Constitutional supremacy is the foundation of modern states. As the highest law of the land, it should not exist just as a text; it must be enforced in judicial practices. By the same token, for the Constitution to uphold its authority, it must not look away from laws, regulations and acts that violate the Constitution. When the Constitution promises basic human rights and freedoms for citizens, it shall not indulge the continuous existence of any law or regulation that transgresses these rights and freedoms.
Article 5 of the Constitution of the People’s Republic of China stipulates, “No laws or administrative or local rules and regulations may contravene the Constitution.” “All state organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and the law. All acts in violation of the Constitution or the law must be investigated.” And “no organization or individual is privileged to be beyond the Constitution or the law.” According to Article 62 of the Constitution, the functions and powers of the National People’s Congress include “supervising the enforcement of the Constitution” as well as “amending laws.”
Article 78 of the Legislation Law of the People’s Republic of China stipulates: “The Constitution has the highest legal authority, and no national law, administrative regulation, local decree, autonomous decree and special decree, or administrative or local rule may contravene the Constitution.” Article 87 of the same law stipulates that, when “a lower level law contravenes a higher level law,” the authoritative body “shall amend or cancel it.” And Article 88 of the same law stipulates: “the National People’s Congress has the authority to amend or cancel any inappropriate national law enacted by its Standing Committee.”
We believe that the Law of the People’s Republic of China on Assemblies, Processions and Demonstrations, promulgated and enacted on October 31, 1989, deprives in essence citizens of their rights to assemble, march and demonstrate and contravenes the Constitution, and the National People’s Congress should conduct a constitutional review of it and cancel it.
1. Article 20 of the Universal Declaration of Human Rights states, “everyone has the right to freedom of peaceful assembly and association.” Article 21 of the International Covenant on Civil and Political Rights, which China signed in 1998, states, “the right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right……” And Article 22: “1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.” 2. No restrictions may be placed on the exercise of this right……”As a member of the United Nations, a permanent member of the UN Security Council and a member of the current UN Human Rights Council, China is supposed to adhere to the United Nations conventions on human rights, and align its legal system with related international treaties.
2. Article 35 of the Constitution of the People’s Republic of China stipulates: “Citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” The article unequivocally confirms the constitutional rights to assemble, to associate, to proceed, and to demonstrate, and no political party, nor the government, has the right to interfere, and no law or regulation shall infringe on this constitutional safeguard. But Article 7 of the Law of the People’s Republic of China on Assemblies, Processions and Demonstrations stipulates: “for the holding of an assembly, a procession or a demonstration, application must be made to and permission obtained from the competent authorities in accordance with the provisions of this Law.” By imposing administrative approval on constitutional rights, the Law of the People’s Republic of China on Assemblies, Processions and Demonstrations contravenes the Constitution. Laws can be made to safeguard, or elaborate on, the constitutional rights but have no right to impose administrative approval on the basic rights provided for by the Constitution.
To truly safeguard citizens’ rights to assemble, march and demonstrate, the administrative approval mechanism, currently in place, over assemblies, processions and demonstrations must be changed. The common practice of all countries with rule of law is a filing system in which, if the planned assembly, procession or demonstration exceeds a certain scale, then the citizens notify the public security organ in advance so that the latter will deploy a police force to impose order and ensure the smooth conduct of the assembly, procession or demonstration.
3. Overall, it is clear that the Law of the People’s Republic of China on Assemblies, Processions and Demonstrations was meant to restrict assemblies, processions and demonstrations. With only 3,618 words, the law imposes 14 “shall not”s: “no weapons, regulated cutting tools shall be carried…”(Article 5).“No citizens shall, in a city other than his place of residence, start, organize or participate in an assembly, a procession or a demonstration of local citizens”(Article 15). “No functionary of a state organ shall organize or participate in an assembly, a procession or a demonstration which contravenes the functions and obligations of functionaries of state organs as prescribed in relevant laws and regulations”(Article 16). “Temporary security cordons…shall not be crossed” (Article 22). “Foreigners in the territory of China may not, without approval by the competent authorities, participate in an assembly, a procession or a demonstration held by Chinese citizens”(Article 34). “No assembly, procession or demonstration shall be held within a peripheral distance of 10-300 meters from the following places: (1) premises of the Standing Committee of the National People’s Congress, the State Council, the Central Military Commission, the Supreme People’s Court and the Supreme People’s Procuratorate; (2) places where state guests are staying; (3) important military installations; and (4) air harbors, railway stations and ports”(Article 23).
Apart from these prohibitions, this law has more restrictive rules: “The time for holding an assembly, a procession or a demonstration shall be limited to 6 a.m. – 10 p.m., with the exception of those held by decision or approval of the local people’s governments”( Article 24). “If anyone organizes or participates in an assembly, a procession or a demonstration in the name of a state organ, a public organization, an enterprise or an institution, he must first obtain approval from its leaders”( Article 17), and more. This law continues the practice of “abstractly confirming but practically negating” freedoms and human rights. In its 36 articles, 2 are abstractly confirmative, and 23 are prohibitions or restrictions, or 64% of the entire law. No wonder people describe this law as the Law of the People’s Republic of China on Prohibiting Assemblies, Processions and Demonstrations. In terms of purpose of legislation, this law clearly and severely restricts citizens’ constitutional rights, a violation of the Constitution without a doubt.
4. Indeed, since the enactment of the Law of the People’s Republic of China on Assemblies, Processions and Demonstrations, citizens’ rights to assemble, march, and demonstrate have all but been deprived. The law was promulgated hurriedly in the wake of the students and residents democratic movement in 1989. During a period of nearly 25 years, the public security bureaus across China have almost never granted permission to a request to assembly, march or demonstrate, rejecting even requests for a procession of only three to five people making limited appeal on the basis that they would “seriously disrupt social order.”