Proposed Draft Constitution for a Federal China
The following is a rare glimpse of the future of China devised by a group of highly sophisticated and wise people who love China and her people in their deepest heart.
Federal System: From Fantasy to Blueprint
Birth of a Proposed Draft Constitution for a Federal China
[ Editor's note ] A number of earnest scholars from China Mainland, Hong Kong, Taiwan and various other countries, gathered first in Hawaii and then in San Francisco, have, after a year or so, produced a proposed draft Constitution for a Federal China.At a time of cataclysmic change, their work makes a specific contribution to the shaping of the future of the Chinese nation. lt is hoped that experts, scholars and persons in positions of power will pay attention to, and discuss, it.
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In late January, scholars from Hong Kong, Taiwan, China Mainland and U.S.A. met in a small gathering in San Francisco to "research a Constitution for Federal China". The meeting was organized by the 21st Century China Foundation of San Francisco. Some of theparticipants in this seminar drafted for the future China an "idealistic Constitution based on the realities," also known as "The Constitution for the Federal Republic of China".
The Constitution is the supreme law of the land. It is the work of the Constituent Assembly. A good and efficacious Constitution is not "made" by a few experts or scholars who use their imagination. It grows and develops in a peaceful environment. "A Constitution grows; it is not manufactured." This is the consensus of the San Francisco meeting. The participants in the meeting, in the true spirit of "explorers," searched for a proposed draft Constitution for a post-cataclysmic China.
A federal system with confederal characteristics
The draft Constitution has eight chapters totalling 75 articles.
The titles of the eight chapters are: General Principles, citizens Basic Rights and Obligations, the Federal Structure, the Parliament, the President, the State Council, the Judicial System and Implementation and Amendment.
The most important feature of the draft Constitution is its being a "federal Constitution with confederal Characteristics." Under given historical conditions, people can change only those things which can be changed. The things which cannot be changed or cannot be changed for the time being must be accepted withequanimity. For a long time to come, different parts of Chinawill have differences which are hard to make disappear. It is precisely out of this consideration that the draft Constitution divides the component parts of the future China into four major: the Autonomous States, the Autonomous provinces, the Autonomous Cities and the Special regions.
The Autonomous States are Inner Mongolia, Taiwan, Tibet, Xinjiang, Ningxia and Guanxi.
The Autonomous Provinces are Shandong, Shanxi, Sichuan, Gansu,Guangdong and Liaoining.
The Autonomous cities are Shanghai, Tianjin and Beijing.
The Special Regions are Hong Kong and Macao.
These component elements of the Federal Republic are shaped byhistory. If, at the time of the formation of the Federal Republic, we should try to make comprehensive or major changesaffecting the boundaries of the component elements, boundary disputes and conflicts would surely ensue. Therefore, the basic principle used in dividing the Federal Republic into its component elements is: "Respect for the status quo and respect for history."
There are four groups of component elements of the Federal Republic. Each group is tied to the Federal Republic in a special way. The Autonomous States and Special Regions are loosely tiedto the Federal Republic, in a relationship which has confederal characteristics. The Autonomous Provinces and Autonomous Cities are more closely tied to the Federal Republic, in a relationshipsimilar to that found in a normal Federal republic.
Autonomous States can make their own Constitutions
The draft Constitution of Federal China provides in black and white for the division of powers between the Federal Republic and its component elements. It also provides that each Autonomous State may make its own constitution and that each Autonomous Province, Autonomous City or Special Region may make its own basic law.
The Federal China is vastly different from the traditional China. In the traditional China, the power of the local governments comes from the Central Government. Under a Federal system, the power of the Central Government will come from the component elements of the Federal Republic and from the people.
The Basic Law of Hong Kong, passed in 1992, provides that the post-1997 Hong Kong shall have various powers, which, in many cases, exceed the powers of the states of U.S.A. However, these powers are given Hong Kong by the Central Government in Beijing. They can be taken away overnight. The draft constitution, based on the principle of "Respect for the status quo and respect for history," and taking into consideration the Joint Declaration of Beijing and London concerning the question of Hong Kong, provides, in a special clause of Article 37, that changes effecting the Hong Kong Special Region's various powers may not be made without the approval of the Special Region's Legislature.
Under the draft Constitution, Taiwan and Tibet are Autonomous States. They are vested with special powers under special clauses. The draft Constitution provides that "the Autonomous State of Taiwan shall have the power to issue state passports, travel documents and visas and to establish the state court of final appeal," that "the Autonomous state of Taiwan shall be financially independent and exempted from fed- eral tax" and that "the Autonomous State of Taiwan shall have the power to keep its arrned forces and the power to refuse the presence of federal forces."
With regard to the Autonomous State of Tibet, the draft constitution, taking into full consideration of the spirit of Dalai Lama's Strasbourg speech of 1988, provides that "the Autonomous State of Tibet shall be a national conservation area, where the testing of nuclear, chemical and biological weapons and the storage of nuclear wastes shall be banned."
A geographically diversifled China
Under a federal system, the Chinese provincse and cities will have radically different relationships with the Central Govemment in Beijing. The traditional kind of centralism will cease to exist. Beijing, Shanxi, Guizhou and so forth will have their own Basic Laws. All Autonomous Provinces and Autonomous Cities will have their own political systems suited to their local characteristics. The Autonomous Province of Yunnan will probably be known as the Premier. Beijing Municipality will probably have a one house system and its municipal affairs will probably be managed by a "Mayor-Premier" system. The Federal Republic will let all its parts develop their full potentials, each in its own way and according to its own strong points. Thus, a geographically diversified China will come into being.
Concerning the Parliament of the Federal China, the draft Constitution provides that it shall be a two-house system. A National House shall have members who are returned by elections and whose number is proportional to the population. A Federal House shall have members who are returned by election or appointment from the individual states, provinces, cities and regions.
The Federal House shall have the power to impeach members of the State Council and the power to approve boundary changes within the Federal Republic.
A stable cabinet system
With regard to the Federal Government system, full account is taken of China's national characteristics, and what has been chosen may be called "a stable cabinet system."
The Federal Republic shall have a President and a Premier. Yet this will not be a case of "two heads of government." The President shall be a figurehead. He has to have the approval of the Parliament or the approval of the Premier before he can exercise any of his powers. For instance, he shall appoint the premier decided by the National House and he shall appoint the Premier decided by the National House and be shall appoint or discuss Vice Premiers, State Councillors and Ministers at the request of the Premier. The President is the symbol of national unity. The overthrow of a cabinet will not affect the position of the President. The President is also the safeguard of stability despite changes of government. When there is a constitutional crisis, the President shall participate in its resolution, thus playing a politically stabilizing role.
The draft Constitution provides that the Premier shall be elected by the National House and that the premiership shall be the seat of the supreme executive power of the Federal Republic. The draft Constitution exemplifies the principle of democracy, which is that the power of the government shall come from the people and that the people shall decide which administration should be in power and when it should be replaced.
National realities not to be overlooked
The draft Constitution of San Francisco makes a distinction between "welfare benefits" and "rights." It makes no promises concerning "welfare benefits." It contains various provisions for "the safeguarding of human rights." Here, however, it is not flawless. The freedom of moving to live in a different area is a basic human right. But this human right cannot be fully safeguarded in Federal China. The movement of people from the Autonomous Provinces and Autonomous Cities of Federal China to Hong Kong, Taiwan or Tibet will be restricted. The Dalai Lama is concerned that Han Chinese will migrate en masse to Tibet. This will not happen.
The draft Constitution of San Francisco paints a vivid picture of the future China, which accommodates different interests and demands to the fullest extent possible. The realities of China are:
the existence of the political entities of Mainland China and Taiwan;
the future systems of Hong Kong and Macao being subject to the Sino-British and Sino-Portuguese joint declarations respectively;
Tibet's vast religious and cultural differences from other parts of China;
geographical differences and growing regional power as a result of the development of the market economy in China.
In view of these realities, China is already in the initial stage of a federal system. No political party or political force can ignore this fact. This draft Constitution is based precisely on a consideration of the realities. Even so, the draft Constitution is an idealistic Constitution. In China's future constituent assembly, the need for compromise among political forces will "drastically water down" this "idealistic Constitution"; this is certain. What will emerge will be "a realistic Constitution with idealistic principles." When this draft Constitution is officially adopted and promulgated, China will have passed from "the Republic of China" and "the People's Republic of China" to "the third republic."
The present draft Constitution is based on the draft Constitution prepared by the "Academic Seminar on China's Unification Mode and Constitution" held in Hawaii in 1993. Before the Hawaii meeting,
LIU Kai Shen, YAN Jia Qi, WENG Song Ran, LIAO Ren, WU Ying Chao, YANG Jian Li, ZHANG Xin, ZHAO Sui Sheng, XU Bang Tai and ZHANG Zuo Ren had drafted individual articles. At the meeting, valuable critiques and comments were offered by WU Yuan Li, HU Fo, GUO Ying Yi, HUANG Mo, ZHU Yean Han, MING Ju Zheng, WU Guo Guang,ZHANG Wai Guo and ZENG Fu Wen.
Principal authors of the draft Constitution
The principal authors of the proposed draft Constitution of San Francisco were
WENG Song Ran, ZHANG Xin, LIU Kai Shen, ZHAO Sui Sheng, YAN Jia Qi and ZHANG Wei Guo. ZHU Yean Han offered many valuable comments. CHEN Qing Lin, ZHENG Zhi Gang and LIU Jun Guo took part in the preparation of the meeting and in its work. Both the Hawaii and the San Francisco meetings were organized by the 21st Century China Foundation of U.S.A. What needs to be clarified is that the draft Constitution does not represent the views of the Foundation. Nor does it necessarily reflect the view of the participants in the Hawaii meeting. The proposed draft Constitution, though revised many times, may still be flawed in places. It is published in the hope that comments will be made on it so that it may be further revised.
(By YAN Jia Qi )
8 February, 1994
A Special Report on Draft Constitution of Federal China
The Constitution of the Federal Republic of China
(proposed draft)
This Constitution is made so as to end the politics of dictatorship in the history of China, to change the system of centralization of power, to establish the rule of law, to safeguard the freedoms and rights of citi- zens, to improve the well-being of all, and to maintain peace and tranquil-lity for all nationalities and in all areas.
Chapter One: General Principles
Article 1: The Federal Republic of China is a free and democratic federal republic with the rule of law.
Article 2: The sovereignty of the Federal Republic of China belongs to all the people.
Article 3: People with the nationality of the Federal Republic of China are citizens of the Federal Republic of China.
Article 4: The Federal Republic of China is composed of Autonomous States, Autonomous Provinces, Autonomous Cities and Special Regions (hereinunder, states, provinces, cities and regions for short).
Article 5: All nationalities of the Federal Republic of China have the right to keep and develop their cultures, religions and languages.
Chapter Two: Citizens' Rights and Obligations
Article 6: The citizens of the Federal Republic of China are equal before the law. They are not unequal because of difference in sex, in origin, in language, in nationality, in religion, in wealth, in party affiliation or in political per- suasion.
Article 7: Citizens' personal freedom is inviolable. See below for the handling of the arrest of offenders against existing law.
Nor may anybody be arrested or detained by the judiciary or the public security authority except in due process of law. Nobody may be tried or sentenced by the court except in due process of law. Arrest, detention, trial and sentencing may be resisted and actionable if they do not comply with the provisions of law.
Where a citizen is arrested and detained as a crimme suspect, the arresting and detaining authority should tell him, the reason for his arrest and detention; and hand him over to the appropriate court for action within the time limit prescribed by law. He or any other person may apply to the appropriate court for a writ requiring that he be removed from his place of detention and brought before the court within the time limit prescribed by law.
The court may not refuse such an application. The detaining author- ity may not refuse to comply, or delay in complying, with the writ.
The suspect's personal dignity is inviolable. He has a right to be tried independently and openly by a court of justice and to defend himself therein.
He may not be treated or punished in a cruel, inhuman or humiliating manner. He may not be forced to testify against himself.
Article 8: The home of a citizen is inviolable. Nobody may force his way into it or search it except in due process of law.
Article 9: A citizen who is not a military person on active duty may not be tried by a military court.
Article 10: Citizens are free to choose their places of residence and to change them. Each autonomous State or Special Region may make its own entry and exit regulations as warranted by local circumstances.
Article 11: Citizens have the freedom of speech, lecture, writing, publication and operating news media.
Article 12: Citizens have the freedom of confidential communication.
Article 13: Citizens have the freedoms of assembly, association, procession and demonstration.
Article 14: Citizens have the freedoms of organizing political parties and conduction political activities.
Political parties must be lawfully registered. Fundings and expenditures of such parties must be declared in accordance with law..
Article 15: Citizens have the freedoms of religion and belief.
Article 16: Citizens are free to choose their occupations.
Article 17: Citizens have the freedoms of organizing and joining trade unions and going on strike.
Article 18: Citizens have the right of lawful access to information.
Article 19: Citizens have the right to present petitions, air grievances and to take legal proceeding.
Article 20: Citizens upon reaching the age of 18 have the right to vote in elections. Citizens upon reaching the age of 20 have the right to stand for elections.
Article 21: Citizens' property rights should be protected. Nobody may be expropriated of his property except for a public cause, except in due process of law and except upon payment of reasonable compensation.
Property rights should be exercised in a manner not detrimental to public interests.
Article 22: Citizens have the right and the obligation to receive national education.
Article 23: Citizens have the obligation to perform military service as required by law.
Artcle 24: Citizens have the obligation to pay tax as required by law.
Article 25: All other rights and freedoms of a citizen, except where they are detri- mental to peace and order or to public interests, are safeguarded by the Constitution.
Article 26: No law should be made to curtail the above-listed freedoms and rights. Exceptions are where they hinder the rights of others; when there is an emergency; and where they must be curtailed in order to maintain peace and order or to promote public interests.
Article 27: Any public servant who unlawfully violates a freedom or right of a citizen should not only be punished under law but also incur a criminal or civil liability. The victimized citizen may ask the state to compensate him for the damage that he has suffered.
Chapter Three: Federal Structure
Article 28: The Federal Republic of China is made up of:
The Autonomous State of Inner Mongolia, the Autonomous State of Taiwan, the Autonomous State of Tibet, the Autonomous State of Xinjiang, the Autonomous State of Ningxia and the Autonomous State of Guangxi; The Autonomous Province of Shanxi, the Autonomous Province of Shandong, the Autonomous Province of Sichuan, the Autonomous Province of Gansu, the Autonomous Province of Jiangxi, the Autonomous Province of Jiangsu, the Autonomous Province of Jilin, the Autonomous Province of Anhui, the Autonomous Province of Hubei, the Autonomous Province of Hunan, the Autonomous Province of Qinghai, the Autonomous Province of Shanxi, the Autonomous Province of Hainan, the Autonomous Province of Zhejiang, the Autonomous Province of Hubei, the Autonomous Province of Hunan, the Autonomous Province of Guizhou, the Autonomous Province of Yunnan, the Autonomous Province of Heilongjiang, the Autonomous Province of FuJian, the Autonomous Province of Guangdong and the Autonomous Province of Liaoning; The Autonomous Municipality of Shanghai, the Autonomous Municipality of Tianjin and the Autonomous Municipality of Beijing; and The Special Region of Hong Kong and the Special region of Macau.
Article 29: Any power that is not constitutionally vested in the Federal Government is exercised by the individual Autonomous States, Autonomous Provinces, Autonomous Municipalities and Special Regions and the entire citizenry.
Article 30: Each Autonomous State makes its own constitution. Each Autonomous Province, Autonomous Municipality or Special Region makes its own Basic Law. A State Constitution or Basic Law may not conflict with the Constitution of the Federal Republic of China or violate the lawful rights of another State, Province, Municipality or Special Region.
Article 31: The Federal government makes and enforces laws in the following areas:
(1) Foreign policy, the declaration of war and the making of peace.
(2) Nationality.
(3) National defense and military affairs.
(4) Federal budgets and taxes.
(5) The Federal legal and judicial system.
(6) The election of the National House.
(7) The Federal civil service system.
(8) The Federal public security and police system.
(9) Federal customs and excises and entry/exit controls.
(10) The regulation of space flights,aviation, ocean shipping, lnland waterways, national roads and national railways.
(11) The establishment of the Federal Central Bank and the issue of the national currency.
(12) The regulation of postal service and telecommunications.
(13) Standard weights and measures and national statistics.
(14) The protection of copy rights, patents, trade marks and intellectual property.
(15) The regulation of relationships among the States, Provinces, Municipalities and Regions.
Article 32: The individual States, Provinces, Municipalities and Regions make and enforce laws in the following areas:
(1) The legal and judicial system.
(2) The education system.
(3) The selection of members to the Federal House.
(4) The regulation of agriculture, forestry, animal husbandry, mining, industry, commerce and services.
(5) Budgets and taxes.
(6) The land system and nature conservation.
(7) The regulation of labour, social welfare and social services.
(8) The provision and supervision of medical and health services, sports facilities and recreation facilities.
(9) The promotion and protection of science, technology, culture and the arts.
(10) The regulation of banks and financial services.
(11) The regulation of public utilities and joint operations.
(12) The supervision of charities and community services.
(13) The registration of religious organizations and social groups.
(14) The public security and police system.
(15) The civil service system.
(16) The system of local autonomy.
(17) Other areas that are constitutionally not under the jurisdiction of the Federal Government.
Article 33: Each Autonomous State has the right, in the name of an Autonomous State of China, to sign non-military agreements with foreign countries, and the right to make its own decisions about joining international organi- zations and setting up representative offices in foreign countries.
Article 34: The Federal Government may send representatives to, and set up repre- sentative offices in, the individual States, Provinces, Municipalities and Regions.
Article 35: No military alliance may be formed, or military agreement signed, among the States, Provinces, Municipalities and Regions.
Article 36: The Federal House must approve by a three-fourths majority vote before any new State, Province, Municipality or region can be created. Before any change is made to any State, Province, Municipality or Region, the legislature of the particular State, Province, Municipality or Region must give its approval, and the Federal House must approve by a two-thirds majority yote.
Article 37: Before year 2050, the Special Region of Hong Kong and the Special Region of Macau will have the authority to issue regional currencies and regional passports, travel documents and visas; set up regional courts of final appeal; regulate regional postal service and telecommunications; protect copy rights, patents and other kinds of intellectual property; and, in the name of a Special Region of the Federal Republic of China, sign non-political and non-military agreements with foreign countries, take part in non-political and non-military international organizations, and set up economic and trade offices in foreign countries.
The Special Region of Hong Kong and the Special Region of Macau are financially independent and not required to pay federal tax. The Special Region and Hong Kong and the Special Region of Macau are authorized by the Federal House to regulate aviation and ocean shipping.
In year 2050, the Federal House will review the position of the Special Region of Hong Kong and the Special Region of Macau under the terms of the second clause of Article 36.
Article 38: The Autonomous State of Taiwan has the authority to issue its state cur- rency, passports, travel documents and visas; set up its state court of final appeal; regulate space flights, aviation, ocean shipping, postal service and telecommunications; and protect copy rights, patents, trade marks and intellectual property.
The Autonomous State of Taiwan is financially independent and not required to pay federal tax .
The Autonomous State of Taiwan has the right to maintain armed forces and the right to refuse a federal military presence.
Article 39: The Autonomous State of Tibet is a national nature conservation area, where the testing of nuclear, chemical and biological weapons and the storage of nuclear wastes are prohibited.
The Autonomous State of Tibet is financially independent and not required to pay federal tax.
The Autonomous State of Tibet has the right to set up its state court of final appeal.
The position of the Autonomous State of Tibet will be reviewed 25 years after this Constitution is promulgated. The review will be in the form of a referendum by the citizens in the state and not subject to Article 36 of this Constitution.
Chapter Four: The Parliament
Article 40: The Parliament of the Federal Republic of China is the supreme federal legislative body.
The Parliament of the Federal Republic of China is composed of two houses: The national House and the Federal House, which jointly exercise the legislative powers.
Article 41: The National House has a total of 501 Members, returned from the individ- ual States, Provinces, Municipalities and Regions, each in a number pro- portional to its population, provided that each returns at least one Member.
The term of office of a Member of National House is four years. He can be re-elected. The assignment of House seats, the demarcation of elec- toral district boundaries and the methods of election are stipulated by law.
Article 42: The Federal House is composed of Members returned from the individual States, Provinces, Municipalities and Regions: four each from the Autonomous States, three each from the Autonomous Provinces and Municipalities and two each from the Special Regions.
Each of the States, Provinces, Municipalities and Regions decides for itself how its Representatives to the Federal House are elected.
The term of office of a Member of Federal House is six years. An election is held every three years to return one half of the Federal House Members. A citizen of the Federal Republic of China must have reached the age of 30 before he can serve as a Federal House Member.
Article 43: Each House has a Speaker and Deputy Speaker, who are elected by its Members from among themselves.
The Federal Parliament meets in two sessions each year, convening the sessions itself. The first session begins on the first Monday of March. The second session begins on the first Monday of September. There is a quorum when one half of the Members are present.
Article 44: Either House must meet in an extraordinary session if convened by Premier or if requested to meet by not less than one quarter of its Members.
Article 45: A member of Federal Parliament is not subject to arrest or detention except if he is an offender against existing law and except with the approval of the House in which he sits.
Members of Parliament are not legally liable for what they say or how they vote in parliament.
Article 46: The two Houses of Parliament jointly exercise the following powers:
(1) Legislative powers under the terms of Article 31 of this Constitution.
(2) Reviewing the federal budget and financial report.
(3) Ratifying treaties concluded between the Federal Republic and for eign countries; making decisions on war or peace; and making deci sions on general or partial rnobilization.
(4) Making decisions on national or local curfew.
(5) Making decisions on general amnesty.
(6) At the request of the Premier, reviewing any agreement concluded by an Autonomous State or a Special Region with a foreign country, to see if it is contrary tothefederal Constitution.
(7) Any other power approved by the Constitution.
Article 47: The Federal House by itself exercises the following powers:
(1) Approving the establishment of any new State, Province, Municipality or Region and any change in the States, Provinces, Municipalities and Regions under the terms of Article 36.
(2) Approving any boundary change among the States, Provinces, Municipalities and Regions.
(3) Impeaching the federal Premier, the Vice Premier and any State Councillor, Minister or Judge.
(4) Approving the appointment of any federal Judge nominated by the premier.
Article 48: When reviewing the federal budget proposal, Parliament may not suggest any increase in spending.
The federal budget proposal is first tabled at the National House for approval. It is then reviewed by the Federal House. If the two House fail to agree on an identical approved budget within three months from the tabling of the budget proposal, the budget proposal is returned to the National House then approves the budget proposal by more than half of the Members, the budget proposal becomes the approved budget.
A legislative process is completed if both Houses approve an identical version of a legislative bill or resolution. When needed, either House may introduce a legislative bill. The two Houses then appoint representatives to form a conference committee. The resolution of the conference committee is then sent back to each House for a floor vote.
Article 49: Any bill passed by Parliament is promulgated by the President, who must do so within 10 days from his receipt of it.
Article 50: The organization of the National House and that of the Federal House are stipulated by law.
Chapter Five: The Presidency
Article 51: The President is the head of state. He represents the Federal Republic of China externally.
The President of the Federal Republic of China is elected by the Electoral College, which is composed of Members of the two Houses of Parliament States, Provinces, Municipalities and Regions.
A presidential candidate must be a citizen born in China and must have reached the age of 40.
Presidential elections are called by the Speaker of the National House. A presidential election is held within 60 days before the term of the incumbent President expires or within 30 days from the time that the presidential office becomes vacant.
Each presidential candidate is nominated by one fifth of the Members of the Federal House. The candidate who receives more than half of the votes of the Electoral College wins the election. If no candidate receives more than half of the votes after two ballots, the first to pass the post at the third ballot is the winner.
The President elect must withdraw from his own political party before the inauguration.
Article 52: The President's term of office is four years. He may be elected to a second term.
The President exercises the following powers under law:
(1) Signing and promulgating laws passed by Parliament.
(2) Appointing the Premier according to the National House's decision.
(3) At the request of the Premier, appointing or dismissing the Vice Premier, any State Councillor or any Minister.
(4) Dissolving the National House under the terms of Articles 56 and 59.
(5) Signing or abrogating treaties with foreign countries according to the decision of Parliament.
(6) Declaring war or making peace according to the decision of Parliament.
(7) Receiving foreign emissaries and, at the request of the Premier, sending or recalling envoys accredited to foreign countries.
(8) At the request of the Premier, giving out decorations.
(9) Issuing general amnesty orders at the request of Parliament; and issuing special amnesty orders, sentence-reduction orders or rehabilitation orders at the request of the Premier.
(10) According to the decision of the Parliament and at the request of the Premier, issuing general or partial mobilization orders and orders imposing or terminating curfews.
A presidential document promulgating a law or issuing an order must be co-signed by the premier.
Article 53: A President who breaks the law or abuses his office may be impeached at the instance of one third of the Members of both Houses meeting jointly and with the approval of three quarters of these Members. An impeached President immediately loses his office.
Article 54: When the presidential office hecomes vacant, the Speaker of the Federal House becomes the acting President for up to two months. Meanwhile, the Speaker of the National House is in charge of holding a new preslden- tial election.
Chapter Six: The State Council
Article 55: The State Council is the supreme executive body of the Federal Republic.
The State Council consists of one Premier, one Vice Premier, several State Councillors and several Ministers. Together they form the Federal State Committee.
Article 56: The Premier of the State Council is elected by the National House after each election of the National House itself, or after each National House vote of no confidence in the incumbent Premier, or after the incumbent Premier dies or otherwise vacates his office.
The candidate who receives more than half of the votes becomes the new Premier.
If no candidate receives more than half of the votes at the first ballot, the two candidates who have received the most votes will compete at a second ballot and the candidate who then receives more than half of the votes is the winner. If neither candidate wins more than half of the votes, balloting will contin- ue. If no winner emerges within 10 days, the President dissolves the National House and announces a new election of the National House.
Article 57: The Premier nominates the Vice Premier, the State Councillors and the Ministers. The President appoints the nominees after they are confirmed by the National House.
Article 58: The Premier of the State Council exercises the following powers:
Presiding at meetings of the State Council;
Making Administrative regulations and issuing decisions and orders under the terms of the Constitution and the law;
Proposing resolutions to Parliament;
Commanding and directing the federal armed forces;
Appointing and dismissing federal government officials; and
Nominating federal Judges for confirmation by the Federal House.
Article 59: The Premier of the State Council is responsible to the National House under the following terms:
(1) The Premier makes government reports to the National House at regular intervals. The Premier and other members of the State Committee have the obligation to answer questions from Members of the National House when the National House is in session.
(2) If the National House rejects, or makes unacceptable changes in, an important bill or a budget proposal presented by the Premier, the State Committee may, after revising the bill or proposal, present it to the National House again. If half of the Members in the National House then vote to uphold the original decision of the National House, the Premier either tenders resignation for the entire State Council or requests the President to dissolve the National House.
(3) A National House vote of no confidence in the Premier of the State Council has to be initiated by one quarter of the National House Members and approved by more than half of them. After the National House passes a vote of no confidence, a new Premier is elected immediately under the terms of Article 56. After the new Premier is elected, the original Premier immediately tenders resignation for the entire, State Council. If the National House fails to elect a new Premier within 10 days from the vote of no confidence, the original Premier immediately dissolves the National House.
Article 60: The State Committee exercises the following powers:
(1) Making decisions on tabling legislative bills, budget proposals, curfew proposals, general amnesty proposals and general or partial mobilization proposals at the feder Parliament.
(2) Making decisions on tabling war or peace proposals and treaty proposals at the federal Parliament.
(3) Making decisions on amnesty, sentence reduction and rehabilitation.
(4) Making decisions on inter-ministerial matters.
(5) Making decisions on matters proposed by the Premier, the Vice Premier, any Members of th e State Committee or any Minister.
(6) Making policies on matters relating to Article 3 l .
(7) Studying other matters affecting national interests. Article 61: In the event of a military invasion, a natural disaster or a catastrophic accident when the federal Parliament is not in session, the Premier issues emergency orders to deal with the critical situation which must be dealt with immediately. These orders must be retrospectively approved by Parliament within one month from the day on which they are issued. If rejected by Parliament, the orders immediately lose their validity.
Article 62: The organization of the State Council is stipulated by law.
Chapter Seven: The Judicial System
Article 63: Judicial powers belong to the federal Courts and the Courts of the States, Provinces, Municipalities and Regions.
At the federal level, there are Courts, Courts of Appeal and a Supreme Court. Their organization is stipulated by law.
Article 64: Federal Judges exercise their powers independently and without any interference under the terms of this Constitution and the terms of federal statutes.
Article 65: The individual States, Provinces, Municipalities and Regions make their own law on the organization of judicial authorities to exercise judicial powers in the respective States, Provinces, Municipalities and Regions.
The individual States, Provinces, Municipalities, and Regions should respect each other's jurisdiction.
Article 66: The federal Courts are the highest-ranking tribunals.
Except as are otherwise provided in Articles 37, 38 and 39, a citizen of the Federal Republic has the right to initiate legal proceedings in any of the States, Provinces, Municipalities and Regions. The Courts of the States, Provinces, Municipalities and Regions may not discriminate against litigants who are not local residents.
Article 67: The federal Supreme Court interprets the federal Constitution and the laws and orders of the Federal Republic, doing so in the process of trying cases or upon application by eligible parties defined below:
(l) One quarter of the Members of the Federal House or the National House, who sign their names.
(2) The federal Premier.
(3) The head of government or the supreme judicial authority of any of the States, Provinces, Municipalities and Regions.
(4) Any federal Court or Court of Appeal.
Article 68: The federal Courts exercise the following judicial powers.
(1) Adjudicating disputes over the election of the federal Parliament, the election of the President and the election of the Premier.
(2) Adjudicating disputes between the federal government and any of the States, Provinces, Municipalities and Regions.
(3) Adjudicating disputes among States, Provinces, Municipalities and Regions.
(4) Adjudicating disputes over federal laws and international treaties.
(5) The federal Supreme Court hears cases appealed from a Court of any of the States, Provinces, Municipalities and Regions.
(6) Adjudicating cases involving persons with diplomatic immunity.
(7) Adjudicating cases in which the Federal Republic is a respondent.
(8) Passing judgment on disputes among States, Provinces, Municipalities and Regions involving judicial jurisdictions.
(9) Adjudicating cases involving jurisdictions on water and in air.
Article 69: The judicial authorities of the States, Provinces, Municipalities and Regions have the obligation to assist in enforcing the judgments and sen- tences of the federal Courts.
Article 70: Federal Judges are nominated by the federal Premier and are confirmed and appointed by the Federal House. Federal Judges have life tenure. They may not be terminated, removed or dismissed except under the terms of law. Their retirement age is stipulated by law.
Article 71: A federal Judge, while on the bench, may not assume a position in the executive branch of government or serve as a Member of Parliament; or engage in profit-making business; or take part in political activities.
Article 72: The federal judicial establishment is funded by the federal budget.
Article 73: Except where the law provides otherwise, all cases are tried openly. Judgments are required to be made public.
Article 74: A citizen who is a member of an ethnic minority has the right to use the minority language in the court room. In an area inhabited by a minority ethnic group, judicial documents are written in both the national language and the minority language.
Chapter Eight: Implementation of the Constitution and Constitutional Amendment
Article 75: This constitution comes into effect from the date of its approval by the Constituent Assembly.
Any amendment to the text of the constitution must be initiated by one third of the Members in either the National House or the Federal House and approved by three quarters of the Members of each House and by more than half of the legislatures of the States, Provinces, Municipalities and Regions. An amendment affecting an Autonomous State or Special Region must be approved by the legislature of the same State or Region.
San Francisco, U.S.A. 31 January, 1994
Federal System: From Fantasy to Blueprint
Birth of a Proposed Draft Constitution for a Federal China
[ Editor's note ] A number of earnest scholars from China Mainland, Hong Kong, Taiwan and various other countries, gathered first in Hawaii and then in San Francisco, have, after a year or so, produced a proposed draft Constitution for a Federal China.At a time of cataclysmic change, their work makes a specific contribution to the shaping of the future of the Chinese nation. lt is hoped that experts, scholars and persons in positions of power will pay attention to, and discuss, it.
*** ***
In late January, scholars from Hong Kong, Taiwan, China Mainland and U.S.A. met in a small gathering in San Francisco to "research a Constitution for Federal China". The meeting was organized by the 21st Century China Foundation of San Francisco. Some of theparticipants in this seminar drafted for the future China an "idealistic Constitution based on the realities," also known as "The Constitution for the Federal Republic of China".
The Constitution is the supreme law of the land. It is the work of the Constituent Assembly. A good and efficacious Constitution is not "made" by a few experts or scholars who use their imagination. It grows and develops in a peaceful environment. "A Constitution grows; it is not manufactured." This is the consensus of the San Francisco meeting. The participants in the meeting, in the true spirit of "explorers," searched for a proposed draft Constitution for a post-cataclysmic China.
A federal system with confederal characteristics
The draft Constitution has eight chapters totalling 75 articles.
The titles of the eight chapters are: General Principles, citizens Basic Rights and Obligations, the Federal Structure, the Parliament, the President, the State Council, the Judicial System and Implementation and Amendment.
The most important feature of the draft Constitution is its being a "federal Constitution with confederal Characteristics." Under given historical conditions, people can change only those things which can be changed. The things which cannot be changed or cannot be changed for the time being must be accepted withequanimity. For a long time to come, different parts of Chinawill have differences which are hard to make disappear. It is precisely out of this consideration that the draft Constitution divides the component parts of the future China into four major: the Autonomous States, the Autonomous provinces, the Autonomous Cities and the Special regions.
The Autonomous States are Inner Mongolia, Taiwan, Tibet, Xinjiang, Ningxia and Guanxi.
The Autonomous Provinces are Shandong, Shanxi, Sichuan, Gansu,Guangdong and Liaoining.
The Autonomous cities are Shanghai, Tianjin and Beijing.
The Special Regions are Hong Kong and Macao.
These component elements of the Federal Republic are shaped byhistory. If, at the time of the formation of the Federal Republic, we should try to make comprehensive or major changesaffecting the boundaries of the component elements, boundary disputes and conflicts would surely ensue. Therefore, the basic principle used in dividing the Federal Republic into its component elements is: "Respect for the status quo and respect for history."
There are four groups of component elements of the Federal Republic. Each group is tied to the Federal Republic in a special way. The Autonomous States and Special Regions are loosely tiedto the Federal Republic, in a relationship which has confederal characteristics. The Autonomous Provinces and Autonomous Cities are more closely tied to the Federal Republic, in a relationshipsimilar to that found in a normal Federal republic.
Autonomous States can make their own Constitutions
The draft Constitution of Federal China provides in black and white for the division of powers between the Federal Republic and its component elements. It also provides that each Autonomous State may make its own constitution and that each Autonomous Province, Autonomous City or Special Region may make its own basic law.
The Federal China is vastly different from the traditional China. In the traditional China, the power of the local governments comes from the Central Government. Under a Federal system, the power of the Central Government will come from the component elements of the Federal Republic and from the people.
The Basic Law of Hong Kong, passed in 1992, provides that the post-1997 Hong Kong shall have various powers, which, in many cases, exceed the powers of the states of U.S.A. However, these powers are given Hong Kong by the Central Government in Beijing. They can be taken away overnight. The draft constitution, based on the principle of "Respect for the status quo and respect for history," and taking into consideration the Joint Declaration of Beijing and London concerning the question of Hong Kong, provides, in a special clause of Article 37, that changes effecting the Hong Kong Special Region's various powers may not be made without the approval of the Special Region's Legislature.
Under the draft Constitution, Taiwan and Tibet are Autonomous States. They are vested with special powers under special clauses. The draft Constitution provides that "the Autonomous State of Taiwan shall have the power to issue state passports, travel documents and visas and to establish the state court of final appeal," that "the Autonomous state of Taiwan shall be financially independent and exempted from fed- eral tax" and that "the Autonomous State of Taiwan shall have the power to keep its arrned forces and the power to refuse the presence of federal forces."
With regard to the Autonomous State of Tibet, the draft constitution, taking into full consideration of the spirit of Dalai Lama's Strasbourg speech of 1988, provides that "the Autonomous State of Tibet shall be a national conservation area, where the testing of nuclear, chemical and biological weapons and the storage of nuclear wastes shall be banned."
A geographically diversifled China
Under a federal system, the Chinese provincse and cities will have radically different relationships with the Central Govemment in Beijing. The traditional kind of centralism will cease to exist. Beijing, Shanxi, Guizhou and so forth will have their own Basic Laws. All Autonomous Provinces and Autonomous Cities will have their own political systems suited to their local characteristics. The Autonomous Province of Yunnan will probably be known as the Premier. Beijing Municipality will probably have a one house system and its municipal affairs will probably be managed by a "Mayor-Premier" system. The Federal Republic will let all its parts develop their full potentials, each in its own way and according to its own strong points. Thus, a geographically diversified China will come into being.
Concerning the Parliament of the Federal China, the draft Constitution provides that it shall be a two-house system. A National House shall have members who are returned by elections and whose number is proportional to the population. A Federal House shall have members who are returned by election or appointment from the individual states, provinces, cities and regions.
The Federal House shall have the power to impeach members of the State Council and the power to approve boundary changes within the Federal Republic.
A stable cabinet system
With regard to the Federal Government system, full account is taken of China's national characteristics, and what has been chosen may be called "a stable cabinet system."
The Federal Republic shall have a President and a Premier. Yet this will not be a case of "two heads of government." The President shall be a figurehead. He has to have the approval of the Parliament or the approval of the Premier before he can exercise any of his powers. For instance, he shall appoint the premier decided by the National House and he shall appoint the Premier decided by the National House and be shall appoint or discuss Vice Premiers, State Councillors and Ministers at the request of the Premier. The President is the symbol of national unity. The overthrow of a cabinet will not affect the position of the President. The President is also the safeguard of stability despite changes of government. When there is a constitutional crisis, the President shall participate in its resolution, thus playing a politically stabilizing role.
The draft Constitution provides that the Premier shall be elected by the National House and that the premiership shall be the seat of the supreme executive power of the Federal Republic. The draft Constitution exemplifies the principle of democracy, which is that the power of the government shall come from the people and that the people shall decide which administration should be in power and when it should be replaced.
National realities not to be overlooked
The draft Constitution of San Francisco makes a distinction between "welfare benefits" and "rights." It makes no promises concerning "welfare benefits." It contains various provisions for "the safeguarding of human rights." Here, however, it is not flawless. The freedom of moving to live in a different area is a basic human right. But this human right cannot be fully safeguarded in Federal China. The movement of people from the Autonomous Provinces and Autonomous Cities of Federal China to Hong Kong, Taiwan or Tibet will be restricted. The Dalai Lama is concerned that Han Chinese will migrate en masse to Tibet. This will not happen.
The draft Constitution of San Francisco paints a vivid picture of the future China, which accommodates different interests and demands to the fullest extent possible. The realities of China are:
the existence of the political entities of Mainland China and Taiwan;
the future systems of Hong Kong and Macao being subject to the Sino-British and Sino-Portuguese joint declarations respectively;
Tibet's vast religious and cultural differences from other parts of China;
geographical differences and growing regional power as a result of the development of the market economy in China.
In view of these realities, China is already in the initial stage of a federal system. No political party or political force can ignore this fact. This draft Constitution is based precisely on a consideration of the realities. Even so, the draft Constitution is an idealistic Constitution. In China's future constituent assembly, the need for compromise among political forces will "drastically water down" this "idealistic Constitution"; this is certain. What will emerge will be "a realistic Constitution with idealistic principles." When this draft Constitution is officially adopted and promulgated, China will have passed from "the Republic of China" and "the People's Republic of China" to "the third republic."
The present draft Constitution is based on the draft Constitution prepared by the "Academic Seminar on China's Unification Mode and Constitution" held in Hawaii in 1993. Before the Hawaii meeting,
LIU Kai Shen, YAN Jia Qi, WENG Song Ran, LIAO Ren, WU Ying Chao, YANG Jian Li, ZHANG Xin, ZHAO Sui Sheng, XU Bang Tai and ZHANG Zuo Ren had drafted individual articles. At the meeting, valuable critiques and comments were offered by WU Yuan Li, HU Fo, GUO Ying Yi, HUANG Mo, ZHU Yean Han, MING Ju Zheng, WU Guo Guang,ZHANG Wai Guo and ZENG Fu Wen.
Principal authors of the draft Constitution
The principal authors of the proposed draft Constitution of San Francisco were
WENG Song Ran, ZHANG Xin, LIU Kai Shen, ZHAO Sui Sheng, YAN Jia Qi and ZHANG Wei Guo. ZHU Yean Han offered many valuable comments. CHEN Qing Lin, ZHENG Zhi Gang and LIU Jun Guo took part in the preparation of the meeting and in its work. Both the Hawaii and the San Francisco meetings were organized by the 21st Century China Foundation of U.S.A. What needs to be clarified is that the draft Constitution does not represent the views of the Foundation. Nor does it necessarily reflect the view of the participants in the Hawaii meeting. The proposed draft Constitution, though revised many times, may still be flawed in places. It is published in the hope that comments will be made on it so that it may be further revised.
(By YAN Jia Qi )
8 February, 1994
A Special Report on Draft Constitution of Federal China
The Constitution of the Federal Republic of China
(proposed draft)
This Constitution is made so as to end the politics of dictatorship in the history of China, to change the system of centralization of power, to establish the rule of law, to safeguard the freedoms and rights of citi- zens, to improve the well-being of all, and to maintain peace and tranquil-lity for all nationalities and in all areas.
Chapter One: General Principles
Article 1: The Federal Republic of China is a free and democratic federal republic with the rule of law.
Article 2: The sovereignty of the Federal Republic of China belongs to all the people.
Article 3: People with the nationality of the Federal Republic of China are citizens of the Federal Republic of China.
Article 4: The Federal Republic of China is composed of Autonomous States, Autonomous Provinces, Autonomous Cities and Special Regions (hereinunder, states, provinces, cities and regions for short).
Article 5: All nationalities of the Federal Republic of China have the right to keep and develop their cultures, religions and languages.
Chapter Two: Citizens' Rights and Obligations
Article 6: The citizens of the Federal Republic of China are equal before the law. They are not unequal because of difference in sex, in origin, in language, in nationality, in religion, in wealth, in party affiliation or in political per- suasion.
Article 7: Citizens' personal freedom is inviolable. See below for the handling of the arrest of offenders against existing law.
Nor may anybody be arrested or detained by the judiciary or the public security authority except in due process of law. Nobody may be tried or sentenced by the court except in due process of law. Arrest, detention, trial and sentencing may be resisted and actionable if they do not comply with the provisions of law.
Where a citizen is arrested and detained as a crimme suspect, the arresting and detaining authority should tell him, the reason for his arrest and detention; and hand him over to the appropriate court for action within the time limit prescribed by law. He or any other person may apply to the appropriate court for a writ requiring that he be removed from his place of detention and brought before the court within the time limit prescribed by law.
The court may not refuse such an application. The detaining author- ity may not refuse to comply, or delay in complying, with the writ.
The suspect's personal dignity is inviolable. He has a right to be tried independently and openly by a court of justice and to defend himself therein.
He may not be treated or punished in a cruel, inhuman or humiliating manner. He may not be forced to testify against himself.
Article 8: The home of a citizen is inviolable. Nobody may force his way into it or search it except in due process of law.
Article 9: A citizen who is not a military person on active duty may not be tried by a military court.
Article 10: Citizens are free to choose their places of residence and to change them. Each autonomous State or Special Region may make its own entry and exit regulations as warranted by local circumstances.
Article 11: Citizens have the freedom of speech, lecture, writing, publication and operating news media.
Article 12: Citizens have the freedom of confidential communication.
Article 13: Citizens have the freedoms of assembly, association, procession and demonstration.
Article 14: Citizens have the freedoms of organizing political parties and conduction political activities.
Political parties must be lawfully registered. Fundings and expenditures of such parties must be declared in accordance with law..
Article 15: Citizens have the freedoms of religion and belief.
Article 16: Citizens are free to choose their occupations.
Article 17: Citizens have the freedoms of organizing and joining trade unions and going on strike.
Article 18: Citizens have the right of lawful access to information.
Article 19: Citizens have the right to present petitions, air grievances and to take legal proceeding.
Article 20: Citizens upon reaching the age of 18 have the right to vote in elections. Citizens upon reaching the age of 20 have the right to stand for elections.
Article 21: Citizens' property rights should be protected. Nobody may be expropriated of his property except for a public cause, except in due process of law and except upon payment of reasonable compensation.
Property rights should be exercised in a manner not detrimental to public interests.
Article 22: Citizens have the right and the obligation to receive national education.
Article 23: Citizens have the obligation to perform military service as required by law.
Artcle 24: Citizens have the obligation to pay tax as required by law.
Article 25: All other rights and freedoms of a citizen, except where they are detri- mental to peace and order or to public interests, are safeguarded by the Constitution.
Article 26: No law should be made to curtail the above-listed freedoms and rights. Exceptions are where they hinder the rights of others; when there is an emergency; and where they must be curtailed in order to maintain peace and order or to promote public interests.
Article 27: Any public servant who unlawfully violates a freedom or right of a citizen should not only be punished under law but also incur a criminal or civil liability. The victimized citizen may ask the state to compensate him for the damage that he has suffered.
Chapter Three: Federal Structure
Article 28: The Federal Republic of China is made up of:
The Autonomous State of Inner Mongolia, the Autonomous State of Taiwan, the Autonomous State of Tibet, the Autonomous State of Xinjiang, the Autonomous State of Ningxia and the Autonomous State of Guangxi; The Autonomous Province of Shanxi, the Autonomous Province of Shandong, the Autonomous Province of Sichuan, the Autonomous Province of Gansu, the Autonomous Province of Jiangxi, the Autonomous Province of Jiangsu, the Autonomous Province of Jilin, the Autonomous Province of Anhui, the Autonomous Province of Hubei, the Autonomous Province of Hunan, the Autonomous Province of Qinghai, the Autonomous Province of Shanxi, the Autonomous Province of Hainan, the Autonomous Province of Zhejiang, the Autonomous Province of Hubei, the Autonomous Province of Hunan, the Autonomous Province of Guizhou, the Autonomous Province of Yunnan, the Autonomous Province of Heilongjiang, the Autonomous Province of FuJian, the Autonomous Province of Guangdong and the Autonomous Province of Liaoning; The Autonomous Municipality of Shanghai, the Autonomous Municipality of Tianjin and the Autonomous Municipality of Beijing; and The Special Region of Hong Kong and the Special region of Macau.
Article 29: Any power that is not constitutionally vested in the Federal Government is exercised by the individual Autonomous States, Autonomous Provinces, Autonomous Municipalities and Special Regions and the entire citizenry.
Article 30: Each Autonomous State makes its own constitution. Each Autonomous Province, Autonomous Municipality or Special Region makes its own Basic Law. A State Constitution or Basic Law may not conflict with the Constitution of the Federal Republic of China or violate the lawful rights of another State, Province, Municipality or Special Region.
Article 31: The Federal government makes and enforces laws in the following areas:
(1) Foreign policy, the declaration of war and the making of peace.
(2) Nationality.
(3) National defense and military affairs.
(4) Federal budgets and taxes.
(5) The Federal legal and judicial system.
(6) The election of the National House.
(7) The Federal civil service system.
(8) The Federal public security and police system.
(9) Federal customs and excises and entry/exit controls.
(10) The regulation of space flights,aviation, ocean shipping, lnland waterways, national roads and national railways.
(11) The establishment of the Federal Central Bank and the issue of the national currency.
(12) The regulation of postal service and telecommunications.
(13) Standard weights and measures and national statistics.
(14) The protection of copy rights, patents, trade marks and intellectual property.
(15) The regulation of relationships among the States, Provinces, Municipalities and Regions.
Article 32: The individual States, Provinces, Municipalities and Regions make and enforce laws in the following areas:
(1) The legal and judicial system.
(2) The education system.
(3) The selection of members to the Federal House.
(4) The regulation of agriculture, forestry, animal husbandry, mining, industry, commerce and services.
(5) Budgets and taxes.
(6) The land system and nature conservation.
(7) The regulation of labour, social welfare and social services.
(8) The provision and supervision of medical and health services, sports facilities and recreation facilities.
(9) The promotion and protection of science, technology, culture and the arts.
(10) The regulation of banks and financial services.
(11) The regulation of public utilities and joint operations.
(12) The supervision of charities and community services.
(13) The registration of religious organizations and social groups.
(14) The public security and police system.
(15) The civil service system.
(16) The system of local autonomy.
(17) Other areas that are constitutionally not under the jurisdiction of the Federal Government.
Article 33: Each Autonomous State has the right, in the name of an Autonomous State of China, to sign non-military agreements with foreign countries, and the right to make its own decisions about joining international organi- zations and setting up representative offices in foreign countries.
Article 34: The Federal Government may send representatives to, and set up repre- sentative offices in, the individual States, Provinces, Municipalities and Regions.
Article 35: No military alliance may be formed, or military agreement signed, among the States, Provinces, Municipalities and Regions.
Article 36: The Federal House must approve by a three-fourths majority vote before any new State, Province, Municipality or region can be created. Before any change is made to any State, Province, Municipality or Region, the legislature of the particular State, Province, Municipality or Region must give its approval, and the Federal House must approve by a two-thirds majority yote.
Article 37: Before year 2050, the Special Region of Hong Kong and the Special Region of Macau will have the authority to issue regional currencies and regional passports, travel documents and visas; set up regional courts of final appeal; regulate regional postal service and telecommunications; protect copy rights, patents and other kinds of intellectual property; and, in the name of a Special Region of the Federal Republic of China, sign non-political and non-military agreements with foreign countries, take part in non-political and non-military international organizations, and set up economic and trade offices in foreign countries.
The Special Region of Hong Kong and the Special Region of Macau are financially independent and not required to pay federal tax. The Special Region and Hong Kong and the Special Region of Macau are authorized by the Federal House to regulate aviation and ocean shipping.
In year 2050, the Federal House will review the position of the Special Region of Hong Kong and the Special Region of Macau under the terms of the second clause of Article 36.
Article 38: The Autonomous State of Taiwan has the authority to issue its state cur- rency, passports, travel documents and visas; set up its state court of final appeal; regulate space flights, aviation, ocean shipping, postal service and telecommunications; and protect copy rights, patents, trade marks and intellectual property.
The Autonomous State of Taiwan is financially independent and not required to pay federal tax .
The Autonomous State of Taiwan has the right to maintain armed forces and the right to refuse a federal military presence.
Article 39: The Autonomous State of Tibet is a national nature conservation area, where the testing of nuclear, chemical and biological weapons and the storage of nuclear wastes are prohibited.
The Autonomous State of Tibet is financially independent and not required to pay federal tax.
The Autonomous State of Tibet has the right to set up its state court of final appeal.
The position of the Autonomous State of Tibet will be reviewed 25 years after this Constitution is promulgated. The review will be in the form of a referendum by the citizens in the state and not subject to Article 36 of this Constitution.
Chapter Four: The Parliament
Article 40: The Parliament of the Federal Republic of China is the supreme federal legislative body.
The Parliament of the Federal Republic of China is composed of two houses: The national House and the Federal House, which jointly exercise the legislative powers.
Article 41: The National House has a total of 501 Members, returned from the individ- ual States, Provinces, Municipalities and Regions, each in a number pro- portional to its population, provided that each returns at least one Member.
The term of office of a Member of National House is four years. He can be re-elected. The assignment of House seats, the demarcation of elec- toral district boundaries and the methods of election are stipulated by law.
Article 42: The Federal House is composed of Members returned from the individual States, Provinces, Municipalities and Regions: four each from the Autonomous States, three each from the Autonomous Provinces and Municipalities and two each from the Special Regions.
Each of the States, Provinces, Municipalities and Regions decides for itself how its Representatives to the Federal House are elected.
The term of office of a Member of Federal House is six years. An election is held every three years to return one half of the Federal House Members. A citizen of the Federal Republic of China must have reached the age of 30 before he can serve as a Federal House Member.
Article 43: Each House has a Speaker and Deputy Speaker, who are elected by its Members from among themselves.
The Federal Parliament meets in two sessions each year, convening the sessions itself. The first session begins on the first Monday of March. The second session begins on the first Monday of September. There is a quorum when one half of the Members are present.
Article 44: Either House must meet in an extraordinary session if convened by Premier or if requested to meet by not less than one quarter of its Members.
Article 45: A member of Federal Parliament is not subject to arrest or detention except if he is an offender against existing law and except with the approval of the House in which he sits.
Members of Parliament are not legally liable for what they say or how they vote in parliament.
Article 46: The two Houses of Parliament jointly exercise the following powers:
(1) Legislative powers under the terms of Article 31 of this Constitution.
(2) Reviewing the federal budget and financial report.
(3) Ratifying treaties concluded between the Federal Republic and for eign countries; making decisions on war or peace; and making deci sions on general or partial rnobilization.
(4) Making decisions on national or local curfew.
(5) Making decisions on general amnesty.
(6) At the request of the Premier, reviewing any agreement concluded by an Autonomous State or a Special Region with a foreign country, to see if it is contrary tothefederal Constitution.
(7) Any other power approved by the Constitution.
Article 47: The Federal House by itself exercises the following powers:
(1) Approving the establishment of any new State, Province, Municipality or Region and any change in the States, Provinces, Municipalities and Regions under the terms of Article 36.
(2) Approving any boundary change among the States, Provinces, Municipalities and Regions.
(3) Impeaching the federal Premier, the Vice Premier and any State Councillor, Minister or Judge.
(4) Approving the appointment of any federal Judge nominated by the premier.
Article 48: When reviewing the federal budget proposal, Parliament may not suggest any increase in spending.
The federal budget proposal is first tabled at the National House for approval. It is then reviewed by the Federal House. If the two House fail to agree on an identical approved budget within three months from the tabling of the budget proposal, the budget proposal is returned to the National House then approves the budget proposal by more than half of the Members, the budget proposal becomes the approved budget.
A legislative process is completed if both Houses approve an identical version of a legislative bill or resolution. When needed, either House may introduce a legislative bill. The two Houses then appoint representatives to form a conference committee. The resolution of the conference committee is then sent back to each House for a floor vote.
Article 49: Any bill passed by Parliament is promulgated by the President, who must do so within 10 days from his receipt of it.
Article 50: The organization of the National House and that of the Federal House are stipulated by law.
Chapter Five: The Presidency
Article 51: The President is the head of state. He represents the Federal Republic of China externally.
The President of the Federal Republic of China is elected by the Electoral College, which is composed of Members of the two Houses of Parliament States, Provinces, Municipalities and Regions.
A presidential candidate must be a citizen born in China and must have reached the age of 40.
Presidential elections are called by the Speaker of the National House. A presidential election is held within 60 days before the term of the incumbent President expires or within 30 days from the time that the presidential office becomes vacant.
Each presidential candidate is nominated by one fifth of the Members of the Federal House. The candidate who receives more than half of the votes of the Electoral College wins the election. If no candidate receives more than half of the votes after two ballots, the first to pass the post at the third ballot is the winner.
The President elect must withdraw from his own political party before the inauguration.
Article 52: The President's term of office is four years. He may be elected to a second term.
The President exercises the following powers under law:
(1) Signing and promulgating laws passed by Parliament.
(2) Appointing the Premier according to the National House's decision.
(3) At the request of the Premier, appointing or dismissing the Vice Premier, any State Councillor or any Minister.
(4) Dissolving the National House under the terms of Articles 56 and 59.
(5) Signing or abrogating treaties with foreign countries according to the decision of Parliament.
(6) Declaring war or making peace according to the decision of Parliament.
(7) Receiving foreign emissaries and, at the request of the Premier, sending or recalling envoys accredited to foreign countries.
(8) At the request of the Premier, giving out decorations.
(9) Issuing general amnesty orders at the request of Parliament; and issuing special amnesty orders, sentence-reduction orders or rehabilitation orders at the request of the Premier.
(10) According to the decision of the Parliament and at the request of the Premier, issuing general or partial mobilization orders and orders imposing or terminating curfews.
A presidential document promulgating a law or issuing an order must be co-signed by the premier.
Article 53: A President who breaks the law or abuses his office may be impeached at the instance of one third of the Members of both Houses meeting jointly and with the approval of three quarters of these Members. An impeached President immediately loses his office.
Article 54: When the presidential office hecomes vacant, the Speaker of the Federal House becomes the acting President for up to two months. Meanwhile, the Speaker of the National House is in charge of holding a new preslden- tial election.
Chapter Six: The State Council
Article 55: The State Council is the supreme executive body of the Federal Republic.
The State Council consists of one Premier, one Vice Premier, several State Councillors and several Ministers. Together they form the Federal State Committee.
Article 56: The Premier of the State Council is elected by the National House after each election of the National House itself, or after each National House vote of no confidence in the incumbent Premier, or after the incumbent Premier dies or otherwise vacates his office.
The candidate who receives more than half of the votes becomes the new Premier.
If no candidate receives more than half of the votes at the first ballot, the two candidates who have received the most votes will compete at a second ballot and the candidate who then receives more than half of the votes is the winner. If neither candidate wins more than half of the votes, balloting will contin- ue. If no winner emerges within 10 days, the President dissolves the National House and announces a new election of the National House.
Article 57: The Premier nominates the Vice Premier, the State Councillors and the Ministers. The President appoints the nominees after they are confirmed by the National House.
Article 58: The Premier of the State Council exercises the following powers:
Presiding at meetings of the State Council;
Making Administrative regulations and issuing decisions and orders under the terms of the Constitution and the law;
Proposing resolutions to Parliament;
Commanding and directing the federal armed forces;
Appointing and dismissing federal government officials; and
Nominating federal Judges for confirmation by the Federal House.
Article 59: The Premier of the State Council is responsible to the National House under the following terms:
(1) The Premier makes government reports to the National House at regular intervals. The Premier and other members of the State Committee have the obligation to answer questions from Members of the National House when the National House is in session.
(2) If the National House rejects, or makes unacceptable changes in, an important bill or a budget proposal presented by the Premier, the State Committee may, after revising the bill or proposal, present it to the National House again. If half of the Members in the National House then vote to uphold the original decision of the National House, the Premier either tenders resignation for the entire State Council or requests the President to dissolve the National House.
(3) A National House vote of no confidence in the Premier of the State Council has to be initiated by one quarter of the National House Members and approved by more than half of them. After the National House passes a vote of no confidence, a new Premier is elected immediately under the terms of Article 56. After the new Premier is elected, the original Premier immediately tenders resignation for the entire, State Council. If the National House fails to elect a new Premier within 10 days from the vote of no confidence, the original Premier immediately dissolves the National House.
Article 60: The State Committee exercises the following powers:
(1) Making decisions on tabling legislative bills, budget proposals, curfew proposals, general amnesty proposals and general or partial mobilization proposals at the feder Parliament.
(2) Making decisions on tabling war or peace proposals and treaty proposals at the federal Parliament.
(3) Making decisions on amnesty, sentence reduction and rehabilitation.
(4) Making decisions on inter-ministerial matters.
(5) Making decisions on matters proposed by the Premier, the Vice Premier, any Members of th e State Committee or any Minister.
(6) Making policies on matters relating to Article 3 l .
(7) Studying other matters affecting national interests. Article 61: In the event of a military invasion, a natural disaster or a catastrophic accident when the federal Parliament is not in session, the Premier issues emergency orders to deal with the critical situation which must be dealt with immediately. These orders must be retrospectively approved by Parliament within one month from the day on which they are issued. If rejected by Parliament, the orders immediately lose their validity.
Article 62: The organization of the State Council is stipulated by law.
Chapter Seven: The Judicial System
Article 63: Judicial powers belong to the federal Courts and the Courts of the States, Provinces, Municipalities and Regions.
At the federal level, there are Courts, Courts of Appeal and a Supreme Court. Their organization is stipulated by law.
Article 64: Federal Judges exercise their powers independently and without any interference under the terms of this Constitution and the terms of federal statutes.
Article 65: The individual States, Provinces, Municipalities and Regions make their own law on the organization of judicial authorities to exercise judicial powers in the respective States, Provinces, Municipalities and Regions.
The individual States, Provinces, Municipalities, and Regions should respect each other's jurisdiction.
Article 66: The federal Courts are the highest-ranking tribunals.
Except as are otherwise provided in Articles 37, 38 and 39, a citizen of the Federal Republic has the right to initiate legal proceedings in any of the States, Provinces, Municipalities and Regions. The Courts of the States, Provinces, Municipalities and Regions may not discriminate against litigants who are not local residents.
Article 67: The federal Supreme Court interprets the federal Constitution and the laws and orders of the Federal Republic, doing so in the process of trying cases or upon application by eligible parties defined below:
(l) One quarter of the Members of the Federal House or the National House, who sign their names.
(2) The federal Premier.
(3) The head of government or the supreme judicial authority of any of the States, Provinces, Municipalities and Regions.
(4) Any federal Court or Court of Appeal.
Article 68: The federal Courts exercise the following judicial powers.
(1) Adjudicating disputes over the election of the federal Parliament, the election of the President and the election of the Premier.
(2) Adjudicating disputes between the federal government and any of the States, Provinces, Municipalities and Regions.
(3) Adjudicating disputes among States, Provinces, Municipalities and Regions.
(4) Adjudicating disputes over federal laws and international treaties.
(5) The federal Supreme Court hears cases appealed from a Court of any of the States, Provinces, Municipalities and Regions.
(6) Adjudicating cases involving persons with diplomatic immunity.
(7) Adjudicating cases in which the Federal Republic is a respondent.
(8) Passing judgment on disputes among States, Provinces, Municipalities and Regions involving judicial jurisdictions.
(9) Adjudicating cases involving jurisdictions on water and in air.
Article 69: The judicial authorities of the States, Provinces, Municipalities and Regions have the obligation to assist in enforcing the judgments and sen- tences of the federal Courts.
Article 70: Federal Judges are nominated by the federal Premier and are confirmed and appointed by the Federal House. Federal Judges have life tenure. They may not be terminated, removed or dismissed except under the terms of law. Their retirement age is stipulated by law.
Article 71: A federal Judge, while on the bench, may not assume a position in the executive branch of government or serve as a Member of Parliament; or engage in profit-making business; or take part in political activities.
Article 72: The federal judicial establishment is funded by the federal budget.
Article 73: Except where the law provides otherwise, all cases are tried openly. Judgments are required to be made public.
Article 74: A citizen who is a member of an ethnic minority has the right to use the minority language in the court room. In an area inhabited by a minority ethnic group, judicial documents are written in both the national language and the minority language.
Chapter Eight: Implementation of the Constitution and Constitutional Amendment
Article 75: This constitution comes into effect from the date of its approval by the Constituent Assembly.
Any amendment to the text of the constitution must be initiated by one third of the Members in either the National House or the Federal House and approved by three quarters of the Members of each House and by more than half of the legislatures of the States, Provinces, Municipalities and Regions. An amendment affecting an Autonomous State or Special Region must be approved by the legislature of the same State or Region.
San Francisco, U.S.A. 31 January, 1994
posted by Dachuxing大楚兴 at
9:49 AM
4 Comments:
Is there any Chinese version available? If not, I hope to translate this so that more Chinese citizen could read
This is just a follow up, the translation is surely available out there. However, due to the extreme sensitivity of such issues, wide proliferation of such materials is bound to bring you trouble if not out right conviction on any flimsy make-up charges they can think of. Remember, China is still RED, not Federal.
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