Yang Xiaokai: how can the Constitution be respected

   China scholars are discussing to safeguard the dignity of the Constitution and the constitutional issues. However, I would like to ask a question: how can the Constitution be respected The constitution must have authority to be respected, and the constitutional authority from the consent of the governed. So all the successful good constitution had stipulated the most stringent approval procedures of the governed, generally require a referendum, by more than 2/3 citizens, legal status and authority of constitution. The constitution must have authority must also have procedures to amend the strict. Ten years can be a change of constitution, without fully free debate can easily modify the constitution is not authoritative. Some countries in order to make the constitution amendment provisions not hasty, constitution, shall not be subject to referendum proposal to amend the constitution of the government in office, or implementing constitution and the implementation of the plebiscite administration. Therefore, the revision of the constitution needs at least three administration time.

For example, the Japanese Constitution is the period after the Second World War the American occupation of Japan to help Japan drafted constitution, the parliament in opposition parties and the public through the freedom of media long-term full debate, again by more than 2/3 citizens voted and legitimacy. But the constitution of people's Republic of China does not have the authority, first of all, people's Republic of China Constitution and no provisions in the constitution which application via the governed to complete the approval process to a certain program constitution. Because there is no the citizens recognized the most basic program, so the validity, the constitution of the PRC has no authority. For this has not been governed by a constitution, if Chinese should respect it, it would mean that the China people lack the most basic constitutional education ".

   The constitution authority existsSecond conditionsIn the formulation and adoption of the constitution, must be in opposition to. The state constitution as the most fundamental laws, not only represents the executive opinion, must be through the non ruling representative, especially opposition and minority agree, constitution can have the legitimacy and the condition can be implemented. Therefore, in the process of the constitution must let all parties, especially the opposition, are willing to participate, constitution can real legitimacy.

   After the two World War, China appeared two constitution. The first part is the "constitution of the Republic of China". "The constitution of the Republic of China" in 1946 December twenty-five the National Congress by 1947, January 1 by the national government announced, in December 25th of the same year. "The approval procedure constitution of the Republic of China" was too hasty, but also one of the causes of the civil war. But the "constitution of the Republic of China" in the formulation process, was presided over by non Kuomintang, Communist Party and participate in China. That is, the process of "constitution of the Republic of China" for constitutional making program. But the "constitution of the Republic of China" implementation, and without consent and support of the then Chinese's largest opposition party, the Communist Party of China. Therefore, "the legitimacy of the constitution of the Republic of China" is a problem.

However, the Communist Party of Chinese enacted in the establishment of power after the "people's Republic of China Constitution", is a "constitution of the Republic of China" more legitimacy of law. First of all, "the people's Republic of China Constitution" does not require any citizen approved the constitution procedure. Secondly, the Communist Party of China in revolution, and even the elimination against various political forces of the Communist Party of China, let all the anti Communist forces disappear, only the Communist Party and Chinese friendly parties. Therefore, compared to the "constitution of the Republic of China", "made in the people's Republic of China Constitution" and no opposition forces in.

   To date, "the people's Republic of China Constitution" not only did not get the opposition's approval, China government still continue to destroy the opposition. For example, Chinese government continues to persons arrested Chinese Democrats to register with the government. Such a move, a serious violation of the basic political rights automatically registered party the liberal democracy. In addition, if will still be performed within the "constitution of the Republic of China" in the Taiwan region of the people's Republic of China territory. The constitution of the PRC, has not been the major political parties in Taiwan a few, such as China Kuomintang, Democratic Progressive Party and people agree with and support the party. Therefore, "the people's Republic of China Constitution" in the opposition agreed that legitimacy is not exist.

   The processing for the Northern Ireland peace process is a worthy reference example. The Irish Protestant and Catholic struggle is a hundred years of struggle. This battle also created today Ireland and Northern Ireland division, as well as thousands of self 1960 after death. In Northern Ireland, Catholic ethnic minority, Protestant groups for the majority, more than 90% of the population. Britain to respect autonomy of the people of Northern Ireland, advocated by the people of Northern Ireland to referendum to solve the North love future. Refused to participate in the referendum but the opposition led by catholic. However, after the North love Republic Army twenty years of armed struggle in the process, the British government has never one-sided love peace conference held north and unilateral referendum. Until 1998 Catholics and Protestants are really willing to sit down for peace talks, the British government really loves peace conference held in the north, North love really opened up the dawn of peace. So far, although the North love problems are still a long way to go, but hostile parties to participate in the process of constitutional government, Republic of North loving army finally surrender their weapons, bringing hope to the North love peace.

   Then American as an example, American after the civil war the first congressional elections, which shows respect for minorities, respect the spirit of opposition. Although the north to victory in the civil war, but still invited parties to participate in the election defeat of the south, fair competition Council seats. The American Civil War is to pay a great price, but because the two sides mutual tolerance, mutual avoid Losers are always in the wrong mentality, will respect each other in respect of the constitution under the rules of the game, thus creating a strong American today.

The inclusion of Anglo American minority, inclusive of the opposition constitutional tradition, is the foundation of constitutional authority, it created prosperity and common. This has implications for Chinese speaking.

Third, the constitution has to get all the parties competitive power, have fair competition power of the rules of the game. As the fundamental law of the state constitution, should not guarantee some party or group has better than other political groups to obtain the power. Constitutional human development history, is a limited monarchy and against dictatorship in history. The constitutional development process, reflected in the reality of political development, is to allow the opposition exists, must let the opposition and the ruling party is given a fair opportunity to strive for power. However, unfortunately, "people's Republic of China Constitution" was in the written constitution, the one party dictatorship system. That is to say, the constitution of the PRC, the one party dictatorship expressly written in the constitution (see the "people's Republic of China Constitution" the preface. The innovation of this constitutional development from the Soviet Union, it is to emphasize the universal suffrage, the minority is subordinate to the majority of the forms of democracy, freedom, denied the separation of powers and checks and balances, and the constitutional private property based, while the one party dictatorship system. The constitution is no longer limited the power of the government, protecting the rights of the people are not affected by the tools of government system and the constitutional violations, will become the unlimited government and one party dictatorship system tool. In Eastern Europe, the Russian people have abandoned the constitution, will be unlimited government and one party dictatorship system constitution may be how authority? In contrast, China Communist Party to participate in the formulation of the constitution of the Republic of China but ensure that all parties are equal before the law.

   Fourth, the constitution must be stated to limit the power of government in terms of. The constitutional development, is also a history of the limitation of government power. For example, in the first prototype - Britain's big charter (Magna Carta) , the Great Charter stipulated did not represent the place would not have to pay taxes, if the king wanted to tax it must go through the tax payer. The great charter also limit the government to free people only according to the law of arrest, detention, drive such punishment, in addition shall not be any reason to punish. That is to say, the exercise of government power must be restricted to a certain range. Most of the provisions USA constitution are expressly limits the power of government, such as government not legislation restricting freedom of speech.

However, the western constitutional experts believe that "the people's Republic of China Constitution" is a realization of the unlimited government programme. The Constitution does not explicitly regulate the scope of government power. Countries can according to their need, for national security reasons restrict people's speech, communication freedom and personal freedom for example. Countries can also according to their need to violate people's private property. The assembly of the people, the freedom of speech is given by the government, so it can also be the government back.

   Fifth, the constitutional government should carry out the separation of powers and checks and balances on the power of the government. The government's highest authority, with parallel each other, not subordinate power. Distrust of authority, so to the separation of powers. The development of a sound countries such as American in European and American constitutional system, they are the executive power, legislative power and judicial separation of powers, mutual supervision, mutual non membership.

   However, "the people's Republic of China Constitution" provisions of the National People's Congress is the highest authority for the (see article fifty-seventh of the constitution. "People's Republic of China Constitution" except for seventy-seventh shows that the unit can be elected representatives of the people to recall the people's representative, power design no limit people's congress. The people's Congress also has the administrative power (article ninety-second), legislative (article fifty-eighth) and judicial (article 128th, article 129th and article 133rd). That is to say, the three power collection in a body, the result is, people's Congress had no constitutional institutions can limit or restriction of its operation.

This lack of separation of powers and checks and balances of the constitutional government system design of unified design is extremely dangerous in the constitutional history of development, its essence is a populist anti constitutional development, commonly referred to as the constitutional monster. It originated in the French Revolution of the national assembly, resulting in arbitrary slaughter in the French Revolution Historical tragedy. This tragedy was repeated in russia. This lack of design balances decentralization will lead to government authority and responsibility of the executive can not distinguish, therefore unable to govern the success or failure of the ruling party's supervision. The former Soviet Union, or China since 1949, various political movements, ongoing government launched a social movement, resulting in tens of millions of lives is the result. China if not change this no system of separation of powers, still will China people as well as the constitutional development China bomb buried very unstable. For example, when similar to the 1989 unrest event occurs, if the people's Congress successfully convened the national assembly, similar to the dictatorship of the French revolution may occur.

Sixth, we must prevent the theocratic constitution. In many countries the constitution allows people and the government is quite fierce and violent means to prevent the theocracy. America 1960 Presidents were Protestants, Protestant general most against tyranny, American Protestant president the separation of church and state law in the Protestant countries, banned public schools to teach theology. The first Roman Catholic president Kennedy came to power, ruling and opposition parties asked him to ensure the separation of church and state, his religious ideology and administrative separation. But the "people's Republic of China Constitution" provisions of Marxism Leninism, Mao Zedong Thought as the national ideology, the theocratic system. This is absolutely not acceptable in all constitutional state. Because this system is not possible for other religious ideology of justice, widely agreed the Theocracy of the constitution could not get the governed, so it can not get.

Finally, "people's Republic of China Constitution" no private property is sacred and inviolate terms, but also local self-government powers are not a necessary. For example, "the people's Republic of China Constitution" no similar USA Senate guarantee their interests can get equal representation system. America each state in the Senate with two seats is equal, so you can become a small number of States to deal with the state to protect their own interests tool. The "people's Republic of China Constitution" provisions of the one party dictatorship, local government appointed by the central government, rather than the people around the election, so there is no local autonomous real. So the people and all the provinces are not from the heart to respect the constitution, they believe they have been unfairly groups will have the opportunity to pursue a similar to the disintegration of the Soviet Union.

   To sum up, the above aspects is a mature constitutional authority and respect, without these conditions, we should not talk about respect for a no authority of the constitution, and should discuss how to create conditions for the constitution authority. These discussions will be cause for a supply of sth. constitutionalism between parties (constitutional negotiation). But the constitutionalism is the real beginning of constitutionalism for a supply of sth.. Chinese due to historical huobing persecution accumulated problems, start constitutionalism will like South Africa face among factions political reconciliation (political reconciliation) problem. If you don't circumspect about these complex issues, and talk with eloquence democratic constitutionalism, out of control, it may occur.