In over thirty years of reform and open up, China’s economy has seen huge developments, but many problems have emerged in China’s society. Especially because political reform could not proceed at the same pace, bureaucratic corruption, the abuse of public power, the widening gap between rich and poor and other such phenomena have become graver every day, and triggered strong dissatisfaction in society. People are longing for change, the masses’ demands and expectations for reform are growing ever higher, but the pace of reform is limited by obstruction by interest groups, and it cannot by far satisfy the people. An even more fundamental matter is that, although the people themselves bitterly hate all sorts of social injustices, no consensus has been achieved on how to reform the system that creates injustices, so that the forces among the people who promote reform have become fragmented and weakened. Those outside the system cannot bring pressure for reform, those within the system do not have motives for reform. If the structural reform that China’s society urgently needs is thwarted time and time again, gets bogged down and stagnant, the corruption of public power and social dissatisfaction will build up to a dangerous critical point, and China will again miss the opportunity for peace and improvement, and fall into the upheaval and chaos of violent revolution.
The Report of the 18th Party Congress expressed a firm determination for political structural reform, General Secretary Xi Jinping’s speech at the conference commemorating the 30th anniversary of the promulgation of the Constitution stressed the implementation of the Constitution, and let us see hopes for governance according to the Constitution and deepening of reform. At present, China’s reform has again arrived at a crossroads, China’s society especially needs to come to a consensus on great matters of right and wrong in, and a general direction for reform, which especially means building a fundamental consensus on democracy, the rule of law, respect for human rights and other principles of constitutionalism demanded in a modern society. In order to refine and concentrate a consensus for reform, we put forward propositions to move reform forward in the six areas of governance according to the Constitution, implementing electoral democracy, respecting the freedom of expression, deepening the market economy, realizing judicial independence and guaranteeing the effect of the Constitution. We believe that these should constitute a consensus for reform that all rational citizens would identify with.
I, Moving governance according to the Constitution forward.
So far, China’s reform has been moved forward under the leadership of the governing party, but the experiences and lessons of more than thirty years of reform indicate that, if we do not first reform the political structure with a high degree of centralization of power, it will not be possible to continue to move forward and deepen reform in other areas. In the era of the revolutionary war, it was the fact that Communist Party, on many occasions, expressed democratic commitments that made the masses pursue justice and many people of good will, who bitterly hated corruption, pursue the revolution, but within the Party, actually, top-down organizational control has been implemented for a long time. During the era of the revolutionary war, the Communist Party created a highly centralized power structure in order to ensure operational efficiency. After 1949, the governing party did not truly honour its commitments and gave power back to the people. Under a political structure with highly centralized power, the power of those governing is difficult to effectively restrain, policy mistakes of those governing are difficult to prevent and correct, and it is easy to sink ever deeper into the mire, leading to grave mistakes. The “anti-rightist campaign” and all other such political campaigns brought extreme harm to the good will and courage of China’s intellectuals, the 1958 “Great Leap Forward” brought about huge famines in which millions starved, the decade of the “Cultural Revolution” that started in 1966 resulted in the fact that millions of innocents were persecuted or attacked. The entire country was on the brink of civil war… These bloody lessons indicate that systems in which power is highly centralized and even individualized had not been suited for daily social governance in an era of peace, now the time has come for the governing party to fulfil its initial commitments.
The 3rd Plenum of the 11th Party Congress created a good situation of reform and opening up, the 13th Party Congress Report clearly demanded “Party-State separation”, the Reports of the 16th and 18th Party Congresses again stressed that “intra-Party democracy is the life of the Party”. Even so, because political structural reform is slow and has not been put on the agenda, so far, it has not been possible to fundamentally solve the problem of the excessive concentration of power, which at present is mainly embodied in three ways.
(1) No separation between Party and government, the powers and responsibilities of the Party and the government, and their division of work are not clear, the phenomena that the Party replaces the government and the Party interferes with the government are extremely widespread, and the power of the governing party is not subject to institutionalized constraints.
(2) Policymaking power within the Party is highly centralized, major policy decisions and personnel arrangements are often decided by a few persons or even one persons, local “number one leaders” can easily decay into “local despots” who know neither law nor heaven. The reason that Bo Xilai was able to do as he pleased in a number of different positions was exactly because his power as a “number one leader” was not effectively constrained.
(3) Intra-Party election procedures are not subject to effective statutory standardization and implementation, Party members’ representative conferences have not been able to play their role fully, leading Party cadres are often appointed because of decisions behind closed doors at higher levels, and not because of election by Party members. Such a system easily creates leading cadres that become separate from Party members and the masses, it creates situations in which a few people or even one person have the final say, this opens the great gate for buying and selling offices and the abuse of public power.
The maintenance of a long period of peace and order for the country, social stability and harmony, can only take place through the transformation of a revolutionary party into a true governing Party, the clarification of the relationship between Party and State on the basis of the Constitution, the establishment of rule of law governing systems, and the progressive implementation of democratic elections in the governing party. Governance according to the Constitution is the only channel to maintain the incorruptibility of the governing party itself, as well as long-term governance, this is mainly embodied in four areas: Party-government separation, intra-Party democracy, division of powers with checks and balances, and openness in Party affairs.
(1) Party-government relationships must be rationally defined according to the Constitution. The Preamble of the 1982 Constitution clearly provides for “the leadership of the Communist Party”, but “leadership” does not equal complete change or direct interference in government affairs. As the report of the 13th Party Congress pointed out, the “leadership” as meant in the Constitution refers to the political leadership of the governing party, it mainly includes the decision of major policies through democratic policymaking mechanisms, changing these into State laws and policies through legislative procedures in the People’s Congresses, recommending cadre appointments to state organs, and supervising that Party members and cadres are incorruptible and abide by the law. But the governing party should not again march down the old road of “Party management of cadres”, direct intervention in personnel decisions in government or getting involved in administrative or judicial affairs.
(2) In order to guarantee democratic policymaking, maintain an honest and upright work style and prevent the excessive concentration of power, it is necessary that the governing Party strengthens its own democratic construction, progressively implements intra-Party democracy according to its Constitution, and organizes intra-Party elections starting from village branches and neighbourhood committees, towns, counties and other grass-roots Party organizations. All levels’ Party members’ representatives are to be appointed through election by Party members, higher-level Party Committees may not intervene.
(3) Fully give rein to the daily leadership and supervision role of all levels’ Party representative congresses. All levels’ Party representative congresses should become the organs with the highest power within the governing party, and are to elect and supervise Party Committees at all levels. All levels’ Discipline Inspection Committees should be under the direct leadership of the same level’s Party representative congress and be responsible to it. The local “number one leader” responsibility system that is implemented at present has aggravated the concentration of power in the governing party, it is necessary to fundamentally reform it, establish collective leadership mechanisms in all levels’ Party Committees, and shape systems for intra-Party division of power with checks and balances.
(4) Intra-Party democracy reform requires the integration of comprehensive openness in Party affairs, openness in government affairs and broad participation of citizens, the establishment of officials’ asset publication mechanisms at all levels, as soon as possible, and the forceful promotion of public asset reform, as well as the implementation of openness of all levels’ Party and government budges and their implementation, the popular will must be broadly consulted through a public hearing system, in relation to major policy decisions and programmes, such as land levying, that influence people’s livelihoods, in order to fully guarantee citizens’ right to know and right to participate in politics.
II, Implementing electoral democracy
Article 2 of the 1982 Constitution clearly provides that “all power belongs to the people”, and in order to implement the principle of “popular sovereignty”, the crucial matter is to standardize the election of all levels’ People’s Congresses, letting all levels’ People’s Congresses truly have a representative and supervisory role, and strengthening democratic governance at the grass roots of society. According to the design of the 1982 Constitution, all levels’ People’s Congresses are the basic structures to realize the people’s participation and deliberation of political affairs. Whether or not People’s Congress elections are standardized, and whether or not People’s Congresses are willing and able to positively carry out their duty of representing the interests of the electorate, directly decides the fundamental essence of this country, decides the fundamental relationship between the government and the people, and decided whether or not the fundamental interests of the broad people can be effectively upheld or not. In recent years, the reason why so many mass incidents have occurred in Chinese Society, to the extent that social stability and the basis for governance were gravely harmed, is because the People’s Congresses at all levels have not been able to play an effective role as provided in the Constitution.
At present, China’s People’s Congress system contains two major kinds of problems.
(1) All levels’ People’s Congress elections commonly go through the motions, the phenomenon of government interference, bribery and malpractice is extremely grave, which leads to the fact that People’s Congress representatives are unable to truly represent the popular will, there is a lack of zeal in representatives’ fulfilling their duties, it seems as if a trace of them is never seen in major public affairs. A few representatives work selflessly for the public interests and carry out their duties enthusiastically, they ardently solve real problem for the electorate, but are often considered to be marginal, or are even attacked.
(2) The function of the People’s Congresses as provided in the Constitution is often a mere formality. Because the absolute majority of People’s Congress representatives and Standing Committee members concurrently hold other posts, the time, effort and resources that representatives and Committee members dedicate to their constitutional role in legislation, budgeting and supervision, etc., is extremely limited, leading to the fact that People’s Congresses at all levels are only a “rubber stamp”, raising and clapping hands when in session.
In order to change this situation, it is necessary to adopt and implement measures such as direct elections at the grass roots, strengthening the professionalization of People’s Congresses, strengthening democratic self-governance at the grass roots of society, etc.
(1) Implement direct People’s Congress elections at both county and town levels. At present, the absolute majority of social problems emerge at the grass roots. Standardizing the election of grass roots People’s Congresses will enable the resolution of grass roots social problems at the source, the huge consolidation of a basis for governance and the maintenance of government authority. To this end, it is necessary that the Centre strictly prohibits local Party and government interference in the selection and campaign activities of candidate People’s Congress representatives, and at the same time, guarantees that all levels’ People’s Congress representatives are able to effectively carry out their constitutional roles. According to Articles 34 and 35 of the Constitution and the relevant provisions of the Election Law, citizens are free to participate in campaigning to become a grass roots People’s Congress representative, the free exchange between candidates and voters cannot suffer interference or limitation by “upsetting social order” and other such charges. According to common practice in constitutionalist countries, as long as candidates gain a certain amount of support from voters, they automatically become legitimate candidates. The current Election Law has established extremely intransparent “primary” and “consultation” procedures for candidates, endowing local election committees with almost limitless power of free discretion, and has thereby provided convenient opportunities for decisions about candidates behind closed doors at the local Party and government level, this must be fundamentally reformed.
(2) In terms of standardizing the basis for People’s Congress elections, it is necessary to strengthen the role of all levels’ People’s Congresses and promote the specialization of People’s Congress representatives. Organic reform of People’s Congresses should start from all levels’ People’s Congress Standing Committees, by increasing the proportion of full-time Committee members year after year. It is suggested to increase the number of Standing Committee members who are full-time members by 10 per cent very year, ensuring that half the Standing Committee members become full-time Committee members within five years. It is suggested to increase the number of People’s Congress representatives who are full time representatives by 5% every year, so that a quarter of People’s Congress representatives are full-time representatives within five years. The means for People’s Congress representatives to implement their duties are to be decided by the representatives themselves, lawful activities to carry out these duties may not be subject to local Party, government or People’s Congress interference.
(3) Village committee and owners’ committee elections are the newest attempts towards grass roots democracy in China, and equally require institutional guarantees. In recent years, Village committee elections have commonly been subject to higher-level Party and government interference, election bribery and other such corrupt phenomena are becoming ever more grave, and incidents where village committees sell villagers’ land and other such interests without the villagers’ agreement occur now and then, the Wukan incident in Guangdong is one example of this. To effectively resolve China’s rural land and other such major conflicts of interests, and truly maintain the stability of Chinese society, it must be clarified that local Party and government interference with village committee elections is prohibited, village committee and villagers’ representative congress elections must be effectively standardized, and mechanisms for mutual checks and balances between village committees, villagers’ representative congresses, election congresses and other such village-level organizations must be established as quickly as possible.
II, Respecting the freedom of expression
Article 35 of the Constitution provides that “citizens have the freedoms of speech, publication, assembly, association, movement and demonstration”. In more than three decades of reform, the freedom of expression of Chinese citizens has seen huge progress. Especially after the introduction of the network, ever more media have dared to expose corrupt phenomena in various locations, and the extent to which the Centre and the masses know about public affairs has greatly risen. Even so, it cannot be denied that many unnecessary restrictions still exist in this area, which are concretely manifested in the following ways:
(1) Online speech is subject to unnecessary restrictions, it often happens that citizens’ posts are deleted when they post them, their accounts are cancelled and even incidents of re-education through labour and crime take place
(2) The freedom of publication of news is subject to unnecessary restrictions, not only is the establishment of publishing organs subject to strict advance examination and approval, the publication of books and periodicals is also in principle subject to advance examination, furthermore, during the process of daily operations, media are also subject to many decrees, instructions and limitations. These orders protect those corrupt scandals that should be publicly exposed, and gravely impair the right to know of the whole body of citizens.
(3) Citizens’ freedom of assembly is subject to unnecessary restrictions. Although rule of law countries also require that demonstrations and assemblies obtain advance approval from governments, in China, this demand is transmogrified into a pretext to prohibit citizens to assemble, so that it is almost impossible for citizens’ peaceful assembly to obtain approval from the local government.
(4) Citizens’ freedom of association is also subject to unnecessary restrictions. Not only is the establishment of a popular organization subject to many harsh demands as well as strict ex ante and ex post examination, furthermore, peasants cannot establish peasant association, labour unions do not emerge through free elections by workers, and they cannot effectively represent and protect workers’ interests.
We suggest the progressive relaxation of all unnecessary restrictions on all sorts of freedom of expression, and the completion of the transformation from political rule to rule of law, and from substantive to procedural social management models as soon as possible.
(1) Control over online speech should be abolished completely, and all levels’ governments should be strictly prohibited from convicting citizens or implementing re-education through labour on the basis of online speech.
(2) The management of the area of news publication should be transformed from prior government interference to ex-post legal supervision, where legal liability for unlawfully published information would be prosecuted ex post. With regard to the establishment of publishing organs, newspapers and periodicals, there should be a transformation from substantive examination to procedural examination, a newspaper and periodical filing and management system is to be established, for the convenience of ex-post legal supervision. In view of the fact that the current Constitution has not been effectively implemented, and the fundamental rights provided in Article 35 of the Constitution have not been effectively protected, it is necessary to formulate a “News Law”, in order to realistically strengthen legal guarantees for the freedoms of speech and publications, and clearly define the legal boundaries for the freedoms of speech and publication. With regard to speech published within the scope permitted by the Constitution and the law, there should not be any form of Party or government interference. The reason why the “Chongqing Model” of seeking fraudulent fame, which brought grave harm, was able to get worse and worse, was because of local Party and government suppression of public opinion, in which the public was hoodwinked.
(3) The examination and approval for applications for marches and demonstrations should shift from content examination to procedural examination; the objective of examination is not to limit citizens’ freedom of expression, but to prevent violence breaking out, traffic blockages and other phenomena upsetting order. All levels’ officials should establish a fundamental idea of constitutionalism, that is that the freedom of assembly is the principle, and limiting it is the exception. As long as there is no evidence to show that the gathering will lead to violent tendencies, it should be inferred that the gathering is peaceful, local governments may not refuse approval on the basis of “obstruction to social order” and other such reasons.
(4) The examination and approval of citizens’ requests to form associations should equally change from content examination to procedural examination, and a filing and registration system for social associations should be established, for the convenience of carrying out rule of law management over social organizations. Social organizations that engage in unlawful activities ay be attacked on the basis of the “Criminal Law”, and the registration qualifications of the group may be cancelled. In 2011, new regulations promulgated by the Guangzhou Municipality loosened limitations on forming associations, which had favourable social effects. This sort of beneficial local trial should be extended forcefully across the entire country.
III, Deepening the market economy
As everyone knows, the market economy is a basic national policy determined at the beginning of reform and opening up, it has had an irreplaceable role in the flourishing of development of China’s society over the past thirty years. After the constitutional revision of 1993, the “market economy” gained a constitutional position. Even so, it is worrying that, because political structural reform has not been moved forward at the same time, grave deviations have appeared in China’s economic development, and the deepening of economic reform faces grave challenges. Under the guidance of the political assessment thinking of “GDP supremacy”, China-style “development” has become a pejorative for bringing up greedy officials, encroaching on citizens’ rights, destroying the environment and wasting resources. Especially in the past twenty years, the phenomenon that “the State advances, the people withdraw” has been extremely grave, this is concretely manifested in the following areas.
(1) The monopoly position of State-owned enterprises has further intensified, the development of people-run enterprises has been pushed aside, it has been subject to strict limitations especially in areas such as access, borrowing, funding, etc., this clearly damaged the environment for fair competition and gravely constrained the development vitality of China’s market economy.
(2) The growth of the State’s financial revenue exceeds the growth of national revenue by far, the proportion that State finances occupy in national revenue has increased for years running.
(3) State finances are used increasingly for “stability preservation”, military expenditure and other such objectives, investment in the people’s livelihoods, social security, environmental protection and other matters of public interest has been gravely insufficient, the gap between rich and poor is growing incessantly, the common people are facing many pressures in life of not being able to go to the doctor, not being able to study, not being able to buy houses, etc.
(4) After the implementation of the “tax distribution system” in 1994, the proportion that Central finances occupy among State finances has clearly risen, the fiscal revenue that many localities rely upon to support local public services is insufficient, in addition came the official assessment system with “GDP supremacy” and motives for individual rent-seeking by officials. Various localities have successively pursued “land finance”, and used a loophole existing in Article 10 of the Constitution to bind eminent domain and urbanization together, they expropriated peasants’ land through forced compensation, gravely harming the peasants’ interests and social stability.
In order to fundamentally stop “the State advancing and the people withdrawing”, realizing a return of wealth to the people, let market economy reform truly extend to a large number of common people and not a small number of privileged interests, the following measures must be implemented as quickly as possible.
(1) The State must guarantee the equal position in law of people-run enterprises (including people-run education), and loosen management over people-run capital and people-run education.
(2) The growth of State finances must be restrained. In view of the fact that Chinese citizens’ real tax burden is already quite heavy, it should be immediately and clearly provided that financial income growth at various levels may not exceed national income growth rates.
(3) Reasonably allocate financial expenses, notably increase investment in education, healthcare, basic insurance, environmental protection and other such matters related to the people’s livelihoods, abolish institutional urban-rural discrimination, realize local equality in compulsory education, public universities and common public services as early as possible, establish social security systems that cover the entire people and integrating town and country, provide basic insurance for children, the elderly, the ill, low-income earners and other such weak groups, that enables a dignified life.
(4) Rationally allocate Central and local finances, realize the integration of duties and financial power. At the same time, fundamentally reverse the development thinking of “GDP supremacy”, let local governments concentrate on investment in public order, education, the people’s livelihoods, environmental protection and other local matters of public interest, do not abuse the title of “development” to swallow up the people’s interests and create opportunities for corruption.
(5) Reform land management systems, implement fair compensation principles as provided in the constitutional revision draft, strictly limit the levying of land to the scope of “public interest” as provided in the Constitution, loosen farmland use management at the same time, give land use rights back to peasants, and uncouple urbanization and land levying.
IV, Realizing judicial independence
Both the market economy and democratic politics are inseparable from a basic rule of law order, and the construction of a rule of law order is inseparable from fair and independent judge and lawyer teams that do not suffer interference. Article 126 of the Constitution provides that “Courts exercise judicial power independently according to the provisions of the law, and are not subject to interference by administrative organs, social groups and individuals”.
Judicial independence is the direction for reform as determined in the Constitution, and is a necessary road to realize a rule of law country. In fact, the CCP Central Commission Document 64 from 1979 already clearly put forward that “Party Committees and judicial organs each have their own responsibilities, they cannot replace each other, and should not be confused with each other. To this end, the Centre has decided to abolish the system in which Party Committees at all levels try cases… All levels’ Party Committees must determinedly change the replacement of government with the Party and the replacement of the law with commands as was done in the past, not handling affairs according to the provisions of the law, and the habits and methods of undertaking both judicial and administrative affairs”. Even so, over the past decade or so, although certain achievements have been made in judicial reform, the objective of judicial fairness remains very far away, judicial corruption and administrative interference remain extremely widespread phenomena. Especially since 2008, the pace of judicial reform has basically come to a stop, and there has even been retreat in some areas, so that judicial reform has come to a crossroads where directions are unclear.
At present, many abuses exist in China’s judicial system, which are mainly reflected in the following three areas.
(1) There is a grave lack of independence in the courts, judges’ deciding cases are extremely easily subjects of administrative interference. Although Article 126 of the Constitution provides that “People’s Courts exercise judicial power independently according to the provisions of the law, and are not subject to interference by administrative organs, social groups and individuals”, but this provision is not implemented in judicial practice. Under conditions where courts are not independent in matters of personnel, finance and powers, it is impossible for judicial trials to resist interference from local Party and government departments, and it is seen very often that all levels’ politico-legal committees’ intervene in individual cases. Although implementing the court president responsibility systems within courts, the judicial committee system, hierarchical management and various kinds of assessment systems may have been helpful in the supervision of judges’ trying cases, it has restrained the maturation of judges’ independent personalities.
(2) Judicial corruption is extremely grave, the phenomenon that judges “eat the plaintiff and then eat the defendant” is still widespread, and it is especially the situation that trials are not transparent, judgments are not open and verdicts pay little attention to reasoning that creates a convenient space for judicial corruption.
(3) Unlawful Party and government interference in the judicial process at all levels is extremely widespread, the right for lawyers to handle cases in a proper manner is not guaranteed, extortion of confessions by torture cannot be stopped despite repeated prohibitions, and unjust, falsified and mistaken cases occur often. The “strike black” campaign in Chongqing when Bo Xilai was in charge is one typical bad example.
In order to raise the quality and authority of China’s judiciary, only paying attention to substantive judicial reform, letting courts’ functions return to a judicial orientation, and providing institutional guarantees for judicial fairness and judgment according to the law will do.
(1) The governing party should consciously uphold judicial independence, and actively avoid interference in individual cases. According to the basic demands of Party-State separation, the function of the governing party lies in recommending and supervising cadres, as well as determining the fundamental policies of the State, it is not to intervene in the judiciary and directly expressing its own will in concrete cases and judgments, otherwise, this might easily lead to a current of rule of man, which would violate the laws and policies that were formulated under the charge of the governing party itself, and the principle of ruling the country according to the law. At present, the phenomenon that politico-legal committees at all levels intervene in the judiciary is extremely grave, we should start at the grass roots and progressively abolish politico-legal committee structures at all levels.
(2) The design of the Constitution should strengthen vertical management over the judiciary and reduce the local dependence of courts in matters of personnel and budgeting, prevent local protectionism, and create a favourable institutional environment for courts to independently try cases according to the law.
(3) Political and administrative control within courts should be weakened, judges should be endowed with the power to independently judge cases according to the law to the broadest extent. Administrative control is not a sound strategy for preventing judicial corruption, rather, it is a warm bed for the propagation of corruption.
The prevention of corruption and reform towards judicial independence are not mutually exclusive, persisting in judicial openness and openness of judgments, stressing the quality of reasoning in verdicts and other such reform measures will reduce the space for judicial corruption to the greatest extent. At the same time, it will be helpful to raise judges’ professional qualities and judges’ social credibility.
(4) The judicial orientation of courts should return to trials according to the law. Judges must be responsible to the law, judicial trials must persist in the principle of the supremacy of the law. As for whether or not the result of a trial satisfy the people, this often depends on the rationality of legislation and many other such factors, it should not be a standard to judge judicial work. Courts can engage in some mediation work on the basis of the demands of the concrete case and the wishes of the parties, but should not painstakingly stress it and make it into a work focus. The absolute majority of mediation and arbitration work should be streamed out of courtrooms, and be resolved by judicial administration departments. With regard to some small claims suits, simplified judicial procedures can be designed, in order to raise judicial efficiency and reduce litigation costs, but no flexible measures may make courts deviate from their basic role of trying cases according to the law.
VI, Guaranteeing the effect of the Constitution
In fact, none of the above viewpoints is “innovative” in any sense, they are implications of the 1982 Constitution; as long as we deal with the Constitution earnestly, governing according to the Constitution, electoral democracy, freedom of expression, the market economy and judicial independence can naturally be implemented. Furthermore, because the mechanisms for constitutional implementation are not perfect, and other such reasons, the current Constitution’s provisions have not been effectively implemented for a long time, so that the Constitution decayed from being “the basic law of the State” to a useless “facade”, which has not been able to have “the highest legal effect” as foreseen in the Preamble. In order to change this situation, we must perfect mechanisms for constitutional implementation, let the Constitution’s provisions be truly and satisfactorily implemented, and let them play an effective role in guaranteeing citizens’ rights and supervising State power. In fact, the roots of structural reform lie in implementing all provisions of the current Constitution. At the conference commemorating the 30th anniversary of the promulgation of the Constitution on 4 December 2012, General Secretary Xi Jinping especially stressed: “The life of the Constitution lies in its implementation, the authority of the Constitution also lies in its implementation”.
Article 61 of the current Constitution provides that the NPC Standing Committee is responsible for “interpreting the Constitution and supervising the implementation of the Constitution”. Bur thirty years after the promulgation of the 1982 Constitution, the NPC Standing Committee has never exercised this power that Article 61 endows, and in this period, many major constitutional problems occurred in this period, which is sufficient to indicate that the mechanisms to implement the current Constitution are not effective in practice. The reason why constitutional review in China has maintained a “zero record” for a long time is not a phenomenon of happenstance, but it is caused by the fact that institutional design is not perfect. Not only do suspicions of overstepping the role of the NPC and reviewing the laws that it formulated itself, and other such violations of democracy and rule of law principles exist in the NPC Standing Committee’s constitutional interpretation, it also does not conform to the principles of a rational division of work. The NPC Standing Committee essentially is a legislative organ, the interpretation of the Constitution and the laws is judicial work. The legislative work of the Standing Committee essentially is extremely onerous, it basically has no time to attend to the application of the Constitution in concrete cases.
In order to realize that the Constitution turns from uselessness to usefulness, only the incessant application of the Constitution in China’s daily political life will do. There are generally three models for rule of law countries to apply constitutions: the U.S. model in which common courts apply constitutions, Germany and Austria established special constitutional courts to apply constitutions, and the French model in which a constitutional council applies constitutions. Even though the U.S. model or the German-Austrian model do not suit China at present, it is still necessary to reform constitutional implementation mechanisms, and establish a special committee that is responsible for interpreting and applying the Constitution as early as possible. In the present stage, the constitutional committee could be set up within the National People’s Congress, it would be responsible to the National People’s Congress, but mutual independence must be maintained in the operational procedures for its personnel structure, otherwise, it will be impossible to make clear the legal effect of the Chinese Constitution.
Finally, the focus point of constitutional review is not controlling the constitutionality of People’s Congress legislation, but it lies in controlling the constitutionality and legitimacy of regulations, rules and common normative documents, the establishment of effective legal standard review mechanisms, and the subsequent smoothening of legislative relationships between the Centre and the locality, would guarantee the harmony and uniformity of China’s legal system, and would at the same time respond to the needs of local discrepancies pluralism and autonomous innovation within China’s vast territory. Under the precondition that they conform to the Constitution and the fundamental principles of the law, localities should be fully permitted to freely experiment with different models, shaping benign local competition structures. Thirty years ago, reform and opening up was the result of the local experiments in Xiaogang village, Anhui in 1978, which the Centre expanded, reform and opening up in the future also requires local experiments, competitive and blended mechanisms in intra-Party democracy, grass roots elections, judicial practice, constitutional review and many other areas.
“Global trends are vast and mighty; those following them will prosper, those going against them will perish”. Democracy, the rule of law, human rights and constitutionalism are irresistible global trends. China’s history of a century of blood and fire, and especially the painful lesson of the “Cultural Revolution”, indicate that whenever the global trends of democracy, the rule of law, human rights and constitutionalism are deviated from, the people will meet with disaster, social stability becomes impossible, and the national regime cannot be stable. We deeply hope that the new generation of leaders will grasp a unique and fleeting historical opportunity, not be troubled by outmoded ideas, not be misled by short-term interest, not waver in realizing the long-term interests of the State and the governing party, and are determined to continue reform. We hope even more that the people are able to see global trends and the great benefit of the nation clearly, so they are not harassed by peripheral disputes, are not moved by radical discourse, will base themselves on reason, gradually advance the improvement of the domestic system, shape a basic understanding of governance according to the Constitution, the implementation of electoral democracy, respect for the freedom of expression, deepening the market economy, realizing judicial independence, guaranteeing the effect of the Constitution and other such directions for reform, and use their own actions to propagate, support and facilitate these.
Let us surmount the division between left and right, and the difference between court and commons, and strive jointly for the construction of a constitutionalist China that is democratic, has the rule of law, respects human rights, where the people are wealthy and the country is strong!
Proposed by (listed alphabetically)
Chen Hongguo, Chen Yimin, Chi Susheng, Chu Chengfang, Ding Dong, Ding Xikui, Du Guang, Du Guowang, Fang Ming, Gao Fang, Gao Quanxi, Gao Xinjun, Guo Daohui, Guo Xianghong, Guo Yuhua, Guo Yukuan, Huang Jinrong, He Bing, He Weifang, He Rikai, Hu Xingdou, Jiang Ping, Jing Kaixuan, Li Shun, Li Jinxing, Li Weilin, Li Yinhe, Liu Peng, Liu Gengzi, Liu Kaiming, Liu Lianjun, Liu Zhiqiang, Liu Yejin, Lu Yuegang, Ren Donglai, Ren Xinghui, Rong Jian, Shangguan Piliang, Sun Daxu, Tian Feilong, Tong Dahuan, Tong Zongjin, Wang Jiandong, Wang Xing, Wang Zhenyu, Wei Hong, Wei Rujiu, Wu Guoguang, Wu Yuanzong, Xie Lihua, Xin Lijian, Xiong Wei, Xiong Wenjian, Xu Youyu, Xu Can, Xu Jilin, Yan Lieshan, Yang Junfeng, Yang Shijian, Yao Zhongqiu, Ye Kuangzheng, Yu Ronggen, Zhang Lifan, Zhang Yuhe, Zhang Sizhi, Zhang Qianfan, Zheng Zhenyuan, Zhong Dajun, Zhou Lian, Zhu Guobin, Zhu Yingping
谌洪果 陈奕敏 迟夙生 储成仿 丁东 丁锡奎
杜光 杜国旺 方明 高放 高全喜 高新军
郭道晖 郭相宏 郭于华 郭宇宽 黄金荣
何兵 贺卫方 贺日开 胡星斗
江平 景凯旋 李楯 李金星 李维森 李银河
刘澎 刘庚子 刘开明 刘练军 刘志强 刘业进
卢跃刚 任东来 任星辉 荣剑 上官丕亮
孙大午 田飞龙 童大焕 仝宗锦
王建勋 王兴 王振宇 魏宏 魏汝久
吴国光 吴元中 谢丽华 信力建 熊伟 熊文钊
徐友渔 徐灿 许纪霖 鄢烈山 杨俊峰 杨世建
姚中秋 叶匡政 俞荣根 章立凡 章诒和
张思之 张千帆 郑振源 仲大军 周濂