Clearly Understanding the Essence of “Constitutional Governance”

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Zhengzhi Xue

– The term “constitutional governance”, regardless of whether it is discussed as a theoretical concept or as an institutional practice, refers to the implementation of a bourgeois constitution.

– The direction that “constitutional governance” advocates is extremely clear, it is that we must abolish the leadership of the Communist Party in China, and overthrow the Socialist regime.

– “Constitutional governance” cannot be made into a basic political concept for our country, this would be falling into the “discourse trap” that is hidden behind it.

In recent years, Western thinking about constitutional governance and constitutional governance institutions have become a topic that gained much attention in our country’s legal scholarship circles and political science circles, and it became hot for a while to discuss constitutional governance. In some discussions, a number of people advocated the indiscriminate copying of Western constitutional governance systems, the implementation of a multi-Party system, parliamentary democracy and a tripartite separation of power, under the guise that constitutional governance does not differentiate between East and West, or under the disguise of “universal values”. These viewpoints are mistaken in theory, and are harmful in practice. There are also academics putting forward that we may discuss “Socialist constitutional governance”, which is different from the so-called “capitalist constitutional governance”, this is a formulation that is apparently right but actually wrong, and there are also deviations in understanding.

“Constitutional governance” refers both in theory and in practice to the implementation of bourgeois constitutions

“Constitutional governance” is also known as “constitutionalism”, it originated in the UK and the US, and is the main political achievement obtained in the modern bourgeois revolution. Our country has begun to be influenced by the idea of “constitutional governance” since the beginning of modernity. In the early stages, it was mainly influenced by the UK “constitutional government”, which understood constitutional governance as the integration of the power of the people and royal power, the so-called “joint leadership of the crown and the people”. Afterwards, the “Principle of the People’s Rights” was proposed, which strengthened the separation of political power and administrative power. Mr. Sun Yat-sen advocated that the “Five-Powers Constitution” was the concentrated reflection of the constitutional governance standpoints of China’s bourgeoisie. The first generation of leaders of our Party also used the concept of “constitutional governance” at some point during the struggle with the authoritarian and dictatorial regime of the Guomindang. In 1930, Mao Zedong put forward: What is the constitutional governance of the New Democracy? It is the revolutionary classes uniting to impose dictatorship over reactionaries.”. On the eve of victory for the New Democratic Revolution, our Party started to use the concept of the “People’s Democratic Dictatorship”. Afterwards, the constitutional governance concept that was used during the period of the bourgeois democratic revolution, as well as the constitutional governance concept that symbolized bourgeois rule of law and political system concepts, were not used by the Party.

The term “constitutional governance”, whether it is discussed as a theoretical concept or as an institutional practice, refers to the implementation of a bourgeois constitution. It is the political standpoint and institutional arrangement of Western liberalism. The Western political scientist Sartori said that “Constitutionalist institutions in fact are liberal institutions. It can be said that liberalist politics are constitutional governance”. Within our country, there are also scholars who say that “The constitutional governance movement in China at present cannot be separated from the resurgence of liberalism in China. Intellectual circles calling for constitutional governance are only a part of the resurgence of liberalism in China. Constitutional governance essentially is a liberalist concept.”

As a Western liberalist political system, the connotations of “constitutional governance” mainly include the following areas. First, tripartite separation of power, mutual checks and balances. This is one of the most important contents of constitutional governance. Second, judicial independence, constitutional review and constitutional courts. Third, multi-party rotational governance. Fourth, parliamentary budgets. Fifth, government with limited responsibilities, meaning small government and big society. Sixth, free market economies. Seventh, universal values, including freedom, democracy, rule of law, human rights and other so-called modern Western values. Eighth, nationalization of the military. Ninth, freedom of news.

The discussion of “constitutional governance” is not a so-called battle of “words and expressions”, the standpoint of “Socialist constitutional governance” is a sort of muddled understanding that is apparently right but actually wrong.

For a long time, some liberalist intellectuals at home and abroad seen advocacy of “constitutional governance” as the break-trough point that was the most likely to change China’s political system and a political strategy and channel to deny the Four Cardinal Principles, they have done their utmost to propagate the transcendent nature and global value nature of “constitutional governance”. The direction of these “constitutional governance” viewpoints is extremely clear, which is that they want to abolish the leadership of the Communist Party in China, and overthrow the Socialist regime.

In legal scholarship circles, there are also some scholars who advocate to make constitutional governance or Socialist constitutional governance into a basic outline and superordinate concepts for the construction of our country’s democratic politics. These scholars have good intentions. They believe that there is a difference in constitutional governance between bourgeois constitutional governance and proletarian constitutional governance, that the tern “constitutional governance” should not be sweepingly abandoned, and that the three phrases of Socialist constitutional governance and Socialist democratic politics and Socialist political civilization can coexist. Not a few people believe, because of this, that the debate revolving around constitutional governance of the past few years is a debate on whether or not we must use the term “constitutional governance”. Indeed, a term can be interpreted in this way, and can be interpreted in that way, we may stipulated that it has or endow it with a certain meaning and use it. But the problem is the real use of a term cannot be removed from history. As stated above, constitutional governance is a Western political institution, and has a determined meaning, the essential content constituting constitutional governance is opposed to the essence of our country’s people’s democratic dictatorship and with our country’s current basic political system in some respects, and this is not something that can be transformed by adding the qualifier Socialist. We should consider that, in the West as well as in our country’s academic circles that have been influenced by the West, there is a considerable number of people who have a strong first impression of constitutional governance or even consider it to be a “customary” concept, they believe that constitutional governance is closely connected to multi-party rotational government, a tripartite separation of powers, judicial independence, neutrality of the military, press freedom, etc. If, at some time or another, we adopted the term “constitutional governance” or “Socialist constitutional governance”, and made “constitutional governance” into a guiding basic political concept, the constitutional governance thinking trends led by liberalism ins the country would become even more excessive, the area of social thought would become even more chaotic, hostile forces at home and abroad would gain space to wantonly interpret this new slogan , and would step by step pressure us to use liberalist constitutional governance theory to guide a so-called “Socialist constitutional governance”, this would interfere with the progress and orientation of our country’s political structural reform. The debate revolving around the issue of “constitutional governance” is not as simple as a mere battle of words.

Some comrades have seen the class attributes of constitutional governance, and also do not approve of interpreting constitutional governance according to Western viewpoints, but they try to endow constitutional governance with Socialist principles and content.

They make the essential interpretation of “Socialist constitutional governance” into: the Constitution of the People’s Republic of China is the basic starting point and precondition, constructing a Socialist political civilization is the objective, the leadership of the Party, the people mastering their own affairs, governing the country according to the law, protecting human rights and other political ideologies and political institutions that are characteristic for Socialist countries concerning implementing, safeguarding, developing and perfecting the Constitution. But even so, our country has already explored a successful path for the development of Socialist democratic politics that is suited to its own national conditions, and have summarized this as Socialist democratic politics with Chinese characteristics, in fact, it is not necessary to borrow the hat of “constitutional governance”.

In the discussion, there are some arguments that seem as though they have merit, but in fact are specious, in practice, these would easily mislead our democratic political construction.

There is a sort of formulation that believes that having a Constitution means having constitutional governance. Since China has had a Constitution, it is a constitutional governance country, China implements the Socialist system, and so what it implements is “Socialist constitutional governance”. In fact, having a constitution does not mean having constitutional governance, there is no relationship of necessity between having a Constitution and having constitutional governance. Constitutional governance itself has a singular Western implied meaning and institutional nature, it is not a label that cam be wilfully put on things. Starting from the viewpoint of historical materialism, constitutional governance is, in the final analysis, a tool for the bourgeoisie to safeguard their own domination and to implement class oppression. Although Socialist countries have constitutions, because they implement a Socialist system that is opposed to a capitalist system, they naturally do not fall into the scope of constitutional governance in the Western conception. Furthermore, although the UK and other countries do not have a written constitution, because their national systems are capitalist in nature, they still are constitutional governance countries.

There are also a sort of argument that believes that, because our Party raised “New Democratic constitutional governance” in the past, that “Socialist constitutional governance” may be discussed. Concerning this issue, if we only should have “Socialist constitutional governance” as a matter of form because we had New Democratic constitutional governance, this is completely lacking in understanding and meaning.

In 1924, in his “Fundamentals of National Reconstruction”, Sun Yat-sen divided the process of “building the nation” into the three periods of “military rule, political tutelage and constitutional governance”. Then the Guomindang reactionary clique with Chiang Kai-shek at the head used the argument of “military rule and political tutelage”, and made it into an excuse to implement counterrevolutionary dictatorship and deprive the people of all rights and liberties. In order to oppose the dictatorial rule of the Guomindang counterrevolutionary clique, stimulate the transformation of constitutional governance into an arm to arouse the people’s consciousness and demand democratic freedoms from Chiang Kai-shek, and to awaken the political consciousness and revolutionary ardour of the broad masses, the Chinese Communist Party decided to raise the constitutional governance banner which symbolized democracy and progress at that time, to unite all forces that could be united, consolidate and develop the united front of the nation to resist Japan, and to move the undertaking of China’s democratic progress and national liberation forward. During the period of the War of Resistance against Japan, and especially in the period after the War of Resistance against Japan, the Chinese Communist Party made participation in and stimulating the constitutional governance movement into an important policy for the Party.

Putting forward New Democratic constitutional governance has a direct relationship with this special social form of the New Democracy. During the New Democratic revolutionary stage, because the revolutionary forces led by the Communist Party had not yet obtained nationwide State power, the New Democratic society did not yet have the conditions for implementing Socialist democracy under the dictatorship of the proletariat, how to establish the broadest national united front to resist Japan through politically allying and uniting all revolutionary classes, including the national bourgeoisie, to isolate and attack all national traitors and reactionaries, the task and requirement of implementing the New Democratic revolution became an important question that the Party faced and resolved. Lessons were drawn from some formalities of the capitalist constitutional governance democracy, for example the multi-party system, parliamentary democracy and a tripartite separation of power, and these were transformed in a revolutionary manner, in order to stimulate the development of the democratic revolutionary undertaking, which may be considered as some sort of beneficial attempt and choice. This choice is clearly not contrary to the essence of the New Democratic society.

Also, exactly because of the special nature of constitutional governance democracy, Mao Zedong strictly limited constitutional governance to the scope of New Democratic society, and distinguished New Democratic constitutional governance from old-style bourgeois constitutional governance and emerging Socialist democratic politics. He pointed out that Western constitutional governance “in fact always is a politics that eats people”, “That sort of old-style democracy has been practiced abroad and is already in decline, it has changed into a reactionary thing. We should absolutely not want this sort of reactionary thing.” Exactly because constitutional governance was strictly limited to the scope of New Democratic society, after the establishment of the New China and following the establishment of the Socialist system, the Party Centre no longer used the political term of “constitutional governance”, and certainly did not discuss “Socialist constitutional governance”. Our country, at present, is in the primary stage of Socialism, the nature of society has already become Socialist, this is a fundamental difference with the New Democratic society. Therefore, the constitutional governance that could be used during the New Democratic society, can no longer be suited to the nature and requirements of Socialist society.

We cannot make “constitutional governance” into a fundamental political concept for our country, in order to avoid falling into the “discourse trap”

Some people do not differentiate between political conceptions and implement “borrowism”, it seems as if as long as some concept has been recognized by the Western academic world, that it can be brought into China and applied mechanically, the reason for this is to link up rails with the international academic world, otherwise, there will be no way to conduct dialogue, and it will not be possible to have our own academic position recognized. According to some scholars who speak conceptually, going about this cannot bring about too big problems. But a concept always has its formal theory and historical process of practice. Concerning the core academic concepts that concentrate, reflect and support the Western capitalist social system and political system, we must be especially cautious, we cannot fall into the “discourse trap” that is hidden behind them. “Constitutional governance” is a core concept that reflects capitalist economic and political theory and practice, and to be lead by the nose by such a concept would mean that we remove our own ideological weapons.

Since the establishment of the new China, and after undergoing 60 years of practical experience, we now have “persisting in the organic unification of Party leadership, the people managing their own affairs and governing the country according to the law”, “developing Socialist democratic politics”, “constructing a Socialist rule of law country” and other basic political concepts. These basic political concepts are a scientific summary of our country’s experience in constructing democratic politics, they correctly reflect the essence and characteristics of our country’s political system, and conform to our country’s national circumstances, their meaning is clear and correct, and they have had a profound guiding function in perfecting and developing our country’s Socialist political system. Since many years, we have implemented the spirit of our country’s Constitution according to guiding principles reflected in these basic political concepts, executed administration according to the Constitution, and the democratic politics of Socialism with Chinese characteristics have gained great progress. In the future, we must still take the Constitution as guidance, and incessantly and vigorously move political structural reform forward, but we can absolutely not make “constitutional governance” into out political programme or a basic political concept.

郑志学:认清“宪政”的本质
精彩导读

○“宪政”一词无论从理论概念来说,还是从制度实践来说,都是特指资产阶级宪法的
实施。

○“宪政”主张指向非常明确,就是要在中国取消共产党的领导,颠覆社会主义政权。

○不能把“宪政”作为我国的基本政治概念,以落入其背后隐藏着的“话语陷阱”。

近年来,西方的宪政思想和宪政制度,成为我国法学界、政治学界关注的一个话题,甚至一度出现了一股宪政讨论热。在一些讨论中,有人以宪政没有东西方之分为名,或冠之以“普世价值”的伪装,鼓吹照搬西方宪政制度,推行多党制、议会民主和三权分立。这些看法在理论上是错误的,在实践上是有害的。也有学者提出,我们可以提“社会主义宪政”,与所谓“资本主义宪政”相区别,这是一个似是而非的说法,在认识上也是有偏差的。

“宪政”在理论和实践上,都是特指资产阶级宪法的实施

“宪政”又称“立宪主义”,英语中相对应的词是Constitutionalism,发源于英美,是近代资产阶级革命在政治上取得的主要成就。我国从近代以来开始受“宪政”观念影响。早期主要受英国“立宪政体”的影响,把宪政理解为民权与君权的结合,所谓“君民共主”。后期倡导“民权主义”,强调政权和治权分离。孙中山先生主张的“五权宪法”是中国资产阶级宪政主张的集中体现。我党第一代领导人在同国民党专制独裁政权的斗争中,也使用过“宪政”概念。毛泽东在1940年指出:“什么是新民主主义的宪政呢?就是几个革命阶级联合起来对于反动派的专政。”新民主主义革命胜利前夕,我党开始用“人民民主专政”概念。此后,作为资产阶级民主革命时期使用的宪政概念,以及标志着资产阶级法治和政体概念的宪政概念,均不被我党使用。

“宪政”一词无论从理论概念来说,还是从制度实践来说,都是特指资产阶级宪法的实施。它是西方自由主义的政治主张和制度安排。西方政治学学者萨托利说,“立宪制度事实上就是自由主义制度。可以说,自由主义政治就是宪政”。国内有学者也说,“当代中国的宪政运动与自由主义在中国的复兴是分不开的。知识界当前对宪政的诉求恰恰是自由主义在中国复兴的一部分。宪政在本质上是一个自由主义的概念。”

作为西方自由主义的政治制度,“宪政”的内涵主要包括以下几个方面。第一,三权分立,互相制衡。这是宪政最重要的内容之一。第二,司法独立,违宪审查和宪法法院。第三,多党轮流执政。第四,议会财政。第五,有限责任政府,即小政府大社会。第六,自由市场经济。第七,普世价值,包括自由、民主、法治、人权等所谓现代西方价值观。第八,军队国家化。第九,新闻自由。
“宪政”的讨论不是所谓“词语”之争,“社会主义宪政”的主张是种似是而非的模糊认识

长期以来,境内外一些自由主义知识分子把主张“宪政”看作是最有可能改变中国政治体制的突破口和否定四项基本原则的政治策略与途径,极力宣扬“宪政”的超阶级性和普世价值性。这些“宪政”主张指向非常明确,就是要在中国取消共产党的领导,颠覆社会主义政权。

在法学界也有一些学者主张以宪政或社会主义宪政作为我国民主政治建设基本纲领与上位概念。这部分学者本意是好的。他们认为,宪政有资产阶级宪政和无产阶级宪政之分,不宜笼统地摒弃“宪政”一词,社会主义宪政与社会主义民主政治、社会主义政治文明等三语可以并存。不少人因此认为近年来围绕宪政问题的争论就是一个要不要用“宪政”的语词之争。诚然,一个语词可以这么解释,也可以那么解释,我们可以规定或赋予它一定的含义并采用它。但问题是一个语词的实际运用不能脱离历史。如上所述,宪政是西方自由主义的政治制度,具有确定的内涵,构成宪政实质内涵的几个方面是同我国人民民主专政的性质、同我国现行的根本政治制度是对立的,不是加上社会主义这一限定语就能改造过来的。我们应当看到,在西方以及在我国受西方影响甚深的学术界,有相当一部分人对宪政有先入为主甚至是“约定俗成”概念,即认为宪政是与多党轮流执政、三权分立、司法独立、军队中立、新闻自由等紧密相连的。一旦我们采用了“宪政”或“社会主义宪政”的语词,把“宪政”当作指导性的基本政治概念,国内自由主义主导的宪政思潮会更加泛滥,社会思想领域会更加混乱,境内外敌对势力就有了对这一新提法做出肆意解读的空间,一步一步地来逼迫我们用自由主义的宪政理论主导所谓的“社会主义宪政”,干扰我国政治体制改革的进程和方向。围绕“宪政”问题的争论并非语词之争那样简单。

有的同志看到了宪政的阶级属性,也不赞成按西方的观点解释宪政,但试图赋予宪政以社会主义的原则与内容。把“社会主义宪政”的本质解释为,以中华人民共和国宪法为基本出发点与前提,以建设社会主义政治文明为目标,以党的领导、人民当家作主、依法治国、保障人权等为特征的社会主义国家关于实施、维护和发展完善宪法的政治思想、政治制度。但既然我国已探索出一条适合自己国情的发展社会主义民主政治的成功之路,并以中国特色社会主义民主政治作为概括,其实就不必再借用“宪政”的帽子了。

讨论中,一些看似有道理实际上却是似是而非的说法,在实践上容易误导我们的民主政治建设。

有一种说法认为,有宪法即有宪政。中国自有宪法以来就是一个宪政国家,中国实行社会主义制度,实行的就是“社会主义宪政”。实际上,有宪法未必有宪政,有宪法与有宪政之间没有必然联系。宪政本身有着独特的西方内涵和制度属性,它不是一个可以随意粘贴的标签。从历史唯物主义的观点出发,宪政归根结底是资产阶级维护自身统治、实行阶级压迫的工具。社会主义国家虽有宪法,但因为实行与资本主义制度相对立的社会主义制度,在西方观念里当然不属于宪政的范畴。而像英国等国家虽没有成文宪法,但由于国家的制度是资本主义性质的,它们仍然是宪政国家。

还有一种说法认为,有我们党曾提出“新民主主义宪政”,就可以提“社会主义宪政”。对于这个问题,若仅从形式上因为有新民主主义宪政,所以就应有“社会主义宪政”,这是毫无认识意义的。

1924年,孙中山在《建国大纲》中,曾将“建国”程序,划分为“军政”、“训政”、“宪政”三个时期。而以蒋介石为首的国民党反动派,利用“军政”、“训政”的说法,作为实行反革命专政和剥夺人民一切自由权利的借口。为了反抗国民党反动派的专制统治,将促进宪政变为启发人民觉悟、向蒋介石要民主自由的武器,以唤醒广大民众的政治觉悟与革命热情,中国共产党决定举起当时象征民主与进步的宪政旗帜,团结一切可以团结的力量,巩固与发展抗日民族统一战线,推进中国的民主进程和民族解放事业。在抗日战争期间,特别在抗日战争后期,中国共产党把参加和促进宪政运动作为党的一项重要方针提出来。

提出新民主主义宪政,与新民主主义社会这一特殊社会形态的性质也有着直接联系。在新民主主义革命阶段,由于共产党领导的革命力量还没有取得全国政权,新民主主义社会还不具备实行无产阶级专政的社会主义民主的条件,因此,如何从政治上联合、团结各革命阶级,包括民族资产阶级,建立最广泛的抗日民族统一战线,孤立和打击一切汉奸反动派,实现新民主主义革命的任务和要求,就成为党面临和解决的重要问题。而借鉴资本主义宪政民主的某些形式,比如多党制、议会民主和三权分立,并加以革命性地改造,以促进民主革命事业的发展,不失为一种有益的尝试和选择。这一选择与新民主主义社会的性质显然不相悖。

也正因为宪政民主的特殊属性,毛泽东把宪政严格限制在新民主主义社会的范围,把新民主主义宪政与旧式的资本主义宪政、新型的社会主义民主政治区分开来。他指出:西方的宪政“实际上都是吃人政治”,“那种旧式的民主,在外国行过,现在已经没落,变成反动的东西了。这种反动的东西,我们万万不能要”。正因为把宪政严格限制在新民主主义社会的范围,所以在新中国成立以后,随着社会主义制度的确立,党中央便不再使用“宪政”这个政治术语,更不用说提“社会主义宪政”了。我国目前处在社会主义的初级阶段,社会的性质已是社会主义了,这与新民主主义社会有着本质的区别。因此,可适用于新民主主义社会的宪政,也就不能再适应社会主义社会的性质与要求了。
不能把“宪政”作为我国的基本政治概念,避免陷入“话语陷阱”

有些人在理论概念上不加区分地实行“拿来主义”,似乎只要是得到西方学界认可的概念,都可以直接拿到中国来套用,其理由就是和国际学术界接轨,否则无法对话,自己的学术地位就无法被认可。就有些学术概念而言,这样做不会产生太大的问题。但是,一个概念,总有其形成的理论和实践的历史过程。对于一些集中反映和支撑着西方资本主义社会制度和政治制度的核心学术概念,必须格外慎重,不能落入其背后隐藏着的“话语陷阱”。“宪政”就是反映资产阶级经济政治理论与实践的核心概念,被这样一个概念牵着鼻子走,就意味着自我解除思想武装。

新中国成立以来,经过近60年的实践探索,我们已经有了“坚持党的领导、人民当家作主和依法治国有机统一”、“发展社会主义民主政治”、“建设社会主义法治国家”等基本政治概念。这些基本政治概念是对我国民主政治建设经验的科学总结,正确反映了我国政治制度的本质和特征,符合我国的国情,含义清晰、准确,对完善和发展我国社会主义政治制度具有深远的指导意义。多年来,我们按照这些基本政治概念体现的指导原则,贯彻我国宪法的精神,依宪行政,中国特色社会主义民主政治建设取得了很大进步。今后我们还要以宪法为指导,不断积极推进政治体制改革,但决不能把“宪政”作为我们的政治纲领和基本政治概念。

2 thoughts on “Clearly Understanding the Essence of “Constitutional Governance”

    […] Clearly Understanding the Essence of “Constitutional Governance” (Zhengzhi Xue, People’s Daily, 29 May) […]

    […] the official point has been forcefully made in a number of theoretical and editorial articles in major Central journals and newspapers, the counterarguments are somewhat less clear. To […]

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