A Proposal for a Consensus about Reform

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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

改革共识倡议书

改革三十多年来,中国经济获得了巨大发展,但是中国社会也出现了诸多问题。尤其是由于政治改革未能同步进行,官僚腐败、公权滥用、贫富差距拉大等现象日趋严重,引发了强烈的社会不满。人心思变,民众对改革的要求和期待越来越高,但是改革的步伐却受制于既得利益集团的阻挠,远远不能让人民满意。更为根本的是,人民自己虽然痛恨种种社会不公,但是对于如何改革造成不公的制度却并未达成共识,以至民间推动改革的力量受到分化和削弱。体制外没有改革的压力,体制内就没有改革的动力。如果中国社会亟需的体制改革一再受挫、停滞不前,公权腐败、社会不满将积聚到危险的临界点,中国将再次错失和平改良的机会,陷入暴力革命的动荡和混乱之中。

中共十八大报告表达了政治体制改革的坚定意愿,习近平总书记在纪念宪法公布施行30周年大会上的讲话重点强调宪法实施,让我们看到了依宪执政、深化改革的希望。当前,中国改革再次来到十字路口,中国社会尤其需要对改革的大是大非和总体方向达成共识,尤其是对现代文明所要求的民主、法治、尊重人权等宪政原则形成基本共识。为了提炼和凝聚改革共识,我们提出推进依宪执政、落实选举民主、尊重表达自由、深化市场经济、实现司法独立、保障宪法效力等六项改革主张。我们认为,它们应构成所有理性公民所认同的改革共识。

一、推进依宪执政

迄今为止,中国改革是在执政党领导下推进的,但是改革三十多年的经验与教训表明,如果不首先改革高度集权的政治体制,将无法继续推进与深化其它领域的改革。在革命战争年代,正是共产党在多个场合下表达的民主承诺让众多追求正义、痛恨腐败的仁人志士追随革命,但是党内实际上长期实行自上而下的组织控制。在战争年代,共产党为了维持行动效率形成了高度集中的权力结构。1949年后,执政党并未真正兑现承诺、还权于民。在高度集权的政治体制下,执政者的权力很难受到有效制约,执政者的决策错误也就很难得到防范与纠正,从而很容易越陷越深,直到酿成大错。“反右”等历次政治运动极大杀伤了中国知识分子的良知和勇气,1958年的“大跃进”造成数千万人饿死的大饥荒,1966年发动的十年“文革”使数以亿计的无辜者受到迫害或冲击,整个国家处于内战边缘……这些血的教训表明,权力高度集中化甚至个人化的执政体制早已不适应和平时期的日常社会治理,现在是执政党兑现初始承诺的时候了。

中共十一届三中全会开创了改革开放的良好局面,中共十三大报告明确要求“党政分开”,中共十六大和十八大报告一再强调:“党内民主是党的生命。”然而,由于政治体制改革迟迟未能提上日程,权力过度集中的问题至今未能得到根本解决,当前主要体现于三个方面。(1)党政不分,党政权责分工不明确,以党代政、以党干政的现象十分普遍,执政党的权力得不到制度化约束。(2)党内决策权力高度集中,重大决定和人事安排往往由几个人甚至一个人拍板,地方“一把手”很容易蜕变为无法无天的“土皇帝”。薄熙来之所以能够在不同职位上为所欲为,正是因为其作为“一把手”的权力得不到有效制约。(3)党内选举程序并未得到法律的有效规范和落实,党员代表大会未能真正发挥作用,党的领导干部往往是由上级内定而非党员代表选举产生。这样的体制很容易造成领导干部脱离党员群众,形成少数人甚至一个人说了算的局面,为买官卖官和公权滥用敞开大门。

要维持国家长治久安、社会稳定和谐,惟有从革命党转变为真正的执政党,依据宪法厘清党政关系、建立法治化的执政体系,并在执政党内逐级落实民主选举。依宪执政是保持执政党自身廉洁和长期执政的惟一途径,主要体现于实行党政分离、党内民主、分权制衡、党务公开等四个方面。

(1)党政关系必须依照宪法得到合理界定。1982年宪法序言明确规定了“共产党领导”,但是“领导”并不等于全面包办或直接干预政府事务。正如中共十三大报告指出,宪法意义上的“领导”是指执政党的政治领导,主要包括通过民主决策机制决定大政方针,经由人大立法程序使之变为国家法律和政策,向国家机关推荐干部人选,并监督党员干部廉洁守法。但是执政党不宜再走“党管干部”的老路,直接干预政府人事决定或介入行政和司法事务。

(2)为了保证民主决策、保持党风廉正、防止过度集权,执政党有必要加强自身民主建设,按照党章要求逐级落实党内民主,从村支部、街道委员会、乡镇、县市等基层党组织开始实行党内选举。各级党员代表由党员直选产生,上级党委不得干预。

(3)充分发挥各级党员代表大会的日常领导与监督作用。各级党代会应成为执政党的最高权力机关,选举产生并监督各级党委。各级纪律检查委员会应直接受同级党代会领导并向其负责。当前实行的地方“一把手”负责制加剧了执政党权力集中,有必要从根本上进行改革,建立各级党委集体领导机制,形成党内分权制衡体制。

(4)党内民主改革一定要和全方位的党务公开、政务公开及广泛的公民参与结合在一起,尽快建立各级官员财产公示制度,大力推进公共财政改革并实现各级党政预算及其执行的公开化,对征地等影响民生的重大决策或工程必须通过听证制度广泛征求民意,充分保障公民知情权与参政权。

 

二、落实选举民主

1982年宪法第2条明确规定,“一切权力属于人民”,而要落实“主权在民”原则,关键在于规范各级人大选举,让各级人大真正发挥代议和监督职能,并强化社会基层的民主自治。按照1982年宪法的设计,各级人大是实现人民参政议政的基本制度。人大选举是否规范、人大代表是否愿意并能够代表选民的利益积极履职,直接决定了这个国家的基本性质,决定了政府和人民之间的基本关系,决定了广大人民的根本利益能否得到有效维护。近年来,中国社会之所以发生了那么多群体性事件,以至严重损害社会稳定与执政根基,根源在于各级人大未能按宪法规定有效发挥作用。

目前,中国人大制度存在两大类问题。(1)各级人大选举普遍走过场,政府干预、贿选舞弊现象十分严重,进而导致人大代表并不能真正代表民意,代表履职普遍缺乏积极性,在重大公共事件中几乎从来不见他们的踪影。个别代表克己奉公、热心履职,积极为选民办实事,却往往被视为另类甚至受到打击迫害。(2)宪法规定的人大职能多流于形式。由于绝大多数人大代表或常委会委员都是兼职的,代表或委员能够投入立法、预算和监督等宪法职能的时间、精力和财力都十分有限,导致各级人大只是在开会时举举手、拍拍手的“橡皮图章”。

要改变这种现状,有必要采取落实基层直选、加强人大专职化、强化社会基层民主自治等举措。(1)落实县乡两级人大直选。目前,绝大多数社会问题都产生于基层。规范基层人大选举能够从源头上解决基层社会问题,极大巩固执政基础和维护政府威信。为此,中央有必要严格禁止地方党政干预人大代表候选人的产生和竞选活动,同时保证各级人大代表能够有效履行宪法职能。按照宪法第34条、第35条和选举法的有关规定,公民有自由参与竞选基层人大代表,参选人和选民之间的自由交流不能以“扰乱社会治安”等罪名横遭干涉与限制。按照宪政国家的通例,只要参选人获得一定数量的选民支持,就自动成为合法候选人。现行选举法对候选人设置了极不透明的“酝酿”、“协商”过程,赋予地方选举委员会几乎无限的自由裁量权,从而为地方党政内定候选人提供了方便机会,必须从根本上予以改革。

(2)在规范人大选举基础上,有必要强化各级人大职能并推动人大代表专职化。人大机构改革宜从各级人大常委会开始,逐年增加专职委员的比例。建议每年增加10%的常委会委员作为专职委员,力求在五年内达到一半的常委会委员成为专职委员。建议每年增加5%的人大代表作为专职代表,在五年内让四分之一的人大代表成为专职代表。人大代表的履职方式应由代表自己决定,合法的履职活动不得受到地方党政或人大干预。

(3)村委会和业主委员会选举是中国基层民主的最新尝试,同样需要制度保障。近年来,村委会选举普遍受到上级党政干预,贿选等腐败现象越来越严重,村委会在没有村民同意的情况下出卖村民土地等利益的事件时有发生,广东乌坎事件就是其中一例。要有效解决中国农村土地等重大利益冲突、真正维护中国社会稳定,必须明确禁止地方党政干预村委会选举,有效规范村委会和村民代表会议选举,尽快建立村委会、村民代表会议和选举委员会等村级组织的相互制衡机制。

 

三、 尊重表达自由

宪法第35条规定:“公民有言论、出版、集会、结社、游行、示威的自由。”改革三十多年来,中国公民的表达自由取得了巨大进步。尤其在进入网络时代之后,越来越多的媒体敢于揭露各地腐败现象,极大提高了中央和民众对公共事务的知情程度。然而,不可否认的是,这个领域还存在诸多不必要的限制,具体表现在以下方面。(1)网络言论受到不必要的限制,公民因为发帖而被删帖、销号乃至劳教、判罪的事件频繁发生。(2)新闻出版自由受到不必要的限制,不仅出版机构的建立受到极为严格的事前审批,书刊出版也在原则上受制于事前审查,而且媒体在日常运作过程中还受到诸多命令、指示或限制。这些限令保护了那些应该受到公开揭露的腐败丑闻,严重妨碍了全体公民的知情权。(3)公民集会自由受到不必要限制。虽然法治国家也要求游行集会得到政府事先批准,但是这一要求在中国却蜕变为禁止公民集会的借口,以至公民和平集会几乎不可能得到当地政府的批准。(4)公民结社自由也受到了不必要的限制。不仅成立民间社团受制于诸多苛刻要求以及严格的事前与事后审查,而且农民不能成立农会,工会则并非由工人自己选举产生,不能有效代表并维护工人利益。

我们建议逐步放松对各种表达自由的不必要限制,并尽快完成从政治到法治、从实体到程序的社会管理模式转变。(1)应全面取消网络言论管制,严禁各地政府因网络言论而对公民定罪或施行劳教。

(2)新闻出版领域的管理应从事前政治干预转变为事后法律监督,对违法出版的信息追究事后法律责任。对于出版机构和刊物的建立,则应从实体审查转变为程序审查,建立报刊备案管理制度,以便事后法律监督。鉴于现行宪法尚未得到有效的实施,宪法第35条规定的基本权利未能得到有效保护,有必要制定《新闻法》,以切实加强言论与出版自由的法律保障,并明确界定言论与出版自由的法律边界。对于在宪法和法律允许范围内发表的言论,党政不应以任何方式干涉。欺世盗名、为害深重的“重庆模式”之所以能够愈演愈烈,正是因为地方党政压制舆论、一手遮天造成的。

(3)对游行示威申请的审批应从内容审查走向程序性审查;审查的目的不是限制公民的表达自由,而是防止暴力冲突、交通堵塞等扰乱秩序的现象。各级官员应树立一个基本宪政观念,即集会自由是原则,限制是例外。只要没有证据表明集会带有暴力倾向,就应当推定集会是和平的,地方政府不得以“妨碍社会治安”等理由不予批准。

(4)对公民结社申请的审批也同样应从内容审查转变为程序性审查,并建立社团备案登记制度,以便对社团进行法治化管理。对于从事违法活动的社团,可以依据《刑法》进行打击并取消社团登记资格。2011年,广州市颁布的新规定放宽了结社限制,取得了良好的社会效果。这种有益的地方试验应该在全国大力推广。

 

四、 深化市场经济

众所周知,市场经济是中国改革开放之初即已确立的基本国策,对于成就中国社会近三十年来的繁荣发展发挥了不可替代的作用。1993年修宪后,“市场经济”获得了宪法地位。然而,令人担忧的是,由于政治体制改革未能同时推进等原因,中国经济发展已经出现了严重偏差,经济改革的深化正面临严峻挑战。在“GDP至上”的政绩思维指导下,中国式“发展”已经成为造就贪官、侵占民利、破坏环境、浪费资源的贬义词。尤其是近二十年来,“国进民退”现象十分严重,具体表现在以下几个方面。

(1)国有企业的垄断地位进一步加剧,民营企事业发展受到排挤,尤其在准入、贷款、融资等方面受到严格限制,明显损害了公平竞争环境,严重制约了中国市场经济的发展活力。(2)国家财政收入增长远远超过国民收入增长,国家财政占国民收入的比例连年增长。(3)国家财政越来越多地被用于“维稳”、军备等目的,民生、教育、社会保险与环境保护等公益投入却严重不足,贫富差距越来越大,普通百姓面临看不起病、上不起学、买不起房等多重生存压力。(4)1994年实行“分税制”后,中央财政占国家财政比例显著提高,许多地方靠正常税收不足以支持地方公共事业,加上“GDP至上”的政绩考核需要和官员个人寻租动力,各地纷纷诉诸“土地财政”,利用宪法第10条存在的漏洞将土地征收和城市化绑架在一起,通过压低补偿剥夺农民土地,严重损害了农民利益与社会稳定。

要从根本上遏制“国进民退”、实现还富于民,让市场经济改革真正惠及多数平民百姓而非少数特权利益,必须尽快实施以下措施。(1)国家必须保障民营企业(包括民办教育)的法律平等地位,放松对民营资本与民办教育的管制。

(2)国家财政增长必须保持克制。鉴于中国国民实际税负已经相当沉重,应立即明确规定各级财政收入增长不得超过国民收入增长率。

(3)合理分配财政开支,显著增加教育、医疗、低保、环保等民生投入,取消城乡制度性歧视,尽早实现义务教育、公立大学和一般公共服务的地域平等,建立覆盖全民、城乡一体的社会保障制度,为儿童、老人、病人、低收入者等弱势人群提供体面生活的底线保障。

(4)合理分配中央与地方财政,实现事权和财权相统一。同时从根本上扭转“GDP至上”的发展思路,让地方政府专心投入治安、教育、民生、环保等地方公益事业,而不是借“发展”的名义侵吞人民的利益并为腐败创造机会。

(5)改革土地管理制度,落实宪法修正案规定的公正补偿原则,将征地严格限制在宪法规定的“公共利益”范围内,同时放松农地用途管制,将土地使用权还给农民,并将城市化和征地脱钩。

 

五、 实现司法独立

无论是市场经济还是民主政治,都离不开一个基本法治秩序,而法治秩序的建构则离不开公正独立、不受政治干预的法官与律师队伍。宪法第126条规定:“法院依照法律规定独立行使审判权,不受行政机关、社会团体和个人的干涉。”司法独立是宪法确定的改革方向,也是实现法治国家的必由之路。事实上,中共中央1979年第64号文件即已明确指出:“党委和司法机关各有专责,不能互相代替,不应互相混淆。为此,中央决定取消各级党委审批案件的制度……各级党委要坚决改变过去那种以党代政、以言代法,不按法律规定办事,包揽司法行政事务的习惯和作法。”然而,近十余年来,虽然司法改革也取得了一定的成绩,但是距离司法公正的目标依然相当遥远,司法腐败和行政干预现象十分普遍。尤其自2008年以来,司法改革步伐基本停滞,有些方面甚至发生了倒退,以至司法改革走到了方向不明的十字路口。

当前,中国司法体制存在诸多弊端,主要体现于以下三个方面。(1)法院严重缺乏独立性,法官判案极易受到政治与行政干预。虽然宪法第126条规定:“人民法院依照法律规定独立行使审判权,不受行政机关、社会团体和个人的干涉”,但是这项规定在司法实践中并未得到落实。在法院人事、财政、职权都不独立的情况下,司法审判无法抵制当地党政部门干预,各级政法委干预个案的现象十分常见。法院内部实行的院长负责制、审判委员会制度、等级管理及各种考核体制虽然可能有助于监督法官判案,却抑制了法官独立人格的成长。(2)司法腐败十分严重,法官“吃了原告吃被告”现象仍然普遍存在,尤其是审判不透明、判决不公开、判决书不注重说理的现状为司法腐败创造了便利空间。(3)各级党政违法干预司法过程的行为十分普遍,律师正常办案的权利得不到保障,刑讯逼供屡禁不止,冤假错案频繁发生。薄熙来主政下的重庆“打黑”运动就是一个典型恶例。

要提高中国司法素质和威信,只有重启实质性的司法改革,让法院职能回归司法定位,为司法公正、依法判案提供制度保障。(1)执政党应有意识地维护司法独立,主动避免干预个案。按照党政分离的基本要求,执政党的职能在于推荐、监督干部并确定国家的大政方针,而非干预司法并在个案判决中直接体现自己的意志,否则很容易造成人治盛行,违背执政党自己主持制定的法律、政策和依法治国原则。目前,各级政法委干预司法的现象十分严重,应从基层开始逐步撤销各级政法委机构。

(2)宪法设计应强化司法垂直管理,减少法院在人事与财政上的地方依附,遏制地方保护主义,为法院依法独立审判营造良好的制度环境。

(3)法院内部应弱化政治与行政控制,最大程度地赋予法官依法独立判案的权利。行政控制并不是遏制司法腐败的良方,反而是滋生腐败的温床。遏制腐败和司法独立化改革是并行不悖的,坚持审判公开、判决公开并强调判决书的说理质量等改革措施将最大程度地压缩法官腐败的空间,同时有助于提升法官职业素质和司法的社会公信力。

(4)法院职能定位应回归依法审判。法官必须对法律负责,司法审判必须坚持法律至上原则。至于审判结果是否让人民满意,往往取决于立法合理性等多种因素,不应作为评判司法工作的标准。法院可以在案情需要和当事人自愿的基础上从事部分调解工作,但是不应刻意强调并将其作为工作重点。大部分调解或仲裁工作应分流于法庭之外,由司法行政部门解决。对于某些小额诉讼,可以设计简易司法程序,以提高审判效率、降低诉讼成本,但是所有变通措施都不得使法院偏离其依法审判的职能本位。

 

六、保障宪法效力

以上各项主张其实并非任何意义上的“创新”,而是1982年宪法的题中之义;只要认真对待宪法,依宪执政、选举民主、表达自由、市场经济、司法独立本来自然会得到落实。然而,由于宪法实施机制不完善等原因,现行宪法规定长期得不到有效落实,以至宪法从“国家的根本法”蜕变为不管用的“门面”,未能发挥宪法序言所期许的“最高的法律效力”。要改变这种状况,必须完善宪法实施机制,让宪法规定真正落到实处,对保障公民权利、监督国家权力发挥有效作用。事实上,体制改革的根本正在于落实现行宪法的各项规定。2012年12月4日,习近平总书记在纪念宪法颁布30周年大会上特别强调:“宪法的生命在于实施,宪法的权威也在于实施。”

现行宪法第61条规定,全国人大常委会负责“解释宪法,监督宪法的实施”。但是1982年宪法颁布长达三十年来,人大常委会却从未行使第61条赋予的这项权力,而在此期间却出现大量的重大宪法性问题,足以表明现行宪法实施机制并非行之有效。中国宪法审查之所以长期维持“零记录”,并不是偶然现象,而是制度设计不完善造成的。人大常委会释宪不仅存在僭越全国人大职权、自行审查自己制定的法律等有违民主与法治原则的嫌疑,而且也不符合职能合理分工原则。全国人大常委会在本质上是一个立法机构,宪法与法律解释则是一项司法工作。常委会的立法工作本身已十分繁重,根本无暇顾及宪法的个案适用。

要让现行宪法从无用变为有用,只有在国家日常政治生活中不断适用宪法。法治国家适用宪法主要有三种模式:美国模式由普通法院适用宪法,德奥专门成立宪政法院适用宪法,法国模式则由宪法委员会适用宪法。即便美国模式或德奥模式当前不适合中国,仍有必要改革宪法实施机制,尽早建立负责解释和适用宪法的专门委员会。在现阶段,宪法委员会可以设在全国人大内部,向全国人大负责,但是其人员构成与运作程序必须保持相对独立,否则无法彰显中国宪法的法律效力。

最后,宪法审查的重点并不是控制人大立法的合宪性,而在于控制法规、条例、规章及一般规范性文件的合宪性与合法性,建立有效的法律规范审查机制,进而理顺中央与地方的立法关系,保证中国法律体系的和谐统一,同时兼顾中国辽阔版图下的地方差异、多元性与自主创新的需要。在符合宪法与法律基本原则的前提下,应充分允许地方自由试验不同模式,形成良性地方竞争格局。过去三十年的改革开放正是1978年安徽小岗村引领的地方试验、中央推广的成果,今后的改革开放也需要在党内民主、基层选举、司法实践、合宪性审查等诸多领域引入新的地方试验、竞争与融合机制。

 

“世界潮流,浩浩荡荡;顺之者昌,逆之者亡。”民主、法治、人权、宪政是不可阻挡的世界潮流。中国百年血与火的历程——尤其是“文革”十年的惨痛教训——表明,一旦背离民主、法治、人权、宪政的世界潮流,人民就要遭殃,社会就不可能稳定,国家政权也不可能稳固。我们衷心希望新一届领导人把握千载难逢、稍纵即逝的历史机遇,不为陈旧意识所困,不为短期利益所惑,为了国家和执政党的长远利益坚定不移、励志改革。我们更希望人民能够看清世界大势、民族大利,不为周边纠纷所扰,不为激进言论所动,立足理性、渐进的国内制度改良,对推进依宪执政、落实选举民主、尊重表达自由、深化市场经济、实现司法独立、保障宪法效力等改革方向形成基本共识,并用自己的行动宣传之、推进之、促成之。

让我们超越左右之分、朝野之别,为建造一个民主、法治、尊重人权、民富国强的宪政中国而共同努力!

倡议人(按拼音顺序排列)

 

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

朱国斌 朱应平

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