From the54Constitutional change history China Constitutional Future

                                                        2011 - to National Day Tribute

 

2011 National Day is approaching, in this special holiday, could not help but think of the Communist Party in the establishment of the regime's first constitution, namely the 54 constitution. Historical process development has been that the 54 constitution of ill fortune, the text of the constitution being still, but the supremacy of constitution aura has been quietly recede. The 54 constitution was a political movement overhead, then simply declared invalid, re enacted the 75 constitution, the 78 constitution and the 82 constitution. The 54 constitution of the short-lived, from a historical point of view seems to have become the past, do not have to Chinese. But from the constitutional perspective, from the perspective of the nature of the constitution of ---54 constitution but real play control power expanded role! Otherwise by authority can not abolish established in constitution, China at the time of the situation, there is no coup, and no political change, no invasive case, why the abrogated 54 constitution? The only explanation is only the 54 constitution play a certain restriction on power! It inhibited the great leap forward, the people's commune, the cultural revolution movement play to the "no legal basis" strength with! With its own completely abandoned, prove without constitutional restriction must cause a huge disaster! This sort of tragedy, with its "death" to manifest its value -- on the expansion of power is not recognized; it's "death" that the 54 Constitution itself is a "good constitution!"

 

60 years after the founding of seems to be back to the starting point, where to Chinese go? This problem is still placed in the Chinese people, in 1999 2004, the National People's Congress solemnly adopted amendments to the constitution, "building a country under the rule of law" and "respect and ensure human rights" into the constitution. "The rule of law and human rights" of the two major themes in the constitution, laid the foundation for the realization of constitutionalism, but from the realization of constitutional government, there is still a problem where to go? Copy the western society, is our party does not agree, and also has a greater risk of change and huge social cost. In accordance with the existing model, widely criticized, system exposed more and more make people disgusted with politics, seriously affecting the ruling foundation of the party. "Don't change no way out" this is the consensus of society a person with breadth of vision.

 

How to change? How to put forward the reform plan can reach a consensus in the community? Should be a constructive problem, and to solve this problem, it is necessary to review the course that we had gone all the way, from a constitutional change, to tease out the successful experience, also reflect the shortcomings,Taking history as a mirror, can know the advantages and disadvantages; the constitution as the mirror, and can know the rise and fall of the country and the people!

 

Abuse, abolishing the 54 constitution brought

 

The abolition of the 54 constitution, constitutional construction process of China is go astray, the constitutional government (Law) huge destruction of at least the following aspects:

 

(1) changed the relationship between power and constitution

In accordance with the rule of right view, since the method! The source of all power is the constitution. The constitutional power to exercise properly, can't give up nor beyond, such power under the constitution of the control, in order to prevent excessive expansion of power that infringement as the parent right itself. This is a common feature of world constitutionalism, which has the functions of safeguarding human rights! But when Chinese development before and after 1975, power has gone far beyond the boundary of the constitution, the constitution should be constrained power back to 54, but the fact is that the so-called "social constitution, the people's commune" "Da Ming, large discharge, large posters debate," "Cancel" President "Chinese the chairman of the Central Committee of the Communist Party in the armed forces" and other serious does not comply with the legal provisions in the constitution. The constitution became potentate wedding, from then on, the Constitution can breach, breach revised again, until the 90's is still "benign unconstitutionality". When the constitution is no longer constrained power, as those in power in the hands of dough, can easily create, constitutional protection of human rights, maintain social stability function all gone. This caused all the serious consequences, it is the 54 constitution. The 54 constitution abolished after the China, becomes the constitution from the authorities, but the authorities from the party, the party beyond the Constitution and become the power center.

 

(2) the power to become a runaway horse

Power as the Mustang, needs the constitution as the reins, people's hands only manipulate the reins, to remind the industry and made to work. If you lose the reins horse running free, the final result that fall into the cliffs! The Western civilization, is the root of the reins to guarantee constitutional government serving the people. While the 54 constitution China once was abolished, the official can be an easy job to be processed is suitable for their own needs of the constitution, it is like a wild horse broke free, can run. The results are known, the great leap forward, the people's commune, the cultural revolution and so some columns beyond the 54 constitution authorized outside the official as caused a huge disaster! Loss of property from the scale of time calculation, and as long as ten years, starved masses of up to tens of millions, persecuted to death of a person with breadth of vision to statistics...... , even today, corruption is rampant, the loss of state-owned assets, increasing the burden of the masses, barbaric demolition of sorrow, public welfare undertakings of the waste, regardless of Party and government problem of migrant workers, discrimination, all without exception and power without restriction is directly linked to the constitution.

 

(3) the preamble to the Constitution and political slogans confused

Review China each constitution and amendment are related to the modification, lists the key terms in the constitution. The 75 constitution preamble: "class struggle". 78 years of constitutional language: "the realization of the four modernizations". The constitution amendment in 1993: "the theory of building socialism with China characteristics". The constitution amendment in 1999: Deng Xiaoping theory. The constitution amendment in 2004: "the important thought of Three Represents" into the constitution. The change is intended to prove the right of the theory of ruling legitimacy, further oath of authority, but put it within the framework of the law but is inappropriate. Specification of power, rights and obligations to the legal, universal applicability and normative characteristics, the political slogan (Theory) is also included, seem neither fish nor fowl, but also bring the conflict between the preamble and clause, the clause of the Constitution stipulates the rights and obligations of citizens and the state power, but the preface makes almost all power you can find the legitimate basis in which, while also quietly expanded the obligations of citizenship, and expand the party's power, in the 54 constitution Preface: the Chinese people in the great struggle of the people's Republic of China has been formed to China Communist led the Democratic class, democratic parties, people's organizations of extensive people's Democratic United front. 82 the preamble to the constitution:China people will continue in the China under the leadership of the Communist Party, in the guidance of Marx Lenin doctrine, Mao Zedong thought, Deng Xiaoping Theory and the important thought of "Three Represents", adhere to the people's democratic dictatorship, adhere to the socialist road. Comparison of the 54 constitution only visible in the Party leadership of the United Front, the United Front is not a state agency, the leadership of the party belongs to the indirect leadership. While the 82 Constitution Party leadership is the object of all the people, the party's leadership development is direct leadership, eventually regardless of Party and government. In addition, the political slogan and the confused practice, further the constitutional amendment simple, stylized, law; at the same time, political theory and the law be confused, further made the constitution validity flexibility. And in the social and diversified era will still political slogans in the constitution of the consequences, is to reduce social identity to bring constitution.

 

(4) completely on "rule by man" road, away from the "rule of law" track

The first "legal rule of law officer", followed by "an min". As the general rules governing officials once can be the authorities abolished, it means that the authorities may not be restricted by. Power is not restricted, the power is above the law, power can be arbitrarily change the law, which is the typical characteristic of rule by man. Once the "establishment of the rule of man", it will be difficult to guarantee human rights by, when you follow the power by the power protection, but once you away from power, great harm will be subject to power. In 1959 was elected president, Liu Shaoji, in just 7 years later, in 1966 after the start of the cultural revolution, had to pick up the constitution as defending shield their personal freedom! Liu Shaoji took out the "constitution" serious protest and said: "I was chairman of the people's Republic of China, how do you treat me this be of no great importance, but I want to defend the dignity of the president. Who dismissed my president? To judge by the people's Congress should also. You did it in an insult to our country. I personally is a citizen, why don't you let me talk? The Constitution guarantees every citizen's right of the person shall not be violated. The man is subject to legal sanctions." This is a historical scene, also a sad scene. But this also suggests that in Liu Shaoji's mind or at the time the constitution is still sacred, can be used to resist the power of unlawful infringement! But unfortunately, once allowed the 54 constitution was abolished in the 75 constitution, eliminates the president, in the "Da Ming, big, big character posters...... Unity of will and personal ease of mind, be lively and vivid political situation, in order to consolidate the leadership of the Communist Party of China on countries, consolidate the dictatorship of the proletariat." Under the terms, I think if Liu Shaoji is still alive, certainly will not be lifted 75 constitution to protect themselves, even if the lift of the 75 constitution, there is no effect, only to become the object of dictatorship. If the 54 constitution does not be abolished or later the fundamental law of ratification of the Constitution in 54, is the great leap forward, the people's commune, the Cultural Revolution posters, forever has no constitutional basis, is a violation of the constitution, but once the 54 constitution abolished or not (but the ratification of imitation, the other legislation) will bring order out of chaos when it lost the constitution only in the documents of the party, to correct, by the new authorities to correct, but the consequences of this is greater than the power of law. The new authorities to correct the error, the new regime replaces the old rulers, but its authority is still above the law. Since then Chinese walk Man Road, but far deviated from the orbit of the rule of law.

 

Two,Why should not be abolished the 54 constitution?

As everyone knows USA constitution since its birth has been effective, have been revised in use today, become an international model of the constitution! While the 54 constitution from birth to 1975 by the 75 constitution instead, time is valid for 21 years after. Then the same country, the same party, the same power, the same thought-form, he advocated the abolition of the Constitution? I think, can't. The reasons are as follows:

 

(1) from the honest and trustworthy perspective should not be abolished the 54 constitution, integrity means that keep promise, this is how the most simple foundation, is the moral standard as a party shall comply with the. The party leading the people to fight in the Kuomintang authoritarian regime, put forward a series of revolutionary slogan: the promotion of democracy and freedom, the abolition of the dictatorship, to form a coalition government, opening words, the release of political prisoners, no loud slogans, advocating revolutionary struggle period of these export, is both a party, it is a solemn commitment National People's party to do, these commitments the formulation of the 54 constitution in the early years of the Republic is more or less into the text of the constitution, but only after 21 years, the party was abolished the 54 Constitution shall be separately formulated the 75 constitution. This means that the failure of the 54 constitution abolished, also means giving up the party to the promised. Credit from sense point of view result is terrible, because no one knew where and how will you would like in the future? Who would believe you again next time will be true? There is only one answer, once abandoned his promise, further convincing, social development so far, official credibility has dropped to the bottom is proof. History shows that the authorities to give up their commitment is the consequence brought disaster to the country!

 

(2) from the social contract theory point of view should not be abolished the 54 constitution, and constitution is the transfer of part of his right to a written contract state, in Chinese this contract in 1954 advocated by the Communist Party, the democratic parties and the masses agree after negotiation, the official text form, and is the foundation of the Communist Party for the establishment of national political power and have the ruling status. All political parties and all the people shall comply with the. From the point of view of power which belongs to the original power, is the origin of the legitimacy of the ruling party. The original power can only be made once, can't repeat the. The original constitution only in local does not adapt to the social development situation, the amendment form of partial correction, and shall not unilaterally terminate the contract! Or anyone can not unilaterally terminate the contract jointly agreed! In addition, make 54 the Constitution's general election, election of representative system is able to represent the wishes of citizens, and then take the indirect election system is essentially the appointment of local Party committee, this non NPC universal suffrage in nature, from the social contract perspective is not eligible to change people's Congress election system.

 

(3) from the perspective of constitutional precedent should not be abolished the 54 constitution, constitutionalism is characteristic of stare decisis, international good constitutional precedent many of their number, such as justice Marshall in horse mulberry v. Maddie sun case, established the right of judicial review justice, ensure the American in two hundred years a stable constitutional order and prosperity. In China also meet constitutional precedent, the 54 constitution for power expansion plays an obstacle, but the authorities abolished, brought China turmoil and unrest. Chinese abolished their constitution, the horrors of the precedent, that can be an easy job to the rulers of the Constitution by denying prior to implement their own views on politics, constitution further formal, become different in power oath tools, rather than the common compliance with mandatory code. If you allow this precedent exists, then the next to follow precedent, there would not be a stable constitution. History has proved that if so, the constitution, the 78 constitution has 75, the 82 constitution, in a short span of 60 years, has three constitution, and has effect of constitution is still very low, legal or administrative violation of constitution of the phenomenon still exists, its essence is not respect for the constitution, and the initiator of evil is the 54 constitution abolished.

 

(4) from the party's theory of view should not be abolished the 54 constitution, the party's theory is based on Marx, Lenin, Mao Zedong Thought as the instruction, this theory has not changed, then formed along with the time development of Deng Xiaoping theory, the important thought of Three Represents, although a significant breakthrough in the basis of Mao Zedong on the thought of Mao Zedong thought, but the relationship between is come down in one continuous line, since the 54 constitution is Comrade Mao Zedong personally presided over, with Mao Zedong Thought as the instruction, the fundamental law of the state, then later in the ideological foundation has not changed, the guiding theory does not change, ideology has not changed circumstances, should not the abolition of the 54 constitution.

 

Three, How constitutional government?

What is the constitutional government? There are different opinions of different scholars:

USAThe politician Sartori the constitutional factors are as follows: 1 the one called the advanced method, regardless of whether the statute; 2 the existence of judicial review; 3 has an independent judge's independent judicial authority; there are 4 basic of due process of law; 5 legislation mode is binding on the program provisions.

Luis Henkin thinks , restrict the constitutional means "established by the constitution of the government, but only according to its terms to rule subject to the limit".

American University of WashingtonProfessor Dan Leif that "constitutionalism meaning fingering law of political order , limit and control of political power of public rules and regulations. The constitutional and constrained countries and officials."

Thus, the Constitution does not lie in whether or not the Constitution Constitution has no effect is, is to guarantee human rights and control of power. The China is not the lack of a modern constitution, but the lack of an effective constitution. Frequent revision of the constitution or benign unconstitutionality, the biggest drawbacks lost judgment constitution and power constraints, under this situation, the more frequent constitutional amendment of constitution validity more to draw further apart is low and the implementation of constitutional government.

 

Secondly, not the pursuit of the best system in constitutionalism, but the pursuit of the guarantee of human rights and power constraints. Different national cultural tradition and national conditions are different, so the political organization patterns vary, but the constitutional government in the protection of human rights and control of power function is the same. In order to pursue the best constitutional system, just might fall into the world without end pursuit, finally, a waste of time. Regression 54 constitution, inappropriate for economic system moderate correction, reach a social consensus as soon as possible into the constitution, it is the right way.

 

In the social class today China diversification, political demands of different situation, social consensus is difficult to reach a new unified, restoration of the 54 constitution, constitutional amendment will it as an amendment to the constitution of the 54 constitution, the 54 amendment is modeled, the control of large and small, to the rule of the standard grant to comb compilation, form constitution. Not only can establish the good phenomenon ruling party faithful, can form a step in accordance with the constitutional principle of constitution in the compilation process, especially to find by hard and thorough search, confirms 54 of constitution validity as a precedent,The establishment of the Constitution (the 54 constitution) is the source of power, the power to change the constitution is invalidThe fundamental constitutional principle.

 

   Four,54The rule of gene constitution?

 

   The legislative background of the 1 specificThe 54 constitution is: over 49 years of "common program" basic law committee. At that time, the early years of the Republic, the democratic parties still has independent status, and the revolution was successful, slogans against the Kuomintang dictatorship still ring in my ears, the Communist Party has not fully control the whole state machine, constitutionalism in this kind of situation, in addition to the provisions of the unreasonable economic system (planned economy, state-owned enterprises, collective ownership) the outer, are worthy of recognition in the framework of state power, civil rights, the independence of the judiciary, the nationalization of the military, the equality and democracy, and that democracy and equality legislation atmosphere in later historical constitution does not have. 75, the Constitution in 78 years at the end of the cultural revolution, the legislation completely deviate from democracy and justice, even if the 82 constitution also bring order out of chaos state under non normal order, special will still with individual leaders, lack of democratic atmosphere, such as the Central Military Commission a separate institutions, judicial independence on the big setback, the preamble to the constitution of the slogan, political etc.. More emphasis is in addition to the first constitution, the Party leadership, Party leadership in Congress has also been strengthened, but more is to strengthen the leadership, the more the constitutional quality more attached to the will of the party, the lack of constitutional democracy.

 

2Council of state (government):That the 54 constitution Preface: China in the great struggle of the people's Republic of China has been formed to Chinese Communist led the Democratic class, democratic parties, people's organizations and the broad people's Democratic United front. 54 article forty-third of the Constitution: the president of the people's Republic when necessary, held the highest state conference, and served as chairman of the Supreme Council of state. The highest state conference attended by Vice Chairman, chairman, Prime Minister and other relevant personnel. The highest state conference opinions on major national affairs, the chairman submitted to the National People's Congress Standing Committee, the State Council, or other relevant departments to discuss and make decisions. On the basis of Chinese party characteristics, and holds the United Government Party advocated, can the state conference system into a carrier of a coalition government (the coalition government is a joint government), the 9 Democratic Party members in the first for the Council, Council of state the actual shape of one person one vote system. This system can effectively solve the problem between the ruling party and the participating parties power division, the democratic parties from pure vase turned into a real sense of the political party, so that it can expand the democracy, will be conducive to the public opinion to the Council of state, at the same time, change the disadvantages of one party to govern alone.

 

2The procuratorial system of verticalArticle eighty-first: 54: the Supreme People's Procuratorate for that all departments under the State Council, the local state organs at all levels, the staff of state organs and citizens to abide by the law, the exercise of prosecutorial power. Local people's procuratorates at different levels and of the special people's procuratorates in the leadership of the people's will, and the Supreme People's Procuratorate under the unified leadership, work. Article eighty-third: local people's procuratorates exercise procuratorial power independently, without the interference of local state organs.

It should be said the 54 constitution the procuratorial system design, reasonable, the system completely break the disadvantages of the existing local protectionism, is conducive to unity of the national legal system, and to prevent the local princes against the central government phenomenon, more conducive to completely change the procuratorial organs are subject to the local princes cannot independently carry out anti-corruption case handling malpractice the situation has got out of control, group corruption containment.

 

3"Separation of the power structure(the decentralization theory): 54 the constitution has established international president, government, National People's Congress, the court, the Procuratorate "separation of national institutions, exercise the right of administrative power heads, respectively, legislation and supervision power, procuratorial, judicial power. The decentralization system is reasonable, can effectively prevent the autocratic, precisely because of this, the 54 constitution that was later rescinded by the leadership of the party, and the power instead of the national disaster, cause. The 82 constitution was the Central Military Commission, uniseriate, overhead president arrangement, obviously the person Shegang too, and later turned into a man as president President and CMC two duty. The 82 constitution this approach obviously insufficient.

 

4The trial of judicial independenceArticle Seventy-eighth: 54: the people's court for judicial independence, only obey the law.

It is self-evident importance of judicial independence, the judicial independence arrangement appeared only in the 54 constitution, the constitution, the 78 constitution in 75 out of independent trial terms, even in the 82 constitution, also adopted the design of semi judicial independence, has been widely criticised for. The 82 constitution specified in section one hundred and twenty-six, the people's court in accordance with the law to exercise judicial power independently, not by administrative organs, social organizations and individuals to interference. Defects of this clause are: first, the legal arrangement of independent trial on low order, rather than constitutional provisions, which is independent to the extent is determined by the law of arbitrary; secondly, the party organization and the National People's Congress is not in addition to administrative organs, groups, individual exclusion, for the party and the people's Congress judicial intervention opened convenient ways, in today's society, if say the main reason for judicial corruption, judicial organs in itself is not the main reason, but in the party and government officials of judicial intervention!

 

5The equality of civil lawArticle eighty-fifth:: 54 citizens of the people's Republic of China shall be equal before the law. This article includes legislative equality, judicial equality, law enforcement on equality, is of great practical significance, is still in the implementation of the household registration system Chinese civic treated as citizens and farmers the difference, the locals and outsiders discrimination, in the entrance, medical, housing, cars, employment discrimination is everywhere, is because the legislation did not equal the consequences, but the 82 constitution in this respect all citizens are equal before the law provisions, the legislative equality excluded from equal, is the cause of the root of social discrimination.

 

 Disadvantages of five, 54 of the Constitution

 

The 1 planned economic limitations: 54 the Constitution provides for the planned economic system, state-owned enterprises, collective ownership and right of priority of planned economy and its supporting system, practice has proved, the planned economy does not comply with the development of social productive forces, has been modified by the 93 amendment. The generation is: market economy, equal protection of ownership system.

 

2 the lack of constitutional review mechanism: 54 constitution and later historical constitution as the lack of constitutional review system arrangement, no professional judicial review system, it is impossible to establish the limited constitutional society. To solve the problem of judicial review can only through a constitutional amendment to make up for the.

 

Good constitutional convention six, in the historical process of formation

 

1 "three three system, political consultation, the coalition government":

 

"Three three system"

In the period of Anti Japanese War, our party has implemented three 3-year form of political organization, namely the democratic regime of personnel allocation, Communist Party members, non members left progressives, middle molecular each accounted for 1/3. Communist Party members on behalf of the proletariat and the poor, the left progressives represent the peasants and petty bourgeoisie, the middle molecules representThe national bourgeoisieAndThe enlightened gentry.

 

 "On coalition government"

The Democratic Party than opposition, nor the opposition political party, they are. The basic content is: in the democratic state power, participate in national fundamental policy and national leaders for consultation, participation in the management of state affairs, the regulations in national policies, laws, regulations.

 

"The multi-party cooperation and political consultation system"

Major problems take significant measures at the national or beneficial to the people's livelihood of the decision, the Communist Party of Chinese advance with the democratic parties and democratic personages without party affiliation to negotiate, to unify their understanding, and then form a decision

 

2.All flowers bloom together., contention of a hundred schools of thought"

Mao Zedong in 1957 "On the correct handling of contradictions among the people"That," All flowers bloom together. contention of a hundred schools of thought, policy, is to promote the development of art and science, is to promote China's socialist cultural prosperity policy." The so-called All flowers bloom together., contention of a hundred schools of thought that allowed for the development of various theories of freedom, allowing everyone to express their views freely, ideology is not set box.

 

These have been applied and played an important role in the constitutional convention, can become a source of Chinese constitutionalism, to compensate for the lack of a written constitution. These had played a good precedent effect, there are many can be sorted out to guide the implementation of constitutional government!

 

Seven, Chinese constitutionalism in the future?

 

The 54 constitution was modeled after the Department, and the amendment of the constitutional convention, written constitution. Only by restoring the 54 constitution to establish a good constitutional precedent, restore the disrupted the constitutional order; the resumption of the 54 constitution can be different constitutional scheme of reducing re constitution, to reach a consensus as soon as possible within the party; to restore the 54 constitution as the breakthrough point, can break the current political reform not to trouble! Future constitutional can be in accordance with the principle of gradual in two steps.

 

1 the first step: realize the separation of Party and government, the establishment of unconstitutional review system.

In 54 the constitution as the carrier, to form a coalition government, realize the separation of Party and government, the Council of state into a political consultation platform, the superstructure and social class structure to adapt to. At the same time, the establishment of unconstitutional review system.

 

Second step: to realize the equal 2, free elections the ruling party.

In the advanced stage of socialism, the class contradictions have faded, productivity unprecedented developed, the social wealth is abundant, citizen consciousness unprecedented increase, the party's revolutionary goal realization, can equal election the ruling party!