Deng Junjie

Xiamen UniversityThe undergraduates in grade 2011, FujianXiamen361000.  

 

Abstract: the constitution is the fundamental law of a country, the degree of perfection of the Constitution and the constitutional state is a measure of the degree of maturity of the important index. In this paper, the constitutional ideas, comparison of China and the United States Constitution in protecting human rights practicability and maneuverability, to find the defects of our country, in order to promote the development and reform China constitutionalism.

Key word: China and the United States Constitution; human rights; constitutionalism; comparative study

   

    American constitution is the first written constitution in the world, has laid a legal foundation American political system, has become the fundamental law of the America. Since the 1787 convention in Philadelphia, the core idea American constitution (for example: the separation of the three powers) in two hundred years, basically unchanged, and continuous improvement in the maintenance of human rights, particularly in December 15, 1791 approved the first and tenth amendments to the constitution, namely the "bill of rights" plays an important in American constitutional history position.

And Chinese since 1949 after the founding of the PRC, in a short period of more than sixty years, but there have been four is a big difference in constitution. China current constitution was adopted by the fifth session of the National People's Congress in 1982, and later after the four revision of the fourth constitution. Chinese constitutional compared with the West started late, so Chinese constitution has the "advantage of backwardness", in the text of the Constitution contains information about the human rights clause. However, there is still a big gap between the reality and the text, China current constitution in protecting human rights was the lack of effectiveness.

In this paper, the constitutional ideas, comparison of China and the United States Constitution in protecting human rights practicability and maneuverability, to find the defects of our country, in order to promote the development and reform China constitutionalism.

 

A comparison between China and America, the principle of Constitutionalism

Scholar Liang Zhiping said: "our government is difficult, still on this idea and system are from the western regions rather than its native born, constitutional so China concept originated from communication, Chinese of constitutionalism." Indeed, China constitutional began in the early twentieth Century, the China, "constitutional" is full of exotic. In 1908 the Qing government promulgated the "constitution" to the Japanese imperial "imperial constitution outline", it is the first Chinese historical constitutional document, is China learning a starting point of the western constitutional government.

Today, "long constitutional idea restriction of state power, safeguarding the rights of citizens" widely spread in the west, win support among the people, become everyone follow, defend social axioms of everyone. America constitution has become a trump card in the final America citizens to protect their legitimate rights and interests, become American federal constitutional line management of state affairs. But Chinese although a form of constitution, but it is difficult to call a constitutional state. In the final analysis, is the lack of constitutional concepts.

The core value of the constitution is the constitutional concept, but in a feudal monarchy two thousand years of China this idea has been weakening. "Focus and American constitution stresses limiting state power to protect the rights of the individual features, for a long time, our understanding of the constitution of the former Soviet Union legal theory, constitution is the law, stay in the political constitution law, the constitution is the General Charter is the civil rights declaration book level, emphasis is the class attribute and. This concept makes we exaggerate emphasizing political, but the constitution as a political document, politics, political declaration seriously, laws weaken the constitution."

China advocates the "rule of law" is not carried out well in practice, only to become "governs the people in accordance with the law," and "administering officials", "ruling" rarely heard. This phenomenon is particularly evident in the constitution. Our constitution is not good to limit the parties, the role of government, political party, but became a maintenance tool of political domination, the final "because of political pragmatism and constitutional instrumentalism and lead to cease to exist except in name and nominal constitution". Even, constitutional officially considered capitalist and anti china forces to China's "peaceful evolution" schemes and intrigues in very long period of time.

Scholar Zhang Derui said: "for a long time, our constitution is a summary of earlier work and after the implementation of policy. Our party change almost every fundamental policy, will cause the constitution. The task seems to be the party's program and policy of fixed in the form of law."

If a party, politics of a country above the Constitution Constitution, with the abolition of the "sway", will inevitably lead to the constitution loses authority, become weak, and the birth of the purpose. In addition, frequent constitutional amendment would undermine the sanctity of the constitution, much political education is forced into the constitution, the constitution is bloated and secular. Once the conflict with conservative ideas the original social progress and the constitution, the country will face a dilemma.

Therefore, Chinese need to measure the value of democracy constitutional government, citizen education to strengthen the constitutional idea, re establishing the essence of constitution "to limit state power, safeguarding the rights of citizens", really make the constitution become the supreme law of the state.

 

Comparison of two Chinese and American constitutional practicality, on the guarantee of human rights

In real life, the conflict event of public power and private right, in the face of the huge state machine, ordinary people in the maintenance of their own legitimate rights and interests are often weak, the protection of human rights to the letter. But the constitution was born, is to limit the expansion of national legislative, administrative, judicial power, the state power and the rights of citizens to keep dynamic balance. The rights of citizens, the most immediate threat is from the administrative power, the most insidious threat from the legislative power.

American scholar Ellen said: "because the country has a large number of investigation and prosecution of resources, and because state control to intervene directly in civic life and the accused, arrested and imprisoned impeding civic life and make a living force, so must provide the rights to citizens and to prevent arbitrary government or oppressive to use." Therefore, we have always advocated a "constitutional government" is to establish a limited power, power controlled by constitutional government.

Although the constitution had stipulated the rights of its citizens, but Chinese citizens are not perfectly entitled to these rights, many human rights are the actual overhead in Chinese. If the constitution is just a mere scrap of paper, the protection of human rights will be placed in jeopardy. The guarantee of human rights involves many aspects, I only through academic and freedom of assembly, parade, demonstration for freedom two perspective on American constitutional utility in the protection of human rights. On freedom of Association (Dang Jin), the freedom of the press (newspaper prohibition) in another article on "my Chinese democracy".

 

(a) academic freedom

American First Amendment states: "Congress shall make no law about the following matters:...... Deprivation of freedom of speech or of the press." Chinese constitution stipulates that the forty-seventh: "citizens of the people's Republic of scientific research, literary and artistic creation and other cultural activities." Academic freedom is a branch of the freedom of speech, the intellectuals in the scientific research and higher education, the freedom of independent inviolable freedom.

American scholar Dworkin said: "the liberal public education, freedom of expression, conscience, religious and academic freedom is all our social support for independent culture and the Cultural Boycott of part." And "educational institutions that can easily become subject to the engine of culture, so it is in every totalitarian regimes."

Generally speaking, the academic mainly by the University, University professor is entitled to an important group of academic freedom. They should act in their pursuit of truth and faith, to the students transfer what they believe is the right information and important knowledge, but should not because the dismissal of panic, in preaching, imparting knowledge, doubts the truth carefully conceal mentioning. Academically, discriminant criterion of truth should be the conscience of intellectuals, rather than academic authority or the party, government authority. A university professor to students to express what they believe is the truth of freedom, students also have to keep a negative opinion of freedom. I prefer between professors and students can have the truth about the debate benign, in the interaction between teaching and learning, teaching and students will be inspired, so as to promote the development of the truth. Justice as USA former Supreme Court Holmes said: "the best test of truth is the power of truth is accepted in the market competition." Of course, this can not be an excuse to avoid learning of students, also cannot become a professor of communication against universal values (for example: racial discrimination, gender discrimination) information for.

University education should be free, open, once the university education was held by the party, administration, administrative provisions for what should be taught, how to teach, university education will lose completely independent character, a political vassal. In addition to teaching content over violation of academic freedom, and bureaucratic politics together "and" academic ", grade academic" is a violation of academic freedom in the other two behind, this is not a repeat.

American was not originally included in the constitution to protect academic freedom, academic freedom is excluded from protection in the framework of the freedom of speech. From 1952 Adler case, "academic freedom" appeared for the first time in USA the decision of the Supreme Court, to 1967 Kate Zion v. Board case, academic freedom as American First Amendment to the constitution of special concern status has been fully affirmed the majority opinion, which has the effect of the precedent. Now, USA constitution has become the powerful weapon of American University Professor maintaining academic freedom, truly in the protection of freedom of expression plays an important role. In Chinese, China constitution in this respect nothing.

   

(two) assembly, parade, demonstration for freedom

American First Amendment states: "Congress shall make no law about the following matters:...... The right of the people peaceably to assemble, and to petition the government for a redress of rights." Chinese constitution stipulates that the thirty-fifth: "citizens of the people's Republic of China, published speech, assembly, association, parade, demonstration of freedom."

Assembly, parade, demonstration is the citizen in public places by aggregation, parade, meditation, express the common aspirations, to the rights of the individual against the state power. Because of this protest is in a public place, easy to cause the social order and public security. So the protest action should be registered in accordance with the law, and according to the law. But this register should be programmed, just to make the government understand the rally, parade, demonstration scale and line, in order to send the police to maintain order. Registration shall not be approved substantial, general government made no prohibition decision power. In 1989 the NPC Standing Committee passed the "the people's Republic of China demonstration method" and "1992 approved by the State Council of the people's Republic of China Demonstration Law Implementing Regulations", the mainly restricted approval and assembly, parade, demonstration, led to more criticism, part of the terms and even unconstitutional.

"Demonstration law" Twelfth stipulates: "for the rally, parade, demonstration, one of the following circumstances, no license:...... Based on sufficient cognizance application held assembly, parade, demonstration will directly endanger public safety or serious damage to social order." This reveals the provision does not describe how to determine the severity of damage to social order, as long as the rally, parade, demonstration reached a certain scale, the social order (including traffic order) to produce certain effect. In the "stability" of the official ideology, this provision is likely in practice to become "pocket" clause, if the government not want rally, parade, demonstration, there may be stamped "seriously undermine social order" of the hat, but the application was rejected.

The law sixteenth stipulation: "the staff of state organs shall not organize or participate in violation of the provisions of the relevant laws, regulations and the state organ staff duties, obligations, parade, demonstration rally." This clause in fact deprived of civil servants, parade, demonstration meeting right, civil servant is the first citizen, should enjoy the relevant human rights of citizens, the rules of the common law and administrative regulations shall not conflict with the constitution law --.

In 2007 the Xiamen PX (highly toxic chemicals xylene) chemical project has aroused widespread concern in society. Year in June 1st (Friday), the Xiamen outbreak of anti PX parade by twos and threes, the citizens of Shangjie, hand tie a yellow ribbon round, began later officially as a collective "walk" demonstrations. But it is worth noting that, in this rally, some government agencies and enterprises banned staff to attend anti PX parade, otherwise it will be fined because wages, even dismissal.

It is understood, if the day is the day parade, the unit has the right to constraint staff arrive there on time to work, if the employee requests to leave in the parade, the unit should be treated as ordinary leave, in does not affect the overall operation unit, be granted leave of absence. If the day is a day of rest, so the unit has no right to interfere with staff constitutionally protected liberty.

Anti PX "walk" in a calm atmosphere, whether citizens or the police, are not aggressive behavior. In Xiamen City Hall held an emergency press conference, PX project has been fully shutdown and re organization of regional planning environmental impact assessment, June 2nd (Saturday) afternoon, the crowd dispersed. In December of that year, Xiamen City Hall compromises agreed on the PX project, moved to Zhangzhou, Xiamen to defend the Bi Hai blue sky action on winning the.

The people of Xiamen this time "walk" behavior reflects the rise of the middle class as the main body to the citizen stratum, marking a new milepost Chinese citizen consciousness, influential newspaper "Southern Weekend" and even the people of Xiamen as a "2007 man of the year".

In addition, "demonstration" Regulations for the implementation of the law in all five chapters thirty-three, is the main provisions of assembly, parade, demonstration for the responsible person's responsibility, duty and the unit in charge of the examination and approval, management, punishment power, avoidance of citizens marched, rallies, demonstrations and free guarantee.

China scholar Zhang Xiang said: "the right limit must be greater than the right more clearly, otherwise it will only limit, and no rights." "As much as possible, avoiding the use of 'social', 'national security', 'public security' uncertain concept, and should specific situation as far as possible list of these concepts, elements should also be illegal as far as possible the clear violations of these specific public interests."

The author thinks that the rally, parade, demonstration and management should be shifted from the prior restraint punishment. America constitutional scholar Bickel pointed out: "punishment of nature's laws just cooling speech, prior restraint is freezing speech." The reason why people don't like to apply for the rally, parade, demonstration through the legal way, because China constitution to protect the rights of these is not enough, the people had no confidence in the government, that the authorities will not easily by the application, or even possible to suppress the persecution of a person in charge of the situation. The government should bear the burden of proof in the approval of the protest, if the government can not come up with evidence enough that the protests will undermine public safety, has no authority to dismiss the protest application.

In American, USA constitution to the citizen rally, parade, demonstration for freedom guarantee strong. America people launched in September 17, 2011 called "the occupation of Wall Street (Occupy Wall Street)" peaceful demonstrations, it has become a mass social movement swept the nation. The campaign is intended to express on the financial system favors the nomenklatura discontent, denounced the trigger arch-criminal financial tsunami, against USA political power money trades, bipartisan politics and social injustice. People chose in September 17th, because it is "America constitution day".

 

(three) nodules

Was the choice of academic freedom and assembly, parade, demonstration for freedom as an example, I have some consideration.

On the one hand, academic freedom struggle process from scratch in America constitutional history, still contain extension in the freedom of speech, did not separate; and Chinese academic freedom in the constitution expressly provided, but in comparison, protective effect was more USA constitution better, visible presence on the practicability of the Constitution and the text of the constitution to protect the human rights or not or the expression does not have inevitable connection, the key lies in whether the constitution has the vitality.

On the other hand, assembly, parade, demonstration for freedom are clearly defined in the constitution, but the protective efficacy USA constitution still better, because the constitution status. In China, quite a number of similar "demonstration law" common law "and similar terms and the constitutional regulations" of the implementation of administrative regulations demonstration law conflict, can truly be court cited is the common law and the administrative rules and regulations, the Constitution in the judicial practice is actually overhead. In America, because America is a case law country, the Supreme Court has the validity of constitution, "states was according to the requirements of the Federal Supreme Court ruling USA calendar year of freedom of assembly case, to modify the relevant laws of their own, so that the set of state law will freedom consistent." With close ties to the visible the authority of the Constitution and constitutional protection of human rights of the legislative and administrative organs, if can through the common law and regulation in some distortions in the spirit of the constitution is not constrained, to replace the constitution, so the utility of constitutional nature limited.

 

Three, Chinese and American constitutional operation on the guarantee of human rights is

The utility of the Constitution can be seen as a static effect and dynamic effect of the constitution, the constitution is the constitutional operation. The constitution formulated or revised long after a period of time generally remain unchanged, without frequent to amend the constitution, vary from minute to minute social reality and the constitution closely follow the trend of the times, this time on the need for interpretation and application of the continuous.

At present, all the countries in the world to deal with the relationship between Parliament and the courts, there are mainly two kinds of patterns. American is typical of the "judicial review" mode, the court is entitled to exercise the legislative and administrative power is the legality and constitutionality review, even declared legal, regulations, decisions and orders against the high order method is invalid; Chinese is "parliamentary supremacy" pattern, representing the people's parliament (people's Congress) has decided the value of a nation's most important power, do not accept pre or post review, parliament should be self correcting.

Our constitution, the provisions of the second paragraph of the sixty-second National People's Congress the authority to supervise the enforcement of the Constitution: "". The first paragraph of article sixty-seventh, paragraph seventh and paragraph three of the eighth functions and powers of the Standing Committee of the National People's Congress: "to interpret the constitution, to supervise the implementation of the constitution," undo "formulated by the State Council with the constitution, in contravention of the laws of administrative regulations, decisions and orders", "cancel the province, autonomous region, or municipality directly under the central government the organ of state power set with the constitution, laws and administrative regulations conflict with local laws and".

However, today the NPC and its Standing Committee have basically no exercise the aforesaid authority. Because of the National People's Congress as the supreme authority, held only a regular meeting every year, each session is usually a short span of ten days, in the exercise of constitutional supervision, the exercise of fourteen other powers also, and thus tend to care for this and lose that. The National People's Congress Standing Committee as a permanent body the highest organ of power in China, in addition to the three functions mentioned above, but also the exercise of ordinary law legislation, approval of the national economic and social development plan, supervise the work of state organs and other eighteen functions, tasks which do not have time to interpret the constitution, the implementation of the constitutional review.

More importantly, the principle of natural justice "shall not make his case on the basis of any human judges", the NPC Standing Committee legislative power owned by general law, censoring ourselves through the law, it is unfair.

USA constitution drafter of the Hamilton pointed out: "the interpretation of the law is the proper and peculiar function of the court. But the constitution is in fact, should also be the judge as a fundamental. So the right to interpret any legal constitution and legislature should belong to the court."

However, the judicial system produced by non elected to judge the legislature elected by law has the problem of legitimacy. Can a few people's Supreme Court to represent the fundamental interests of the overwhelming majority of the people?

Chinese constitutional law professor Zhang Qianfan said: "the judicial review and democracy autocracy -- fulfill the same function if democracy is to control the tyranny of minority, so judicial review is to most people against democracy autocracy. In this sense, there is a certain contradiction between judicial review and democracy, but in essence is one of interdependence, mutual complement and mutual checks and balances of the symbiont."

Despite the legitimacy has powerful explanation of judicial review, but also the problem of rationality. Since the majority of Parliament could not do It's perfection itself., so why that the few Supreme Court are wise sage gentleman, will be able to make judicial fair? Moreover, in the balance of power mechanism is not sound Chinese, justice in the incomplete independence condition, once you have the right to judicial review on complete meaning, judicial review will likely become a power in the party, political point of growth.

So, there are some views of the author:

First of all, the right of interpretation of the Constitution and the power of judicial review should be returned to the Supreme People's court, to perfect our country's constitutional interpretation, constitutional litigation system establishment, make the system become a secular constitution. The constitution only in the continuous interpretation of the constitution, in order to get rich and perfect. The Constitution also should be able to be directly quoted in the trial, the qualitative case. According to statistics: "since America since 1803 by 'judge Marshall Marbury v. Madison' established the Federal Supreme Court the power of judicial review, Supreme Court has heard more than 4000 pieces and the interpretation of the constitution related cases, 1789 - 1987 years of federal and state and local was declared unconstitutional a total." Only by continuously through the case as the constitution of the footnote, the constitution has the actual trial values, only has the judicial deterrence.

Secondly, the court has no power to declare laws unconstitutional or directly because of illegal and invalid and revoked, and do "inconsistent announcement", through the pressure of public opinion, urged parliament to modify or repeal laws. But in order to make the miscarriages of justice as far as possible to get a fair treatment, before the court in a parliamentary official reply or legal amendments passed, can not apply the relevant legal provisions. Parliament has the right to deny the courts, but the court in parliament after the general election on the same legal to judicial review. Public opinion will also oversee the court did not abuse (I tentatively named) suspension of legal rights, make inspection and repair method does not fall into the "vicious circle", destroyed the normal legal order. In the administrative law, the court is not subject to the above constraints, can be declared as unconstitutional or illegal and invalid and revoked.

Third, the two should be based on the independence of the judiciary and parliamentary democracy. The only independent without interference from the party, government, to dare to dare to "on", give full play to its correction action. Parliament should be the implementation of universal suffrage and members of full-time, extend the period and increase the number of meetings, the only way to make the Council truly representative of the people, become a democracy.

 

Four, summary

Chinese scholar Bao Wanchao said: "the investigation from the perspective of comparative law, Chinese in constitutional objective and content, abandon the system of human rights protection and the Western limited government design, but the constitution into the overall national policy, national ideology, emphasizes the fundamental task and goal of civil rights obligations for the positive realization function the ideal society. In the future, that accelerates the China constitutional status of marginalization and constitutional integrity."

Compared with the China constitution, constitutional idea USA constitution is truly reflects the "restriction of state power, safeguarding the rights of citizens", both practical and operable in the protection of human rights, a constitutional model of the world. Chinese constitutional government is currently in the initial stage, although there are still many deficiencies in Chinese constitutional guarantee of human rights, but in recent years China in terms of human rights or something.

In March 14, 2004, the highest organ of state power China again through the constitutional amendment, the concept of "human rights" into the constitution, "the state respects and safeguards human rights and constitutional rights such as" content has the spirit of constitutionalism in the China constitution.

In 2012, known as the "criminal procedure law, constitutional amendment" by the NPC and CPPCC, of which seventy-third bands, eighty-third of residential surveillance and detention clause in the modified before it has become the focus of the society, which embodies the constitutional concept of citizen promotion. From a draft of the final draft, in the opinion of the attention, the amendment has many progress, China is gradually increasing in the field of human rights, constitutional protection.

China should not to move or retreat towards the direction of the development of constitutional democracy and the rule of law, must not to move or retreat to the forces of evil and human rights struggle. Chinese should face the grey record on human rights in the past, profound lessons, so as not to recommit the same error. We have reason to believe that China will get better and better in the protection of human rights, China citizens will live more and more dignified!

 

May 29, 2012

[this article only academic exchanges, no contradictions between ourselves and the enemy, welcome criticism]

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