Constitutional Transplant in PRC: The Communism Russian Legacy and Globalized Era Challenge

Abstract

In the paper, the author mainly focuses the genealogical relationship between the USSR constitutions and PRC constitutions. On the basis of the shared Marx-Leninism ideology, Chinese constitutional drafters generally abandoned the liberal constitutionalism principles established in the Republic China era, and they borrowed the 1936 Stalin constitutional model to construct the Party-State regime. 1982 PRC constitution, though few borrowings the concrete constitution provisions, was still greatly influenced by the 1977 Soviet constitution, incorporating the principles “of supreme power of constitution in state political and legal system” and “the activities of communism party should be limited in the framework of constitution” into Chinese constitution. Moreover, since USSR communism regime has added some liberal rights to their new constitution code, 1982 PRC constitution drafters followed this USSR model to add the rights to remedy and the rights to cultural into Chinese constitution code.

USSR came to the dissolution in winter 1991. In contrast, Chinese Communist Party continues handling the state power with basic constitutional system borrowed from the former Soviet Union. However, for compliance with the tendency of globalization, Chinese government has to promote a new-round reform in her domestic legal affairs. In this paper, I focus my research on two areas: (1) the model to build legal (constitutional) review mechanism; (2) human rights issues. The first issue is the discuss on how to build Chinese constitutional review mechanism compatible with Chinese basic constitutional regime. I propose a new solution compatible with USSR legacy that the representatives who could be elected or appointed from the National Political Consultative Conference (NPCC) organize a new constitutional court under the frame work of National People’s Congress Standing Committee (NPCSC) working independently in reviewing constitutionality and legality of legislation or administrative regulations and interpreting constitution. Secondly, I mainly refer to human rights issues in the relationship between the international human rights system and domestic human rights system. Though few signs has demonstrated that PRC would subject itself to the international human rights regime, Beijing more or less has recognized the legitimacy of its ratified international human rights treaties in its domestic human rights legislation and is willing to sponsor human rights dialogue with Western experts. To our surprise, Chinese legal scholar and more young educated generation know international human rights standard from international human rights training program, human rights dialogue with US and EU experts and college legal course that encourage them deeply considering the shortcomings of Chinese legal system in the field of human rights protection.

Keywords: constitutional transplant, constitutional review model, human rights discourse, constitutional court