The Implementation of the Constitution and Long-Term Governance

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This article by Zhang Qianfan was posted on the author’s blog on 22 August 2013. This blog is now no longer accessible. The current translation has been made on the basis of a reblogged version.

Since May of this year, anti-constitutionalist discourse has caused a stir. An extremely small number of people who call themselves “scholars”, propagate that “the crucial factors of constitutionalism are capitalist and not Socialist”, “it is a roundabout manner of denying China’s development model”, that in China “it can only be like climbing trees to catch fish” and other such viewpoints. In a short time, constitutionalism has become “a sensitive word”, it has become a conceptual “forbidden area”, after “the market economy”, “the rule of law” and “human rights”. In fact, this discourse with a fifties-sixties accent is contradictory from front to back, confused in its logic, ridiculously childish and not even worth refuting, but in view of the fact that it has confused public opinion, harmed the country and the people after its publication in mainstream media, it has gravely harmed the image of the governing party and the government, it seems that it is necessary to clarify the basic idea and common knowledge about constitutionalism, in order to ensure correct understanding of the facts, distinguish right and wrong, and clarify true and false. The author believes that in constitutionalism, there is not only no difference about whether “it is surnamed Socialist or capitalist”, but it has an irreplaceable function for China’s social stability and the long-term governance of the governing party.

This article, written by Zhang Qianfan, was posted on 22 August 2013.

I, What is meant by “constitutionalism”

What is constitutionalism? When opening up China’s 1982 Constitution, the answer is obvious. Apart from the basic objectives and the principles of the State provided in the Preface and the general programme, the Constitution mainly contains provisions in two areas: the structure of citizens’ fundamental rights and government powers, and operational procedures. In other words, the Constitution provides what government may and should do – the power to implement the provisions of the Constitution, it has also provided what it may not and should not do – it may not infringe the rights that the Constitution has endowed upon citizens.

What is called constitutionalism is nothing but implementing these provisions from the Constitution and constraining government power in this way. It is similar to the rule of law and ruling the country according to the law, constitutionalism is ruling the country according to the Constitution and governing according to the Constitution. In fact, constitutionalism is one part of the idea of rule of law, because the “law” in the rule of law evidently also includes the Constitution, and so ruling the country according to the Constitution and using the Constitution to impose standards on the use of political power, is the dictionary meaning of constitutionalism. According to the “American Heritage Dictionary” definition, constitutionalism is “the political system whereby government power is allocated and limited by the legal system to which rulers must submit”. This, it can be seen that constitutionalism is a state of affairs in which the Constitution is implemented and effectively restrains political power. In the commemorative conference for the 30th anniversary of the promulgation of the Constitution that was organized on 4 December 2012, General Secretary Xi Jinping stressed that “the life of the Constitution lies in its implementation, the authority of the Constitution lies in its implementation”, which is exactly the primary stress of those calling for constitutionalism up till now.

Similar to the rule of law, constitutionalism itself cannot be called “surnamed Socialist or capitalist”. As early as more than twenty years ago, after Deng Xiaoping’s southern tour, the question of “the surname Socialist or capitalist” was already resolved, bringing it up again now is not only obsolete and past its date, it also is contrary to common sense. As everyone knows, the market economy is not patented by capitalism; Socialist countries can also perfectly have it, adding a “Socialist” as a prefix, and it becomes their own market economy. The rule of law also is not patented by capitalism, and by adding “Socialist” in front, it can become the rule of law of Socialist countries. So why must constitutionalism so stubbornly be called “surnamed capitalism” and can it not be “surnamed constitutionalism”? The constitution that we must implement clearly is not the U.S. Constitution of 1788, but the Constitution of China of 1982; implementing a Socialist Constitution naturally is Socialist constitutionalism. Is it possible that this is mistaken? The anti-constitutionalists, until today, have not been able to come up with one reason why.

II, The social harm of anti-constitutionalism

The anti-constitutionalists seemingly hold that they want to safeguard a purebred “Socialist system” and a “Chinese development model”, in fact, this brings a hundred injuries and not a single advantage to the country and the people. When looking in the broad sense, the anti-constitutionalist discourse brings dangers in at least three areas. First,  it destroys the effect of the Constitution, and assists constitutional nihilism; second, it overturns the legitimacy of the political system and causes the governing power to lose its legal basis; third, it destroys social stability, and shakes the social basis for long-term governance.

Destruction of the effect of the Constitution

The anti-constitutionalists have an illogical starting point, which is that they sharply separate constitutionalism and the Constitution; on the one hand, they do not spare efforts to tar constitutionalism as “capitalist”, and a Western model that does not conform to China’s “national circumstances”; on the other hand, they do not dare to openly  oppose the current Constitution. This sort of viewpoint is extremely absurd and ridiculous, because constitutionalism merely is the implementation of the Constitution, anti-constitutionalism necessarily means opposing the Constitution. At least, they deny the legal effect of the Constitution, they want to reduce the Constitution to a political slogan that does not need to be implemented, or an empty document that does not matter. The essence of this sort of viewpoint is constitutional nihilism. The subtext is that, although this country has formulated a constitution, in fact, that inly is a word game to dupe the people; China in fact does not have any constitution, and State power is not under any legal constraint.

Overthrow of the basis for the legitimacy of the political system

Constitutional nihilism not only lacks theoretical logic, it also can engender real legal effects, which are the denial of the basis for legitimacy of the current regime. It is as Kelsen pointed out, states are creatures created by law: “The State is a community created by the domestic legal order, as a legal person, State is the personification of this community or the domestic legal order constituting this community.” [Hans Kelsen, General Theory of Law and State, translated by Shen Zongling, Beijing: China Encyclopaedic Publishing House, 1996, p. 203.] Because of this, State power must be exercised under the cover of law. The legitimacy of a State is not reflected in the power that the government exercises. Quite the opposite, State power must come from legal authority, the law endows the State with legality and legitimate power. The Constitution is the highest law, it is the yardstick to differentiate good law and bad law, and is the ultimate source of State legitimacy. In the present world, only the United Kingdom and a small number of other countries do not have a written constitution, the legitimacy of their regimes come from the “Magna Charta”, the “Bill of Rights”, the “Human Rights Act” and other fundamental laws, as well as constitutional practice. The absolute majority of countries has a written constitution that acts as a legitimate basis of public power. With regards to these countries, if the constitution exists in name only, all State organs provided in that constitution find themselves in a condition of illegality.

The Preamble of China’s 1982 Constitution has provided the leading position of the governing party, the third Chapter again stipulates the structuring of the national and all local levels’ People’s Congresses and their Standing Committees, the State Council and all levels’ local governments, all levels’ courts and procuratorates and other such government organizations. If the Constitution is a mere scrap of paper, and does not have any legal effect, the country actually operates in a situation where it does not have a constitution, and the legitimacy of all these organs would face question marks, the power that they exercise would also completely lose its proper basis for legitimacy. If the legitimacy of the existence of National People’s Congress and its Standing Committee is in doubt, the laws that they pass also do not have a proper basis. In other words, if we would follow the anti-constitutionalist standpoint, we would all live in a country without laws. Is this the attitude that we should take towards the nature of our own Constitution, laws and regime?

Shaking the social basis for long-term governance

The anti-constitutional viewpoint not only denies the leading position of  the governing party and the theoretical legitimacy of the regime, it also damages social stability, it produces social turmoil and other such grave consequences, and thereby corrodes and shakes the social basis for long-term governance. Saying this is absolutely no sensationalization. Think a little, what does a constitution do? A constitution is the basic law guaranteeing citizens’ rights, and “rights” are not a gaudy concept, but it is a personal interest directly affecting every single one. If there is no protection for private property (Article 13 of the Constitution), the people’s land can be levied at any time and housing can be demolished at any time; if the right to equality cannot be implemented (Article 33 of the Constitution), peasants and peasant workers would suffer discrimination, and the children they take with them can not attend school or participate in the college entrance exam… If democratic elections (Article 34) exist in name only, People’s Congresses cannot vigorously exercise their functions, and government officials who are not responsible to the people will inevitably abuse public power; if there is no freedom of speech, publication, assembly or association (Article 35 of the Constitution), the people cannot speak out when their personal interests are harmed, and the abuse of public power will be even more brazen and unbridled…

If the Constitution does not have effect, government power is not subject to constitutional constraints and the people’s constitutional rights are not guaranteed, than the fundamental rights of the common people will be in a precarious state, and can be stripped away by public power at any time. Such a society cannot be happy, peaceful and stable, but will inevitably be flooded with coercion, demolitions with bloodshed, injustice, hatred and conflict… Social tragedies and nasty incidents will occur one after another, collective petitioning and large-scale mass incidents will get worse and worse. May we ask how such a country is to be ruled? How long-term governance will be possible? Long-term governance is established on the basis of social stability and the common will of the people, but if public power is not subject to constitutional constraints and the people’s basic interests cannot be effectively guaranteed, then the people cannot endorse the ruling party, and the popular will and social basis for long-term governance will be lost. This it can be seen that if we adopt the anti-constitutionalist viewpoint, in the end, this will make the regime at the same time lose theoretical legitimacy and practical legitimacy.

III, The political and social significance of moving constitutionalism forward

As constitutionalism is connected to the happiness of the entire people and the stability of the regime, promoting constitutionalism is the primary task of the State. Looking across the experiences of China and various countries worldwide, promoting the building of constitutionalism brings important benefits in at least the following five areas: first, it benefits stimulating governance according to the constitution and the legalization of the governance model, and the completion of the transformation from a revolutionary party to a governing party; second, it benefits guaranteeing and controlling the legitimacy of legal norms and policies, and the prevention of legal norms that infringe citizens’ rights; third, it benefits safeguarding the image of the governing party and the government, and thereby the legitimacy of long-term governance; fourth, it benefits safeguarding the authority of the centre, and controlling unlawful acts in the localities through the rule of law; fifth, it raises the constitutional consciousness of the entire people, and lets the people see the purpose of the Constitution in protecting their rights and actively safeguarding the effect of the Constitution.

1. Stimulating governance according to the law and the legalization of the governance model

First and foremost, constitutionalism is the implementation of the Constitution and governing according to the Constitution, governing according to the Constitution is helpful in stimulating the legalization of the governance model, it helps the governing party to complete the transition from a revolutionary party to a governing party in the true sense of the word. What cannot be denied is that before 1949, the Communist Party openly expressed great amounts of constitutionalist ideals, it expressed a strong pursuit of constitutionalism, but after taking political power in 1949, because of the fact that it never completed the legalization of its governance model, it remained a revolutionary party to a large extent, so that for thirty years afterwards, there were incessant political campaigns, which gravely weakened the legitimacy of its governance. In 1978, reform and opening up pulled open the curtain of reform of the governance model, and the promulgation of the 1982 Constitution symbolized a milestone in governing according to the Constitution. The Preamble of the Constitution clearly provides that the Constitution is “the basic law of the country, it has the highest legal effect. The people of all ethnicities in the entire country, all State organs and armed forces, all political parties and all social organizations, all enterprise and undertaking organizations must take the Constitution as the fundamental norm for action, are responsible to uphold the dignity of the Constitution, and have the duty to guarantee the implementation of the Constitution”. This declaration clearly and without mistakes proclaimed the determination of the governing party to promote constitutionalism. As the Constitution has “the highest legal effect”, the Constitution should be effectively implemented, just as ordinary laws are; no person, organization or party may act in excess of the Constitution, and especially the governing party itself must act within the framework of the Constitution.

Some people put forward that constitutionalism does not conform to China’s system, because constitutional supremacy denies the leadership of the Party. This sort of argument goes against common sense, because what is the basis for Party leadership? It is not elsewhere, it is in the Preamble of the Constitution itself. It the Constitution is denied, the leading position of the Party provided in the Preamble of the Constitution is inevitably denied as well. Evidently, only by respecting the Constitution and implementing constitutionalism is it possible to provide a legal basis for the leadership of the Party. Some people continue by asking how, if constitutional supremacy is established, should the relationship between the Constitution and the governing party be regulated? How is the leading position of the Party guaranteed? Does the crux not lie in Party leadership itself, but in in how the Party leads?  Does it lead through the Constitution and the law, or do the Party leaders lead individually in a situation where they pay no regard to the Constitution and the law? If it is the latter, not only do we not have the rule of law, but we also do not have collective Party leadership, what we have is undisguised rule of man, because this clearly violates the principles of the rule of law that the governing party itself has already accepted long ago, and that are determined in the Constitution. As early as 1987, China had made this question clear in theory, the Party’s leadership is mainly reflected in the fact that the governing party leads the parliamentary system in formulating fundamental policies, the Constitution and the laws are all formulated and passed under the leadership of the governing party, but the governing party should not directly interfere with concrete law enforcement and the judicial process, otherwise, this would violate the principles of the rule of law that the governing party itself affirmed and committed to. Constitutionalism is helpful in even more effectively ensuring that the will of the governing party is reflected in the Constitution and the law, and so not only is there no contradiction with the leadership of the Party, it actually reflects and strengthens Party leadership. As long as the governing party controls the legislative process, and guarantees the implementation of the Constitution and the laws through effective mechanisms, it will fully guarantee its own leading position and role.

In fact, if governance according to the Constitution cannot be realized, then the Constitution will not just only exist in name, the leading position of the governing party itself has no guarantee, and furthermore, the rule of law will remain empty prattle. This is because the Constitution stipulated the “one government, two courts” system under the People’s Congresses, and stipulated the election and independent judicial systems; if these systems are not implemented, then People’s Congress representatives will not have the heart to carry out their legislative and supervision duties, Party and government power will be highly centralized, the judiciary can be interfered with at any time, and it will be impossible to realize the constitutional concepts of “ruling the country according to the law” and “a rule of law country” that the governing party itself already identified itself with earlier. Because of this, although the rule of law is the basis for constitutionalism, between constitutionalism and the rule of law, there is merely a relationship of different levels and stages, constitutionalism at the same time is the institutional guarantee for the rule of law; without a constitutional basis, power structures are highly centralized, and the rule of law will not meet basic conditions, in the end, this can only change into rule of man. Only by promoting constitutionalism is it possible to realize the legalization of the governance model, and complete the transformation from revolutionary party to governing party.

2. Guaranteeing the legitimacy of the legal system

As China’s highest law, the effective implementation of the Constitution is helpful in rationalizing the State legal system, guaranteeing that all legal norms are benign laws respecting citizens’ rights and not bad laws infringing citizens’ rights, and prohibiting any sort of evil deed violating the Constitution and the laws. Article 5 of the Constitution provides that: “no law, administrative regulation or local rule may conflict with the Constitution. All State organs and military forces, all political parties and all social organizations, all enterprises and undertaking organizations must respect the Constitution and the laws. All acts violating the Constitution and the laws must be prosecuted. Nor organization or individual may have privileges in excess of the Constitution and the laws.” If all levels’ legal norms are good laws, then officials’ abuse of power will lose its legal basis, the infringement of the people’s rights by officials would become a simple question of administrative law, and the current rule of law framework would be sufficient to resolve it. This would not only safeguard the people’s interests, but would also uphold social stability, and let a good image of the governing party and the government be maintained in people’s hearts.

3. Safeguarding social stability and the social base for long-term governance

As stated earlier, only when public power is subject to effective constitutional constraints will the people be happy, will the country be safe and healthy, and will society be stable. Only when society is stable can the regime be consolidated, and will there be a social basis for the long-term governance by the governing party. The Constitution is not only the most effective tool for stability maintenance, it is also a legal source for the leading position of the governing party and an institutional precondition for long-term governance.

4. Safeguarding the authority of central laws, effectively controlling local law-breaking

Promoting constitutionalism not only benefits safeguarding the basic rights of the people, it also benefits raising the legal authority of the Centre. At present, the reason why the implementation of some Centre decrees is weak mainly lies in the fact that local vested interests have set up layers upon layers of obstructions; “above, there are policies, below, there are countermeasures” has become normal, this gravely weakens the authority of the Centre and the laws. In the final analysis, the reason why it is difficult for Centre decrees to be implemented smoothly without impediments is first and foremost due to the fact that the Constitution is not implemented. The basic law with the highest effect is difficult to implement, which means that the formulation of laws and the implementation mechanisms provided in the Constitution exist in name only, and the fate of common laws can be well imagined.

5. Raising the rational capacity and constitutional consciousness of the entire people

Finally, constitutionalist practice also is an extremely good education for the people, it benefits further arousing citizens’ rights defence consciousness and their enthusiasm about the Constitution, and provides a strong social driver for the implementation of the Constitution. Although China’s civil society has seen huge developments in the thirty years of reform, it still is insufficiently rational and mature for many kinds of reasons; the rapid development of the network has greatly stimulated Chinese citizens’ rationality and their right to know, but there is also no lack of unreasonable “angry youths” online. The fact that public power is unconstrained causes officials not to talk reason, officials being unreasonable insidiously foments unreasonableness among the  common people; the common people are only obedient citizens, unruly citizens or rebellious citizens under a power structure, they are not citizens who are able to exercise their constitutional rights and restrain the abuse of public power, and so the abuse of power is further connived at… To destroy this sort of vicious circle, it is first and foremost necessary to change work styles within the government; if the government implements constitutionalism in good faith, and the people see hope for the implementation of the Constitution and the protection of their rights, and they learn how to apply the Constitution in their daily lives through the process of concrete implementation, ever more people will believe in the Constitution and consciously defend their rights. Only if the people arise and actively defend their rights can the Constitution truly be effectively implemented.

IV, As a conclusion – Establishing a more effective constitutional review mechanism

To summarize the above, constitutionalism brings a hundred benefits and not one injury to the people, the country and the Party; whether or not the current Constitution can be implemented relates to the fundamental interests of the country. The anti-constitutionalist standpoint wants to further vitiate the current Constitution, this utterly goes against common sense. On the other hand, it cannot be denied that more than thirty years after the promulgation of the current Constitution, it has not been effectively implemented, and this has fomented a number of irresponsible standpoints. The direct cause for why the Constitution has not been implemented for such a long time lies in the fact that constitutional supervision mechanisms are not rational, leading to the constitutional interpretation mechanism of the People’s Congress Standing Committee not having been initiated so far, it is not necessary to give details here. [See Zhang Qianfan, ‘Establishing a Review System for Legal Norms in China – Also an Exploration of Constitutional Revision Theory’, Strategy and Management, 2004, No. 2, 61-69.] In order to completely implement the current Constitution, the present author suggests here to establish a more effective constitutional review mechanism, the establishment of a constitutional committee under the National People’s Congress, which would be composed from persons having judicial qualities, which would openly and independently express its opinions, and be responsible to the National People’s Congress and its Standing Committee [For details, see id.]

Perhaps some might rise the question whether or not a constitutional committee system would conform to the current constitutional framework? Or whether or not it would “strip away the leadership of the Party”? As indicated earlier, as constitutionalism and Party leadership are not mutually exclusive, the concrete mechanisms to implement the Constitution will also not directly conflict with Party leadership. Naturally, specific judicial review models may not conform to concrete constitutional provisions, for example, does the constitutional court model conflict with the parliamentary supremacy? This question can be explored, but it has no direct relationship with the leading position of the Party. It is especially unnecessary to worry about the constitutional commission model, because it would be responsible to the parliament, and thereby indirectly operate under the leadership of the Party. To this end, “stripping away Party leadership” and all other fears actually are groundless, and can only obstruct the early implementation of the current Constitution. Even more constructive measures would be driving out imagined political fears through steady institutional design and gradual introduction of constitutionalist practices, to let the people and the governing party really learn about the benefits of implementing the Constitution.

In fact, our neighbour, Viet Nam, has already put forward similar viewpoints during its constitutional review process. Vietnam and China are both Socialist countries, the basic characteristics of both countries’ constitutions are exceedingly similar. What is different with China’s constitutional strategy is that the Constitution of Vietnam clearly provides in Article 4 that the Vietnamese Communist Party is “the leading power for the country and society”. In the most recent constitutional revision process, some officials believed that a constitutional review system does not conform to the leading position of the Communist Party provided in Article 4 of the Constitution, but the constitutional review draft finally still added a design for a constitutional committee, it can be seen that the abovementioned question no longer is a problem in Vietnam. In the current stage, Vietnam might well first establish a constitutional committee within its national assembly, to be responsible for the daily work of reviewing the constitutionality of legal norms, and to be responsible to the assembly; the assembly may, through majority voting, rescind the decisions of the constitutional committee that believes to be mistaken.

Apart from the fact that constitutionalism brings huge benefits to this country, establishing an effective constitutional review system will also benefit stimulating the gradual rationalization of national governance. At present, State documents fill the air, new emperors bring in a new wave of ministers, dynastic decrees are changed nightly, their policy nature is too strong, they are insufficiently continuous, and they do not preserve any long-term thing. The establishment of a constitutional review system will change this sort of situation. On the one hand, the absolute majority of legal norms that undergo review will meet with constitutional approval from the constitutional committee, which further strengthens the propriety and political authority of these legal norms. On the other hand, the constitutional committee’s respect for precedent will be able to stimulate governments to pay more attention to the long-term influence of scholars in policy, form a continuously advancing and rational development plan, and thereby produce precedents and institutions that will last for a hundred generations. Only in this way will it be possible to lay a solid institutional basis for constitutionalism in China.

(The author is a Doctor in Government Studies and a Professor of Constitutional Law at Peking University)

宪法实施与长期执政
今年5月以来,反宪政言论甚嚣尘上。极少数人以“学者”自居,宣扬宪政“关键元素属于资本主义而非社会主义”、“是兜着圈子否定 中国发展模式”、在中国“只能是缘木求鱼”等论点。一时间,宪政成了“敏感词”,成为继“市场经济”、“法治”、“人权”之后的观念“禁区”。其实,这套五六十年代腔调的话语前后矛盾、逻辑混乱、幼稚可笑,本来不值一驳,但是鉴于其在主流媒体发表后混淆视听、误国误民,已经严重损害了执政党与政府的形象,似仍有必要澄清关于宪政的基本概念与常识,以正视听、辨真假、明是非。笔者认为,宪政不仅没有“姓社姓资”之分,而且对于中国社会稳定和执政党的长期执政均发挥无可替代的作用。
一、何谓“宪政”
宪法是什么?翻开中国1982年宪法,答案显而易见。除了序言和总纲规定了国家基本目标和原则之外,宪法主要规定了两个方面——公民的基本权利和政府权力的构成及运行程序。换言之,宪法规定了政府可以或应该做什么——履行宪法规定的权力,也规定了它不可以或不应该做什么——不得侵犯宪法赋予公民的权利。
所谓宪政,无非是落实宪法的这些规定并以此约束政府权力。就和法治是依法治国一样,宪政就是依宪治国、依宪执政。事实上,宪政是法治的题中之义,因为法治中的“法”显然也包括宪法,而依宪治国、用宪法规范政治权力的运行,即为宪政的经典定义。根据《美国传统词典》的定义,宪政就是“政府权力受到统治者必须服从的法律体系之分配和限制的政体”。[TheAmericanHeritageDictionary(SecondCollegeEd.),Boston:HoughtonMifflinCo.(1985),p.314.]由此可见,宪政就是宪法获得实施并有效约束政治权力的一种状态。在2012年12月4日举行的宪法颁布三十周年纪念大会上,习近平总书记强调“宪法的生命在于实施,宪法的权威在于实施”,正是迄今为止呼吁宪政的最强音。
也和法治一样,宪政本身无所谓“姓社姓资”。早在二十多年前,邓小平南巡后,“姓社姓资”问题就已经解决,现在再拿来说事不仅显得陈旧过时,而且有悖常识。众所周知,市场经济不是资本主义的专利;社会主义国家也完全可以有,前面加一个“社会主义”前缀就成了自己的市场经济。法治也不是资本主义的专利,加一个“社会主义”前缀就成了社会主义国家的法治。那为什么偏偏宪政必然“姓资”,而不可能“姓社”?我们要实施的宪法显然不是1788年美国宪法,而是1982年中国宪法;实施一部社会主义宪法,自然就是社会主义宪政。难道这也有错吗?反宪政者至今说不出一个所以然来。
二、反宪政的社会危害
反宪政主张貌似要维护纯种的“社会主义体制”和“中国发展模式”,实际上于国于民有百害而无一利。究其大者,反宪政言论至少有三个方面的危害。一是破坏宪法效力,助长宪法虚无主义;二是颠覆政体合法性,使执政权力丧失法律根基;三是破坏社会稳定,动摇长期执政的社会基础。
破坏宪法效力
反宪政者有一个不合逻辑的出发点,那就是把宪政与宪法截然分开:一方面,他们不遗余力将宪政污名为“资本主义”,是不合中国“国情”的西方模式;另一方面,他们又不敢公然反对现行宪法。这种立场是十分荒诞可笑的,因为宪政无非是宪法的实施,反宪政必然意味着反宪法。至少,他们否定宪法的法律效力,要把宪法沦为无需落实的政治口号、说了不算一纸空文。这种主张的实质是宪法虚无主义。其潜台词是这个国家虽说制定了一部宪法,其实那只是欺骗人民的文字游戏;中国实际上并没有什么宪法,国家权力不受任何法律约束。
颠覆政体合法性基础
宪法虚无主义不只是缺乏理论逻辑,而是会产生实实在在的法律后果,也就是否定现政权的合法性基础。正如凯尔森指出,国家是法律创造的产物:“国家是由国内法律秩序创造的共同体,国家作为法人是这一共同体或构成这一共同体的国内法律秩序的人格化。”[参见汉斯·凯尔森(HansKelsen):《法与国家的一般理论》,沈宗灵译,北京:中国大百科全书出版社1996年版,第203页。]因此,国家权力必须在法律覆盖下运行。一个国家的合法性并不体现于政府行使的权力。恰好相反,国家权力必须来自法律授权,法律赋予国家合法性和权力正当性。宪法是最高的法律,是区别良法与恶法的衡量标尺,也是国家合法性的终极来源。当今世界只有英国等极少数国家没有成文宪法,其政权合法性来自《大宪章》、《权利法案》、《人权法》等基本法律及宪法惯例。绝大多数国家都有成文宪法作为公权力的合法性基础。对于这些国家,如果宪法形同虚设,那么宪法规定的所有国家机构实际上处于不合法状态。
中国1982年宪法序言规定了执政党的领导地位,第三章又规定了全国与地方各级人大及其常委会、国务院与各级地方政府、各级法院与检察院等政府组织机构。如果宪法是一纸空文,没有任何法律效力,国家实际上在无宪法的状态下运行,那么所有这些机构的合法性统统成了一个问号,它们所行使的权力也全部丧失正当性基础。如果全国人大及其常委会的存在合法性都有疑问,那么它们通过的法律也没有正当根基。换言之,假如真是按照反宪政论的主张,那么我们正生活在一个完全没有法度的国家。这难道是我们对自己的宪法、法律和政权性质所应当采取的态度吗?
动摇长期执政的社会基础
反宪政主张不仅否定执政党的领导地位和政权的理论合法性,而且还将损害社会稳定并产生社会动荡等严重后果,进而腐蚀和动摇长期执政的社会基础。这么说绝不是危言耸听。想一想,宪法是干什么的?宪法是保障公民权利的基本法,而“权利”不只是一个花哨的概念,而是关系到每个人的切身利益。如果没有私有财产保障(宪法第13条),人民的土地会随时被征收,房屋会随时被拆毁;如果不能落实平等权(宪法第33条),农民和农民工就要受歧视,随迁子女就不能在就读地高考……如果民主选举(第34条)有名无实,那么人大代表就不会积极行使职权,不对人民负责的政府官员必然会滥用公权;如果没有言论、出版、集会、结社自由(宪法第35条),人民的切身利益受到伤害也不能发声,那么公权滥用便更加肆无忌惮……
如果宪法没有效力,政府权力不受宪法约束,人民的宪法权利得不到保障,那么平民百姓的基本利益就处于朝不保夕的状态,随时都可能受到公权力剥夺。这样的社会不可能幸福、安宁、稳定,而是必然充斥着强征、血拆、不公、仇恨、冲突……社会悲剧和恶性事故此起彼伏,集体上访和大规模群体性事件愈演愈烈。试问这样的国家如何统治?长期执政如何可能?长期执政是建立在社会稳定和民心所向基础上的,但是如果公权不受宪法约束,人民的基本利益得不到有效保障,那么人民就不会拥护执政党,长期执政就失去了民意和社会根基。由此可见,如果采纳反宪政主张,最终会使政权同时失去理论合法性和现实合法性。 三、推进宪政建设的政治与社会意义
既然宪政关系全民福祉与政权稳定,推动宪政即为国家的首要任务。纵观中国与世界各国经验,推动宪政建设至少有以下五个方面的重要利益:一是有利于促进依宪执政和执政模式法治化,完成从革命党向执政党的转型;二是有利于保证和控制法律规范和政策的合宪性,防止法律规范侵犯公民权利;三是有利于维护执政党和政府形象,进而长期执政的合法性;四是有利于维护中央权威,通过法治控制地方违法现象;五是提高全民的宪法意识,让人民看到宪法对保护自己权利的用处并主动维护宪法效力。
1.促进依宪执政和执政模式法治化
首先,宪政就是实施宪法、依宪执政,而依宪执政有助于促进执政模式的法治化,帮助执政党完成从革命党向真正意义的执政党转型。不可否认的是,共产党在1949年之前公开发表了大量的宪政理想,表达了对宪政的强烈追求,但是1949年掌握政权后,由于迟迟未能完成执政模式的法治化转型,在很大程度上仍然是一个革命党,以至此后30年政治运动不断,严重削弱了执政合法性。1978年改革开放拉开了执政模式改革的序幕,1982年宪法的颁布标志着依宪执政的里程碑。宪法序言明确规定:宪法是“国家的根本法,具有最高的法律效力。全国各族人民、一切国家机关和武装力量、各政党和各社会团体、各企业事业组织,都必须以宪法为根本的活动准则,并且负有维护宪法尊严、保证宪法实施的职责。”如此明白无误的宣言昭示了执政党推动宪政的决心。既然宪法具有“最高的法律效力”,宪法应该和普通法律一样得到有效实施;任何人、机构或政党都不得超越宪法,尤其是执政党自身必须在宪法与法律框架内活动。
有人提出,宪政不符合中国体制,因为宪法至上否定党的领导。这种论点是违背常识的,因为党的领导依据何在?不在别处,正是在宪法序言本身。如果否定宪法,也就必然否定了宪法序言规定的党的领导地位。显而易见,只有尊重宪法、施行宪政,才能让党的领导获得法律地位。有人接着问,如果确立宪法至上,如何协调宪法和执政党之间的关系?如何保证党的领导地位?关键不在于党的领导本身,而是在于党如何领导?是通过宪法和法律领导,还是由执政党领导人在不顾宪法和法律的情况下个人领导?如果是后者,那就不仅不是法治,而且也不是党作为集体的领导,而是赤裸裸的人治,因而显然违背宪法规定的执政党本身早已接受的法治原则。早在1987年,中国就在理论上澄清了这一问题,党的领导主要是体现于执政党领导议会制定大政方针,宪法和法律都是在执政党领导下制定通过的,但是执政党不宜直接干预具体的执法和司法过程,否则就违反了执政党自己肯定和承诺的法治原则。宪政有助于更有效地执行执政党体现于宪法和法律中的意志,因而不仅不和党的领导矛盾,而且恰恰体现和强化了党的领导。只要执政党控制了立法过程,并通过有效机制保证宪法和法律的实施,也就充分保证了自己的领导地位和作用。
事实上,如果不能实现依宪执政,那么不仅宪法形同虚设,执政党自身的领导地位无从保证,而且法治也将流于空谈。这是因为宪法规定了人大之下的“一府两院”制度,规定了选举和独立审判制度;如果这些制度不能落实,那么人大代表无心履行立法和监督官员职责,党政权力高度集中,随时可以干预司法,也无从实现执政党自身早已认同的“依法治国”和“法治国家”的宪法理念。因此,虽然法治是宪政的基础,但宪政和法治之间不只是不同层次和阶段的关系,宪政同时也是法治的制度保障;没有宪政基础,权力结构高度集中,法治也不具备基本条件,最后只能蜕变为人治。只有推动宪政,才能实现执政模式的法治化,并完成从革命党到执政党的模式转变。
2.保障法律体系的合宪性
作为国家的最高法律,宪法的有效实施有助于理顺国家法律体系,保证各级法律规范是尊重公民权利的良法,而非侵犯公民权利的恶法,并禁止任何违背宪法与法律的恶行。宪法第5条规定:“一切法律、行政法规和地方性法规都不得同宪法相抵触。一切国家机关和武装力量、各政党和各社会团体、各企业事业组织都必须遵守宪法和法律。一切违反宪法和法律的行为,必须予以追究。任何组织或者个人都不得有超越宪法和法律的特权。”如果各级法律规范都是良法,那么官员滥用公权就失去了法律依据,官员侵犯人民权利就是一个简单的行政法问题,现行法治框架即足以解决。如此则不仅维护了人民利益,而且也维护了社会稳定,让执政党和政府在人民心目中保持良好形象。
3.维护社会稳定和长期执政的社会基础
如上所述,只有当公权力受到宪法的有效约束,人民才得幸福,国家才得安康,社会才能稳定。社会稳定,政权才能稳固,执政党的长期执政才具备社会基础。宪政不仅是最有效的社会维稳器,也是执政党领导地位的法律源泉和长期执政的制度前提。
维护中央法律权威,有效控制地方违法
推行宪政不仅有利于维护人民的基本权利,而且也有利于提高中央的法律权威。目前,一些中央政令之所以落实不力,主要原因在于地方既得利益设置层层障碍;“上有政策、下有对策”已经成为常态,严重削弱了中央和法律的权威。归根结底,中央政令之所以难以畅行无阻,首先是因为宪法得不到落实。具有最高效力的基本法都难以实施,意味着宪法规定的法律制定和实施机制形同虚设,一般法律的命运就可想而知了。
5.提高全民理性能力和宪法意识
最后,宪政实践也是极好的公民教育,有利于进一步激发公民的维权意识和宪法热情,为宪法的施行提供强大的社会动力。虽然改革三十年来,中国公民社会得到巨大发展,但仍然出于种种原因不够理性成熟;网络的迅速发展极大促进了中国公民的理性和知情权,但是网上也不乏不讲理的“愤青”。公权无约束造成官员不讲理,官员无理无形中助长百姓无理;百姓只是权力体制下的顺民、刁民或暴民,而不是能够行使宪法权利、约束公权滥用的公民,从而进一步纵容权力滥用……要打破这种恶性循环,首先需要从政府内部改变风气;如果政府有诚意施行宪政,人民看到宪法获得实施、权利受到保障的希望,并从具体实施过程中学会如何将宪法适用于日常生活,那么越来越多的人会信仰宪法、自觉维权。只有人民起来主动捍卫权利,宪法才能真正得到有效实施。
四、代结论——建立更有效的宪法审查机制
综上所述,宪政于民、于国、于党均有百利而无一害;现行宪法能否获得实施,关系国家根本利益。反宪政主张要进一步架空现行宪法,纯属倒行逆施。另一方面,不可否认的是,现行宪法颁布30多年来尚未得到有效实施,从而也助长了一些不负责任的主张。而宪法之所以长期未能有效实施,直接原因在于宪法监督机制不尽合理,致使人大常委会释宪机制至今从未启动,在此不赘述。[参见张千帆:“建立中国的法律规范审查制度——兼对修宪理论的一点探讨”,《战略与管理》2004年第2期,第61-69页。]为了全面落实现行宪法,笔者在此建议建立更有效的宪法审查制度,在全国人大之下设立宪法委员会,由具备司法素质的人员组成,公开独立发表意见,并对全国人大及其常委会负责。[详见同上。]
有人或许会提出,宪法委员会制度是否符合现行宪法框架?是否会“脱离党的领导”?如上所述,既然宪政和党的领导并行不悖,具体的宪法实施机制也不可能和党的领导直接冲突。当然,特定的司法审查模式可能不符合具体宪法规定,譬如宪政法院模式是否和议会至上相抵触?这个问题可以探讨,但是和党的领导地位并没有直接关系。宪法委员会模式尤其不必要担忧,因为它向议会负责,因而也是间接在党领导下运作。因此,“脱离党的领导”等各种担心实际上是杞人忧天,只能阻碍现行宪法的早日实施。更有建设性的措施是通过稳妥的制度设计和渐进的宪政实践驱除假想的政治恐惧,让人民和执政党都切实体会到行宪的好处。
事实上,邻国越南在修宪过程中已经提出类似的主张。越南和中国同为社会主义国家,两国宪法的基本特征极其相似。和中国宪法略为不同的是,越南宪法在正文第4条明确规定:越南共产党是“国家与社会的领导力量”。在最近的修宪过程中,有的官员认为宪法审查制度不符合宪法第4条规定的共产党领导地位,但是修宪草案最终仍然加入了宪法委员会设计,可见上述疑问在越南已经不成问题。在现阶段,越南很可能先在国会内部建立宪法委员会,负责审查法律规范合宪性的日常工作,并对国会负责;国会可以通过多数表决,撤销其认为错误的宪法委员会决定。
除了宪政为这个国家带来的巨大好处之外,建立有效的宪法审查制度还将有利于促进国家治理的渐进理性。目前国家文件满天飞,一朝天子一朝臣,朝令夕改,政策性太强,连续性不够,也没有任何持久的东西留存下来。宪法审查制度的建立将改变这种状况。一方面,大多数通过审查的法律规范获得宪法委员会的合宪性认可,进一步强化了这些法律规范的正当性和政治权威。另一方面,宪法委员会对先例的尊重能促进政府更加重视学者政策的长远影响,形成连续渐进理性的发展方略,进而产生流芳百世的判例和制度。只有这样,才能为中国宪政打下稳固的制度根基。
(作者为政府学博士,北京大学宪法学教授)

 

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