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The current state institutions in China were established on the basis of the Common Program of 1949 and the Constitution of 1954 and in accordance with the Constitution of 1982. The development and experience of the state institutions in the past three decades indicate that the state institutions may play a greater role as long as we stick to the socialist theory with Chinese characteristics and constitutional principles, carrying out the principle of democratic centralism, and further promoting the reform of state institutions.
I. Organic system and functional principle of the state institutions as stipulated in the constitution
A. Constitutional norms and organic system of the state institutions
State institutions, or apparatuses of state, are important contents in our constitution. The Common Program of 1949 made it clear that the state political power of the People’s Republic of China belongs to its people; the people’s congresses and governments at various levels are state institutions where people can exercise their powers. In the Constitution of 1954 and other organic laws, the nature, position, organic structure, duties and obligations of the National People’s Congress and its standing committee, the Chairman of the state, the State Council, people’s congresses at local levels and people’s committees at various levels, the people’s court and people’s procuratorates. Meeting the demand of democratic politics and legal construction in a new era, the Constitution of 1982 set out more improved provisions about state institutions which include the following:
The National People’s Congress is the top organ of state power which consists of deputies selected from provinces, autonomous regions, municipalities under the direct control of the State Council, special administrative regions and militaries; the NPC’s standing committee is a permanent organization of the NPC, consisting of the top commissioner, deputy commissioners, secretary general, and committee members.
Chairman of the state exercises his duties and powers in line with the decisions of the NPC and its standing committee, receiving on behalf of the state foreign envoys and attending state occasions.
The State Council, or the central people’s government, is the top administrative organ of the state powers and the top state executive organ, consisting of the Premier, vice-Premiers, State Councilors, Ministers, Chairmen of Committees, auditor-general, and secretary general. All members of the State Council must report to the Premier, and significant decisions must be made after discussions of the plenary meeting or executive meeting. Under the State Council, there are a General Office, special organizations directly under it, organizations directly under it, administrative offices, bureaus, agencies and institutions directly under it. The Central Military Commission of the P.R.C. was set up in 1982, and it enjoys the same abbreviation with the Central Military Commission of the Communist Party of China. It is the leading body of the national military force (military, the people’s armed police, and the militia), consisting of a chair who will assume overall responsibility, several deputy chairmen, several committee members.
The local people’s congresses at various levels are local state authorities of power; their standing committees above the county level are permanent organizations for the people’s congresses at corresponding level, consisting of a chairman, several vice-chairmen, a number of committee members (a secretary general will be needed for cities with subordinated districts).
Local governments at various levels are executive organs of local people’s congresses as well as administrative organs of the state, and they must report to the people’s congresses at corresponding level and their standing committees, as well as to the higher administrative organs of the state. Local governments consist of principal and deputy positions, as well as departmental chiefs (a secretary general will be needed for cities with subordinated districts); people’s governments at township level will have one chief of town and one deputy chief. Local governments adopt an administrative chief responsibility system, and significant decisions must be made by the government’s executive meetings or plenary meetings. People’s governments above the county level may have their own functional departments and several dispatched agencies.
The autonomous administrations for the ethical autonomous places are people’s congresses and people’s governments in autonomous regions, autonomous prefectures, and autonomous counties.
The people’s courts are the state’s adjudicative organs, including the Supreme People’s Court, local people’s courts, martial courts, and courts of admiralty. The people’s procuratorates are the state’s legal supervisory bodies, including the Supreme People’s Procuratorate, local people’s procuratorates, and military procuratorates.
B. Organic and activity principle of the state organs
The democratic centralism is the organic and activity principle of the state organs in accordance with the constitution. The National People’s Congress and local people’s congresses at various levels are democratically elected, and they should be responsible for the people and under the supervision of the people; the state administrative agencies, adjudicative agencies and procuratorates are produced by the people’s congresses, being responsible for and under the supervision of the people’s congresses; in terms of the relationship between the central and local state institutions, the central authorities must play a leading role, and initiatives of the local ones should be also given full play. Secondly, state agencies should stick to the principle of rule by law. All state institutions must abide by the constitution and laws, and any organization or individual has no prerogative unbounded by the constitution and laws.
Thirdly, all state institutions and state civil servants must rely on the support of the people and maintain close relations with the people, listening to their opinions and suggestions, receiving their supervision and serving the people wholeheartedly.
Moreover, the principle of parsimony should be encouraged and bureaucracy be guarded against for the benefit of increasing working quality and efficiency of the state agencies.
II. Major development of China’s state institutions
Since the introduction of the Constitution of 1982, the constitutional norms and legal rules regulating state organs have been improved to promote the construction, development and reform of the state organizations.
A. Relevant constitutional amendments
The 11th constitutional amendment passed in 1993 and the 30th amendment passed in 2004 revised the terms for people’s congresses at county and township level, from three years to five years, with the same duration of terms as other categories of state institutions.
The 25th amendment passed in 2004 specified that the National People’s Congress will be composed of deputies elected from provinces, autonomous regions, municipalities under the direct control of the State Council, special administrative regions and militaries; amendment 28 added that the President of the state would be engaged in the state activities on behalf of the country; amendment 26 used “to declare an emergency state” to replace “to impose a curfew” to refer to the power of the NPC’s standing committee within the scope of the whole country or individual province, autonomous region, and municipality under the direct control of the State Council. The 26th amendment also revised function and power of the State President and the State Council.
B. Formulating and improving the organic laws of state institutions
Since 1982, a series of organic laws including Organic Law of the National People’s Congress, Organic Law of the State Council, Rules of Procedure of the National People’s Congress, Legislation Law, and Law of Supervision have been formulated; the Rules of Procedure of the Standing Committee of the National People’s Congress and Law of Deputies have been formulated and revised; the Local Organic Law of 1979 has been revised for four times, and Law of Election five times. The third session of the eleventh NPC in 2010 revised the Law of Election, adopting a principle of “each deputy representing the same number of urban and rural population” , ensuring at the same time that each region, each minority group and each group of people with distinctive interests will have their own representatives in proportion to an adequate quota scheme. The Organic Law of People’s Court and Organic Law of People’s Procuratorate, both passed in the year of 1979, were revised in the year of 1983, with the former being revised for the second time by the standing committee of the NPC in the year of 2006, which mandated that death penalty should be report to the Supreme People’s Court for approval except for such decisions made by the supreme court itself.
A revised version of the Constitution of 1978 just one year after its promulgation and the Local Organic Law of 1979 stipulated that standing committees will be established in local people’s congresses above the county level, and people’s congresses at provincial level as well as their standing committees could formulate and introduce local regulations and rules. Revisions of the organic laws in the year of 1982 replaced “people’s commune” with “township and ethnic township”, replacing “management committee of people’s commune” with “people’s government of township or ethnic township”, stipulating that standing committees of the people’s congresses in provincial capitals (autonomous regional capitals) and big municipalities under the approval of the State Council could formulate local legislations; Legislation Law of 2000 further stipulated that provincial capitals (autonomous regional capitals), special economic zones, and big municipalities under the approval of the State Council could formulate local regulations and rules. Under the approval of the National People’s Congress or its standing committee, special economic zones including Shen Zhen, Xia Men, Zhu Hai and Shan Tou could formulate their own regulations and rules.
The State Council introduced Regulations About Organizations of the State Council Administrative Institutions and Management of Staff Quotas and Regulations About Organizations of Local People’s Governments and Management of Staff Quotas in the year of 1997 and 2007 respectively. Moreover, the State Council revised its working procedures for several times in order to better regulate its staff members, their duties and responsibilities.
C. Strengthening the organic and systemic construction of the state institutions
The National People’s Congress and its standing committee have been attaching great importance to the organic construction in order to better perform their functions and powers in the constitution. The sixth National People’s Congress established six special committees covering national affairs in the fields of ethic groups, law, finance and economy, education, science, culture and health, foreign relations, and overseas Chinese; later, committees on judiciary, environmental and resource protection, agriculture and rural affairs have been successively established; Basic Law Committee of Hong Kong SAR and Basic Law Committee of Macau SAR under the standing committee of the NPC were established; a legislative register-review office was established within the Commission of Legislative Affairs under the standing committee of NPC. In May 2005, the Central Committee of the Communist Party of China issued a circular, raising specific requirements for the strengthening of the systemic construction of the standing committee of NPC and a bigger role played by NPC deputies.
D. Pushing forward the reform of governmental institutions and judicial system
Since the reform and opening up, a large scale reform would be introduced to the State Council and the local governments every five years, through which progress has been made in terms of the transformation of the governmental functions, improvement of macro-control, rationalize departmental division of functions and responsibilities, optimization of governmental organic structure, regulation of institutional establishment, and improvement of institutional mechanism.
In line with the requirement of the central authority, institutional reforms have been carried out in people’s courts and procuratorates across the country, in which the adjudicative system and legal supervision system have been improved and organic structure and working mechanism optimized.
III. Probing into a theory of state institutions
With the deepening realization about the importance of reforming the political system and state institutions, constitutional scholars have reinforced their research in this field with equal study emphasis on state powers and civil rights. A seminar on institutional reform and constitutional development was held by the Chinese Constitutional Society in the year of 1998. Important issues are as follows:
A. Basic theory of state institutions
It is generally held that state institution is a general term for all state agencies set up for realizing the functions of the state and it is more often called “government” in the western countries. The most important function of the constitution is to regulate and constrain state powers in a bid to guarantee the civil rights and social interests. Different from the popular constitutional arrangements and concepts in western countries, Chinese constitution includes a separate chapter about state institutions, under which the state organ of power, executive agencies, military authorities, adjudicative organs and procuratorates are further provided for. China does not follow a political system featured by separation of three powers, but its state institutions resemble to some extent its western counterparts in that the representative institutions are an important part of the state organs, executive agencies play an important role and political parties exert significant influence. B. Improving the organic system of people’s congress and constitutional supervisory agencies
Whether the people’s congress and its standing committee can fulfill their role as state organs of power may be largely determined by their institutional organic construction. It is suggested that the people’s congress and its standing committee should improve their professionalism and recruit more young members to strengthen the construction of special committees and administrative agencies.
Constitutional supervisory institutions have attracted attentions from various walks of the society. A Directive by the Central Committee of the CPC about Constitutional Revision in the year 1993 provided for that the NPC can establish constitutional supervisory committee to oversee its special committees. In order to improve a constitutional supervisory mechanism, there are also suggestions that a constitutional committee or constitutional court should be established by the NPC to fulfill the function of constitutional supervision. Scholars also suggest that constitutional challenges could be decided by ordinary courts, and the NPC will be responsible for constitutional interpretation and supervision.
C. Pushing forward the state institutional reform
The current constitution of China has reflected a spirit of reform, and will provide constitutional guarantee for the further development. We should further push forward the institutional establishment of state organs and optimize the division of functions and powers, focusing on the reform of governmental agencies and judicial institutions, pursuing the administrative goals of rational allocation of powers and responsibilities, scientific decision-making process, efficient execution of decisions, and strong supervision, realizing the judicial goal of fairness, high-efficiency and authoritativeness.
D. Making appropriate adjustment to relevant organic laws
The current organic law of the State Council was adopted three decades ago and in need of revisions; the organic laws regulating the courts and procuratorates were formulated before the introduction of the Constitution of 1982 and in need of improvement. According to an overall plan of the central authority about administrative and judicial reforms, relevant organic laws should be revised correspondingly.
Within the current established socialist legal system, the organic laws about state institutions are most relevant with the constitution itself, which mainly regulate establishment, organization, functions and powers of the state agencies, and will directly guarantee the implementation of constitution and operation of the state political powers. The basic strategy of rule by law requires that various categories of organic laws should be strengthened, institutional reforms be pushed forward, and supervision of exercise of powers be enhanced in a bid to realize the duties and functions of state institutions and improve relevant organic laws.
I. Organic system and functional principle of the state institutions as stipulated in the constitution
A. Constitutional norms and organic system of the state institutions
State institutions, or apparatuses of state, are important contents in our constitution. The Common Program of 1949 made it clear that the state political power of the People’s Republic of China belongs to its people; the people’s congresses and governments at various levels are state institutions where people can exercise their powers. In the Constitution of 1954 and other organic laws, the nature, position, organic structure, duties and obligations of the National People’s Congress and its standing committee, the Chairman of the state, the State Council, people’s congresses at local levels and people’s committees at various levels, the people’s court and people’s procuratorates. Meeting the demand of democratic politics and legal construction in a new era, the Constitution of 1982 set out more improved provisions about state institutions which include the following:
The National People’s Congress is the top organ of state power which consists of deputies selected from provinces, autonomous regions, municipalities under the direct control of the State Council, special administrative regions and militaries; the NPC’s standing committee is a permanent organization of the NPC, consisting of the top commissioner, deputy commissioners, secretary general, and committee members.
Chairman of the state exercises his duties and powers in line with the decisions of the NPC and its standing committee, receiving on behalf of the state foreign envoys and attending state occasions.
The State Council, or the central people’s government, is the top administrative organ of the state powers and the top state executive organ, consisting of the Premier, vice-Premiers, State Councilors, Ministers, Chairmen of Committees, auditor-general, and secretary general. All members of the State Council must report to the Premier, and significant decisions must be made after discussions of the plenary meeting or executive meeting. Under the State Council, there are a General Office, special organizations directly under it, organizations directly under it, administrative offices, bureaus, agencies and institutions directly under it. The Central Military Commission of the P.R.C. was set up in 1982, and it enjoys the same abbreviation with the Central Military Commission of the Communist Party of China. It is the leading body of the national military force (military, the people’s armed police, and the militia), consisting of a chair who will assume overall responsibility, several deputy chairmen, several committee members.
The local people’s congresses at various levels are local state authorities of power; their standing committees above the county level are permanent organizations for the people’s congresses at corresponding level, consisting of a chairman, several vice-chairmen, a number of committee members (a secretary general will be needed for cities with subordinated districts).
Local governments at various levels are executive organs of local people’s congresses as well as administrative organs of the state, and they must report to the people’s congresses at corresponding level and their standing committees, as well as to the higher administrative organs of the state. Local governments consist of principal and deputy positions, as well as departmental chiefs (a secretary general will be needed for cities with subordinated districts); people’s governments at township level will have one chief of town and one deputy chief. Local governments adopt an administrative chief responsibility system, and significant decisions must be made by the government’s executive meetings or plenary meetings. People’s governments above the county level may have their own functional departments and several dispatched agencies.
The autonomous administrations for the ethical autonomous places are people’s congresses and people’s governments in autonomous regions, autonomous prefectures, and autonomous counties.
The people’s courts are the state’s adjudicative organs, including the Supreme People’s Court, local people’s courts, martial courts, and courts of admiralty. The people’s procuratorates are the state’s legal supervisory bodies, including the Supreme People’s Procuratorate, local people’s procuratorates, and military procuratorates.
B. Organic and activity principle of the state organs
The democratic centralism is the organic and activity principle of the state organs in accordance with the constitution. The National People’s Congress and local people’s congresses at various levels are democratically elected, and they should be responsible for the people and under the supervision of the people; the state administrative agencies, adjudicative agencies and procuratorates are produced by the people’s congresses, being responsible for and under the supervision of the people’s congresses; in terms of the relationship between the central and local state institutions, the central authorities must play a leading role, and initiatives of the local ones should be also given full play. Secondly, state agencies should stick to the principle of rule by law. All state institutions must abide by the constitution and laws, and any organization or individual has no prerogative unbounded by the constitution and laws.
Thirdly, all state institutions and state civil servants must rely on the support of the people and maintain close relations with the people, listening to their opinions and suggestions, receiving their supervision and serving the people wholeheartedly.
Moreover, the principle of parsimony should be encouraged and bureaucracy be guarded against for the benefit of increasing working quality and efficiency of the state agencies.
II. Major development of China’s state institutions
Since the introduction of the Constitution of 1982, the constitutional norms and legal rules regulating state organs have been improved to promote the construction, development and reform of the state organizations.
A. Relevant constitutional amendments
The 11th constitutional amendment passed in 1993 and the 30th amendment passed in 2004 revised the terms for people’s congresses at county and township level, from three years to five years, with the same duration of terms as other categories of state institutions.
The 25th amendment passed in 2004 specified that the National People’s Congress will be composed of deputies elected from provinces, autonomous regions, municipalities under the direct control of the State Council, special administrative regions and militaries; amendment 28 added that the President of the state would be engaged in the state activities on behalf of the country; amendment 26 used “to declare an emergency state” to replace “to impose a curfew” to refer to the power of the NPC’s standing committee within the scope of the whole country or individual province, autonomous region, and municipality under the direct control of the State Council. The 26th amendment also revised function and power of the State President and the State Council.
B. Formulating and improving the organic laws of state institutions
Since 1982, a series of organic laws including Organic Law of the National People’s Congress, Organic Law of the State Council, Rules of Procedure of the National People’s Congress, Legislation Law, and Law of Supervision have been formulated; the Rules of Procedure of the Standing Committee of the National People’s Congress and Law of Deputies have been formulated and revised; the Local Organic Law of 1979 has been revised for four times, and Law of Election five times. The third session of the eleventh NPC in 2010 revised the Law of Election, adopting a principle of “each deputy representing the same number of urban and rural population” , ensuring at the same time that each region, each minority group and each group of people with distinctive interests will have their own representatives in proportion to an adequate quota scheme. The Organic Law of People’s Court and Organic Law of People’s Procuratorate, both passed in the year of 1979, were revised in the year of 1983, with the former being revised for the second time by the standing committee of the NPC in the year of 2006, which mandated that death penalty should be report to the Supreme People’s Court for approval except for such decisions made by the supreme court itself.
A revised version of the Constitution of 1978 just one year after its promulgation and the Local Organic Law of 1979 stipulated that standing committees will be established in local people’s congresses above the county level, and people’s congresses at provincial level as well as their standing committees could formulate and introduce local regulations and rules. Revisions of the organic laws in the year of 1982 replaced “people’s commune” with “township and ethnic township”, replacing “management committee of people’s commune” with “people’s government of township or ethnic township”, stipulating that standing committees of the people’s congresses in provincial capitals (autonomous regional capitals) and big municipalities under the approval of the State Council could formulate local legislations; Legislation Law of 2000 further stipulated that provincial capitals (autonomous regional capitals), special economic zones, and big municipalities under the approval of the State Council could formulate local regulations and rules. Under the approval of the National People’s Congress or its standing committee, special economic zones including Shen Zhen, Xia Men, Zhu Hai and Shan Tou could formulate their own regulations and rules.
The State Council introduced Regulations About Organizations of the State Council Administrative Institutions and Management of Staff Quotas and Regulations About Organizations of Local People’s Governments and Management of Staff Quotas in the year of 1997 and 2007 respectively. Moreover, the State Council revised its working procedures for several times in order to better regulate its staff members, their duties and responsibilities.
C. Strengthening the organic and systemic construction of the state institutions
The National People’s Congress and its standing committee have been attaching great importance to the organic construction in order to better perform their functions and powers in the constitution. The sixth National People’s Congress established six special committees covering national affairs in the fields of ethic groups, law, finance and economy, education, science, culture and health, foreign relations, and overseas Chinese; later, committees on judiciary, environmental and resource protection, agriculture and rural affairs have been successively established; Basic Law Committee of Hong Kong SAR and Basic Law Committee of Macau SAR under the standing committee of the NPC were established; a legislative register-review office was established within the Commission of Legislative Affairs under the standing committee of NPC. In May 2005, the Central Committee of the Communist Party of China issued a circular, raising specific requirements for the strengthening of the systemic construction of the standing committee of NPC and a bigger role played by NPC deputies.
D. Pushing forward the reform of governmental institutions and judicial system
Since the reform and opening up, a large scale reform would be introduced to the State Council and the local governments every five years, through which progress has been made in terms of the transformation of the governmental functions, improvement of macro-control, rationalize departmental division of functions and responsibilities, optimization of governmental organic structure, regulation of institutional establishment, and improvement of institutional mechanism.
In line with the requirement of the central authority, institutional reforms have been carried out in people’s courts and procuratorates across the country, in which the adjudicative system and legal supervision system have been improved and organic structure and working mechanism optimized.
III. Probing into a theory of state institutions
With the deepening realization about the importance of reforming the political system and state institutions, constitutional scholars have reinforced their research in this field with equal study emphasis on state powers and civil rights. A seminar on institutional reform and constitutional development was held by the Chinese Constitutional Society in the year of 1998. Important issues are as follows:
A. Basic theory of state institutions
It is generally held that state institution is a general term for all state agencies set up for realizing the functions of the state and it is more often called “government” in the western countries. The most important function of the constitution is to regulate and constrain state powers in a bid to guarantee the civil rights and social interests. Different from the popular constitutional arrangements and concepts in western countries, Chinese constitution includes a separate chapter about state institutions, under which the state organ of power, executive agencies, military authorities, adjudicative organs and procuratorates are further provided for. China does not follow a political system featured by separation of three powers, but its state institutions resemble to some extent its western counterparts in that the representative institutions are an important part of the state organs, executive agencies play an important role and political parties exert significant influence. B. Improving the organic system of people’s congress and constitutional supervisory agencies
Whether the people’s congress and its standing committee can fulfill their role as state organs of power may be largely determined by their institutional organic construction. It is suggested that the people’s congress and its standing committee should improve their professionalism and recruit more young members to strengthen the construction of special committees and administrative agencies.
Constitutional supervisory institutions have attracted attentions from various walks of the society. A Directive by the Central Committee of the CPC about Constitutional Revision in the year 1993 provided for that the NPC can establish constitutional supervisory committee to oversee its special committees. In order to improve a constitutional supervisory mechanism, there are also suggestions that a constitutional committee or constitutional court should be established by the NPC to fulfill the function of constitutional supervision. Scholars also suggest that constitutional challenges could be decided by ordinary courts, and the NPC will be responsible for constitutional interpretation and supervision.
C. Pushing forward the state institutional reform
The current constitution of China has reflected a spirit of reform, and will provide constitutional guarantee for the further development. We should further push forward the institutional establishment of state organs and optimize the division of functions and powers, focusing on the reform of governmental agencies and judicial institutions, pursuing the administrative goals of rational allocation of powers and responsibilities, scientific decision-making process, efficient execution of decisions, and strong supervision, realizing the judicial goal of fairness, high-efficiency and authoritativeness.
D. Making appropriate adjustment to relevant organic laws
The current organic law of the State Council was adopted three decades ago and in need of revisions; the organic laws regulating the courts and procuratorates were formulated before the introduction of the Constitution of 1982 and in need of improvement. According to an overall plan of the central authority about administrative and judicial reforms, relevant organic laws should be revised correspondingly.
Within the current established socialist legal system, the organic laws about state institutions are most relevant with the constitution itself, which mainly regulate establishment, organization, functions and powers of the state agencies, and will directly guarantee the implementation of constitution and operation of the state political powers. The basic strategy of rule by law requires that various categories of organic laws should be strengthened, institutional reforms be pushed forward, and supervision of exercise of powers be enhanced in a bid to realize the duties and functions of state institutions and improve relevant organic laws.