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Jackson was forced to respond, and commented specifically on his violations of the Constitution. Jackson transferred one secretary of the treasury and fired another in order to secure the deposit removals. His actions were questionable, if not completely illegal, and the Senate censured him by making a notation in their journal. Other legal conflicts surfaced. Jackson allegedly defied the Supreme Court over Worcester v. Although there is little evidence to support the above quotation, it certainly sounds like Jackson.

Nonetheless, the case required nothing of Jackson and was ultimately settled out of court. The fact remained, however, that in this case and in McCulloch v. Treaties were and continue to be legal agreements among sovereign nations. However, Jackson refused to believe that Native American tribes were sovereign and thus viewed Indian treaties as an absurdity. Ultimately, he forcibly removed a number of tribes, most notoriously the Cherokee, from their homes.

He always, and to some extent legitimately, viewed American Indians as a serious threat to settlers. As president, Jackson understood the sentiment of southern states and their conception that states could not be erected within sovereign states such as Georgia. All of this, of course, revolved around the larger issue of Native American dispossession and who rightfully owned of the land.

This ideological—and to some extent legal—issue remains unresolved. Most fit within his larger conception of duty, honor, and what was necessary for the sanctity of the Union. There are few easy answers. Article 11 of the Constitution allows the development, within the limits prescribed by law, of an individual economy as a complement to the socialist economy. Similarly, provisions on state planning were removed and in their place were put provisions that require the state to strengthen economic legislation and macro-economic control. On the whole, the amendment provides flexibility, though not specific direction, for future development.

The Fifteenth Party Congress in laid down certain political foundations for post-Deng China 11 , which adopted a policy to continue the reform policy launched by Deng Xiaoping in and to incorporate a Dengist version of socialism into the constitution Once again, efforts took place to transform the Party policy into constitutional provisions through constitutional revision. Since its first draft, issued on December 5th for internal Party discussion, the drafting work went swiftly.

By January 22nd , a formal proposal had already been made by the Party to the Standing Committee for consideration and adoption The formal adoption at the Second Session of the Ninth NPC was a formality; the proposal was adopted word for word On the whole, the revision of the Constitution was essentially designed to carry out the conversion of the adopted ideology of the Fifteenth Party Congress of into the form of fundamental state law, that is, to convert the will of the Party into that of the state.

Examined from a development perspective, such revision indicates the then understanding of the notion of socialism with Chinese characteristics among the Party leadership. These congresses saw the partial handover of leadership power from Jiang Zemin to Hu Jintao At the same time, the principles for the revision were also set down by the Standing Committee of the Politburo Official consultation was swiftly conducted in the next several months within limited circles of authorities and personnel, such as of provincial leaders, leaders of the democratic parties, and selected groups of local leaders and prominent scholars It is at this time that the on-going revision was first officially reported It should be pointed out that even though this was the first formal announcement of the on-going revision of the Constitution, there was no mention of such a Group, even though it was said that the plenary session would discuss the proposals for constitutional reform As was the previous practice, the recommendations were dutifully and faithfully adopted by the NPC, making itself once again a rubber stamp of the Party.

Sadly, this practice is patently undemocratic: If the people have no right to participate in such fundamentally important political matters, it is perhaps unrealistic, if not insulting, to tell the people that they enjoy democracy and the rule of law. Even though the on-going revision was not officially reported until August , the Chinese media began to break the news unofficially around June It was clear that Chinese scholars were consulted at a rather early stage, and certainly no later than June Not surprisingly, academics began to express a wide range of views and opinions, suggesting far reaching revisions to the Constitution 22 , and academic symposiums devoted to the revision were also organised, the most notable convened in Qingdao City 23 , and in Shanghai 24 , both in June and both of which were attended by prominent scholars consulted by the Politburo on the revision, such as Professors Jiang Ping and Wu Jinlian.

However, enthusiasm among academics was quickly dampened. A secret instruction was soon issued by the Party to stop all conferences and publication of academic papers on constitutional reform, and leading economists and legal scholars actively involved in presenting their views were reported to have been harassed by the security forces Thus, contrary to the assertion by the Chinese authorities that the revision of the constitution was carried out on a democratic basis with wide consultation 26 , consultation was only conducted within the strictly limited circles of the authorities and the elite.

By mid-October , the Suggestions on Amending Certain Contents of the Constitution had been adopted by the Third Session of the Central Committee of the Sixteenth Party Congress, which also decided to pass the Suggestions to the Standing Committee of the NPC to be converted into a constitutional amendment bill in accordance with the constitutional procedures. Also on December 22nd , the Suggestions on Amending Certain Contents of the Constitution were, for the first time, published in full in the Chinese media.

Theoretically, the Amendment Bill finally adopted by the full NPC on March 14th was no longer a Party document, but a formal legislative bill, except that the Bill was a verbatim copy of the Suggestions. As such, the revision started in late March and completed in mid-October of the same year was another world record. It is meant to be a partial, not comprehensive, revision It was expressly decided that only the matters that must be regulated by the Constitution and only the provisions that must be revised immediately would be dealt with by the revision.

Other matters, though desirable for revision, would be clarified later by constitutional interpretations, rather than by the present revision. In other words, the present revision is little more than an implementation of the Party policies as adopted at the Sixteenth Party Congress in The various amendments fall into five categories: the adoption of a new guiding principle for the Constitution, an explicit recognition of human rights, further protection for private property, a more civilian-type approach to a state of emergency, and some technical revisions.

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What makes the Chinese Constitution stand out so strikingly is the constantly changing perception of socialism and of the guiding principles for building socialism with Chinese characteristics. Thus, when Deng Xiaoping came to power, he managed to repudiate the radical ideas preached during the Cultural Revolution, but retained the status of secular god of Mao Zedong. He thus incorporated the Four Fundamental Principles into the Constitution. Now Jiang is retiring he wants to put a personal stamp on the Constitution too. As such, that each constitutional revision coincides with the five-year term of the Party Congress and the NPC reflects in effect the changes in Party leadership.

However, from through to the end of , he managed to wage a major political campaign, but most importantly, he managed to have the Party Constitution changed at the Sixteenth Party Congress in This having been done, it is not surprising that the first amendment for the new revision is to incorporate the changes in the Party Constitution into the State Constitution. Thus, the amended Constitution para. The basic task of the nation is to concentrate its efforts on socialist modernisation in accordance with the theory of building socialism with Chinese characteristics.

The basic task of the nation is to concentrate its efforts on socialist modernisation in pursuing the construction of socialism with Chinese characteristics.

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  • It may also imply the exclusion of foreigners and stateless persons in China Secondly, also as a consequence of this unqualified declaration, the scope of human rights could be interpreted to include not only the fundamental rights as codified in Chapter Two of the Constitution but also those contained in, at least, the two International Covenants that China has signed 43 , such as the right to strike which was abolished during the making of the Constitution Thirdly, the insertion of this declaration in Article 33 bears some significant practical implications.

    Here, the provisions of Article 33 are not without some major problems: equality before the law apparently refers to equality in implementing laws, not in law-making 45 , and would only be enjoyed by citizens of the PRC Finally, with calls from academics and officials to pay attention to the actual implementation of the Constitution 47 , Chinese courts can and should take protection of human rights as a major consideration in its adjudications, at least when the relevant Chinese law is not clear or is ambiguous on particular matters.

    Certainly we are not seeing the coming of age of rights in China as yet, as the various international human rights reports on China testify. An important attempt is made in the current revision to once again address the question of private property in the constitution, thus strengthening the constitutional protection of private property. Article 13 protects the right of citizens to own lawfully earned income, savings, houses and other lawful property, as well as the right to inherit private property.

    This was the only private economy allowed by the Chinese law at the time. Here, the private economy refers to the economy in the form of private enterprises as defined by law.

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    Further, the revision tried to treat the individual and private economies on an equal footing, whereas the previous provisions seemed to accord a different degree of state control over them Though the phrase is an ambiguous one, it is meant to embrace the various existing and emerging forms of private business, including foreign investment in China. In addition to providing protection, the revision further adds that the state will also provide encouragement and support to the development of the non-public economy.

    By doing so, the private sectors final achieve equal status with their public counterparts in most economic activities The controversial part of the revision concerns the revision of Article Article 13 does provide protection to lawful income, houses and other private property and the right to inheritance. There has long been uncertainty about Article First, the listing of lawful income, wages, houses, etc. Secondly, public property is declared sacred and inviolable by the Constitution Article 12 , while the state only offers protection for limited private property.

    This implicitly indicates a different degree of protection to the two types of property. Further, Article 13 refers to ownership rights to property suoyouquan instead of the more universally understood term of property rights caichanquan.

    Terms and conditions

    The revision thus intends to do away with one of the last remnants of the influence of Soviet law. Further, if private property is expropriated or taken over for state use, compensation must be paid by the state under the revised Constitution. Similarly, as land-use rights have been commercialised, compensation for expropriation or taking over for use by the state is also guaranteed by the revised Constitution 56 , As such one can say quite comfortably that for most practical purposes equal protection is now provided for both public and private property. This should now clear away one of the most difficult aspects of enacting a civil code in China: how to deal with the differentiated treatment of public and private property under a unified notion of property rights There is now better protection for private propriety.

    However, the controversy is not about the protection for private property per se , it is the concern about the legalisation of illegally acquired property, such as that acquired through corruption, the embezzlement of public property by various means, and other illegal means.

    The tale of two judgments and fate of two nations

    This the Chinese government in fact began to address several years ago The present revision now makes it a constitutional obligation of the state to establish a social security system appropriate to the level of national economic development Once again, it is a positive development that should provide the poor with a constitutional claim, at least theoretically, or a moral claim, against the government should the government fail to deliver a minimum social safety net.

    This the State Council did in Tibet and in Peking in However, the circumstances under which martial law may be declared are only vaguely defined by Article 2 of the Martial Law of the PRC 61 , which provides for the imposition of martial law in a state of emergency in which social turmoil dongluan , a violent upheaval baoluan or serious disturbance yanzhong saoluan is occurring and where extraordinary measures must be taken to maintain social order and protect life and property.

    Under this definition and through the experiences in Tibet and Peking in , martial law is widely perceived as immediately and directly invoking a military-style solution to civilian unrest that might not warrant any violent solution, thus causing the unnecessary involvement of the army The revision now replaces the power to order martial law with the power to declare a state of emergency jinji zhuangkuang. While this revision clearly widens the scope within which restrictions may be imposed through a declaration, such as in cases of the SARS epidemic and other natural disasters such as floods 63 , it also signals the willingness of the state authorities to explore civilian solutions, such as the primary use of civilian police to deal with civil unrest and other emergency situations, leaving the military solution as the last resort.


    Considering the tragedies in Tibet, Peking and several other cities in , the revision is both positive and potentially life-saving. Since the Martial Law of the PRC was enacted in , the revision of the Constitution would now require that the law be revised. Since the Constitution provides few procedures or criteria for declaring a state of emergency, it is hoped that a new law on states of emergency will clearly set out all these details 64 , hence providing further protection to the peaceful exercise of some fundamental human rights, such as the right to assembly and to demonstration.

    Heads of state in all countries routinely conduct state affairs, such as paying or hosting state visits, so the President of the PRC, being the head of state, is now provided with the power to conduct such affairs Finally, the national anthem, the March of the Volunteers 68 , has been sung by the Chinese people ever since the founding of the PRC, and was formally declared the national anthem by the NPC in so it is again appropriate to give it constitutional status Further, the incorporation of the national anthem in the state constitution is to immortalise the revolutionary spirit as contained in the national anthem and, surely, makes any future change of the national anthem difficult.

    Clearly, the future impact of some of the revisions is potentially far-reaching with significant practical ramifications.

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