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
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