUTION

    527

    distribution,15 the

    ethnic

    groups

    seldom create problems

    of

    great

    political importance. The Communist nationality policies give

    the

    impression that the design for the national minorities is not so

    much a cultural matter as a political and economic concern.

    First,

    the national minorities, though small

    in

    number,

    occupy

    fifty per cent of the Chinese

    territory. This very fact may

    illus-

    trate the importance of the

    nationality problem in China. Political-

    ly, to have an effective nationality policy is to extend the political

    power to over half the territory

    of China. Although the past

    Chi-

    nese dynasties saw this necessity, they maintained no long-range

    policies. By pursuing a policy

    either of physical suppression or of

    peaceful domination, the dynasties

    exercised certain political

    con-

    trols over the nationality groups. Economically, the vast

    area

    occupied by minorities is very attractive. It is a region rich in

    raw

    materials and productive in

    agriculture. Both Inner Mongolia

    and

    Northwest

    China are known

    to be areas of abundant economic

    potentialities, and their economic

    development has been greatly

    publicized throughout China

    in recent years. While Inner Mongolia

    is a source of lumber,

    salt,

    and rare metals, Sinkiang offers one of

    the most hopeful oil supplies in China. The reported discovery

    of

    uranium and other rare

    metals in Sinkiang is a well-known

    fact. From Sinkiang in Southwest China come asbestos,

    mica,

    and other metals important to

    industrial development. Undeveloped

    raw materials are no less significant. This economic fact

    cannot

    be ignored when China is engaged in large-scale industrialization.

    The fact that the remote areas

    also contain land for grazing and

    agricultural production adds

    to

    their importance

    to

    the

    Chinese

    economy. Their contribution to the country's industrialization is

    made more

    meaningful by

    the

    fact

    that

    China's

    main

    exports

    are

    agricultural products

    in

    exchange

    for industrial

    goods.

    Secondly,

    the

    geographical

    distribution

    of

    the nationality

    groups

    holds

    political and military

    significance.

    For

    example,

    along

    the

    three thousand kilometer boundary

    in

    southwestern

    China,

    adjoin-

    ing Burma and Thailand,

    reside

    a

    number

    of

    nationality

    groups.16

    5An xcellent article

    reporting

    recent developments

    of the national

    minorities

    and

    showing

    their geographical

    distribution

    was written

    by

    Wu Wen-tsao,

    Facts on National Minorities, China Reconstructs, IV, No. 3 (March, 1955),

    9-12.

    6Forexample,

    a

    Thai

    regional autonomous

    government was established

    in

    June,

    1953.

    It is

    an

    administrative

    area of

    9,652 square

    miles with 200,000

    population

    of

    which 70 per

    cent

    are

    Thai

    people.

    They are

    closely related

    to

    the

    people

    of Thailand

    and

    to

    the

    Shans

    and

    the

    Karens

    in

    Burma. Chen

    Han-seng,

    Thai

    People

    of Yunnan, China Reconstructs,

    5,

    (September-

    October, 1953),

    38-42.

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    528

    THE JOURNAL

    OF POLITICS

    [

    Vol. 18

    Since

    these national

    minorities mingle

    with peoples

    of neighboring

    nations, and since these autonomous areas are permitted under the

    Constitution

    to organize their

    own security

    forces, they can

    play a

    significant

    part in

    the Communist strategy

    toward the Southeast

    Asia

    countries.

    Likewise, from the

    Chinese

    Communist point of

    view,

    these autonomous

    areas are

    of

    considerable importance

    in national

    defense.

    Finally, due

    to

    the comparatively

    undeveloped

    conditions,

    these

    remote regions have

    been in

    the past a source of

    domestic

    insur-

    gence

    and resistance.

    The several revolts

    in

    Sinkiang province

    instigated

    by the

    Soviet Union in the past

    decade

    and those in the

    Inner

    Mongolia area by the

    Japanese

    in the thirties were

    long a

    concern

    of the central government

    of China.

    Even the less political-

    ly important areas

    were used

    in the past by armed

    bandits and

    dis-

    senters as bases for

    resistance.

    The Chinese Communists

    announced

    at the end of 1950

    that, in

    Southwest China alone,

    over one

    million

    counter-revolutionary

    elements were

    using these

    areas

    as their

    base

    of

    operation.

    It goes

    without saying that the

    establishment

    of

    Communist power in these remote areas has a very significant

    meaning

    in

    both national defense and public

    security.

    The development

    of the Communist

    nationality

    policy was long

    and deliberate.

    After the founding

    of

    the Communist

    Government

    in 1949,

    the

    policy

    was immediately

    included

    in

    the Common

    Pro-

    gram. The Constitution

    reiterates

    the

    policy

    in

    a

    more

    complete

    form.

    The

    most concrete

    concession

    to

    the national minorities

    is

    the

    grant

    of

    autonomous

    status

    to

    the

    nationality groups.

    This

    is

    guaranteed by the establishment of organs of self-government

    in

    the areas,

    the

    only

    instance

    in

    the

    Constitution

    where the

    term

    self-government

    is

    used. These

    nationality

    areas can

    be set

    up

    according

    to

    ethnic

    and

    historical conditions

    of

    the

    locality.

    As

    pre-

    scribed by law,17

    the national

    autonomous

    areas

    may

    be

    established

    under

    three

    types

    of conditions. Where

    a

    single nationality

    group

    is

    predominant,

    an autonomous

    status

    may

    be sanctioned.

    An au-

    tonomous

    region

    is

    also

    permitted

    where

    one

    nationality

    group

    is predominant yet

    other

    ethnic

    groups

    of a

    smaller

    number

    are

    '7 Chung-hua

    jen-min kung-ho-kuo

    min-tsu ch'i-yU

    tzu-chih

    shih-shih

    kang-yao

    [ Basic

    Principles

    on

    the Practice

    of

    Self-Government

    in

    National

    Minorities

    Areas ]

    was approved

    by the Government

    Council of

    the

    People's

    Republic

    of

    China

    on

    August

    8, 1952,

    in Min-tsu

    cheng-ts'e

    wen-hsien

    hui-

    pien,

    pp.

    164-170.

    Other

    documents

    regarding

    political participation

    of

    national

    minorities

    in ibid.,

    pp.

    183-192.

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    1956 ] THE CHINESE CONSTITUTION

    529

    included in its composition. The third type is composed

    of two

    or more equally dominant national groups.

    In addition to the establishment of national autonomous

    areas,

    at least two methods have been devised through which

    the

    national

    minorities can participate in the administration of their own

    affairs:

    (1) the representation of the national minorities in

    both

    local

    people's congresses

    and

    people's councils

    where

    Han

    peoples

    con-

    stitute

    an

    absolute majority;

    and

    (2)

    the

    participation

    of

    the

    national minorities in the organization of the Nationalities

    Affairs

    Committee at

    all

    levels

    of

    government.

    Furthermore,

    the

    self-governing organs

    of

    the autonomous areas

    exercise certain powers which are non-existent

    in

    other

    local

    organs.

    They

    not

    only perform the general

    functions

    and

    powers

    of

    ordinary

    local organs of state, but they also administer

    their own

    local

    finances (Article 69). They can organize

    local

    public

    security

    forces

    in accordance with the military system of the country and

    draw up

    regulations governing the exercise of autonomy and other

    special

    regulations to suit their political, economic, and cultural

    character-

    istics (Article 70). Furthermore, their national culture and lan-

    guages

    are

    promoted and are used

    in

    the

    performance

    of

    their

    po-

    litical duties and in the people's courts. The higher organs

    of state

    are

    required

    to

    safeguard the rights

    of

    local organs

    of

    all

    autono-

    mous regions, autonomous ckou,

    and

    autonomous counties;

    to

    exer-

    cise the autonomy and to assist the various national minorities

    in

    their political, economic, and cultural development (Article

    72).

    Such

    a

    liberal

    grant

    of

    self-governing powers

    to

    the au-

    tonomous

    nationalities is, however,

    not

    in

    the

    least unlimited by the

    CPC and

    by

    the

    central

    administrative organs.

    In

    the

    first

    place,

    all the

    nationality self-governing

    units

    are

    integrated

    into the

    cen-

    tralized political system. They all obey and follow the central and

    provincial governments, whatever the case may be. They

    are com-

    pletely subjected to the operations of other centrally

    controlled

    organs, the procuratorates, the public security offices, the

    military

    forces, and most important, the party apparatus. In this connec-

    tion, the CPC has long been engaged in recruiting party members

    and cadres from the nationality groups. The Nationality Institute,

    established

    in the

    thirties at Yenan, has already supplied a large

    number

    of party members for the postwar work in the

    nationality

    areas, particularly in

    Inner

    Mongolia. The 'CPC's recruitment

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    530

    THE

    JOURNAL

    OF

    POLITICS

    [Vol.

    18

    among

    the nationality

    groups

    and its expansion

    in

    these

    areas

    are

    both aggressive and encompassing. As of 1954, in Inner Mongolia

    alone,

    Communist

    party

    branches have been

    established

    in

    88.5

    per cent

    of

    farm villages, 18 per

    cent

    higher than the

    national aver-

    age.18

    There is no

    doubt that

    with the

    complete control by the

    CPC of

    both

    economic and

    political

    affairs in the

    autonomous

    areas,

    Communist political

    and

    economic strength will

    be maintained.

    III.

    THE NPC, ITS

    STANDING

    COMMITTEE,

    AND THE

    CHAIRMAN OF

    THE

    PRC

    Chinese

    Communist

    writers have

    proudly

    asserted that the

    Chi-

    nese political

    system is

    one of people's

    congresses and is

    monolithic

    and

    truly

    democratic. It is

    democratic

    in the sense

    that

    the

    peo-

    ple's

    representation is

    fully guaranteed

    by the

    Constitution.

    It is

    monolithic in

    that the

    state power is

    one and

    inseparable

    and is

    given

    to only

    one institution,

    the

    National People's

    Congress

    the

    highest organ

    of state

    authority.

    Communists

    ridicule the

    theory

    of separation of powers. Article 2 of the Constitution specifies

    that

    the

    NPC, the local

    congresses,

    and

    other

    organs

    of state

    -

    the

    executive, the local

    people's councils, the

    judicial

    organs

    and the

    people's

    procuratorates without

    exception practice

    democratic

    centralism.

    Thus,

    the

    state

    system

    is both

    pryamidal

    in

    structure

    and

    centralized in operation.

    Article

    21

    and

    Article

    22

    grant

    the state

    power

    to the

    NPC.

    While

    Article

    21

    recognizes

    the

    NPC as the

    highest organ

    of

    state

    authority,

    Article

    22 affirms

    the NPC

    as the

    organ

    exercising

    the

    legislative authority of

    the

    state.

    Since

    all

    power

    in the

    PRC be-

    longs to the

    people, and since

    the NPC and the

    local

    people's con-

    gresses

    are the organs

    through

    which the people

    exercise power, the

    state power

    is

    placed

    in

    the hands

    of

    the

    people's

    representatives.

    In

    other

    words,

    other

    powers

    and authorities

    -executive, judicial-

    flow from

    the

    state

    highest

    organ.

    Theoretically, the NPC is

    the

    only organ

    to

    legislate.

    Since law

    is

    regarded

    as the

    expression

    of

    the

    will of

    the

    dominating class

    sanctioned by

    the state, it

    follows

    that whatever law is passed under the name of the NPC requires

    '8JMJP (July

    7,

    1954),

    P.

    3.

    19Liu's

    Report,

    pp.

    34-43. Other

    discussions

    in

    Chao

    K'o-ching,

    The

    Sig-

    nificance of Our

    People's

    Congresses

    System,

    Hsin

    Chien

    She,

    2,

    (February

    2,

    1953), 1-3;

    Hsiung

    Hsi

    yuan,

    op.

    cit.

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    1956]

    THE

    CHINESECONSTITUTION 531

    absolute obedience by the

    people. It is precisely for

    this reason

    that the NPC becomes a mere instrument of the CPC.

    It

    is true that both the

    NPC and its Standing Committee

    are

    vested

    with enormous

    powers

    including sovereign

    power, legislative,

    executive, and judicial

    powers of the state.

    However, the

    NPC

    and

    its

    Standing Committee are

    restricted in their performance

    either

    by the lack of means to

    exercise the power or

    by the fact that

    the

    power

    is shared with other

    organs. These

    inconsistencies are

    not

    mentioned in the

    Communist writings, but they are determining

    factors in

    evaluating the

    true nature of the Chinese Communist

    political

    system. Prerogatives and functions

    assigned

    to the

    NPC

    and its

    Standing Committee are mainly of two

    types:

    those inde-

    pendently enjoyed by them and those jointly

    shared

    with

    other

    organs.

    Among the thirteen

    functions assigned to the NPC, only seven

    are

    independently exercised,

    and the other six are powers only

    to

    decide ; namely, to make a

    choice of other organs'

    decisions.

    The

    power

    to

    decide on general

    amnesties and on

    questions

    of

    war and

    peace is jointly shared with the Chairman of the PRC. The office

    of

    the

    Chairman of the

    PRC is a unique one and will be discussed

    later. The power of

    appointment and the

    power of removal, al-

    though they appear great, are

    powers shared with

    the Chairman

    of

    the

    PRC, and

    final

    authority rests not in the

    NPC but in the

    office

    of

    the Chairman. While Article 27 (5)

    and (6) grant to the

    NPC

    the

    power, upon recommendation of

    the Chairman of the

    PRC, to

    choose the Premier of the State

    Council, the component

    members of the State Council and the Vice-Chairman and mem-

    bers

    of

    the Council

    of

    National

    Defense,

    the

    power to initiate the

    appointment

    does not

    lie

    with the

    NPC. The

    power

    of

    removal

    under

    Article

    28

    follows

    the

    same

    pattern.

    Under

    the

    Constitution,

    the

    power

    to enact

    laws

    is

    granted

    to

    the

    NPC as

    its

    principal

    function.

    However, law

    is

    very narrowly

    defined;

    hence,

    laws are

    few

    and

    are

    prepared

    in

    advance by other

    organs

    of the

    state, leaving little

    legislative

    authority to the NPC.

    The

    first session of the

    NPC produced only five

    organic laws, and

    the election of the Chairman and the Vice-Chairman of the PRC

    who

    were nominated

    prior

    to

    the session

    by

    the

    deputies

    of the

    NPC

    from

    organized groups.

    The

    election

    of

    the

    Chairman

    of

    the

    Standing Committee,

    the President

    of

    the

    Supreme

    People's Court,

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    532 THE

    JOURNAL oi POLITICS

    [ Vol.

    18

    and the Supreme People's Procuratorate

    at the first session of the

    NPC was such a haphazard process that it in effect prevented

    members of the NPC from exercising sound

    judgment on the

    matter.

    With

    regard

    to

    the power to amend

    the Constitution

    and to

    super-

    vise

    the

    enforcement

    of

    the Constitution,

    the

    NPC

    is

    again

    domi-

    nated by the CPC. Since the draft of

    the Constitution itself was

    prepared by the Central Committee of the CPC, any amendment

    to

    it would follow the same procedure

    as its adoption.

    In

    other

    words,

    the

    CPC

    is

    the only organ to

    initiate a constitutional amend-

    ment.20 Furthermore, the NPC meets only once a year and

    for a

    very short period. Its actual legislative

    function is a formality.

    Other

    powers which are granted to

    the NPC are

    those

    of

    decid-

    ing on a national economic plan and examining

    and approving the

    state budget and financial report. These

    are also purely formal.

    It is unthinkable that the CPC-controlledNPC would reject its own

    drafted economic

    plan,

    the state budget,

    and the financial report.

    (The draft of the first Five-Year Plan was passed by the National

    Conference of the Communist Party in March, 1955, and by

    the

    NPC in July, 1955.)

    Article

    30

    of the

    Constitution designates

    the

    Standing

    Commit-

    tee

    of the NPC as the permanent body

    of the NPC. This implies

    that

    the Standing Committee may exercise some of the legislative

    authority

    of

    the NPC. However, powers and functions granted

    to

    the

    Standing Committee

    fall into

    the same category

    as

    that

    of the

    NPC, namely, powers jointly shared with

    other

    organs

    and

    powers

    independently exercised by the Standing

    Committee. The jointly

    exercised powers are primarily shared with the Chairman of the

    PRC. They are the functions of the

    Chief of State dealing with

    foreign affairs,

    and of the

    Chief

    Executive in domestic affairs.

    In matters

    of

    foreign affairs,

    Article

    41

    provides that

    the

    Chair-

    man of

    the

    PRC

    represents

    the

    country

    in its relations with

    foreign

    states, receives foreign envoys and,

    in

    accordance

    with the decisions

    of the

    Standing Committee, appoints

    or recalls

    plenipotentiary en-

    voys

    to

    foreign

    states

    and ratifies treaties concluded with foreign

    states.

    Article 31

    (11), however,

    concedes to the Standing Com-

    mittee the power of confirmation. Another example of inconsisten-

    cies

    is

    seen

    in

    Article

    31

    (12),

    which

    permits the Standing Com-

    20Constitutional

    mendments

    require

    a

    two-thirds

    majority vote.

    (Article

    29). However, the

    procedure

    of

    initiating

    amendments

    s

    not provided

    for.

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    15/28

    1956] THE

    CHINESE CONSTITUTION

    533

    mittee to decide

    on

    the ratification

    and

    abrogation

    of

    treaties

    con-

    cluded with foreign states; but here again, the Chairman of the

    PRC has the

    power to

    ratify and

    to

    abrogate

    treaties

    (Article

    41),

    leaving only

    the

    Standing

    Committee

    to

    endorse

    action.

    Among

    the

    seven

    jointly shared powers

    listed

    under

    Article

    31 are

    powers

    be-

    longing to the Chief

    Executive

    in

    domestic

    affairs,

    such

    as,

    to de-

    cide

    on the granting of pardons; to decide,

    when the

    NPC

    is

    not

    in session, on the proclamation of a state of war

    in the event

    of

    armed

    attack on the

    country

    or in

    fulfilment

    of international

    treaty

    obligations concerning common

    defense against aggression;

    to decide

    on

    general or

    partial mobilization;

    to decide

    on

    the enforcement

    of

    martial

    law throughout

    the

    country

    or

    in

    certain

    areas;

    and

    to

    ex-

    ercise

    such other functions and powers as

    are

    vested

    in

    it

    by

    the

    National

    People's Congress.

    Powers that

    belong

    independently

    to the

    Standing

    Committee

    are in actual practice restricted

    to

    a mere

    formality.

    This is

    caused

    by

    the

    nature

    of

    the

    organ

    itself

    and

    by

    the lack of means of

    legis-

    lating.

    While the NPC is

    the sole organ exercising the legislative

    power, the Standing Committee is the only organ charged with the

    duty

    of

    interpreting the Constitution

    and

    law

    and

    of

    adopting

    de-

    crees.

    However, these

    powers are handicapped by two factors.

    One

    is

    the wide use

    of

    decrees, decisions,

    and

    orders

    issued by the

    ad-

    ministrative

    organs. The

    other is

    the lack of means of

    legislating.

    The Chinese apparently

    regard law as a

    judicial force higher than

    that of other state acts. Law

    is

    the

    highest judicial

    form

    in

    which

    state

    authority

    is

    manifested.

    Hence it

    is

    the highest act of

    state

    authority and is reserved for the NPC only. However, this narrow

    use

    of

    law

    is

    compensated for

    by the wide use of decrees. Since

    a de-

    cree

    is

    considered as an

    act of a higher

    administration based on

    law,

    it deals with regulations

    and details of

    statements of principles

    laid out by the law. By

    means of decrees,

    a law is extended to all

    cases

    embraced

    by

    its

    meaning and content.

    Under this

    concept,

    the

    highest administrative organ, the State

    Council, would

    make

    liberal

    use of decrees

    once they are adopted by the Standing

    Com-

    mittee.

    Article 34

    provides

    that

    the NPC establish a Nationalities

    Com-

    mittee, a Bills Committee,

    a Budget

    Committee, a CredentialsCom-

    mittee, and

    other

    necessary committees.

    But only the Nationalities

    Committee and the Bills

    Committee are

    functional

    committees

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    534

    THE

    JOURNAL OF POLITICS

    [

    Vol. 18

    under

    the direction

    of the Standing

    Committee when the NPC is

    not in session. In other words, the Standing Committee has only

    two

    committees for legislation,21

    plus investigation

    committees

    which

    may be

    constituted to

    inquire into specific

    questions

    when

    the NPC

    or its Standing

    Committee

    deems it necessary.

    Since the

    Standing

    Committee

    is deprived

    of means

    of functioning properly,

    bills submitted by the

    State

    Council cannot be thoroughly ex-

    amined. This

    in turn increases

    the issuance

    of decisions

    and orders

    by the State

    Council.

    Such decisions and

    orders,

    unless they are

    contrary

    to the 'Constitution,

    laws,

    or

    decrees,

    are fully

    effective

    and enjoy the

    sanction

    of the state.

    This means

    in effect that the

    exercise

    of

    the

    executive

    powers is arbitrary

    and is

    not checked by

    the legislative

    power.

    The only possibility

    of legislative

    check upon

    the executive

    organ is through supervision

    of the work of the

    State

    Council and

    the annulling of decisions

    and orders

    of

    the State

    Coun-

    cil

    where

    decisions and

    orders of

    the State Council

    contravene

    the

    Constitution, laws,

    or

    decrees.

    Since the Standing

    Committee

    does

    not have the

    means of

    supervising the

    State Council

    and other

    administrative organs, this provision is meaningless.22 The annul-

    ment

    of decisions and

    orders of

    the State Council

    could occur

    only

    when

    an

    obvious

    violation

    of

    the Constitution,

    laws,

    or decrees is

    committed

    by

    the State Council

    and when

    serious friction is

    created

    between

    the two

    organs. Such

    a development

    is most

    unlikely

    in

    a

    system

    where

    the

    Party

    controls

    all these organs.

    The Standing Committee

    also

    has the power

    independently

    to

    conduct the election

    of deputies

    of

    the

    NPC, to

    interpret the laws,

    Judging by the smaller composition of these two Committees (85 for

    Nationality

    Committee

    and

    33

    for Bills Committee

    out

    of 1226 representatives)

    and their

    minor political standing

    in the regime, their inadequate

    legislative

    functions

    are justifiably

    doubtful.

    A comparison

    with

    the United

    States

    Con-

    gress

    will show

    the inadequacy

    of

    this arrangement.

    While

    the United

    States

    Senate has

    a total

    of 14 standing

    committees,

    the House

    has 19 for

    legisla-

    tive purposes,

    plus

    more than 7

    joint

    committees

    and

    several

    selected

    and

    special

    committees

    in

    both Houses.

    22The NPC

    recently

    dispatched

    several

    inspection teams

    (Shih Ch'a

    T'uan)

    organized

    by the representatives

    of the

    NPC

    to different

    regions

    to examine

    the work

    of

    the

    country.

    The

    meaning

    of

    this

    action

    is

    not

    clear,

    and its

    result is uncertain. However, it can be stated that the reports of these super-

    visory

    groups

    are not binding

    to

    the State Council

    and that since these trips

    were arranged

    prior

    to the

    opening

    of the second session

    of the NPC,

    it may

    prove to

    envisage

    a propaganda

    effect

    on the

    representatives,

    a means to

    arouse

    renewed

    enthusiasm

    for

    a national

    program.

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  • 7/24/2019 Chinese constitutionalism

    17/28

    1956]

    THE

    CHINESE CONSTITUTION 535

    to adopt the decrees, to

    institute military, diplomatic, and other

    special titles and ranks, and to institute and decide on the award

    of

    state orders, medals,

    and titles of honor. Except for the legisla-

    tive nature of the adoption of decrees, all functions

    are merely

    administrative acts which

    are part of the power of the collective

    head

    of

    state.

    An examination of the

    organization and functions

    of the Stand-

    ing Committee provided

    for in the Organic Law of the NPC23 fur-

    ther strengthens the conviction

    that the Standing Committee is not

    meant to be an organization

    for legislation. The Organic

    Law sup-

    plies no detailed regulations

    governing the organization and func-

    tions of the Standing Committee.

    It is particularly silent on pro-

    cedural matters relative

    to legislative process and to the conduct of

    meetings. Article 18 of

    the Organic Law assigns to the Chairman

    the

    duty of presiding

    over meeting of the Standing

    Committee and

    the functional committees. Article 19 vests in him

    the power of

    nominating component members and the Secretary-General

    of the

    Standing Committee, the position now

    held

    by

    P'eng Chen, a

    mem-

    ber of the Political Bureau of the CPC and mayor of Peking.

    These provisions enable

    the Chairman of the Standing Committee

    to exercise arbitrary power

    over the Committee's affairs.

    The Organic Law gives

    no

    impression

    as to the assignment of

    duties

    to

    the

    members of

    the

    Standing Committee. Except that

    their assignments

    are determined by

    the

    Presidium

    of the

    NPC,24

    their legislative duties

    are

    not

    given.

    One wonders

    whether

    the

    members are

    there

    for

    legislation,

    as

    the

    Constitution calls

    for;

    or

    whether they represent the people in name only, without real au-

    thority.

    It is

    true

    that the

    Standing

    Committee is endowed with

    certain

    prerogatives

    which make

    competition

    with the State Coun-

    cil

    possible. Experienced

    observers would discard this

    possibility

    simply

    because

    the Communist

    Party

    maintains the

    unity

    of

    all

    state

    organs.

    On

    the other

    hand,

    both the NPC and its

    Standing

    Committee

    serve as a

    symbol

    of

    popular unity

    and as a

    legal

    instru-

    ment

    of

    the

    Party.

    23Chung-hua jen-min kung-ho-kuo

    ch'iian-kuo

    jen-min

    tai-piao

    ta-hui

    tsu-

    chih fa [Organic

    Law

    of

    the National

    People's

    Congress

    of

    the

    People's

    Re-

    public of

    China]

    (Peking,

    1954).

    English

    text

    in CB, 302 (November

    5,

    1954).

    24Members

    of

    the presidium

    are elected

    at each

    session

    of the NPC

    and

    perform

    their

    duties

    during

    the

    session.

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    18/28

    536

    THE

    JOURNAL

    0F

    POLITICS

    [

    Vol.

    18

    The office

    of the

    Chairman

    of

    the PRC

    exercises

    the

    power

    de-

    rived, in theory, from the NPC. It is here that all powers are

    brought together.

    The

    Chairman

    of the

    PRC

    is a

    part

    of the

    col-

    lective

    head of state

    representing

    the

    state

    in its

    relations

    with

    foreign

    states

    and

    acting

    as

    the Chief Executive

    in promulgating

    laws

    and

    decrees

    in accordance

    with

    the decisions

    of the NPC

    or

    its

    Standing

    Committee.

    He is

    also

    empowered

    to

    proclaim

    general

    amnesties,

    martial

    law,

    a state

    of

    war,

    to

    order

    mobilization,

    and

    to grant

    pardons.

    The Chairman

    of the

    PRC commands

    the

    armed

    forces

    of

    the

    country

    and is

    the

    Chairman

    of the Council

    of

    Na-

    tional

    Defense,

    which

    is the

    organ

    actually

    in command

    of

    the

    armed forces.

    Through

    the

    power

    of appointment

    and

    removal

    over

    the Vice-Chairman

    and

    members

    of the Council

    of

    National

    Defense,

    he

    retains

    a

    close

    control

    over that body.

    By

    far the

    most

    important

    aspect

    of his strength

    lies

    in

    his

    power

    to convene

    a

    Supreme

    State

    Conference

    whenever

    necessary

    and

    to act as

    its

    Chairman (Article

    43).

    The

    organization

    and

    the

    power

    of the

    Supreme

    State Conference

    are

    not provided

    for

    in

    the

    Constitution. It is simply stipulated that the SupremeState Council

    is

    to

    be

    attended by

    the

    Chairman

    of

    the Standing

    Committee

    of

    the NPC,

    the

    Premier

    of the

    State Council,

    and

    other

    persons

    con-

    cerned.

    The Chairman

    of

    the PRC

    is to

    submit

    the views

    of

    the

    Supreme

    State

    Conference

    on

    important

    affairs of

    state

    to

    the

    NPC,

    its Standing

    Committee,

    the

    State Council,

    or other

    bodies

    con-

    cerned

    for

    their

    consideration

    and decision.

    This short

    article

    per-

    haps

    sums up

    the

    basic spirit

    of the Chinese

    state system,

    which

    in

    all

    its features

    is a

    truly

    monolithic and

    totalitarian

    state.

    It is

    worth noting

    that the

    Supreme

    State

    Conference

    is

    attended

    by

    the

    chiefs representing

    the

    executive and

    legislative

    organs, plus

    the

    most

    influential

    figures

    in

    the

    Chinese

    Communist

    hierarchy.

    It fol-

    lows

    that

    the

    concentration

    of the

    decision-making

    power is

    further

    reduced from

    one

    organ to

    that

    of one

    man.

    One

    who

    knows

    the

    Communist documents

    well cannot

    help conceding

    that the

    least

    described

    office

    is also

    the

    most

    powerful.

    The

    office

    of the

    Vice-Chairman

    may be

    briefly

    mentioned

    at

    this point. The provision having the greatest political importance

    is

    contained in

    Article 46, which

    grants to

    the

    Vice-Chairman

    the

    constitutional right

    to

    succeed

    to the office

    of the

    Chairman

    of

    the

    PRC,

    should

    it fall vacant.

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  • 7/24/2019 Chinese constitutionalism

    19/28

    1956] THE

    CHINESE

    CONSTITUTION

    537

    IV. THE STATE

    COUNCIL,

    HE PEOPLE'S OURTS,

    ANDTHE PEOPLE'SROCURATORATE

    Article

    2

    provides

    that the principle of

    democratic

    centralism,

    as

    the

    basic

    principle

    of all political organs, governs

    the

    relationship

    and operations

    of all organs, the NPC, the local

    people's

    congresses,

    and other organs of

    state. This

    principle, stated by Mr.

    Liu Shao-

    chi,

    is explained by the

    fact that the exercise

    of state

    power

    is

    unified

    and concentrated

    in the

    system

    of

    people's

    congresses.

    Spe-

    cifically,

    it means two

    things: that the state

    power

    is based

    on

    peo-

    ple's representation

    and

    that the political system

    rests

    on

    a unified

    and centralized system.

    The accent

    apparently

    rests on the

    word

    centralization.

    Democratic

    centralism applicable

    to the state administration

    is

    said

    to

    contain

    the

    following principles:25

    (1)

    Deputies

    of all

    people's congresses

    are elected

    by

    the

    people,

    supervisedby

    them,

    and can be recalled

    by

    the

    people

    at

    any

    time

    in accordance

    with

    law.

    (2) The appointmentof the Premier of the State Council and its

    component

    members is

    decided

    by

    the NPC. Members of

    the

    People's

    Councils

    are elected

    by

    the

    local

    people's

    congresses.

    The NPC

    and all

    the

    local

    people's

    congresses

    eservethe

    right

    to

    recall the elected officers.

    (3)

    Initiative

    and aggressiveness

    oth

    in

    the

    central

    and local

    govern-

    ments

    are

    encouraged.

    However,

    the

    lower echelon

    of

    command

    obeys

    the

    upper,

    the local organs obey the

    central organs.

    In

    other

    words,

    laws enacted by the NPC

    require

    unconditional

    observance by

    all

    state organs,

    government

    workers, and all its

    citizens.

    Local

    people's

    councils

    are

    accountable to

    the local

    people's congresses,and the administrativeorgans are to make

    reports

    of

    their

    work to the people's congresses.

    This principle

    endorses

    a

    political

    system, under which

    all the administrative

    organs,

    local and

    central,

    are

    included

    in

    a

    unitary and integral

    system.

    This

    system

    also enables the participationof all

    peoples

    in

    the

    administration

    of

    national affairs.

    It

    is

    true that

    China has always been a

    unitary state

    and that

    the

    degree

    of

    centralization

    depends

    on the strength of the

    central

    government.

    However, the nature

    of the centralized

    system under

    the

    new

    Constitution is revolutionary,and its

    scope is undoubtedly

    wide.

    The centralization of executive power

    is

    visible

    in

    the State

    Council,

    which

    is

    the

    executive organ of the

    highest state

    authorit)

    2 Chu

    Lo-ping, Concerning Democratic Centralism

    in

    Our

    State

    Structure, ,

    JMJP (September 21, 1954), p. 3, and Yang Hua-nan, op.

    cit., p. 8.

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    538

    THE

    JOURNAL OF POLITICS [

    Vol. 18

    and the highest administrative organ of state.

    The State Council

    under the Constitution has much more authority than its predeces-

    sor, the Government Administration Council of

    the Central People's

    Government

    of

    1949.

    The

    present State Council is

    in

    itself the

    Central

    People's Government, whereas under

    the

    Common Pro-

    gram, the Government Administration Council

    was only an organ

    subordinate to the Central People's Government.

    The great expansion of governmental control

    over all walks of

    life has placed under the State Council the

    complete direction and

    administration

    of

    government

    activities.

    An

    examination

    of the

    growth in the size of the Government Administration Council since

    its

    establishment

    in

    October,

    1949,

    may also

    illustrate the rapid

    expansion

    of

    government activities. The Council in 1949 was com-

    posed

    of

    twenty ministries,

    three

    commissions,

    and

    six

    other

    or-

    gans.26 They were grouped under the direction

    of four

    Committees

    -

    Political and Legal Affairs,

    Financial and

    Economic

    Affairs, 'Cul-

    tural and Educational Affairs, and People's Supervision. With the

    increasing tendency toward centralization, the

    Council was

    expanded

    in 1952 at the outset of the First Five-Year Plan to a total of twen-

    ty-eight ministries,

    five

    commissions,

    and

    four

    other

    organs.27

    Under

    the

    present

    State

    Council,

    there are

    thirty-four

    ministries

    and

    five

    commissions.28

    Article

    6

    of

    the

    Organic

    Law

    of

    the

    State

    Council29 also

    permits

    the

    establishment

    of

    administrative

    offices

    under

    the

    Council,

    without

    the confirmation of the

    Standing

    Com-

    mittee,

    to assist the

    Premier

    in

    the

    direction

    of

    the work of the

    State

    Council. There are

    already eight

    administrative offices

    with

    duties ranging

    from the

    co-ordination and

    direction

    of

    public se-

    curity, foreign trade, heavy and light industry, to cultural and edu-

    cational

    affairs, embracing

    all

    the functions of

    the State Council

    except foreign

    affairs

    and

    national defense.

    Article

    7 of

    the

    Organic

    Newspaper

    Reader's Manual,

    (Hankow, 1950), pp.

    75-104.

    7Organizational changes

    were

    summarized

    in

    Ta-kung Pao

    (Hongkong,

    December

    1, 1952), p. 7; CB, 263

    (October 1,

    1953).

    28A list of the

    ministries numbered 31

    plus 4

    commissions as

    reported

    in

    Jen-min

    shou-ts'e (Tientsin, 1955)

    and also in

    CB,

    316 (March 7, 1955).

    Five

    additional ministries have been

    added to the

    original 31 since 1954. The

    Third

    Ministry of Machine Building was established in April, 1955, Wen-hui Pao,

    (Hongkong, April 19, 1955), p. 1; the

    ministries

    of

    Coal Industry, of

    Electric

    Power,

    of

    Petroleum

    Industry,

    of

    Agricultural Products

    Procurement

    were

    established

    in

    June,

    1955.

    The

    Ministry

    of

    Fuel

    Industry was abolished;

    see

    KMJP

    (June 24, 1955), p.

    1.

    29Chung-hua jen-min

    kung-ho-kuo

    kuo-wu-yiian tsu-chih

    fa

    [Organic

    Law

    of the State

    Council] (Peking,

    1954).

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    1956]

    THE

    CHINESE

    CONSTITUTION

    539

    Law

    of the

    State

    Council

    further

    sanctions

    the

    establishment

    of

    sub-

    ordinate organs directly under the State Council to administer spe-

    cific affairs.

    However,

    their

    activities

    and resolutions

    are

    subject

    to the approval

    of the

    Standing

    Committee

    of the NPC. The

    di-

    rectly

    subordinate

    organs

    number

    twenty-three,

    ranging

    from

    the

    Bureau

    of State Statistics,

    and

    the

    People's

    Bank,

    to the

    Personnel

    Bureau

    of

    the State

    Council,

    and

    the

    Foreign

    Exports

    Work

    Bureau.

    This

    expansion

    of

    the

    State

    Council

    both

    in

    organization

    and

    in

    operation

    no

    doubt enhances

    the

    power

    of the

    Council.

    The

    out-

    standing

    expansion

    of

    government

    activities

    is

    evidenced

    in

    the

    planning

    and administration

    of

    economic

    affairs.

    Out of

    the

    thirty-

    four ministries

    and

    five commissions,

    there

    are

    twenty-four

    ministries

    and two

    commissions

    engaged

    in

    the

    administration

    of

    economic

    affairs. Even

    the State

    Planning Committee

    which

    was

    established

    in

    November,

    1952,

    for economic

    planning

    was placed

    directly

    under

    the State

    Council.

    The abolition

    of the

    committee system,

    which under

    the previous

    Government

    Administration

    Council

    was

    an intermediate

    organ

    of

    control between the Premier and the ministries strengthens the au-

    thority

    of the

    Premier.

    The

    newly

    established

    administrative

    offices

    cannot correspond

    to

    the

    previous

    committees

    under

    the Premier.

    The

    previous

    committees

    were

    few in

    number,

    and

    their

    functions

    were

    to

    direct

    the

    work

    of the several ministries,

    with a

    considerable

    degree

    of

    independence

    from the Premier.

    Furthermore,

    the

    seniority,

    in

    Party

    standing,

    of the

    previous

    committee

    chairmen

    contributed

    to

    their

    power

    to

    direct

    the work

    of

    the

    ministries.

    Quite

    to

    the

    con-

    trary, the present heads of the administrativeofficesare mostly

    sen-

    ior

    ministersof the

    State

    Council,

    who may

    act

    as co-ordinators

    and

    as

    channels

    through

    which the

    work

    of the

    ministries can

    be

    better

    unified

    under the

    Premier.

    The

    Premier's

    power

    of appointment

    and removal

    is now

    con-

    siderably

    greater.

    Not only

    can

    the

    Premier

    recommend

    the

    ap-

    pointment

    of

    the

    Vice-Premiers,

    ministers,

    and

    other key persons

    in

    the

    administration,

    subject

    to the

    decision

    of

    the

    NPC,

    but he

    also

    exercises complete power

    over

    the

    appointment

    and

    removal

    of the

    Deputy Secretary-Generalof the State Council, deputy ministers,

    assistant

    ministers,

    and

    other

    personnel

    of the State Council, depart-

    ment

    heads under

    the provincial

    government,

    heads

    of a

    district,

    consular officers,

    and

    other

    diplomatic

    officers.

    In

    brief,

    the

    Premier

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    540

    THE

    JOURNAL

    OF

    POLITICS

    [Vol.

    18

    of

    the

    State

    Council

    is

    the single head of the

    growing

    bureaucracy

    and is the administrator of a centralized organ which exercises im-

    measurable executive

    power

    without

    legislative

    check.

    However,

    he

    is

    responsible, as

    any

    other

    heads

    of the

    state

    organs,

    to

    the Chair-

    man

    of the

    PRC

    and

    to the Chairman of

    the

    Central

    Committee

    and

    the

    Political Bureau of the

    CPC, and,

    theoretically,

    to the

    NPC

    and

    its

    Standing

    Committee.

    The

    constitutional provisions governing the

    relationship between

    the

    central and

    provincial

    and

    local

    governments

    are

    actually

    con-

    tained

    in all

    sections

    in

    Chapter

    II

    -

    the

    State Structure with

    the

    exception of Section 2: the Chairman of the

    PRC.

    This relation-

    ship

    is

    a

    centralized one with no

    powers left to the local governments

    at

    all. Article 49 (1), (4), (6),

    (7), (9), (10),

    (12), (15)

    and

    (16) of the

    Constitution will

    suffice to explain this point. This must

    be

    read with the

    Organic Law

    of

    the State Council and the

    Organic

    Law of the

    People's Congresses

    and the People's Councils.30 How-

    ever,

    the

    centralized

    character of

    Chinese

    institutions

    can

    be spe-

    cifically illustrated

    by

    a

    random selection of

    some provisions

    from

    the above-named Organic Laws:

    (1) The State

    Council leads, while

    the local governments obey.

    Ar-

    ticle 49 (4)

    of

    the

    Constitution, Article 66 and Article

    24

    of

    the

    Organic

    Law of

    the

    People's

    Congresses

    and

    the

    People's

    Coun-

    cils.

    (2)

    The

    higher

    organs enjoy the right to revise or

    annul inappropri-

    ate

    decisions

    and

    orders of the

    next lower level.

    Articles 31 (7),

    49

    (6), 60,

    65

    of

    the

    Constitution,

    and

    Article 6

    (9), (10)

    of

    the

    Organic

    Law of

    the

    People's

    Congresses

    and

    the People's Councils.

    (3) The higher organs possess certain

    power

    of

    appointment and re-

    moval. Articles 49 (16), 65 of the Constitution. Article 9 of the

    Organic

    Law of

    the State Council makes note of

    the appointment

    of

    provincial

    department heads

    and other local officials by the

    State

    Council.

    Under

    the

    principle

    of

    democratic

    centralism,

    local

    organs

    are

    encouraged

    to

    develop

    aggressiveness and initiative

    in administering

    local

    affairs.3'

    This is provided

    for in Article 58 of the Constitu-

    80Chung-hua

    en-min

    kung-ho-kuo

    ti-fang

    ko-chi

    jen-min

    tai-piao ta-hui

    ho

    ti-fang ko-chi

    jen-min