The revised China's Law on the Protection of Minors aims to implement guarantees provided in article 3 of the constitution, which states that "[m]inors shall enjoy the right to life, the right to development, the right to being protected and the right to participation." Considering this, I thought it would be interesting to briefly overview China's constitutionalism history and the role the constitution plays in modern China.
Debates about the role of the Constitution in China do not subside. On the one side, scholars support building up constitutionalism in China. Some of them argue for better implementation of the existing constitution. Others even suggest the necessity of the promulgation of a new one. However, there is another group of scientists that oppose any greater role of the Constitution in China. Some argue that the "road was already chosen," and thus, it is impossible to China now to turn to the western ideas of constitutionalism and constitutional government.
One of the main questions that should be considered is whether Chinese constitutionalism is unique from Western ones. And if so, does such uniqueness appear to be an obstacle for developing constitutionalism or borrowing mechanisms of constitutional review and application. Lastly, these might be the wrong questions altogether, and maybe there is no point in accessing China's legal system from the Western-centered viewpoint?
After the defeat of Kuomintang by the Communist Party of China (CCP) in the civil war and proclamation of the People's Republic of China (PRC) on 1 October 1949, the Common Programme of the Chinese People's Consultative Conference undertook functions of a temporary constitution. Eventually, in 1954 the first Constitution of the PRC was promulgated. The 1954 constitution was primarily borrowed from the Soviet Union. It consisted of an introduction and 106 articles, united in four chapters. Article 4 proclaimed the main goal of the state to endure "gradual abolition of systems of exploitation and the building of a socialist society."
The next Constitution of 1975 was a product of the "Cultural Revolution" policy and therefore reduced any hints of democracy. The number of articles was diminished to 30. After the death of Mao Zedong in 1976 and reverse to a more liberal policy, a new Constitution of 1978 revoked the most "odious" statements of its predecessors. It restored the democratic dispositions of the Constitution of 1954.
Lately, the policy of economic reforms led by Deng Xiaoping found its reflection in the Constitution of 1982. The current constitution was adopted by the National People's Congress on the 4 December 1982 and further revised in 1988, 1993, 1999, 2004, and 2018 years. The constitution contains five sections: the preamble, general principles, the fundamental rights and duties of citizens, the structure of the state, and the national flag and emblems of state.
The constitution emphasizes the necessity of development and pays much attention to the protection of citizens' rights in comparison with its predecessors. It provides protection for freedom of speech, the press, assembly, association, demonstration, and voting rights. The 2004 amendment proclaims the protection of human rights. However, the 1982 Constitution does not provide a formal judicial review mechanism. The power to interpret and enforce the constitution and, importantly, review laws for their constitutionality is granted to the National People's Congress. At the same time, it is claimed that the courts have no power of judicial review. Thus, the current review mechanism in PRC is represented mainly by legislative and executive review, while the judiciary powers are limited.
Understanding the origins of the current system and constitution is crucial in accessing the arguments of the ongoing discussions about constitutionalism. As seen from the history since the beginning of the building of constitutionalism, legislators actively borrowed western ideas and constructs. Here I must make a reservation that I do not claim Chinese constitutionalism to be entirely identical to western or Soviet Union models. However, I insist on bearing in mind the complexity of cultural interactions that have not occurred recently but have started decades ago.