The birth of the constitution after Chinese experience

 

        
 In November 4, 1982, the Commission to amend the constitution held its fourth plenary meeting, on the draft of the revised. Peng Zhen presided over the meeting. This paperAuthor Li Buyun for the Hunan University School of law, Guangzhou University, honorary president of the "national base" human rights education and training director, China Academy of Social Sciences honorary academician committee. This article published in "spring and Autumn Annals" in 2012 ninth.

   Constitution is a basic outline. China current constitution in 1982 and issued by the Constitution (hereinafter referred to as "the 82 constitution") and the four amendment. The existing constitution reflects the significant achievement to pursue the party and the country since the reform and opening up the ideological line of seek truth from facts and political, economic, cultural and social fields and the progress, is a true reflection of Chinese status. But it has not yet reached the desired level of constitutional government is ideal, with the historical development of Chinese constitutionalism and continuous improvement. The current main problem is how to set up the constitutional authority, and to promote the all-round construction of democracy and rule of law.

    One, "the eight two constitution" Review

    This year is the 30 anniversary of "the 82 constitution" was issued, I had the pleasure of witnessed the birth through, would like to know to do some review.

   I agree that a judgment, which is now the Chinese has a constitution, but also no constitutionalism. Of course, this opinion I think we should make some supplement. China has the constitution, but the constitution is not perfect, it basically reflects our present situation, has not reached the ideal state constitutional requirements. The modern constitutionalism requires not only a good constitution, but also it has been completely implemented, with great authority, its basic principles embodied in the implementation. The three basic principles of modern constitutionalism, I put it down to democracy, rule of law, human rights. The four element which I attributed the constitutional government: democracy and the rule of law, human rights, constitutional supremacy. The first three are substantively, the fourth constitution supremacy, is to have the supreme authority of constitution, which is the form elements. Change the constitution to modernization, we have now embarked on this path, we are moving towards this goal, but the road is still very long. The transition is from diversity the right to democracy; change from rule of man to the rule by people; no, not fully guarantee the rights of the people, to be fully protected by the constitution has no authority to change; the constitution authority change very high.

     
In 1982, at the fifth session of the Fifth National People's Congress on behalf of the Ministry of the vote on the constitution of the fourth republic.

   From 1962 to 1965, I was a graduate student at Peking University, is subject to the guidance of Professor Zhang Youyu, was studying jurisprudence. I began to study the constitution is a chance. In 1980 July, I was seconded to the Department of the Secretariat of the Central Committee, responsible for legal affairs. At that time, my tutor Professor Zhang Youyu was drafted the 82 constitution Secretariat Deputy Secretary general. He asked me, you can to the Secretariat to personally participate in the drafting work? I said not too well, I now is already in the Secretariat of the Central Committee work, drafting the manuscript to the central government approval, the audit will probably passed through my hands. He said, that is. Later I went to the first task research laboratory of Secretariat is drafting committee member Xie Jianying modified the committee's first meeting speech in the 82 constitution, it is on behalf of the Party Central Committee to the 82 constitution set the tone. The manuscript is I and Chen Jinyu drafted. Then every time draft is followed by the first I changed, and some central leadership other newspaper Deng Liqun comments.

   At that time, I be full of go, working 16 hours a day, do not go home, live in Zhongnanhai office. One and a half months in 1981, I was in the "people's Daily" published 10 articles, the constitutional amendment suggestions, most have been adopted. Later I also personally took part in the two central leading group experts in constitutional conference, advocated "ruling the country by law" and "human rights" was written into the constitution, was adopted.

   The 82 constitution, in my estimation since it basically reflects the reform and opening up the governance of our party's achievements, in the field of political reform, including the reform of economic system, basically reflects the current situation. The 82 constitution has exceeded the 1954 constitution. The constitution of 1975 was a very bad constitution, is the cultural revolution in 1978; the Constitution did not completely eliminate its influence, but have great progress, the greatest progress is the "China Communist Party under the leadership of the Central Committee of the National People's Congress is the highest organ of state power" in "the Central Committee of the Communist Party of Chinese leadership under the" removed. Of course, as the "revolution" to the guiding ideology that have not been changed under the dictatorship of the proletariat, the "big four" (the big Ming, large, posters, the great debate) no change. The 82 constitution I think it probably in progress are as follows:

   First, it is a democracy, there is a passage in the preface, after the constitution, "all state organs, armed forces, political parties and social organizations, enterprises and institutions, must take the constitution as the fundamental activity, and for the maintenance of the dignity of the constitution, the constitution implementation responsibilities." This "political parties" including the Communist Party, any party to maintain the authority of constitution. This and the twelve Party Constitution adopted one of my advice -- "party organization should be consistent with the activity" in the Constitution and law, it was my first proposed in the "Guangming Daily", was written into the constitution. The constitution which cannot say, only in the preamble to the constitution which said, "political parties" this sentence embodies this principle.

   A tenure system. Yan Jia its first put forward against the system of life tenure in leading posts. Later in July 9, 1982, I was in the "people's Daily" published "a far-reaching reform" one article, play a role in the abolition of life tenure.

   Second, the rule of law progress mainly is to restore the two principles: the principle of judicial independence and the legal principle of equality. The 1975 constitution abolished the two principles of the Constitution in 1954, but the constitution of 1978 did not return. Therefore, I published two articles in "people's Daily" and "red flag" magazine ("insist that citizens are equal before the law", "people's Daily" December 6, 1978; "adhere to the people are equal before the law", "red flag" magazine 1979 twenty-third). I think at that time, this problem should be basically solved, because the party organ and organ has been confirmed. Therefore, for ye Shuai drafted "the constitutional amendment committee first conference speech" write into "the amendment should adhere to two principles, one is the independence of the judiciary, is the Democratic legislation". This advice was accepted. The 82 constitution on the legal equality and judicial independence in the two basic principles of law are written in, of course, there are some other principles.

   Third, in the field of human rights, adopted a proposal to me, is guaranteed by the constitution "the fundamental rights of citizens (and obligation)" a chapter on "national institutions" chapter before. It reflects the country's citizens means, is objective, state organs is the civil service. Therefore, the "basic rights of citizens (and obligation)" this chapter on "national institutions" before. This is also I mentioned in the "people's Daily" article, adopted by the.

   I wrote an article called "what is a citizen" (see December 18, 1981 "people's Daily"). In the past many people think, rich, anti -, bad, right "five types of" molecular and sentenced persons, especially persons deprived of political rights are not citizens. Then I suggest writing "who have the nationality of the people's Republic is a citizen of the people's Republic" in a new constitution, this sentence was written into the constitution. Since then, China tens of millions of people made the legal personality should be in law, is no longer the rights are not clear legal guarantee "two class citizen". In addition to the rights of citizens which also added a new things: the personal dignity of citizens are not violated, and so on. Of course also includes some usage suggestions, such as the people's Liberation Army is a staunch pillar of the dictatorship of the proletariat, is the army of workers and peasants, so that the image of the language is not used, etc..

   The 82 constitution reflects the us to reach understanding height, the height is more than the Great Cultural Revolution, also more than 1954 to this stage of the cultural revolution, and certainly better than the 1954 before the stage. It has been in the reform of the political system, in the design of the political system, a big step forward. Later in 1999 the "rule of law" in the constitution, to 2004 "the protection of human rights" into the constitution, and the protection of private property, basically reflects the progress achieved since the reform and opening up and the level of. But from the ideal state of constitutional government, the Constitution itself is a problem, because some of the provisions of the system, such as the leadership of the party, you don't choose me is leadership, chooses me are leaders; such as Mao Zedong thought, Deng Xiaoping theory, the "Three Represents" and so on one one written into the constitution, when did it?

   So, if the ideal of constitutional point of view, the Constitution itself is not perfect, but have great progress, from formulation to four revisions later, it is a progress step by step, especially the two principles -- the rule of law and human rights, was solemnly enshrined in the constitution. At that time, I was here, feel very not easy.

   The right into the constitution as an example. At that time, Wu Bangguo chairman hosted the six forum, once was the five constitutional experts to participate in, ask one of them old professor, he dare not speak, then someone said that the teacher tell me. I was about four, took two and a half. The establishment of unconstitutional censorship was not adopted, amended article 126th (that is, the independence of the judiciary that one) are not adopted. It says, the people's courts exercise judicial power independently, not by administrative organs, social groups and individuals, I suggest "without any interference, the National People's Congress to supervise the authority", the Party leadership, but not "interference", this is not accepted. But the adoption of the protection of human rights in the constitution. There is an accepted, is associated with the "Sun Zhigang incident". I said, can not engage in 50 years since the first constitutional review, will be formulated by the State Council regulations "Cancel" accommodating repatriation. Now the three civil appeal, we can't accept it, can't answer it is right! What am I gonna do? Just to the first 50 years of constitutional review. Wen Jiabao Premier himself later announced the abolition of the Ordinance, replaced by the civil affairs departments "rescue".

   There is a same president authority on. In accordance with the provisions of the current constitution of our country, the president is a figure head, he is not engaged in matters of state; then, he engage in substantive negotiations with people not, issued a statement, signed the treaty, and so on. Subsequent amendments added a: President may engage in the activities. This modification is that to.

   In the process of constitutional amendment, I draw a experience: in general our political system reform or forward; from a global point of view, the constitution of our country basically accord with the present national conditions. Of course, many people complain that there is a certain truth, that the reform of the political system lags behind the economic system reform, comprehensive development lagging behind. This is an objective existence, should go a little faster. There is something to be solved and can quickly solve the problem, is not solve. For example the unconstitutional review, from 1982 until now, I have written many articles, in a variety of meeting, is not adopted, be afraid of the supervision to the party's documents, afraid of supervision to the CMC head. If the proposed how to do the unconstitutional review a relevant aspect of this proposal? I propose to increase a Constitutional Council, plus a after nine special committees now, also do not need to change the constitution, the National People's Congress has the power to increase, a committee on the line. When a leader says, constitutional review should be what task? I put the unconstitutional review committee may have eight tasks; he said members who when, I said it was very simple, from the National People's Congress in two or three vice chairman, make several senior experts in the inside, should not be the problem. At the beginning of this year the National People's Congress a month before the Spring Festival, the Law Committee and the work of the forum and I made a speech. I said, the law committee leaders if ahead of the transition, make the unconstitutional review system was established, for he left a good political heritage.

    Two, "the eight two constitution" outlook

    On the constitutional government, the main problem is the important contents of the current constitution is not in place. For example, the National People's Congress system, in accordance with the constitution of the concept, it should be a stamp. The highest organ of state power should be the people's Congress, and now the highest authority of our Central Committee of the party, not yet fully implemented to the National People's Congress, is not to "seal" this step. I had been exposed to some ministerial level cadres of the NPC, they said, our system of the National People's Congress itself is not bad, is not in place. Long thought a vice chairman is the more traditional, but he grumbles that, what I have power! How to open a meeting, what time, schedule must pass through the Party Central Committee strict scrutiny.

   Tell the prospect, I have a few ideas. Say first democracy on the general view.

   First, adhere to the leadership of the party. If we engage in multi-party system, open the ban on political parties, could lead to chaos, but the chaos lasts approximately 10 to 20 years to get on the right track down. So, even in the leadership of the party in the system step by step.

   Second, to promote. The gatekeeper is the party, mainly is the last breakthrough in which holes or slots. To fully blossom, promoting, as long as it can promote a point, we will work hard. In democracy, rule of law, human rights and the supremacy of constitution of various specific issues, to promote. Of course, there are also some joint. Such as cure, I think there are two points to break.

   One is the review of constitutionality. I have a meeting in the Great Hall of the people on the former vice chairman Comrade Peng Chong once said, if Comrade Wan Li and you two in the table, the constitutional review system was established, the Kindness knows no bounds. He said, are so important? I can not say, if the central government does not respect for the constitution, how do you require the following strictly abide by the law? If you show me, you see who dare?

   The implementation of the Constitution shall be supervised mechanism. If there is no supervision system, is a toothless tiger.

Two is the judicial independence. June 13, 2003 in the Great Hall of the people's constitutional expert forum, four pieces of advice I mentioned, which is a revised "constitution" article 126th. The Supreme Court has held a forum of experts, I went, I told our judicial independent historical process. Then the highest law proposal was not adopted, I think it is the most important party number of cases, the so-called "coordination", is actually in the politics and law committee. I have to cancel the party approval case system in 1979 to participate in the drafting of "64 document", it was written into the file, but later resurgence.

   Obstructing judicial independence and local protectionism. In addition, there are some phenomena are illegal, such as instalment, Hello, various forms of intervention. The Central Party school, wrote a book recently, the first article is written as a professor of Sichuan provincial Party school, the can in some province pilot cancel politics and law committee. As far as I know, the central had two times to consider this question, but not cancel. Once at the beginning of 80's in the drafting of the State Council and the Central Committee shall issue the central document, has proposed to put it off; the second has a few province canceled, recovered. This consideration, mainly in order to correctly handle the relationship between the party and the judicial organs. The problem of judicial independence is very concerned about the international and domestic problems, it is necessary to discuss. We judge the case many, now look right and left, to see how the various aspects of the relationship; he was not considered does not accord with the facts, not legal, but look at the case where Hello, above is what intention, and so on.

 

    
In March 14, 2004, the two meeting of the Ten Session of the National People's Congress by 2863 votes in favor, 10 votes against, 17 abstained from the vote of the draft amendment of the constitution. In the constitution is considered to be the major progress of human rights in the constitution, the constitutional private property.

   In the reform of the electoral system reform, expand balance election, nominated candidates and voters, to meet a certain, to talk about their own views. The three in the current system have not been fully achieved. There is one is about improving the quality of people's deputies.

   To the leadership in the province class, I often give two examples. A deputy to the National People's Congress, he is a world-class scientists, he worked on his high school classmate say, the National People's Congress, people say I read a book, because I believe the party, the party that I lifted up my hand and he lifted up his hands, the party that I circle is the circle. There is a certain example, a person five years as a deputy to the National People's Congress, without ever saying a word, he should step down, at the closing ceremonies of the group will only speak a word "thank you".

   There are people's Congress Standing Committee specialization, it is very effective. Some of our cadres, there is no place arrangement, can be arranged to the NPC Standing Committee, full-time do this thing, don't do other things. Some NPC deputies can be full-time part-time half half, half a year or four months to contact with voters, do research. Perfecting the system of people's Congress, specialization is a feasible solution.

   To promote the system reform under the current system, there are a lot of things to do. For example, the problem of party, the democratic parties develop its members of the index is 5% a year, can open to 10% not later, in a few years the open to 20%, or several years after the full liberalization of love, how many is how many. I often talk with the democratic parties, you don't see yourself, you should do a good job, then open, you might have a very good foundation. To attach great importance to promoting the independent character of all parties, this is the key. All of these systems, including the political consultation system, the system of regional ethnic autonomy and grass-roots autonomous system and so on, should be fully blossom, comprehensively promote, within the general scope of constitutional government, can promote what.

    Three, the state system, government system and the relationship between the party and government

    Not long ago, in a discussion of the NPC Law Committee Leadership Conference, I said "Criminal Procedure Law" revised into "the state respects and safeguards human rights" of this principle, I thought that should be no problem, no results. Now only crack down on crime, protect people. I said "people" is what meaning? Be a major setback. I believe that the "people" has two meanings. "People" in our country is a legal concept, the equivalent of citizens of the people's Republic of China, the "people" and "citizen" are synonymous, as long as there is a molecular China nationality is the people's Republic of China, the people's. Another is a political concept, and the "enemy" of the corresponding. Political concept is now little used, because the enemy who is unclear. Comrade Hu Qiaomu has argued that, in addition to state crime, the other is called a sociopath. And so on some say, until now no one say clearly. Now rarely politically with the "people" and the enemy should be relative, played down the connotation. Drafting the constitution of 82 years, I have been one of the experts of the secretariat said, draft report you drafted has a fundamental mistake, namely "the people's democratic dictatorship is constitution, democratic centralism is the regime", it said. The democratic centralism is not political, but a national mechanism principle and the principle of activity. Now there's an explanation, say the people's democratic dictatorship is the state system, the people's Congress is the regime, but also wrong. How to explain? People are the state, all the power in the State shall belong to all the people of the people's Republic of China (or citizens), power should belong to them, constitution should be like, rather than the people's democratic dictatorship. How is the people's democratic dictatorship? This doesn't make any sense. What is the government? Republic. French Republic, our republic. It requires the country democratically elected, to a parliamentary system or the system of people's congress. A presidential system, the cabinet system and other forms of. The people's Congress is not the government, is a concrete manifestation of the Republic of.

   On the "Republic" should be a new interpretation, I summarize it as: "a total of eight", namely the state power by the people there, state affairs by the people's common will, the main resources of the country by the people's total, national development results shared by the people; "and", namely the officials and people in harmony with, nationality and ethnic harmony, work together with one heart of rich and poor, their peaceful coexistence with other countries. Now the central weaken the people's democratic dictatorship, rarely used. Government must emphasize the republic. In the Republican issue to do this.

   On the relation between the party and the government, some time ago I a meeting, they introduced an experience, to make the party with government, is in a city, the Bureau of justice and politics and Law Committee, two brands of a people, but also when the experience. I think, this regardless of Party and government is a throwback. The party and government should be separate, is a general direction. We used to abuse of political system is the biggest regardless of Party and government. We can't get "party is the country, country is a party".

   In 1996 December, the National People's Congress of Shenzhen high-level seminar (provincial director of National People's Congress, the Secretary General and the special committees of the NPC is mainly responsible for people, a total of 200 people attended the) asked three people to make the keynote speech, I speak according to law, Wu Jialin told Li Yining about the constitution, market economy. The day before I do report, they said to me, to report to you tomorrow, we all see the notes, you can not say something new? I drafted 12 suggestions of people's Congress system reform in the night. Report of second days after the noon meal, five NPC director and I sit at the same table, Shanghai City People's Congress director Comrade Ye Gongqi said, 12 proposals you say we all agree, but there is a lack of. I said what? And he said, why have you improve the relationship between Party and the National People's Congress on the last one. I said, director of the leaves you may not quite complete, behind me have a word, 12 inside the last one is the key. He said that good, right. Ass to the NPC values will change, as "ass command head". This is the principle of a former party secretary of guangdong. Future reform depends on the National People's Congress, the National People's Congress is a great impetus to the work of the NPC, is advocating democracy and the rule of law. There was a book proposal, since it is the leadership of the party, just party secretary and director of National People's Congress to, later adopted. Once in the people's Congress meeting, I asked a minister at that time, people said, do you think what how do you feel better? He said, I advocated the best is stepped down by the party, the most prestigious people go when the director of the National People's Congress, he must have qualification is very old, very high prestige. This problem is worth studying.

   Regardless of Party and government is a big problem now. Commission for Discipline Inspection and supervision department together office, this is good or not? This is also the research.

   China Communist Party is undergoing a transformation, the transformation into modern, how? Four words, the first party, regardless of size, are equal; second, the kingdom is greater than third, higher than the right of the party; the party; fourth, according to the principles of democracy party's own construction and operation. The four truly is the modern political party. 30 years of reform and opening up, the construction of our party is moving in this direction.

   The question of Party leadership may be the key to the future construction of a country under the rule of law. I put the country under the rule of law there are ten criteria, the tenth is that the party must abide by the law. A foreign experts commented, the former Nine West there, but the party should abide by the law of this one did not, I said it just is the most crucial one. There are two reasons: first, we are a party, multi party cooperation; you are the multi-party system, the two party system. If any party in violation of the constitution, not according to the law, as long as you don't have to seize the ballot, because you what things are open to the public. The second is the constitutional government culture. You have the constitutional government for 200 years, the people and the state civil service everyone knew that the party cannot be unconstitutional, not illegal. Because of Chinese without this factor, Chinese is one party rule, multi-party cooperation. One party can do great things, but also has a lot of ills. Now the biggest difficulty was the problem of party.

   Many people said the bicameral. A central leader said not a bicameral legislature, in fact this is research. Most early proposed the bicameral is drafting the Constitution in 82, Hu Qiaomu mentioned, one is the occupation academy, a local school, but was not accepted. Hu Qiaomu is a typical party orthodoxy theorist, he dare to ask, why can't we study? Adopt does not accept is a matter for politicians, scholars, have this right, also have the responsibility.

    Four, I'm optimistic about the future of Chinese Constitutionalism

    In 1987 I as a visiting scholar in the USA, Columbia University Professor, renowned constitutional scholar Luis Henkin ask me: how do you look at the prospects for the China democracy? I said, I am optimistic. He asked why? I say this for four reasons.

First, democracy, rule of law, human rights, freedom, equality, fraternity is the human, is the 1300000000 fundamental interests and strong desire Chinese people; now Chinese people's political consciousness has been greatly improved, the future of any one party, any leaders could not, could not go against the will.

   Second, after the reform and opening up, market economy will inevitably bring about changes in the two social relationships and five social ideas. Two big changes in social relations, namely from identity to contract, and the change from "big country, small society" to "strong state, big society"; five concept refers to the concept of subject consciousness, democratic consciousness, equal consciousness, the concept of freedom, rights, they will influence character by environment in Guang Dagan and the thought of the irreversible take root and blossom fruit.

   Third, open to the outside world is irreversible. China will comprehensively and the world together in the economic, political, cultural, think backwards is not feasible, economic and political work, does not work, can not bear the pressure.

   Fourth, the future of the younger generation will be more knowledge, understand the world, but there is no historical burden.

   I was a Communist Party member, I certainly hope that our party can be in power for ten thousand years, but I'm not too happy with the gun to maintain the regime, this state I feel uncomfortable. So, I advocate the so-called transformation. I no longer is so pessimistic, if the ban, ban on newspaper open, may the Communist Party is not, this is not necessarily, mainly to see our party about yourself, I am confident.

   A meeting held recently in Harbin, an interrupt speech applause only to the Central Party school a vice president. He said, we often talk about our party's ruling status is the choice of history, is the people's choice, is history not to be able to do second times, third times? People do second times, third times will not? In this word, following a round of applause. We mean not hoped that the Communist Party to step down, now all advocates of the reform did not mean that. But I hope, the political system should be a more civilized political system, the Communist Party should be a more civilized political parties, is relying on its own strength to get the support of the people, is ruled by free elections, rather than other factors, not by "old son beat the world me should sit in the world" as a reason, or to maintain the power use extreme means.

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