This feature on different intellectual angles concerning constitutionalism was first published in the September issue of Yanhuang Chunqiu. The translation is 39 pages long and can be downloaded in a PDF version for your convenience.
Editorial note: “The Constitution is closely linked with the future of the country and the fate of the people. Safeguarding the authority of the Constitution is safeguarding the authority of the common will of the Party and the people. Defending the dignity of the Constitution is defending the dignity of the common will of the Party and the People. Guaranteeing the implementation of the Constitution is the realization of guaranteeing the fundamental interests of the people.” General Secretary Xi Jinping said, in his speech to at the conference commemorate the 30th anniversary of the implementation of the present constitution for all circles in the capital that: “As long as we realistically respect and effectively implement the Constitution, it will be guaranteed that the people are masters of their own affairs, and the undertaking of the Party and the country can be smoothly developed. On the contrary, if the Constitution is ignored, weakened or even destroyed, it will be impossible to protect the rights and freedoms of the people, and the undertaking of the Party and the people will meet with setbacks. This precious enlightenment gained through long-term practice must be treasured extraordinarily. We must even more consciously abide by the principles of the Constitution, carry forward the spirit of the Constitution and implement the mission of the Constitution.
On 19 July of this year, the editorial department of this journal convened a small-scale seminar, to discuss how to implement the Constitution. Participants in the discussion were expert scholars such as Guo Dahui, Li Buyun, Zhang Qianfan, Zhan Jiang, Jiang Jingsong, Li Weiguang, Ding Xikui, Qiu Feng, Zhang Weiying, Cai Xia, etc., as well as staff of this journal’s editorial department. The following are extracts from the speeches made by a number of scholars. Topics mainly involved the necessity of implementing the Constitution and issues related to [historical] phases, as well as legal, democratic, civil right and human right guarantees, financial budgeting, private property protection and other implementation problems with constitutional articles.
The Value of Implementing the Constitution Lies in the Character “Honest”
Du Daozheng (Director of this journal)
In the editorial department, we talked about organizing this meeting, to discuss how to satisfactorily implement our Constitution (the Constitution of 1982); I will first say a few words as opening remarks.
First, at the moment, the discussion about the Constitution and constitutionalism in society is very lively, and that everyone is so concerned about the great matters of state has been rarely seen since the Nineties. In the discussions concerning constitutionalism, opinions are diametrically opposed, and it is very fierce online. Some people say that this discussion may again be a great dispute. I say that disputes are a good thing. The Party and the government seemingly have also adopted a tolerant attitude, this itself is a step forward.
Second, the “Yanhuang Chunqiu” editorial department has also debated this a few times, with the focus being the legality, reasonability and practicability of the 1982 Constitution. Legality is not the problem, everyone recognizes it. On reasonability, there aren’t too many disagreements in society, it is believed that the 1982 Constitution is a relatively reasonable and good constitution. We especially pay attention to the practice of the 1982 Constitution.
Third, in December of last year, at the conference to commemorate the 30th anniversary of the promulgation and implementation of the Constitution, the newly appointed General Secretary Xi Jinping earnestly said that: “defending the dignity of the Constitution” is defending the dignity of the common will of the Party and the people.” He also said: “the life of the Constitution lies in its implementation”. These things were said well, and reactions were good as well. The editorial department, when discussing this, unanimously believed that the former sentence was a commitment, and the latter sentence a call. We believe that this latter sentence is the crucial point of China’s political reality. The reality of the past few years is that not a little has been said about the Constitution. Everyone has given much advice, but practice is insufficient, very insufficient. Some people, with relation to the Constitution, are still used to “discussing ideology with ideology”, what should we do? We must “discuss facts with facts”, strive to drive the Party and the government to lead the common people, to take “the State respects and guarantees human rights” as a focal point, and implement the 1982 Constitution article by article, and step by step. If the 1982 Constitution is truly satisfactorily implemented, China will make great progress in all aspects.
Fourth, how can we “discuss facts with facts” and satisfactorily implement the Constitution? As I see it, we must mainly place our hopes on the strength of the people. The largest beneficiaries of the implementation of the Constitution are the people, and those who are restrained mainly are the rules who hold power in their hands, “We must shut power into a cage”, as General Secretary Xi Jinping said, has a similar meaning. The glorious history of three decades of reform and opening up are similar. For example, the redress of unjust, falsified and mistaken cases, for example the household production contract, they were all started at the lower levels, and higher levels responded by expanding them. Now, China must implement its Constitution, and must respect the popular will, respect the popular will, and adhere to the popular will more. It must both be top-down and bottom-up, but bottom-up must have first place.
Fifth, these above few sentences can, in the end, be summed up as the character “honest”, in the [Chinese version of] the word “honesty”, the character “honest” is in front of the character “real”. Especially with regards to the authorities in power, what they say is important, but action is even more important, a manifesto is nothing to an act. During the Deng, Hu and Zhao era, China was so full of vitality, why was this? The Centre’s recent anti-corruption activities seem to be for real, which has kindled a strand of hope among the people. Why? We want, together with everyone, under the leadership of the Centre, implement the 1982 Constitution article by article.
The shaping and implementation of the Constitution has a phase nature
(This journal’s editorial department)
I represent the editorial department to talk about four ideas.
First, the original intention of this seminar. This year, the New Year’s wish of our journal was “The Constitution is the Consensus for Political Structural Reform”. We held that, regardless of left, centre or right, the dispute on the issue of implementing the 1982 Constitution was not large, therefore, implementing the 1982 Constitution could be a starting point for political structural reform.
This broader background of this viewpoint was that, over the past decades, many disputes have arisen over which banner to raise and which path to march. Everyone knows that the CCP Central Committee raises high the banner of Socialism with Chinese characteristics, and marches the path of Socialism with Chinese characteristics. This is the mainstream of the ideology. But in society, there are other viewpoints, for example, “raise the banner of democratic Socialism, march the path of democratic Socialism”, or “raise the banner of New Democracy, march the path of New Democracy”. The question of “isms” is extremely immense, all sorts of definitions often end up in a complete mess. But, the banner of the 1982 Constitution doesn’t easily give rise to disputes, the content of the Constitution is complete and clear. Even if disputes, it is easy to resolve disputes at the technical level of constitutional implementation or revision, and achieve consensus.
Speaking along this line of thinking, the dispute about whether the last name of constitutionalism is Socialism or capitalism during the first phase, and receded again to the level of a dispute between “isms”, it receded from concrete matters to abstract matters, from simple matters to complex matters, and from consensus to dispute. Nonetheless, we can also see in this dispute that, even the people who oppose constitutionalism do not oppose the implementation of the 1982 Constitution, on this point, consensus still exist. We want to further advance along the lines of thinking where there is relatively much consensus.
Second, concerning the 1982 Constitution itself, our basic viewpoint is that, as the outcome of historical development, the 1982 Constitution basically reflects and considers all sorts of interests and all sorts of viewpoints of Chinese society at that time. Chinese society was undergoing change, the 1982 Constitution conformed to that sort of change and reflected that sort of change, and it has the reasonability of progressing with the time. Before the 1982 Constitution, there were the 1954 Constitution, the 1975 Constitution and the 1978 Constitution. The 1982 Constitution summarized the lessons from the Cultural Revolution, and was a major progress from the 1975 Constitution and the 1978 Constitution. Afterwards, the 1982 Constitution was revised four times, in 1988, 1993, 1999 and 2004, summarizing and absorbing the successful experience of reform and opening up, as well as the successful experiences of the market economy, human rights, the rule of law and other aspects of the present world. Social development goes in phases, amending and revising the Constitution reflects this phase nature. In the future, in a new historical phase, the 1982 certainly will be revised again, and may be made even better, perhaps. But when we only talk about the present, if this progress that has already been made can be satisfactorily implemented, and become the basic institutional arrangement of our social life, this society of ours will make a great step ahead.
Third, in the area of implementing the 1982 Constitution, there is also a phase nature, we must march step by step, and cannot in one go reach the goals of all articles. There is one viewpoint that says that we should first start from the rule of law, and use a few years of tie to focus on completing the rule of law, and democracy will follow. On where to march first and where to march afterwards, we must both start from reality, and must consider the experience of other countries. Because of this, the opinions of experts from all sides are very important.
Fourth, in the process of implementing the 1982 Constitution, only relying on the strength of Party and government departments will certainly not be sufficient, regardless of whether it is in the area of knowledge or in the area of action, the strength of the people, the strength of the citizens of the People’s Republic of China have a decisive function. The opinions of this seminar of ours belong to the opinions of citizens.
Some Large Breakthroughs Must Be Made in the Rule of Law
(Chinese Academy of Social Science, Honorary Division Committee Member)
It is generally recognized at home and abroad that the rule of law may be used to promote democracy and human rights. No one can oppose the rule of law, but democracy is relatively difficult. The rule of law and human rights may be used to stimulate democracy, democracy is the most difficult.
There are two break-through points in the rule of law: one is judicial independence. This year, I wrote an article, “Rectifying Names for Judicial Independence”. I said that opposing judicial independence was mistaken, it opposes the traditions of the Party and opposes international commitments, it does not conform to dialectics, I gave these four reasons, and among the examples that I gave, the 1982 constitutional amendment, the draft speech of Ye Jianying, the speech draft for which the Party Centre set the tone, they all contained judicial independence. I participated in the drafting of the summary of the “Gang of Four” trial, judicial democracy, judicial independence, seeking truth from facts, humanitarianism and equality before the law, among those five principles, there is judicial independence. The judicial documents in the liberated areas also contain judicial independence. International human rights and the “Beijing Declaration” also contain judicial independence. Because of this, there is no basis to oppose judicial independence.
Under the existing structure, we also have opportunities. In the two months after the 18th Party Congress, the Central Political-Legal Committee held a political-legal videophone conference. At some meeting, I asked the Central Political Legal Committee Secretary: “Did you discuss a viewpoint at the political-legal videophone meeting?” He said: “Which viewpoint?” I said: “That the Political-Legal Committee would no longer interfere in judicial organs’ handling cases in the future?” The secretary said: “I discussed that, I deviated from the script to discuss that, only in exceptional central first-level important national defence and foreign affairs cases would it intervene, at the provincial level or lower it would basically not care.” There was also the abolition of re-education through labour, he said: “in the past, the public security departments opposed the abolition of re-education through labour, when I was Minister of Public Security, it was difficult for me to discuss, now I am no longer Minister, I will put forward the reform of the re-education through labour system.
There are two problems in the judicial system that influence our country’s judicial independence: one is the approval of cases by political=legal committees, another is that letters and petitions involving law and legal cases must be reformed. Letters and petitions involving law or legal cases are unconstitutional. When courts have reached a verdict, what power does the gossip of letters and petitions organs have? What qualifications do they have? It is also not scientific, [if one] listens to what one side has to say, and does not process through one’s own trial, it is impossible to say whether or not this case is right or wrong. Yet another matter is local protectionism.
Another breakthrough point is revising Article 126 of the current Constitution. We cannot say that the present wording is incorrect, we must look at how to revise it. Article 126 of the Constitution says that: “People’s Courts independently exercise judicial power, they are not to be interfered with by administrative organs, social groups or individual”. I say it should be revised into “they are not to be interfered with”. “To interfere” is a pejorative term. The Party must lead, the People’s Congress must supervise, this is not science. The People’s Congress may interfere, the Party may interfere, how would that work? But this is not revised, out of fear of influence on the “leadership of the Party”. I raised this repeatedly when meeting with Committee Head Wu Bangguo, and will raise it again.
Therefore, there are three problems where large breakthroughs are necessary: letters and petitions, Party Committees approving cases and the question of the function of political-level committees; preventing intervention because of local protectionism; and Article 126 of the Constitution.
On People’s Congress reform, I put forward 12 reform suggestions, among them, there are many articles that can be written, for democratic rule of law construction, we must use this one: the People’s Congress is the highest organ of State power. The highest organ of State power must be workable, this includes the issue of elections, the issue of specialization in the standing Committee, and the issue of the quality of People’s Congress representatives. I regularly give the example of the mathematician Chen Yingrun: he said that, when I’m at the People’s Congress for a meeting, when People’s Congress representatives give speeches, I read books, when the Party calls on me to raise a hand, I raise my hand, when the Party calls on me to draw a circle, I draw a circle. I say, what do we want such representatives to do? I discuss this example everywhere.
Concerning constitutional review, the China Law Society put ten-something suggestions to the Centre, three among them are crucial: one is constitutional review, another is revising Article 126 of the Constitution, one more is discussing constitutionalism. This report was delivered to the Central Political-Legal Committee, Meng Jianzhu approved it and transferred it to the People’s Congress for research.
On setting up constitutional review mechanisms, domestic academic circles mostly agree with the plan to establish a constitutional committee. There is a difference with the West, which is that Party documents may not be declared unconstitutional, but reform plans are to be put forward and submitted to the Party Centre. I once said, where Peng Chong was present, that, “Central leaders’ being able to substantially establish constitutional review, will be of boundless beneficence to you”.
To Establish the Authority of the Constitution, Unconstitutional Acts Must Be Punished
(Supreme People’s Procuratorate Expert Consulting Committee Member)
The crux for the life and authority of the Constitution is its implementation. The symbol of whether or not it is implemented lies in whether or not unconstitutional acts can be strictly punished. There are already provisions of principle in the current Constitution, but they are empty text, the reason lies in the fact that a feasible constitutional review system has not been established.
Concerning constitutional review, there are mainly three sorts of models in countries worldwide: the first is the US model, where judicial power and constitutional adjudication power are unified, and constitutional review takes place through common courts; the second one is the German model, where the power of constitutional review and judicial power are separated, and there are special constitutional courts to deal with lawsuits on constitutionality; the third is the Greek model, where constitutional adjudication power and judicial power are unified, and any court, the Constitutional Court, the Supreme Court, or administrative courts, may examine questions of constitutionality.
In terms of feasible models for China at present, one viewpoint is to let the Supreme Court take up constitutional review functions. But the courts do not have authority and are not independent, they cannot take up this function. Another plan is to establish a constitutional commission under the National People’s Congress and its Standing Committee, which will hear constitutional litigation, solving the problem of constitutional review. Here, there are contradictions as well: this committee would be subordinate to the People’s Congress, it would review whether or not laws passed by the People’s Congress itself would be unconstitutional or not, which would be equal to someone being their own judge, this violates legal principles. A Constitutional review organ should be higher than the formulating organ. Hence, this would not work either. I believe there is yet another plan: it may be considered to have the Chinese People’s Political Consultative Conference take charge of constitutional review.
It is reported that, as early as the end of 1956, at a conference on matters of state, President Liu Shaoqi advocated to implement a bicameral system with a lower and an upper chamber in China. The CCP Central Committee United Front Department Director Li Weihan also especially conveyed this standpoint of Liu Shaoqi to the Vice-Chairman of the China Democratic League, Zhang Bojun, hoping that it could be put forward at a forum convened in the United Front Department by Zhang Bojun, under the identity of the China Democratic League and his own name. Zhang acted accordingly. In December 1956, The United Front Department submitted the “Opinions concerning Strengthening the Work of the Local Political Consultative Conferences”, the CCP Central Committee responded to Zhang Bojun’s suggestion in their memo concerning the dese “Opinions” of 24 December, pointing out that “The CPPCC has an important position in the political life of our country, it not only has the function of organizing the united front, but also has a function that is similar to that of an ‘upper house'”.
When the Constitution was revised in 1982, I was working in the National People’s Congress Legal Committee Office, I was kept abreast, and I heard that among the opinions on amending the Constitution communicated to the Centre, it was mentioned that Hu Qiaomu (at that time, he was one of the leaders of the Constitutional amendment) put forward the proposition of establishing a bicameral system (the People’s Congress and the Consultative Conference), in order to strengthen constraints upon the People’s Congress itself, and increasing the authority and power position of the Consultative Conference. But at that time, this matter was rejected by Deng Xiaoping, the main reason being that one more chamber means one more hindrance, it would influence efficiency, and it would be difficult for the governing party to unify leadership; moreover, China is not like Europe or the US, where having bicameral systems is political tradition, because of these differences in national circumstances, why would it be necessary to bring in more complications? It was said that a bicameral system would result in low efficiency, but as a matter of fact, this reason does not hold water, because if power lacks restraints, great misfortunes occur – for example the great famine and the Cultural Revolution, perhaps a lower efficiency [than those] would be negative efficiency. Although the 1982 Constitution did not institute a bicameral system, when even Hu Qiaomu advocated a bicameral system, it can be seen that a bicameral system is no absolute taboo. Naturally, this also does not mean letting the Consultative Conference become an upper chamber in one step, but it means we may gradually move this forward.
First and foremost, we must endow it with some procedural powers, for example, endow it with the power to draft motions for the People’s Congress or put forward motions for constitutional review. The current Constitution affirms that the National People’s Congress Standing Committee, the State Council, the SPC, the SPP and the Central Military Commission, those five State organs, have the power to draft motions for the People’s Congress. As an important component part of our country’s basic political system and of the State organs, and as an important organ for multi-Party cooperation and political consultation under the leadership of the Chinese Communist Party, the Consultative Conference does not enjoy the power to draft motions for the People’s Congress, this goes against the logic of constitutionalism. Therefore, I suggest that, at a suitable time, through Constitutional amendment, the powers of the Consultative to participate in government, discuss matters of government, and of supervision, are upgraded to “the power of approval” or procedural power, so that they enjoy the power to draft motions for the People’s Congress, this will ensure that the collective viewpoints, criticisms and suggestions on matters of State officially passed by the Consultative Conference can be submitted as a motion, that they statutorily must be entered on the agenda of the People’s Congress and deliberated. In this way, it will be possible exert a certain restraining power over State power (the legislative power of the People’s Congress) and the power of the government.
Furthermore, the Consultative Conference is to be endowed with the power of interpellation. During the period of the Consultative Conference meetings, following the example of the People’s Congress, it may be permitted to put forward interpellations to the government or all subordinate government departments, courts and procuratorates, organs that are interpellated must be responsible to respond. This is one measure to ensure that the power (right) of supervision of the Consultative Conference is made real, and “effects are improved”. Naturally, it may also be possible that this meets with departmental protectionist obstruction. But if this is truly established as a legal structure, it should not be too difficult to implement.
Finally, the Consultative Conference is to be endowed with the power of constitutional review. Our country’s People’s Congress system is a system of concentrated power, all State power belongs to the National People’s Congress, the power of other State organs is endowed by the People’s Congress, and they are responsible to the People’s Congress. This sort of structure has the advantage of its high efficiency, but the People’s Congress itself has no or is not subjected to restraint or supervision by any other power within the scope of the national system. If occurs that the decisions of the National People’s Congress and its Standing Committee, and especially its legislation, violate the fundamental principles of the Constitution, violate human rights or citizens’ fundamental rights, it is difficult to timely correct this (for example, in the Fifties of the last century, the National People’s Congress approved the State Council’s re-education through labour regulations, which were bad laws; in the 80s, the National People’s Congress Standing Committee passed two “Decisions” concerning “Strike Hard”, which violated and vitiated the defendant’s right of appeal and right to defence, and also violated the principle of “nullum poena”.
If we let the Consultative Conference become a constitutional review body, according to the constitutive qualities of current Consultative Conference members (the assembled knowledge elites of all walks of society) and its overarching position in terms of State power, as well as the political authorities that it should have and might have, would be sufficient to undertake this task. Because the Consultative Conference and all democratic parties are also under the leadership of the Communist Party, it is unnecessary to worry that it might use this to challenge the governing position of the Communist Party (naturally, how it leads remains to be reformed). In my humble opinion, this may be considered as a new way of thinking for reform. Realizing this step would make the Consultative Conference gain the function of an “upper house”, naturally, how to concretely standardize this remains to be deliberated in detail. At present, it may be considered that the Consultative Conference has the power to draft motions, to suggest the People’s Congress to engage in constitutional review, this may be a starting point for reform.
Endowing the Consultative Conference with these three powers, and progressively moving this forward, will result in constitutional review in the end. But I believe that to truly do constitutional review, it is also necessary to discuss ideological principles, why are they principles? – and break through old concepts and old ways of thinking that obstruct the implementation of constitutionalism and democracy. If this problem is not resolved, doing constitutional review will be difficult. Constitutional review has been put forward in legal scholarship circles for many years, there is no result in practice whatsoever. The “Legislation Law” also puts forward that citizens and social organizations may request that constitutional review is conducted of certain administrative regulations or red-headed documents, but in fact, such cases have never been accepted, heard and implemented. The Constitution itself contains provisions as well, that the National People’s Congress Standing Committee may abolish inappropriate administrative laws and regulations, but it has nave abolished any. If there are problems, it is discussed orally, but there is an unwillingness to openly handle matters according to legal procedure, here are many ideological obstacles.
At present, we are conducting a “work style rectification”, with “mass line education” at the core. Considering this from the angle of rule of law, I believe that at present, the brunt of the work stile rectification lies in dealing with officials, the core of “mass line education” should be on leading cadres establishing a consciousness about constitutionalism, a consciousness about citizens and a consciousness about public service. What is called “look in the mirror, straighten clothes and hats” should require cadres to look in the mirror of the Constitution, towards the provisions in the current Constitution that are beneficial to governing the country and the Party, restraining power and guarantee citizens’ rights, they must check article by article whether or not they implement them and act according to them, and whether or not they have been punished if they broke them. Lessons should also be drawn from history, through rethinking and summarizing the lessons from history, this requires arranging the following old concepts and old systems that have a feudal autocratic nature:
First, eliminate the mass view of “subjects” and establish a constitutionalist citizen view. The character “mass”, according to the explanation in the “Ciyuan”, refers to birds and beasts flocking together (“three wild animals form a mass, three people form a group), in the non-simplified manner, the character is written as [a lord over a sheep], the lord is at the top, the sheep is at the bottom. That means that the masses are a flock of sheep under the rule of a lord (or what is called “herding sheep – herding people”). But nowadays, the masses are no longer the common herd, they are no longer subjects, the little people, the obedient people, and are certainly not the “unruly people”, but they are citizens who have a constitutional position and strong rights consciousness, they are the subjects of the Constitution and constitutional governance, the ruling power is endowed on citizens, on the people. Citizens are people who enjoy constitutional rights, they are voters and supervisors, to respect citizens, the equal position of citizens with each other must be correctly arranged, and their rights respects and guaranteed according to the law. Therefore, I believe that in conducting mass line education for cadres, the core should be conducting citizen education, education about constitutionalism, establishing a consciousness of citizens and a consciousness of constitutionalism.
Second, overcome the State-supremacist constitutional view and establish a constitutional view with social supremacy and supremacy of the people. For a long time, the Party’s leaders and legal scholarship circles have believed, when defining the nature and tasks of the Constitution, that the Constitution was “the general rule to govern the country and ensure security”. There is no doubt that the Constitution has this function, but this thesis limits the subjects of the Constitution to the government and the governing party, they are the only subjects governing the country. This has led to constitutional change only being a tool to implement Party governance, and is not an agreement to restrain government power and guarantee citizens’ rights. The Constitution is not only the basic fundamental law of a country, it is even more a fundamental law for society – a contract for society to constrain the country. The subjects of the Constitution are the people or the comprehensive body of citizens, they are not the governing Party and the government, rather, the latter are the objects being restrained by the Constitution, and are often the main subjects violating the Constitution.
Third, transform the view of the country that the country is “Party property”, establish a new view of power where “power is bestowed on the people”. As early as 1941, Deng Xiaoping criticized “using the Party to rule the country” and “Party power is higher than everything else”, he believed that they were a bad influence of the Guomindang in our Communist Party. In tact, this sort of ideological and structural bad influence has not completely dissipated today. Article 2 of the 1982 Constitution provides that: “All power in the People’s Republic of China belongs to the people”, Article 7, 8, 9, 10 and 11 respectively provide that the State-run economy and the collective township and village economy, natural resources and land, the individual economy and personal property also belong by the whole people, respective collectives or citizens; Article 29 provides that the military forces of the People’s Republic of China belong to the people; Chapter II of the Constitution affirms various kinds of rights and liberties that citizens enjoy. These all include the material and spiritual resources of the country and the society, and all belong the the people and the citizens. But can the popular masses truly enjoy and grasp all rights and power? In fact, not long after we seized government power (the Fifties and Sixties), there were a number of cadres who thought like this: I conquered the country, so I can have everything and commandeer everything, the country is equal to the “spoils of war” of the victory gained by the Communist Party’s revolution, it is the “Party property” of the governing Party and the collective asset of our Party, and we may arbitrarily allocate it. Because of this, we must structurally resolve: all spiritual, cultural and material resources of the country belong to the people and do not belong to the governing Party, and change the old thinking and old structures of “ruling all under heaven, gaining all under heaven”, possessing all under heaven, leading everything and allocating everything.
Fourth, transform the dictatorial view of “either with us or with the enemy, establish a governance view of a governing party. The “two kinds of contradictions” put forward by Mao Zedong on the basis of his theory of the “people’s democratic dictatorship”, essentially requires that we must “make correctly dealing with contradictions among the people into the subject of political life in a Socialist country”. In practice, however, two sorts of contradictions, with the enemy and ourselves, have been delineated on the starting point of “taking class struggle as the key link”, so that boundaries had to be defined continuously among the people and even among the Party, to ferret out “enemies”, this caused great calamities in history. Social contradictions are diverse and complex, in fact, in social life, there are some contradictions that are neither inimical in nature, nor can be easily classified into the category of the people, there is a large grey zone between them. A number of civil disputes, ideological or discourse disputes, or even criminal acts cannot be simply categorized into two categories, the enemies and ourselves. In a period of peaceful development, the opposition between those two poles, the enemy and ourselves, in politics cannot completely cover the present picture in which social interests are pluralizing and contradictions are pluralizing. If we only attribute social contradictions to those two categories for the sake of politics, where they are either one or the other, this may easily lead to simplification and expansion. Nowadays, contradictions between officials and the people are utterly intense, and when it occurs that mass resistance incidents happen, a number of cadres imputes them to “provocation by domestic and foreign hostile forces”, strike them hard, and the result is that even more disturbances and calamities are triggered. The present idea of the rule of law must abandon the simplified and fossilized thinking of the “two categories of contradictions” of being either with us or with the enemy, and concentrate its attention on regulating the larger tendency of the development of pluralizing interest groups. In recent years, high-level central leaders have put forward that “power is endowed to the people”, “power is for the people to use”, “power must be locked into a cage of rules” as well as “give power back to the people” and other such ideas, these are correct methods of responding to the popular masses’ daily increasing rights demands, and of dissolving social contradictions. How to avoid being stuck in “ruling the country with slogans”, and truly implement this new view of power as a practice of giving back rights and defending them, is an important topic for social and political reform at present.
The Brunt of Moving Democracy Forward Lies in Perfecting the People’s Congress System
(Central University of Finance and Economics, Faculty of Law, Professor)
Our country’s democratic system has its own characteristics, the main trunk being the people’s congress system. Over the past few years, the practice of a participatory system has emerged. Hence, to implement the Constitution of our country, and implement the democratic norms of the Constitution, the main trunk is still the People’s Congress system, the focus can be grasped through the following issues:
I, Rationalize the relationship between Party Committees and People’s Congresses, rationalize the relationship between the leading power of the Party and the State power of the People’s Congress.
The 1982 Constitution has an extremely definite value view, which is reflected in an important thesis in the “Decision concerning Some Historical Questions of the Party Since Founding the Nation”: we must build all levels’ Party Congresses and their Party Committees into authoritative organs of the power of the people. The language most characteristic of the time is “authoritative”. The lessons of the Cultural Revolution told us that if there are no rationalized relationships between leading power and State power, and there are no rationalized relationships between Party Committees and People’s Congresses, the People’s Congresses’ State power cannot be exercised, and authority is out of the question. This thesis was a process of exploration thirty years ago. During the Eighties, the demand for “authority” was implemented extremely vigorously, and many positive steps were taken. In later years, the momentum continued for a long time, but there were also breaks in the middle, sometimes, Party leadership is implemented through leadership by administrative Party decree, we go in this direction. If we go there, People’s Congresses will not have authority, and may return to the old road of the past. This is something that we must watch out for. The Party’s leadership must be firm, however, there are two phrases which have made epochal contributions for the “leadership of the Party” before and after 1982: “The leadership of the Party” must first be firm, and second must improve, and the most important is “improve”. Without improvement, firmness is a dangerous method, and may lead to grave abuses, the direct consequence is that People’s Congresses lose authority. This is the first relationship that must be rationalized so the people can practice democracy through the People’s Congress system.
II, Establish a right to seek election
The starting point of the People’s Congress system is election. Our elections, in contrast to constitutional provisions and practice in other countries, should in theory consider this question: in election, which subjects are acting? Our country’s elections only have two subjects, the first are the voters, and the second are nominees. I believe we should also see a third subject, this is a concept that we lack when we discuss the People’s Congress election system, concepts and practice. We must slowly adopt this sort of concept of “the right to seek election”. After this concept is established, we may fundamentally resolve the phenomenon of many irregularities in elections. If this issue is dealt with well, it will help with the implementation of rules related to the Constitution and moving democracy forward.
III, Rationalize the relationship between People’s Congresses and People’s Congress Standing Committees
The people exercise State power through People’s Congresses and their Standing Committees. But because there is a lot of structural trouble in the People’s Congresses, they cannot properly exercise State power, but can only exercise it regularly through the People’s Congress standing Committees. Whether or not the relationship between People’s Congresses and People’s Congress Standing Committees is good relates to a great extent to the effect of the popular will. I have discovered an important problem: at the time of the constitutional amendment in 1982, the leadership was extremely clear, there was a sort of strong position in the process of constitutional amendment, where many powers of People’s Congresses were moved to People’s Congress Standing Committees, in this way, the capacity of the overall People’s Congresses to exercise State power was strengthened. Because People’s Congresses did not have this capacity, the capacity of State power organs to exercise State power was strengthened through the method of giving the powers of People’s Congresses to People’s Congress Standing Committees. But at the tine that the constitutional amendment draft was discussed, some people put forward a sort of apprehension: if we give the power that should belong to the People’s Congress to the People’s Congress Standing Committee, and the necessary vigilance measures are lacking, could this not conversely lead to the People’s Congress Standing Committees outranking the People’s Congresses? People’s Congress Standing Committees represent People’s Congresses in exercising State power. If they outrank the People’s Congresses, this does not conform to the objective of the design of the constitutional amendment of that time. In those years that I observed, exactly this problem emerged, where the relationship between People’s Congresses and People’s Congress Standing Committees went topsy-turvy. Ordinarily, the People’s Congress Standing Committee is responsible to the People’s Congress and is under the supervision of the People’s Congress. But how are the People’s Congresses to supervise the People’s Congress Standing Committees? What we see is one meeting every year. The People’s Congress only praises the People’s Congress Standing Committee Work Report, and despite the fact that in all past praise, “extremely satisfied”, “highly satisfied” or “extremely satisfied” were not used, it seems as if the work of the People’s Standing Committee does not contain flaws or mistake, and does not require criticism from the People’s Congress. If the People’s Congress only praises the People’s Congress Standing Committee, how can the constitutionally provided supervision of the People’s Congress Standing Committee by the People’s Congress be implemented? If the People’s Congress cannot supervise the People’s Congress Standing Committee, how can the popular will restrain the work of the People’s Congress Standing Committee through this chain? I worry about this, this is also a problem everyone should consider. There are many small but essential points within there that need consideration, for example, the selection of the presidium at the time of the People’s Congress meeting, the composition and powers of members, it is mainly through these sorts of technical details that the power of the People’s Congress to supervise the People’s Congress Standing Committee is restricted. The 1982 Constitution is a very good constitution, but the 1982 Constitution does not contain provisions concerning the many leaks in parts of the government, and many matters that it should provide for, many leaks were left, which require further mending and perfection.
IV, Many duties of the People’s Congress should be implemented better.
According to Hu Qiaomu’s explanation in that year, the People’s Congress Standing Committee should exercise its power like a national parliament that regularly meets. If this is so, the People’s Congress Standing committee should exercise the series of powers that the Constitution endows it with firmly and well, and not disappoint the weighty expectations that the 1982 Constitution has of it. Using this standard to measure, the People’s Congress Standing Committee neglects its duties in places. An extremely clear example is the budget.
In the area of how to formulate national and local budgets, at present, our corresponding laws have not entrusted the People’s Congress Standing Committees with the necessary duties. The entire budget formulation process is: a budget draft is submitted to the financial committee of the People’s Congress about one month before the People’s Congress meets, after the financial committee conducts a preliminary examination, it is returned to the government for the necessary revisions and perfections, afterwards, in the period when the People’s Congress meets, it is submitted to he People’s Congress, which deliberates and votes on it. Before the People’s Congress meeting and after the financial committee, or at the same time as the financial committee conducting its preliminary organization, there should be a comprehensive and full deliberation process of the budget draft by the Standing Committee. It is like the National People’s Congress formulating fundamental laws, there isn’t any that is not first examined by the NPC Standing Committee, before something goes to the NPC, it may be repeatedly perfected by the NNPC Standing Committee, and only afterwards is it submitted to the NPC, where the NPC votes on it within a short few days. This should be done with laws, it should also be done with the budget, but at present, this is not done so, therefore, the present budget formulation has many unsatisfying points. A relatively appropriate revision should be as follows: before the People’s Congress meets, the Standing Committee should conduct a calm and comprehensive deliberation of the budget draft and produce a preliminary opinion, this is a basic duty that a regularly meeting parliament must exercise, but this issues has been overlooked in the Constitution, other laws and practice, which is not beneficial for the people to exercise State power through People’s Congresses.
V, Next, let’s talk about the participation system.
The 1982 Constitution made an epochal contribution, which is that it overruled the provisions in the 1954 Constitution concerning the channels and ways for the people to master their own affairs. The 1954 Constitution provided that the People could only exercise power through People’s Congresses, the 1982 Constitution brought a major amendment, significant in meaning, providing that the people manage State affairs through various channels and means. In that year, Professor Xiao Weiyun interpreted this provision of the 1982 Constitution in his “On the Constitution”, his basic idea was that “various channels and means” does not include People’s Congresses, it may happen through the labour union, the Youth League or the Women’s federation, but not through the People’s Congress. Over the last years, this has been explored in a number of places, to answer which channels and ways actually are used in practice as “the various channels and ways of the people”, as said in the 1982 Constitution. The experiences engendered by these local trials still require practical comparison with constitutional practice in other countries, before a better conclusion can be reached.
In practical terms, there is, in fact, only one channel for our country’s people to manage State affairs, which is the People’s Congress system. But there are, however, many ways [of doing so]. One is where citizens go talk to People’s Congresses personally, to openly tell the People’s congress about which suggestions or viewpoints I have towards People’s Congress legislation, People’s Congress appointments, People’s Congress decisions or People’s Congress supervision, afterwards, the People’s Congress is to properly and appropriately absorb this into legislation, decision-making and supervision, this is the main form of the people directly managing affairs of State that has been explored in many localities in our country up to now . Second, the people may directly participate in the administrative policymaking process by administrative organs. Third, there is participation in the judicial process of judicial organs. What needs to be done in relation to these ways is theoretical and legal affirmation and promotion. I suggest that corresponding laws are made to affirm these, and ensure that the Constitution, the Organic Law and other corresponding laws affirm these channels and these ways, and hence, move forward progress in the people managing affairs of State.
The People’s Congress Representative System Must Be Improved
(CCP Central Party School, Professor)
Implementing the Constitution requires perfection of the People’s Congress system, to this end, the current People’s Congress representative system must be improved, for example:
First, the current problems with the number of people, structural problems and identification problems of People’s Congresses require a high level of attention.
The problems with the number of people – can the more than 2000 representatives at present really discuss issues? Every year, the duration of the National People’s Congress meeting is no longer than 15 days, essentially, only two or three half days can be allocated to discuss every report, at most, and it is very difficult to achieve that more than 2000 representatives truly examine and thoroughly discuss any report among them within an extremely limited amount of time. Because of this, such deliberation and discussion can only be going through the motions, draw rough lines, and is often of a political propaganda nature, in the end, this causes that the People’s Congress’ deliberations and discussions cannot live up to their name.
Structural problems – at the moment, more than 70% of People’s Congress representatives are official representatives. The 18th Party Congress Report said that it was necessary to change the structural problems in the People’s Congress, but its wording merits consideration. At present, among People’s Congress representatives, official representatives must certainly be reduced, but the 18th Party Congress Reports states that we must strengthen representatives of workers, peasants and intellectuals, and especially increase the representatives of workers and peasants at the grass roots. Structural change can absolutely not be done in this manner. Why do I say “absolutely not”? First, Chinese social structures have seen profound changes, they no longer are formed simply by the working class, the peasant class and the intellectual level, but by many layers in society, hence, we cannot discuss where the People’s Congress representatives come from, how they are selected or how structures are to be changed by generalizing through the structural language of past Chinese society, but representation from all social layers must be reflected in the People’s Congress. This is number one.
Second, at present, whether or not workers or peasants at the grass roots can be represented, does not depend on whether or not they are model workers, but it should depend on the trust voters place in them as well as their ability and quality. Professor Li Buyun talked about how, when Chen Jingrun was People’s Congress representative, he read books when others held meeting. At present, there is a representative who has been representative for his whole life, at meetings, he says “thank you”, “approved” and “agreed”. People’s Congress representatives participate in or decide upon great matters of State as the representatives of the social public, they are equal to members of parliament abroad. It is required by the duties of transmitting the popular will and participating in the highest level of State policymaking that People’s Congress representatives must have knowledge accomplishments, political experience and policy levels that are equally high, without the capacity to discuss politics, political knowledge and the ability to participate in politics, it will be impossible to achieve this point.
Identification problems – why must we discuss identification? According to reason, People’s Congress representatives are Chinese citizens, but the situation at present is that some People’s Congress representatives have become citizens of other countries, and are People’s Congress representatives in our country, could I please ask who they represent? This is a big question. We must again ascertain the nationality of People’s Congress representatives. If they hold openly or covertly hold passports of other countries, they should be cleared out, and cannot become representatives in People’s Congresses. This includes officials, where officials covertly hold foreign passports, they must be cleared out.
Second, the question of how do People’s Congresses implement their duties.
First and foremost, how do People’s Congress representatives implement their duties when they are not in session? In the past few years, Teacher Yu Jianrong conducted pilot projects with full-time People’s Congresses in a county in Sichuan. At that time, what was mainly considered was that in many localities, voters did not know People’s Congress representatives, and the People’s Congress representatives they voted for did not connect with the voters, however, People’s Congress representatives cannot forget about matters once the elections are finished, they must fulfil their duties. This is one point. Another point was that some People’s Congress representatives were not responsible to voters, and this required that attention was paid to how they implement their duties when the Congress is out of session. At that time, it was thought that under circumstances where it was impossible to completely change the present conditions, it might be possible to try out that a number of People’s Congress representatives were full-time representatives. All County People’s Congress representatives, apart from the People’s Congress Standing Committee and official, as well as a number of full-time People’s Congress representatives especially accepted the demands from the masses, and truly implemented the duties of a representative. Every village had a full-time representative. But afterwards, higher levels lost no time in stopping this, and the People’s Congress full-time representative trials were not continued.
Establishing daily work mechanisms to timely report the work situation of People’s Congress Standing Committees to People’s Congress representatives, and to receive interpellations from People’s Congress representatives. Can the work situations of the People’s Congress Standing Committee and the statements of People’s Congress Standing Committee members in meetings be timely reported to all National People’s Congress representatives? Because when People’s Congress representatives elect them, and entrust them with work, they should let People’s Congress representatives know what Standing Committee members are doing. At the same time, is it necessary to consider to add articles giving the People’s Congress the rights to choose to attend People’s Congress Standing Committee meetings and make statements at meetings in corresponding legal documents? In short, in how to give rein to the function of People’s Congresses even better, where it is possible to do things within a certain scope, that do not involve too large a scale or that are difficult to do, we can try doing them.
Also, how do the People’s Congress representative implement their duties when the Congress is in session?
First, at the moment, People’s Congress representatives discuss ideological principles and not practical matters. This is linked to the People’s Congress’ problems concerning the inspection of the general line of action and supervising public asset accounting and budgeting, the time for meetings and discussions must be increased, to ensure that the statements of People’s Congress representatives change from ideological principles into practical matters. They must not only investigate where the government puts money, and whether or not the scale of this is appropriate, they must also proceed from examining the destination of money to examining government policymaking and programmes. In this way, the discussions of representatives will be given substance, this requires an increase of the time for discussion, and it requires financial accounting item by item, so that every item can be discussed.
Second, the statements made during discussions in People’s Congress representative meetings must be published in their original form to society. At the moment, People’s Congress representatives’ statements shock many people, where is the sense of representation among some people? What they say is what they themselves want to say. The statements of representatives during meetings must be published to society, to let them at least have a sense of explaining themselves to the social public, and of responsibility, and let the m know what they should say and should not say.
Third, do People’s Congress representatives have the power to raise motions during the period of the session? The agenda of the session is decided by the Presidium of the People’s Congress Standing Committee, People’s Congress representatives can only discuss issues within the scope of the agenda decided by the Presidium. In this way, if there are a number of major issues that higher-level leaders believe should not be discussed, and they are not listed for discussion, what can People’s Congress representatives do? This requires that there is a right for People’s Congress representatives to raise motions. For example, the 4 trillion [stimulation package, the government put this forward in the second half of 2008, during the “Two Sessions” period of 2009, I was watching television to see whether or not the National People’s Congress would discuss the 4 trillion, the upshot was that the Congress did not say a word about it. It is said that some localities internally persuaded People’s Congress representatives before the meeting on which issues could not be discussed. This includes this year’s “Two Sessions” period, some local People’s Congress representatives are contacted beforehand, and government officials’ asset openness and other such issues cannot be raised at the meeting. This is a limitation to the rights of People’s Congress representatives to make statements and discuss issues.
We must endow People’s Congress representatives with statutory powers. In order to guarantee that People’s Congress representatives implement their duties, People’s Congress sessions must first and foremost implement structures engage in debate about deciding the agenda for sessions, and prepare these issues that should be discussed at the session. Clear regulations are necessary, about whether or not when the number of People’s Congress representatives reaches statutory minimums, it is possible to change the agenda of the sessions, and to put forward the major issues that everyone believes must be discussed at the session. For example, which number of people must be reached to bring a motion onto the agenda? Which topics may be discussed at the session? At present, People’s Congress representatives only have the power to raise motions, but motions are not put forward for discussion at the session.
We must provide a series of necessary conditions and guarantees for People’s Congress representatives to fully exercise their representative powers, including providing full materials in advance, to let them fully understand situations, provide substantial time during sessions for discussion and statements, so that statements can be made freely without apprehension. Furthermore, if People’s Congress representatives refer to a certain problem that is very grave, and they may apply to make a statement at the plenary session and not only discuss it in small group discussions, this will draw the concentrated attention of the whole body of representatives towards this problem, and matters will not be completely conducted according to arrangements made before the meeting.
Letting People’s Congress representatives individually have the power to make statements at the plenary sessions can at this point not be achieved in one stem. Then, perhaps it is possible to, on the basis of the existing National People’s Congress representatives’ small group discussions, organize a plenary session in which every delegation group puts forward one representative to make statements at the plenary session, and exchanges are conducted between the various delegations, to ensure interaction between the whole body of People’s Congress representative, and that the whole body of representatives at the session knows the hot topics discussed in every small group as well as the policy suggestions and ideas that have been put forward, this should be feasible.
Third, how can the social public supervise People’s Congress representatives? If People’s Congress representatives do not implement their duties well, how can representatives be removed? This requires that People’s Congress representatives are put under the supervision of citizens.
This involves another question, which is: where does the basis for giving full rein to the function of People’s Congress representatives lie?
I believe there are at least two points: the first is that according to the 1982 Constitution, the citizens’ realistic exercise of their rights to vote and to be voted for must be guaranteed. This is a big question at present. Every time that People’s Congress conducted periodic election of representatives, all localities had come citizens who stood for election as independent candidates, but governments would use all kinds of ways to limit the right of citizens to participate in elections. On the basis of the constitutional provision that “citizens have the right to vote and to be voted for”, an inspection for violation of the Constitution should be raised against certain governmental departments’ rules and ways of limiting citizens participating in elections and being elected, or a complaint should be made to the People’s Congress. This is a big problem, how to guarantee citizens’ right to vote and to be voted for and how to change the existing ways to limit citizens’ right to vote.
Second, it is absolutely necessary to foster civil society. Reducing official representatives and increasing the number of representatives from all walks of society is the problem how representatives are generated. At the moment, the power to nominate representatives is grasped in the hand of governments and higher-level Party organizations, in fact, when culling through candidate representatives, some local governments and Party organizations have already done all sorts of political considerations, and sifted out certain candidate representative, so the right to nominate is an initial right, citizens should have the right to nominate People’s Congress representative candidates.
At the grass roots of society, one important point in how citizens put forward a candidate that everyone identifies with, or citizens nominate themselves to be independent candidates for elections, and in the end, the smooth elections of People’s Congress representatives in a constituency, is that civil society must be fostered. At the moment, there are limits of some degree on citizens’ freedom of association and democratic governance at the grass roots of society. If the democratic self-governance of citizens at the grass roots of society is done well, citizens’ freedom of association is guaranteed, civil society is allowed to grow relatively well on the basis of the rule of law and within a constitutional framework, a certain ability to participate in matters of government will gradually emerge from this process, and there will be people who influence the social public – public opinion leaders. Over the past few years, the most important point of implementing the Constitution has been fostering citizens and civil society. In this process, some persons who can be named public opinion leaders have emerged, these “leaders” are not subject to age limits, some are 60 years old, others 30 or 40, when these people are active in society and participate in public affairs in the future, they will gain the trust of society, if this would have the right to nominate, they would be elected. Because of this, representatives from all walks of society may be emerged gradually through this method, but the foundation is moving forward with the freedom of association and democratic self-governance and the fostering of civil society.
When discussing this point, one worry of the governing party must be dispelled. The misgiving of the governing party is that once grass roots elections are mentioned, worries arise that without nomination, might the Communist Party be voted out of office? This is a lack of self-confidence. In fact, when grass roots common people elect representatives, their first consideration is not which party someone belongs to, but whether or not they act and speak for us. Among the more than 80 million Communist Party members, there is a considerable number of excellent characters, furthermore, there is a batch of grass roots Party members at the grass roots of society, who may not be cadres or officials, but who enthusiastically work for the people, these people will progressively emerge in future elections. Why can these people not be the representatives of the CCP? In fact, they can. Now, the Party and the organizational department are equated, Party leaders and secretaries’ intentions are equated, these two equations eliminate the absolute majority of Party members. We must establish self-confidence, there must be a change in our minds: the Party is not equal to secretaries, the organization department is not equal to Party organizations, intra-Party democracy must see due developments and due improvements, so that grass-roots Party members may have a good image among the masses, that cannot but come out.
The Market Economy Requires Constitutionalism
(Peking University Guanghua School of Management, Professor)
I myself work in economics, so what is it that brought me to pay attention to constitutionalism, the Constitution and democracy? It mainly is based on my understanding of market economics. The most important bases for a market economy are first, liberty; second, private property rights and third, the entrepreneurial spirit. After some decades of reform, I discovered that economic liberty still may be subject to arbitrary interference from government, that private property rights fundamentally are not effectively protected, and that the entrepreneurial spirit is still suppressed and distorted. Especially after the Chongqing incident, I think that if China does not conduct true political structural reform and does not implement constitutionalism and democracy, it will be impossible to continue with the march forward of the single soldier of the economy, and it will be impossible to establish a true market economy. This is a problem I am concerned about. After the new leadership took charge, I was extremely deeply impressed by two sentences: one is Xi Jinping’s “the life of the Constitution lies in its implementation”; the second was Li Keqiang’s “reform is China’s greatest bonus”. On 9 December last year, I spoke at the annual meeting of the Chinese entrepreneurial leaders, the topic was “Implementing the Constitution is the Heaviest of Heavies for Future Reform”, in this speech, I raised five aspects on implementing the Constitution at present: one is judicial independence, second is the competitive and democratic election of people’s representatives, third is freedom of speech and publication, fourth is the protection of private property rights, fifth is constitutional review.
Concerning the Constitution and constitutionalism, I discussed a few viewpoints:
First, constitutionalism and the Constitution provide a basis for the legitimation and authority of the regime.
In theoretical terms, if any regime has a constitution but does not implement it, that means that it has itself denied its own legitimacy and authority. Our current regime has power but does not have authority, the people’s submission and obeisance to the regime is completely based on fear and is not based on respect, this is a major problem, and an important cause is that the Constitution has not been truly implemented. Three years ago, I said that true implementation of a Constitution is rare, some articles are implemented in form but are not implemented in substance, some aren’t even implemented in form.
The 1982 Constitution (including later revisions) basically is good, the main point is that it has not been implemented. This is the background of Chairman Xi Jinping stressing “the life of the Constitution lies in its implementation”. I understand that implementation was not thought about when some articles were formulated at that time. Why were these still formulated if implementation wasn’t thought about? The reason us that a number of things from human civilization representing universal values could not be openly denied by anyone, so when they were put into writing, no-one dared to say that this could not be written, this includes freedom of speech, freedom of association, democratic elections, independent judicial trials, etc. But these are truly where the life of this Constitution lies, because they provide conditions for our steady reform. Reform in many countries required “constitutional revision” or even “constitutional establishment”, but we must ensure that the Constitution we have is implemented, this will do, or at least, this will do for a considerable amount of time. At this moment, truly implementing the Constitution in fact means that we must go back to the basic values and universal values of human civilization to do things, we cannot steal the beam and replace them with rotten timber again. Otherwise, not only will the Constitution be lifeless, the regime will also not have legitimacy and authority. For example, when we talk about People’s Congress elections, the People’s Congress system is the basic system provided in the Constitution, but if People’s Congress representative are not truly elected, they cannot truly gain people’s respect. In the past, everyone respected you, because being a People’s Congress representative was an identity and an honour, the Party and the leaders held you in high regard, you became a distinguished personality, that was enough. Now, everyone can see that a major change has occurred in people’s ideas, People’s Congress representatives and Consultative Conference members’ level of being respected is nothing like those of the past, and everyone no longer makes a thing out of you. Why? Because you have not been truly elected by everyone, and want us to respect you for whatever reason you say you are a People’s Congress representative. If the rules on People’s Congress elections are not truly implemented, future People’s Congress representatives will increasingly lose legitimacy in the hearts and minds of the common people. Therefore, the first point is that implementing the Constitution relates to the legitimacy and authority of the governing Party and the regime.
Second, constitutionalism is the basis for democracy. In the broad sense, democratic systems include constitutionalism, in the narrow sense, democracy mainly means the issue of electing leaders. If there is no constitutionalism, there cannot be true democracy. From Ancient Greece until the present, all thinkers worried that democracy would become “the tyranny of the majority”, this is the biggest fear that people have concerning democracy. How can majoritarian tyranny be prevented? By implementing constitutionalism, and letting the law become the highest ruler, where all people must conduct themselves under the law. Democracy can only prevent majoritarian dictatorship by being established on a constitutional basis. This is speaking in theoretical terms. When looking at reality, if in a future election, the elected persons are rebellious, what is to be done? If they do not leave office, what is to be done? If there is no constitutionalism, if the people do not have the basic concept of the rule of law, if the courts cannot try cases independently, it will be impossible to resolve these issues, and civil war may occur. We know that even if the result of the US elections is disputed, after the court makes a decision, the parties must submit to this, such as the matter that occurred in the year of the Bush-Gore election; the same is true in Taiwan, where there is a dispute, the court has the last word. From the history of Western countries it can be seen that they all first had constitutionalism and had democracy afterwards. In 1688, England implemented a constitutional monarchy and established a constitutional system, naturally, this is not to say that there was no constitutionalism at all before then. But true democratization in the United Kingdom started with the 1832 reforms, which broadened the franchise to 10% of adult males, afterwards, the franchise was broadened a further number of times, until 1928, when all adult females gained equal rights to vote, this took more than a century of history.
One idea of mine for constitutional reform in China during the next three decades is first and foremost the true implementation of the Constitutional, constitutionalism and constitutional governance, only afterwards is it possible to march the path of a healthy democracy, furthermore, I believe that during the first 15 years, constitutionalism should be the main task, and democracy should become a main objective in the latter 15 years. The problem is that if we do not change the judicial appointment and retirement system, if the security of judges’ positions is not protected, the implementation of judicial independence won’t be too possible. The president has the power to appoint US Supreme Court justices, but their appointment is life-long, the president does not have the power to remove then, and so they have independence, justices appointed by the president also may completely deviate from the president’s will. If the appointment of justices is completely organized by us, just like government officials, they may be dismissed and replaced at any time, and judicial independence will certainly be false. In the future, in terms of the qualifications for appointing judges themselves, we may imitate the US, the Party organizes the appointment of judges, but appointment is lifelong, they can no longer dismiss them, replace them, except where they themselves have committed crimes, or done things violating social morals. I believe that constructing the rule of law and constitutionalism before democracy is the most important.
Third, realizing constitutionalism brings benefits for all people, or it can be said that it is where the interest of all people lie. I have recently continuously propagated this viewpoint, that under the current system, the risks that privileged people face are larger, and that as long as the common people do not “rebel”, they will probably not run into great problems in terms of personal security. It is those who hold official functions and have privileges, whose basic security is least guaranteed. In other words, government officials now have privileges but no human rights. Having privileges means being able to enjoy benefits at present, but not having human rights means that future security cannot be guaranteed.
Why did Western countries implement constitutionalism in the beginning? It was not because the common people wanted it to be implemented, but because vested interests and privileged people wanted to implement constitutionalism. Why did they want to implement constitutionalism? Because in an era without constitutionalism, they would mutually injure each other, for example, the English aristocracy, their rights were incessantly infringed by the king, every war was a trial of you die, I live, in the end, they understood that using constitutionalism, and everything being handled according to one rule, would benefit all of the aristocracy. Where today’s China is concerned, this is extremely important to us. Now, being an official is a high-risk profession. They should understand that even if the method of using privilege creates vested interests, these will need legal protection afterwards as well. Now, officials’ terms of appointment are limited, vice-ministers at 60, ministers at 65, after leaving office, how are your life, security and assets protected? If constitutionalism is not undertaken, those most at risk are they. If a new generation of second-generation officials wants to rob you, they can only rob the old generation of second-generation officials, because the common people would have nothing work stealing, in the end, they can only rob themselves, which becomes mutual expropriation. Therefore, we must recognize that implementing constitutionalism is most urgent to them, more urgent than to us common people. Naturally, many people cannot understand this point, one important reason that humankind makes mistakes is ignorance.
Fourth, private property is the basis of the market economy, and is the guarantee for civil liberty. On this point, the differences between people researching law and researching economics is not big, but those doing other things often reproach property rights. We must understand that if private property is not effectively protected, people’s basic liberty and security is not guaranteed, democracy will certainly change into tyranny, and we will not be able to establish a true market economy. Those things that happened in Chongqing over the past few years, the recent death penalty case of Zeng Chengque, etc., don’t menace a small minority of entrepreneurs, but the lives and liberties of everyone.
Protecting private property rights requires implementation of constitutionalism. The protection of private property has been clearly provided for in the Constitution, but true implementation is still a long road that must be marched, which includes a shift in the ideas of regular people. The most effective method is starting from redressing misjudged cases, for example, the issue of auctioning assets before a trial in economic criminal cases, the problem of unjust, falsified and mistaken cases in the Chongqing incidents, require correction through judicial procedure, some officials and judges should bear corresponding legal responsibility and be punished as a warning to others. In 2006, the “Tieben Incident” that occurred during improvement and rectification, also is a model case. That such problems occur in the 21st Century, I feel, is lamentable. But if we retry them and correct mistakes, this may have a promoting effect on the establishment of property rights structures. The issue with implementing property rights must absolutely be dealt with case by case, this includes the use of administrative litigation law, if the right to do things permitted by law is not granted approval by government departments, the injured person should file a lawsuit with the court. Our society requires this sort of “serious” people, suing government departments under this sort of circumstances is not only a power of individuals and companies, it is also their social responsibility. That is to say, establishing a property rights system is the responsibility of every citizen, because it concerns the rights and interests of every citizen. If the majority of people can vigorously exercise the rights endowed by the Constitution and the law, this society has a hope to develop in a good direction.
Fiscal Reform Must Guarantee the Rights of Taxpayers
(Tianjin University of Finance and Economics, Professor)
I research finance and taxation, and will discuss a few of my own viewpoints on how to implement the spirit of the Constitution from a fiscal angle.
At present, our country’s society has seen the emergence of a tense situation between a universal awakening of a consciousness of the rights of taxpayers and the fact that the financial power of the government has not been effectively constrained. On the one hand, following economic development, the accumulation of individual wealth and social progress, private property rights are progressively established, and the claims for citizens’ rights under their identities of taxpayers is ever more strong, this has not been seen over the past few decades; on the other hand, in society, there are also forces that move contrary to this tide, they vigorously safeguard the monopoly of SOEs and resource prices, the rights of individual citizens and citizen-run enterprises cannot gain due respect and policy support, the power to freely decide fiscal matters of administrative departments is not effectively restrained, People’s Congresses’ rights to decide and to supervise financial and budgetary affairs is insufficient, etc. This makes me feel that finance in fact is a political issue, and is not a problem that purely falls into economic and technological categories, as many people understand it.
Looking from the point of view of financial sociology, finance is the intermediary that links up the three large subsystems of politics, economy and society within the overall society, and so a financial crisis easily manifests itself as a crisis of the overall society. Finance has a magical power to decide a country’s nature, form and fate, in other words, when the State’s method to collect money (levying taxes), divide money (allocation) and spend money (using taxes) change, changes will subsequently occur in this country. Therefore, in every crucial period of social transformation, the issue of finance would become prominent. At present, we are in such a period. This sort of situation can be reflected in many areas of fiscal reform, for example, the adjustment and revision of personal income tax laws, housing tax reform, the reform from “business tax into value added tax”, the revision of budget law, the perfection of tax division systems between the centre and the localities, land finance, local government debts, etc. In present-day China, both new and old forces are opposed on the issue of taxation, in the omnipresent game, this face-off has a tendency to become ever more direct and white hot.
In the past few years in China, attempts in popular anti-demolition and relocation movements, financial information openness and public participation-type budgeting, as well as the strong expression of popular desires during the fermentation process of some new taxes can all be seen as taxpayer movement in the present-day China, this conforms to the spirit of the Constitution, its fundamental characteristics is the spontaneous safeguarding of private property rights, it defends the Constitution and does not violate the Constitution. I believe that this is a key historical period in which our country evolves from a traditional country to a modern fiscal country. During this period, the State should conform to historical trends, promote the progress in budget democracy and bringing rule of law to taxation, and stimulate our country’s constitutional reform through fiscal reform, only this is where the root of a modern democratic rule of law country lies.
Last year, the revision draft of the budget law underwent a second reading by the National People’s Congress Standing Committee, and after an opinion-seeking draft is prepared, it ill be submitted to the NPC Standing Committee for a third deliberation and passing. Because the revision draft for the budget law still contains rather a few problems, the departmental legislation trend is relatively strong, articles that are unsuited to the modern spirit of the rule of law are not amended, I have participated in a seminar organized by the Shanghai Finance and Law Research Institute, I wrote a letter to the NPC Standing Committee together with professors Wei Sen and Jiang Hong from Shanghai, as well as professors Wang Yongjun and Shi Zhengwen from Beijing, and other academic colleagues, requiring a provisional suspension of the deliberation of this draft, and putting forward many concrete opinions for revisions, I received notification at the end of the year, which said that our suggestions were adopted. This is a good thing, it indicates that there is a cautious attitude at our country’s policymaking level on a major issue such as budget legislation. This counts as a sort of effort by citizens to promote constitutionalist revision. In a situation where a consensus has not been reached, shelving the problems under dispute for a while and waiting until the opportunity is ripe to discuss them again is a wise choice.
The relationship between taxation and constitutionalism in present-day China can be more or less summarized in the following items:
First, in the process of raising and using taxes, the problems that taxpayers’ rights are infringed and expropriated still exist, they have not gained full legal protection. Looking at problems through the lens of the market economy and public finance, property ownership rights should be placed before tax revenue, raising taxes must first and foremost happen with the agreement of taxpayers, this requires the establishment of a set of procedures through the Constitution and the law, as a guarantee. What is called “taxation without representation”, is exactly this rationale. If the power of the government to collect taxes is not restrained, the people will have no liberty worth mentioning.
Second, the duties and rights of the People’s Congress are insufficient, in such great matters as the jurisdiction or the power to legislate on fiscal matters or the revision of budget law, which involve fundamental national affairs and the personal rights and interests of every citizen, the voice of the People’s Congress often remains unheard. The Constitution provides that the National People’s Congress is the organ with the highest State power, now, power belongs to the whole body of the people but reform of the People’s Congress itself has remained unsatisfactory so far. The power to govern taxation in fact is grasped in the hands of the government, budgetary examination and approval means going through the motions every year, the People’s Congress’ “rubber stamp” image has not fundamentally changed, the members of the Finance Committee essentially are still a number of retired officials, can such an organ and such people bear the historical duty of fiscal constitutionalism? During this year’s “Two Session”, the issue of the People’s Congress’ tax revenue legislation power received wide social attention, it ostensibly seemed as if no-one had any dispute, but as soon as matters arrived at the practical level, problems of implementation emerged. At present, the largest tax category in our country, value added tax, still exists under the form of provisional State Council regulations, it is no longer suitable, this is the same for other turnover taxes, they have not been deliberated or approved by the People’s Congress, and the necessary legal procedures have not been implemented. If this sort of situation was placed twenty years in the past or even ten years in the past, it would be understandable, now, it is no longer understandable, both in terms of legal theory as in terms of the needs of reform and development, or of social consensus, or from whichever angle, this cannot be justified or explained away.
Third, our country’s government has the real power to collect the majority of taxes, as well as the absolute majority of power over the budgetary process, these powers lack restraints and external supervision, the power to legislate is confronted with the problem of overstepping authority, the power of implementation is faced with the problem of discretionary decision powers, this is inconsistent with the spirit of the Constitution. The collection and the power to use some taxes even exceeds the fiscal departments, and are exercised by a number of other departments, this is not the norm. As the power to raise taxes is completely or largely concentrated in the hands of the government in reality, the impulse to increase taxes can easily become reality, in situations where there is a lack of restraints on power, the tendency towards high taxes is inevitable. The emergence of “heavy taxationism” over the past few decades has resulted in the fact that fiscal income has become separated from economic development, and grew above average by itself; then, the incessantly growing government income promotes the incessant growth of government expenditure, and a “limitless government” whose scale and powers become ever greater is formed, this colossus’ need for taxation can only become greater and more astonishing. Because of the lack of restraints and current government accounting systems are incomplete, the “patrimony” of the government has also become an unexplainable problem, all along up to now, there has not been an accurate and complete balance sheet that could be submitted to society, this is inconceivable for a company, let alone for such a large country?
Fourth, problems of grave misallocations of financial resources and financial waste have occurred. Because there is a lack of public choice and of democratic supervision mechanisms, fiscal policymaking powers are excessively concentrated and there are loopholes in institutional structures, the problem of misallocation and waste of financial resources has a tendency to aggravate, it is often seen that public services are unsatisfactory, project quality accidents and official corruption involving large quantities are cases in point.
Public expenditures have a strong public service nature, governments cannot spend money in areas that are unrelated to public service, they cannot demand market prices, they cannot pursue market profits, in other words, all areas related to market profit do not fall into the category of public expenditure, and the government cannot and should not enter them. Furthermore, it can be seen from the fact that large amounts from the four trillion financial stimulation fund entered into SOEs that such a base line has not been established by far. Our country up till now has not established an effect evaluation database for public expenditure, financial fund use effect data collection and accumulation is far from full. Although financial departments have formulated a number of financial expenditure effect evaluation rules, such as the centralized treasury payment system and the single account system, legal restraints and other such aspects remain relatively weak.
The problem of corruption is grave in financial earmarks and local debt processes, this is a problem that does not even need explanation. A knowledgeable person from a local People’s Congress told me that when the masses point to government corruption, they all stare at the “three high officials” and don’t let them go, but in fact the problem there is limited, the true “big tigers” are in local finance platforms and high-value programmes, within the system, this is an open secret that should not be mentioned to often. In the sunlight or in darkness, how many crimes are hidden?
Fifth, the financial system is a core issue in establishing a constitution. The biggest issue now is that no clear provisions have been made in the Constitution and the law on the public responsibility that all levels’ government bear (or “duties and responsibilities” as people often call it). Generally speaking, the closer to grass roots society a government is, the heavier and more direct the responsibility for public service it bears is, which means that the powers of this level of government should be endowed on the basis of public responsibilities determined in the law, furthermore, resource allocation should be planned correspondingly when dividing income sources. At the moment, local governments’ resource allocation in general is not lower than that of the central government, it even exceeds it somewhat, so some people believe that the tax distribution system does not influence the matching between local finance sources and public service. In reality, a correspondingly large part of resources is shifted downwards through financial earmarks, the so-called “run to the ministry and get money” means exactly this, this money is for special uses determined in programmes, it cannot be diverted, localities only have the power to use it, not the power to allocate it, the localities who need public services most do not have money and will not have money. Localities cannot allocate adequate financial resources, and so this rapidly creates the problem that resource allocation is insufficient or money is misallocated, as well as the sort of problem of inefficiency due to land finance or non-fiscal income being excessive. Furthermore, only when localities have real financial power and financial resources, do open budgeting and public participation have any real significance. These issues can only be resolved through reform at the constitutional level.
In a certain way, the issue of taxation is the issue of constitutionalism. Buchanan once said that policymakers consist of ordinary people, and so they will make ordinary people’s mistakes, if no limits are imposed on the power of taxation, governments will march towards tyranny. He believed that constitutional roles should include content specifically aimed at the power of taxation, and that citizens can only control and supervise rulers through restraining their power of taxation. His meaning was that if all other restraints are in place, and only the State’s power of taxation is not controlled, it will be difficult for all other restraints to have a substantial effect. At present, China is in a period in which finance is insufficiently constitutional, and the rights consciousness of taxpayers is seeing an unprecedented high tide, hence, social contradictions are manifested in an extraordinary complex and acute manner. This is historical stage that must be passed, if we poke through a paper window, a magnificent era of constitutionalism will be in front of our eyes, if we turn around and go back, thirty years of reform, opening up and social transformation will be abandoned halfway. In what course to follow, the right to choose is within the hands of every citizen, in the face of great questions of right and wrong, as Mr. Wu Jinglian said, “the slightest hesitation is impermissible”.
To Guarantee Freedom of Speech, Implement Negative Freedoms First
(Beijing Foreign Languages University, Professor)
The provisions on freedom of speech in the Constitution are Articles 35 and 41. Some people semi-jokingly say that the Chinese Constitution is even better than the US Constitution because the US Constitution’s First Amendment provides that Congress may not abridge the freedom of speech or the freedom of the press; Article 35 of China’s Constitution is a negative freedom (freedom of speech, freedom of publication), while Article 41 is a positive freedom (citizens supervising the activities of state organs and the personnel of state organs). The crux is whether or not this can be implemented.
Why is freedom of speech important? In present-day China, the value of free speech can be reflected in: against the background where constitutionalism acting as a check and balance on power has not yet been implemented, freedom of speech has already been realized to a certain degree, and actually is a sort of restraint where power is concerned.
According to the speech of Hu Jintao at the People’s Daily in June 2008, there are three kinds of media in China at the moment: the first kind is traditional official media, whose influence and credibility has waned, and whose relationship with society has become estranged; the second kind is metropolitan media, who have a certain influence, but at present, are not strictly managed or controlled; the third category is the Internet, which provides a public platform for the expression of all sorts of opinions. At the moment, China has not yet built a civil society, but there is a public sphere. The public sphere relies on media, it relies on metropolitan media and new media, citizens have realized relatively universal public participation through microblogs.
Article 35 of the Constitution involves a broad sphere, freedom of expression, freedom of publication, freedom of association, etc., Especially freedom of expression already exists in reality, but there is a lack of guarantees, a lack of legal guarantees, freedom flashers and flickers. Internationally, the evaluation of freedom of speech in China is very low. There is a French association called “Reporters without Borders”, which has ranked the situation of press freedom of all countries in the world for ten years, starting in 2002 until now, which is called the “Press Freedom Index”. From containing more than 130 countries in the beginning, it has expanded to including nearly 180 countries at present, in the index that they publish, China’s best ranking was ninth from the bottom, its worst ranking was third from the bottom.
China’s international position and especially its economic position have risen quickly, but the evaluation of freedom of speech internationally is very low. Internationally, there regularly are people who discuss this issue, but it is a pity that Chinese officials never respond to or refute this, this has abetted their influence. I believe that China isn’t necessarily that bad. How do they rank? On the basis of all sorts of indicators, they especially rank on the basis of whether or not free speech is protected or suppressed. There is a saying that: China is the country that locks up most journalist internationally. But what they mean by journalist and what we mean by journalist is not quite the same thing. What they mean by journalist is traditional journalists as well as people who public articles through the Internet. Now, Chinese traditional media journalists, people who have a press card, basically will not be arrested, except where they commit crimes outside of their individual duties, it is Internet writers who are arrested more often, in the past few years, the situation in this area truly merits attention. At the moment, it seems as if the use of Articles 25 and 42 of the “Public Order Management Punishment Law” is blossoming everywhere, if you say a few negative things on the Internet, it is very well possible that you are said to disseminate rumours, lie about dangerous circumstances, epidemics, etc., and you are arrested. In the previous few years, this situation has not been seen too much in Beijing, Shanghai, Guangzhou and other such large cities, but in the past two years and especially this year, it happened repeatedly. This results in the fact that China’s international free speech ranking cannot improve.
I have researched China’s current laws concerning free speech and press freedom, where does the problem lie? First, the Constitution is vapid, free speech and press freedom are not implemented (hence, General Secretary Xi Jinping says we must implement the Constitution). Second, there is no press law, traditional media journalists and second journalists lack a legal position. Third, our laws limiting free speech are extremely complete, from criminal defamation, false accusation and humiliation as included in the Criminal Law, to the criminal fabrication and dissemination of false information in securities trading, criminal harm of commercial reputation, criminal harm to the reputation of commercial products, etc.,. there are large numbers of cases for all of these. Every country falling into the continental law category of all rule of law countries in the world, even though criminal defamation clauses are maintained in criminal laws, basically never use them, even when trying criminal defamation cases, the final outcome generally is a fine of an apology, as in a civil suit. Suing other people’s destruction of rights to reputation through the “General Principles of the Civil Code” is an act of civilization, and in the recent years, “criminal punishment because of speech” cases emerge one after another, in many localities, the public power employs the Criminal Law to suppress all kinds of speech, or engages in “detention because of speech” – punishing those who speak with administrative detention under Articles 25 and 42 of the “Public Order Management Punishment Law”. Now, there is a saying that: people who dare to speak are all in Beijing.
My viewpoint is: since reform and opening up, our free speech has seen rapid progress, but it is unstable, undetermined and insecure, we must implement and consolidate the liberties that the Constitution endows us with, through the Constitution and news legislation, and especially negative liberties. In comparison with the positive liberties provided in Article 41 of the Constitution, negative liberties are even more fundamental. Negative liberties do not sound so beautiful, but in fact this sort of protective liberty is much more important than positive liberty.
Guaranteeing Human Rights is a Conceptual Issue as Well as a Practical Issue
(Beijing Moshaoping Law Firm, Lawyer)
I am a lawyer, I have done a few cases in the area of human rights, and have systematically researched and studied rules in the area of human rights and the provisions of international treaties through cases. One of my viewpoints is a general theory: most fundamental in guaranteeing human rights is practicing constitutionalism.
Although the two words “human rights” were written into the Constitution in 2004, up to now, in the minds of many officials, this still is a taboo. In 2010, I did the “three netizens’ defamation case” in Fuzhou, the public security office considered the “Universal Declaration of Human Rights” brought by citizens as a proof of crime and confiscated it. The “Universal Declaration of Human Rights” clearly provides that all countries’ governments have a duty conduct propaganda it in schools and society, in order to display the human rights declaration. In fact, the Chinese Communist Party’s history and practice of advocating human rights started early, including the “Shaan-Gan-Ning Border Area Human Rights Regulations”, in which the Communist Party formulated human rights protection law in the beginning of the Forties. Furthermore, when the “UN Charter” was drafted and passed, Dong Biwu was the representative signatory for the Chinese government. The “UN Charter” contains special human rights provisions, the Chinese Communist Party participated in their drafting. Now, some people have thoughts like these – “human rights” are completely a Western concept. This is mistaken. Human rights are not completely a Western concept, Chinese people participated in the drafting of the “Universal Declaration of Human Rights”, and the thoughts of Chinese people contained therein have been implemented. At that time, Zhang Boling’s younger brother, Zhang Pengchun had a great role as vice-chair of the drafting committee of the “Universal Declaration of Human Rights”, and reflected Chinese cultural and value concepts. The two words “human rights” are not only Western, but are universal and include Chinese value views.
I believe that the concept of human rights’ not having been spread is connected to our not having completely brought order out of chaos, three decades ago, bringing order out of chaos mainly meant resolving the problems of restoring rights of a number of people who had been overthrown, but the problems of governance concepts and human rights concepts have not been solved. During the cultural revolution, the destruction of human rights in fact was a segregation of classes, the working class and the peasant class conducted class segregation through residence registration as well, poor and lower-middle peasants were separated from landlords, rich peasants, counterrevolutionaries, bad elements and rightists through demarcating class status. This was even more backward than the caste system and ethnic segregation, because the caste system and ethnic segregation were formed through history, nothing could be done about it, and they have now been corrected, but class segregation was a system in which people destroyed human rights. Now, following economic development, the residence registration system is increasingly watered down, the system for registration of sons and daughters ahs also been reformed and somewhat improved, but segregation has not been completely eliminated.
Our country signed the “International Convention on Civil and Political Rights”, already fifteen years ago. After the Convention was signed, this was not propagated within the country, if one wasn’t a specialist, one wouldn’t know. On the basis of the provisions of the international treaties and the principles of international law, when a country signs a treaty, even if it isn’t ratified, it must prepare ratification, domestic governance concepts and governance polities must approach the spirit of the principles of the treaty, and thereby prepare for ratification. What have we prepared from year one to year fifteen? This relates to the issue of the country’s international sincerity. It has already acceded to treaties concerning economic and social rights, and ratified them, how are they implemented now? If we do not implement these treaties, our international prestige cannot improve. I hope that everyone promotes the ratification and implementation of human rights treaties, because human rights practice is the fundamental and most rudimentary constitutional practice.
Concerning the issue of the effect of international treaties that our country has already ratified and acceded to, for example the “Anti-Torture Convention”, some scholars advocate that treaties cannot be directly cited or implemented domestically, and that they must be implemented through the formulation of domestic law, I believe this viewpoint is mistaken. First and foremost, our country’s law has made no provisions in this regard; second, after our country approved international treaties, it id not immediately formulate corresponding domestic laws, this illustrates that the treaty is able to be directly cited. Otherwise, if we persist in the abovementioned viewpoint, we neither permit them to be cited, nor are corresponding regulations formulated, which traps our country’s government in injustice, the ratification of international treaties isn’t’ child’s play, pacta sunt servanda, otherwise a joke is made of the prestige of the country.
What Implementing the Constitution Means
(Peking University, Professor of Constitutional Law)
In the end, must the Constitution be implemented or not? What does implementing the Constitution mean in the end? What can the Constitution do for common people? Our implementation of the Constitution naturally does not mean implementing the US Constitution or the constitution of any other foreign country, but it means implementing China’s own Constitution, this is the Constitution that the governing party took the initiative to formulate in 1982, how can this be opposed?
Chapter II of the 1982 Constitution provides for citizens’ rights, Chapter III provides the State structure, although these are not without blemishes, generally speaking they are good, it is just that matters are not done in this way in practice. Article 34 of the Constitution provides for democratic elections, Article 35 provides for the freedom of speech, Article 36 provides for the freedom of religious belief, afterwards, the People’s Congress structures, administrative structures, judicial independence, etc., are provided afterwards as part of the State structure. This is the 1982 Constitution. Afterwards, it has been revised four times, it should be said that it became better with every revision, modern fundamental constitutional principles, governing the country according to the law, a rule of law country, human rights guarantees, private property protection were all brought into it.
In brief terms, the 1982 Constitution has three aspects, these should be considered as common knowledge now: democracy, the rule of law and human rights. A first is democracy, which is concretely reflected in People’s Congress elections, and include the rules of debate and procedures of People’s Congresses, supervision over the administration, officials’ asset openness, etc. Can these topics be discussed? At present, they clearly can. Second is the rule of law. The 1999 revision draft of the Constitution clearly provided that the rule of law includes judicial independence and independent trials. Third is human rights guarantees, including all sorts of rights – personal rights, property rights, free speech and political rights are all a sort of human rights guarantee. All that is clearly provided in the Constitution may be discussed. The Constitution is the summary of this content. If we are clear about this point, the absolute majority of the common people and even officials can accept this. We can do a bit more propaganda, and tell them that the Constitution is not only good for the common people, but for officials as well, the Constitution also guarantees their personal rights, lawful property rights and freedom of speech. Now, during “shuanggui” periods, it regularly occurs that confessions are extracted by torture, or people are hanged, jump from buildings, or are suicided… Their fundamental rights are not protected either. Professor Zhang Weiying said it extremely well: “Chinese officials have privileges, but no human rights”.
What is constitutionalism? Constitutionalism is implementing those provisions of the Constitution and using them to restrain the power of government. There is an illogical viewpoint that sharply separates constitutionalism from the Constitution: on the one hand, it is said that constitutionalism is a Western model that does not conform to China’s “national conditions”; on the other hand, they do not openly dare to oppose the current Constitution. This sort of viewpoint is utterly absurd, because constitutionalism is nothing but the implementation of the Constitution, anticonstitutionalism necessarily means opposing the Constitution. At least it is a denial of the legal effect of the Constitution, which wants to reduce the Constitution to a political slogan that does not need to be implemented, or an empty text that fails to keep promises. The essence of this sort of viewpoint is constitutional nihilism. The words between the lines are that in Chinese reality, there is no constitution whatsoever, and the power of the State is not subject to any legal restraint. This sort of viewpoint is clearly mistaken and harmful.
It is the same as the rule of law, which means ruling the country according to the law, constitutionalism means governing the country according to the law, and engaging in politics according to the Constitution. In fact, constitutionalism is one of the meanings of rule of law, because the “law” in rule of law clearly also includes the Constitution, and governing the country according to the Constitution, using the Constitution to standardize the exercise of political power is a model meaning of constitutionalism. On the basis of the meaning in the US dictionary, constitutionalism is “the political structure in which the power of government is given to rulers who must submit to the allocations and restraints placed upon them by the legal system”. In view of this, constitutionalism is nothing but a sort of attitude in which a constitution is implemented and effectively restrains political power. At the conference to commemorate the 30th anniversary of the promulgation of the 1982 Constitution, General Secretary Xi Jinping stressed that “the life of the Constitution lies in its implementation, the authority of the Constitution also lies in its implementation”, this is the strongest voice calling for constitutionalism up to now.
Looking at the 1982 Constitution from a Historical Angle
(Beijing University of Aerospace and Aeronautics, Professor)
In the past few years, I researched history, and I’d like to look from a historical angle at why the 1982 Constitution is extremely important in these times of ours, and why implementing the Constitution is the most important political topic of these times of ours. I will talk about two parts:, first, a historical look at the historic meaning of the 1982 Constitution, or how to place the 1982 Constitution.
The CCP has held political power for more than sixty years, these can be divided into three stages, symbolized by three Constitutions: the first stage is the 1949 “Common Programme”, the second stage is the stage of the 1954 Constitution, the third stage is the stage of the 1982 Constitution. These three Constitutions share continuities in many aspects, because they all put the Communist Party in a dominant and absolute position, regardless of whatever change. But if we analyse the content of the Constitutions as well as the political structures they involve, we can discover that there are great differences between the three constitutional structures, I think this is a vision for us to understand sixty years of politics.
What is the significance of the 1982 Constitution, actually? I’d like to talk a bit more deeply on this issue. In more than two millennia of Chinese politics in the past, every dynasty would undergo extremely important shifts, the first shift occurred during the Western Han, there was a dialogue between Lu Jia and Han Gaozu: all under heaven can be conquered on horseback, but it cannot be governed on horseback. This should be the most important proposition concerning political change in Chinese history, that is to say that no dynasty could avoid such a shift, in our current vocabulary, this is the shift from a “revolutionary party” to a “governing party”. The revolutionary party conquers all under heaven, it rides a horse and uses military power to seize political power through violence; a governing party dismounts from the horse to govern all under heaven. This puts forward the basic law of cyclical change in human politics. If we look at the 1982 Constitution with this model, the 1982 Constitution is a basic declaration of “dismounting a horse to govern all under heaven”. The characteristic of the Mao Zedong Era was that all under heaven was governed with an attitude of conquering all under heaven while having occupied all under heaven, or governing the country with the mentality of a revolutionary party. Therefore, the most important slogan in the Fifties, Sixties and Seventies was “continuous revolution”, this was something rarely seen in human history, when political power is seized, it is necessary to seriously rule all under heaven, use peaceful methods and the law to govern all under heaven. But Mao was different, Mao’s idea was that the moment of seizing political power was the beginning of continuous revolution, the previous revolution was only a small-scale revolution, now he ruled the country, and could conduct broad and profound revolution nationwide, from political revolution to social revolution and cultural revolution, to a revolution of the depths of hearts, everyone was destroyed turn by turn, this was an extremely rarely seen method in human history. Facts prove that this road was impassable and caused the people nationwide being unable to endure, only then were there the reforms of Deng Xiaoping, and did the 1982 Constitution come. The most important function of the 1982 Constitution is that it declared the end of “continuous revolution”.
Therefore, when we take the 1982 Constitution, the 1954 Constitution and the “Common Programme”, and we compare them, the most important change is that revolution was abandoned. The first sentence of the previous constitutions was a narration of the revolution, which was that the Communist Party led the people in extraordinarily arduous revolution. The first sentence of the 1982 is not this, but it is “China is one of the oldest countries in global history. The Chinese people of all ethnicities have jointly created a brilliant culture, which has glorious revolutionary traditions”. Before that, there was revolution, and political power was seized through revolution. Now there is the fact that this country is older than me, when there was no revolution, this country already existed, now, we only continue to rule this country, this is a huge transformation in ruling attitude, therefore, when placing the 1982 Constitution in the process of the Communist Party’s political change, its significance is extremely huge, its significance is that the Communist Party was determined to change from a revolutionary party into a governing party, this is the historical significance of the 1982 Constitution.
Second, the political values of the 1982 Constitution. A Constitution surely has its political values, it sets up structures on the basis of political values, it standardizes acts related to politics, including using values to mould a society. The US Constitution has its own intrinsic set of values, the Qing “Constitutional Outline” had its own set of values, the Chinese Republican Constitution had its own values, similarly, the “Common Programme” and the 1954 Constitutions had their unique political values. What are then the values of the 1982 Constitution? One simple way I would describe them is – a programme for political transformation, simply speaking, it is a transitional Constitution, it is a Constitution for transformation.
If we want to make clear the political values of the 1982 Constitution, we must first and foremost clarify the political intent for the original constitution-making, at that time, the objective of formulating this Constitution was to do what? What did the original drafters of the Constitution think? On the basis of documents, what was discussed most was an avoidance of a recurrence of the Cultural Revolution. In fact, the implication was to avoid the continued occurrence of the sort of situation and circumstance of continuous revolution as in the Fifties and Sixties, this was the most important political value orientation of the 1982 Constitution. If we use this standard to measure matters, the resurgence of many methods from the Mao Zedong era is unconstitutional, it violates the purpose of the 1982 Constitution. That purpose due to the fact that everyone had undergone the chaos and disaster of the Cultural Revolution, so there was a consensus, which was the psychological basis for why the 1982 Constitution was passed so smoothly at first: no-one wanted the sort of madness of the Fifties’ class struggle and the Cultural revolution to occur again. Therefore, defending the 1982 Constitution means opposing the recurrence of class struggle, and opposing the recurrence of Cultural Revolution-style language, methods and attitudes, this is something that we can determined as a fundamental political value of the 1982 Constitution through the purpose of formulating the Constitution.
Through the past three decades of revisions of the Constitution, its political values may be determined as well. The Constitution has undergone four revisions, we have carefully analysed the provisions of these four revisions, and it can be clearly seen that there is a clear political value, this political value is consistent with the purpose for the Constitution discussed just now, all revisions have revolved around one objective: avoiding the recurrence of earlier continuous revolution, and installing of a modern fundamental Constitution, with for example the rule of law and democracy, where especially large changes have occurred is concerning the protection of private property. The original constitutions, look at the “Common Programme” and the 1954 Constitution, in comparison with the texts and structures of constitutions of other countries around the world, the largest difference was that they contained a set of articles concerning the economic structure which demanded the establishment of a public ownership system. Repeated revisions over the past thirty years have seen the greatest extent of changes in this area, thus principles to protect private property have been progressively established. This is also true in other areas, such as the progressive changes concerning the formulation of the rule of law, concerning the power of the People’s Congress and judicial independence, etc., changes in all these articles have a consistent and clear orientation – protecting human rights and enhancing democracy. This is the determined direction.
Through these two points, its political values can be determined, defending the 1982 Constitution means defending the consensus of the Chinese people at the time the Constitution was formulated in 1982. When we discuss whether or not there is a consensus for reform, we may perhaps also talk about another term: “the 198 Constitution Consensus”. This consensus concentrated the fundamental consensus of the Chinese people of that time, this was confirmed in a constitutional form, and this consensus has undergone three decades, undergone constitutional revisions and policy adjustments, in standardizing and guiding China’s politics and the development of Chinese society, the past three decades have marched under the framework of the Constitution, at present, we should continue to march in this direction, continue to march ahead under the spirit and guidance of the 1982 Constitution, which is to say that the transformation of China can completely march ahead along the direction delimited in the 1982 Constitution.
(These texts were redacted by Hong Zhenkuai)
(Responsible editor: Hong Zhenkuai)