Chinese once a year to the National People's Congress has just concluded. If the delegates did not want to back a waste of taxpayer money to blame, will discuss the most important issues, and gives the solution. What is the most important problem facing the people? This is the free expression of the problem.

This is a problem, because if there is no freedom of expression, people will lose their value, it will not be on all aspects of social problems China Frank discussion. If you get a legislative session information is not true and not comprehensive, it is hard to imagine that it can make the correct law. Of course, the principle of freedom of expression for all citizens are equally important, reason is the same. If a society from the public information not unimpeded expression comes out, the society can not have a correct decision. So, just as professor Zhang Qianfan said, freedom of expression is the constitutional rights of all crown.

In fact, freedom of expression has been clearly stated in the Chinese principle of constitution, constitutional provisions of article thirty-fifth, "citizens of the people's Republic of speech, publication, assembly, association, parade, demonstration of freedom." However, for most Chinese, this seems very strange. Because in the real world, citizens of their freedom is all set by the administrative department of laws or regulations or even deprived. Then why do these violate the constitution principle of administrative rules or regulations shall be issued? That is because, in China, no review system unconstitutional, no effective mechanism to enforce the constitution. Some administrative departments will drill the constitutional loopholes. They are for their own convenience, more is to suppress the criticism of them, without due process of law, the lack of widespread Chinese social constitutionalism consciousness, restrictions introduced the constitutional rights of citizens of the administrative documents.

Because there is a constitutional defect, so a ridiculous phenomenon is, when an administrative department violates the constitution, no one can punish it, but if someone to exercise their constitutional rights, but away from the administrative department for constitutional laws or regulations, but may be sin. Because of the different and the constitution no execution situation, administrative departments and judicial organs innervated some "executive force". As a result, the inevitable is a constitutional principle can not be metered, and administrative departments of the "Regulations" in power. Subversion Chinese society's best interest will be individual departments and officials interests.

When the conflict of criminal law and the constitution to obey the Constitution

Recently, one of the most typical example is to attract sb.'s attention, Xu Zhiyong and other "new citizen" trial. This is a trial for Xu Zhiyong organized a number of citizens in the Ministry of education, Tsinghua University at the door and door to gather and play posters, and determine their "disrupting public order", and sentenced Xu Zhiyong to four years in prison. Rough look, Xu Zhiyong, if the behavior is indeed, seem also to exercise their constitutional rights, namely "speech, publication, assembly, association, parade, demonstration of freedom". So from the perspective of the framework, the verdict is a serious violation of the constitution. If this decision was established, the equivalent of claims, thirty-fifth Chinese constitution is invalid. But the intermediate court how a place can have the constitution authority?

From the point of detail, Xu Zhiyong et al. Whether in the exercise of constitutional rights, too much place, thereby impair the rights of others? From "the Beijing first intermediate people's Court of criminal judgment" ((2013) a penalty at the beginning of the word no. 5268th), which cited a "crime" is somewhere in the aggregation, banners, shouting slogans, obviously should be within the "freedom of assembly" and "freedom of demonstration" rights scope what, no crossing place. We can't imagine life without the aggregation of the assembly, and no banners, don't shout slogans to protest. This "judgment" also mentioned that there have been some conflict, but it is worth noting that, no one is the conflict between Xu Zhiyong and other citizens, and the conflict between the just and the police or security personnel. This makes people infer, if not the police or security personnel to exercise the constitutional rights of citizens of intervention, such as preventing their banners, perhaps will not have these conflicts. Xu Zhiyong lawyers pointed out, the verdict is not to give an example to other citizens suffer from Xu Zhiyong "disrupting public order" of the situation.

More notably, the judgment did not mention the rallies and demonstrations of the provisions of the constitution of thirty-fifth citizens have freedom. It is based on law is the "criminal law", I want to be the 291st in the "organizing a mob to disturb the station, wharf, civil aviation stations, shopping malls, parks, theaters, exhibition, sports field or other public places in order". This one apparently with the "constitution" article thirty-fifth "rallies and demonstrations free" cross and conflict. Because the rallies and demonstrations must be in a public place, even in public places people more, so that more people can be concerned about. The problem is, how to deal with the conflict of the law?

First, it is self-evident, that is the "truth to pipe the small truth", the law should obey the law. Here, "the constitution" is clearly the law, while the "criminal law" is the law. When the exercise of assembly and demonstration of constitutional rights and maintenance of public order in conflict, priority should be given to ensuring the exercise of constitutional rights, but not because of, or the excuse of safeguarding the public order and deny and deprive the citizen's constitutional rights.

Second, in the premise of rallies and demonstrations right of citizen, public security organs can make certain limits, such as assembly and demonstration of time, place and route, and the transgression rallies or demonstrations of (such as blocking traffic, impede pedestrians) to stop. In order to make the rallies and protests and public order public security organ can run parallel, in the full proof, obtained legislative authorization requirements, rallies or demonstrations organizer prior to filing, to make ready for public security agencies, to protect the rallies and protests can normally and safely.

Of course, an important distinction is, public security organs may not abuse their power, by gathering or protest organizers prior to the registration of the machine, prevent rallies or demonstrations. Because the power just constitutional rights, lower power, it can restrict the constitutional rights and better protection of constitutional rights, but can not completely deny and deprive the constitutional rights. If so, that is to have the order reversed.

However, in China, 1989 through "demonstration law", because of their historical background, to strengthen the security authority requirements, rallies, marches and demonstrations of the organizers to apply in advance to the "competent authority", the latter has the right to decide whether to allow rallies and demonstrations, tourism. It sets a deny and deprive citizens of article thirty-fifth of the constitution rights mechanism, the so-called "competent authority" may be completely rejected all applications. The fact that basically is such. Before the 2008 Beijing Olympic Games, the relevant administrative departments from the international image in mind, said to be piecemeal demonstrations, but in fact, according to the Beijing Municipal Public Security Bureau in August 19, 2008, answering a reporter's question, then filed demonstrations for 77, but no matter what the excuse, finally without permission. This shows, "demonstration" is actually a serious violation of the law. When it with the "constitution" thirty-fifth conflict, should belong to invalid.

Decision of the Xu Zhiyong case is one's decision

Similarly, when the Beijing City Intermediate People's court cited "criminal law" provisions and the "constitution" thirty-fifth conflict, is no longer available. If this decision can be established, China citizens actually no provisions of the constitution, which is equivalent to the "constitution" to stab a knife. It is because this is the constitutional principle of damage, and the constitution is the fundamental law of a society, so the damage is very serious damage to the society.

First of all, this is the whole social provocation. Because the society is based on the Constitution and structure and operation, in violation of the constitution principle is the basic social order destruction. But the constitution article thirty-fifth is clearly the priority among priorities in the constitutional principles. Because the expression of no citizen's freedom, society will not know, their other constitutional rights are well protected. For example, if pressed upon the land rights of rural residents reported, the society would not be able to take measures, to protect their land property rights, which is an important constitutional right. If many of the constitutional rights of citizens are not protected by the constitution, is evacuated. No constitutional principles as the basis of society may collapse.

Second, this is the collapse of confidence in justice. Any trial, especially under the watchful eyes of the people under the trial, have system externality; that the trial results will not only affect the parties, will be through the declaration of a legal standard and influence all the others. Xu Zhiyong "new citizen" trial is not only a serious violation of article thirty-fifth of the constitution, but also from the trial program details, is not fair, such as the refusal to witness of the defense and prosecution witnesses in court. If a trial is not fair, will tell you, so don't just is "justice", or does not provide impartial justice. If things go on like this, no matter what kind of, will make the society to lose confidence in justice. Augustin said, "an unjust law is not law." A decision will not be hanging "method" school name institutions make can think justice. As if always Moutai bottle into the inferior wine, not consumers will continue to fall, but "Moutai" this brand will be questioned even deny.

Third, this is the ruling party's challenge. The best interests of the ruling party's long ruling, and whether this depends on whether it can maintain its political legitimacy. As a people's sovereignty Chinese, an important source of legitimacy of the ruling group and public opinion, the premise is to know the public opinion. Xu Zhiyong et al's assembly and petition is a kind of public opinion expression, if this behavior was found guilty, and suppression of all this type of public opinion expression, the ruling party will not know the true public opinion, also will make themselves at a loss of political legitimacy of the danger. Moreover, "the constitution" is the thirty-fifth in the current ruling party led by the legislature. Even in the ruling party commit a serious mistake, freedom of expression is completely suppressed during the cultural revolution, this one was not deleted. Blatantly ignored the "constitution" the thirty-fifth sentence is obviously correct constitutional Heritage Party challenge.

Fourth, this is the public humiliation of constitutional reform in the new collective leadership headed by Mr. Xi Jinping orientation on the. Mr. Xi at the very beginning of administration, emphasizes "the life of the constitution lies in the implementation, the authority of the Constitution also lies in the implementation". He also said, "Prohibition of cadres and the right pressure method". Although some under the banner of the official opposition to the constitutional reform, although Mr Xi did not directly say "constitutional reform", Mr Xi of these propositions is actually the constitutional reform. The so-called "constitutional reform" is in fact the two aspects, one is to have a better constitution, one is the real implementation of the existing constitution. China existing constitutional although not ideal, but more important is the question of the implementation. Beijing city intermediate court judgment on Xu Zhiyong but said, "we ignore the" constitution "of thirty-fifth judgment proof, or Mr Xi said is a lie, or he has no people imagine so much authority."

The short term benefit groups in the final will be subject to greater damage

In fact, this decision is a lose, no one is the winner. But in the short term, as if some people win. To advocate "educational equality" assemble and petition to suppress, is inclined to in this kind of education does not equal rights under the system of temporary benefit people. They have more power resources under the existing power structure. A study on our show, more high quality education resources more geographically concentrated in the administrative center, it is self-evident, the most prominent phenomenon, are disproportionately concentrated in Beijing. Because of these setting educational system and policies of the people living in the administrative center. Not only that, the additional funding to universities are more concentrated in these places. As of 211 project and 985 project financial aid and further strengthen the geographic distribution is not reasonable.

Further, the relevant administrative departments also through a variety of seemingly reform measures, such as the pass examination to conceal actually unfair; such as the "Independent Recruitment" for their own children enter a school to open the floodgates wide to. In the premise of colleges and universities can not truly "independent", the independent recruitment more convenient for them to use the power of the transaction. A university could not withstand the power of appointment and grasp its resource allocation power of administrative officials pressure, and give their children up to 30 points of preferential. And as everyone knows, 30 points for the college entrance examination, what does it mean.

In fact, educational opportunity and unfair distribution of resources, has not used "significant" can be described as the "shocking, but". Data shows, 2012, on average, the probability of a candidate in Beijing admitted to "a" is 5.2 times of Sichuan for a candidate. Research has shown that, in 2000, on average, the probability that a officials and executives who admitted to the college is 13.3 times of a farmer who (according to Xie Weihe and other data calculation, quoted from Li Wensheng, "China equality of access to higher education research", page 2008104). The different classes in educational opportunity is not fair, invented the "Independent Recruitment" after all these years will only become more serious, because the farmers' children and no conditions to the big city to participate in the "independent recruitment examination". Notable is, Chinese universities generally receive financial subsidies; however this subsidy is the reverse, which tend to be more affluent crowd. In 1995, the central university student subsidies than local colleges and 22%, to 2010, this gap has reached 94%.

This alone, makes Chinese education comprehensively failed. Because education in order to make a man become a normal citizen, the most important thing is to make him or her to understand the meaning of justice. If an education system on the one hand to teach people to "justice", on the other hand, in fact the injustice of those being educated not "justice" as it is, the society will not have the normal citizen. Not only in the unfair fact victim doesn't think there is a fair, thus ignoring impartiality rules; even the "benefit" of the party, in the long run is the victim. Because they tend to be confused in the unfair rules of our own, mistakenly think that they are born to regard oneself head and shoulders above others, have more opportunities than others, but I do not know what is fair competition, and the lack of real competition, when entering a relatively fair competitive environment, it will be defeated.

Temporary benefit from the decision of the Xu Zhiyong case of second populations, that corrupt officials group, while the victim is not only the common citizens, and an honest man, as well as the discipline inspection organs. The decision to achieve the objective, is to suppress the public against corrupt officials with normal and legitimate expression, so that the corrupt officials is missing from the social and public opinion pressure; even with the pressure, in refusing to disclose official property system, they can also be the most corrupt officials as their scapegoat, to ease the pressure. As for the discipline inspection organs, it is only from the ruling generals "determined to fly tiger play" is not enough, but also with the help from the public "public opinion" field, in order to and corrupt the game more occupy the moral advantage, for the ruling party and government more support, can more effectively purged corrupt officials. The suppressed folk to corrupt pressure, is also behind the discipline inspection personnel removed the power of public opinion.

In fact, in the long run, suppressing civil officials announced the property requirements, it is not good for the corrupt itself. If officials without public property, will give officials an illusion, think they abuse their power to perpetrate whatever evils one pleases without supervision and punishment, but will make them more and more big, finally when corruption it emerged, was wicked, past hope. Or freedom, or lose his life. And do not say more, is the recent oil nest case, from raw oil chairman Jiang Jiemin, to a number of executives, and then to the Lok Ma recent Sichuan Sinopec President Li Dongsheng, also fully illustrate this point. I believe that these people are not to become corrupt, I believe they are the leader on technology and management, but now this seeming to officials and executives of state-owned enterprises "loose" system, is luring them crime trap. And if in the beginning of the property and transparent system, play to their talent they may still work.

Surface to benefit from the decision of the Xu Zhiyong case of third groups, public security organs and the stabilization mechanism is. On the surface, found Xu Zhiyong guilty can be intimidating for many similar people, so that they dare not rallies or demonstrations, Beijing will seem to be in smooth water, send the stability and unity of the weather. But I believe, wise people public security organs and dimension stability mechanism will know, this is just an illusion, the real stability is in the heart of man. If only the abuse of judicial power to suppress the rallies and demonstrations of the demands of the people, but can not eliminate people's grievances. The "rough" as the crust of the "stress", only intermolecular extrusion, is normally invisible, but accumulates to a certain extent, will erupt, this is an earthquake. I think the ruling party executives will understand, calm on the surface suppresses the public voice of the terrible, but the social "earthquake" will mean what.

Only the ruling party and the government is not responsible for public security organs and institutions stability will in this surface stability to their superior cross; only unwise of the ruling party and the government will be deceived by this do things carelessly cross, think they work really well done, thought no rallies and demonstrations on the surface society is very stable.

In fact, the political group wise will be very clear, even to consider his ruling, should also be in a controllable form, let people appropriately expressed dissatisfaction, to release and ease social "stress", to reduce the possibility of social "earthquake". This is thousands of years ago people some wisdom: "anti people's mouth, rather than anti Chuan Chuan Yong; collapse, hurt will more". In fact, making stable illusion by violating the judicial justice, let the high-level political illusions, and seriously misjudged the situation, make the wrong decision, public security organs and the stabilization mechanism is guilty. Eventually they should bear the responsibility.

Hugo in "the Laughing Man" said the king's ear is not long in his head, but in almost all the hand grip. They want to give the king what message to what news. Lu Xun also said, in order to obscurantism was, in Yu Jun eventually. To avoid this situation, the traditional Chinese, "block method" is often a major high-ranking suffered impeachment charges. Therefore, making a time of national peace and order the illusion by pressing the voices of discontent, is in his political rise eyes and ears, and ultimately to their disadvantage, these to create the illusion of the people who will temporarily plan, but the scapegoat will eventually when blocked messages and hinder the report the feelings of the common people.

As for the public security organs and dimension stability mechanism to reduce the "trouble" appeal, is understandable, but it is an error of judgment. Public security organs and stability maintenance task, is to protect the constitutional rights of citizens, exercising instead of pressing the constitutional rights. From this point of view, normal civil rallies and demonstrations, like business promotional activities and tours of collective action, is the daily phenomenon in the social life, this does not require the police. Only in the larger gatherings and demonstrations, only to out proper police to protect and grooming. Compared to the citizens assembly state of extreme nervousness. situation, will be more save police. Not to mention, let the public security personnel to suppress the constitutional rights of citizens of the thing, will seriously damage their occupation self-esteem, psychological damage caused is far greater than the surface calm.

Finally, a group on the surface of the benefit, is the right pressure method, public private person. If you want to win relates to their own or with the person concerned lawsuit, such as through judicial means to fight the alien or officer avenges oneself, or simply want to enjoy the show, interference with the judicial power. The first case innumerable. Second kinds of situations such as Liu Hanjie Zhou Binzhi, the father of abuse of judicial power in hand, kill the commercial rivals Yuan Baojing brothers three people. Third kinds of situations such as Bo Xilai in Kangda law firm has decided to withdraw from the Chongqing "black case", still send the police to Li Zhuang from Beijing away, and performed a serious violation of due process in judicial farce. The common feature of these lead to the so-called "justice" is extremely harsh consequences, like the case of Xu Zhiyong, are not to follow the law of due process. Benefit the right pressure method is the nature of the judicial system in a fair damage cost.

Similarly, in the long run, the abuse of power interference with the judicial process, is disadvantageous to the beneficiaries. It is often the result of "public private" dig one's own grave. This is because the deviation, justice not only hurt the party, but also hurt in the judicial system of the people, they do not want to powerful people gain play dirty role, but also hurt the whole society, because even the common people, there will be justice for the simple judgment. The injured parties will try to resist, such as possession of the first poem of Li Zhuang; dirty things the public security personnel will not break the conscience continue to bear the psychological pressure, such as break Wang Lijun and Bo Xilai; the whole society would like to see, one for the whole society brings shame trial was finally overthrown, that is "client on your lawyer" the maker of Bo Xilai absurd case.

When Bo Xilai on trial, he immediately understand the due process of law value. So he asked the court to "in accordance with the laws of China Program" justice, when the Ji'nan intermediate court has complied with the basic due process of law, he praised the "Shandong good". Contrasting this with him in Chongqing "black case" and "Li Zhuang case" a serious violation of the due process of law attitude. Bo Xilai experience tells us, for any one person, just legal procedures than temporarily in his favor the legal procedure is better, because he cannot insure itself is always in the side of the latter favoring. This principle applies to all want to achieve private or small group to the judicial system of the people. They do not follow the due process of law today, tomorrow may be Frankenstein, dear subject to judicial injustice.

In the Xu Zhiyong case, the impact of decision perhaps with powers to pressure their expectations. Because they wanted to borrow the verdict repress unfair educational opportunities and corrupt officials protest sound, but because of its strange unjust and make the whole society focused on this. This effect than Xu Zhiyong in the education department at the door banners to a million times. People will ask, why call for educational equality and officials publicity property of such a "political correctness" claim is a sin, and for this "crime" decision to due process seriously violate the Constitution and laws of the price? They will further tap behind this ridiculous facts, deep thinking this is why in the end. The people therefore questioned the right pressure method and the decision between interest groups to protect, as the spring and Autumn Period "Zhao Dun regicide" story reveals the truth, not obvious evil of punishment, even to suppress the crime victims law enforcement, the body is equal to the criminals.

People can also realize more clearly, the decision is another example of the collapse, the solution is the constitutional reform. Fortunately, Mr. Xi Jinping regarded the constitution as the life, the society may have the opportunity to change this phenomenon. But Xu Zhiyong and other "new citizen" case could be a very good opportunity.

As mentioned earlier, this ruling damage as all the whole society and the society, and almost no benefit, so in this case the correction would bring gain, to the people to bring justice to the ruling party, political authority, and the cost is very low. Mr. Xi Jinping's father, Mr. Xi Zhongxun was asked to formulate "different opinions" protection law. Mr. Xi Jinping not necessarily want to change his, but this spirit is not personal hobbies, and "constitution" article thirty-fifth is matched. Therefore, Mr. Xi to do much more simple than his father. Because no new law, only need to implement the "constitution" article thirty-fifth.

Implementation of the method, application is of Xu Zhiyong's "new citizen" case law unconstitutional review. Some people may say, in the existing constitutional framework China and no constitutional review system. But this is not expected to politicians should DOSOMETHINPREVIOUSLYUNRELEASED place? As we know, the original USA provisions and it is not a "constitutional review", just because Marbury v. Madison moves out of the judicial review system. Once this system, makes America benefit.

Throughout history, the evolution of system is in the process of solving problems and become, any generation can not enjoy the legacy of ancestors "perfect system". Today, let the "constitution" be implemented, not only cost is very low, and impressed; and from the implement of "constitution" article thirty-fifth, is the first step that should take the implementation of all constitutional rights.

In March 11, 2014, Dr. Professor Itsuki den [Cheng Hong Shandong University Institute of economic research tutor, director of the Institute for the Unirule Institute of economics. ]

Source: Zhongpingwang