Friday, February 03, 2012

Part I—Zhiwei Tong (童之伟) Series: Socialist constitutionalism is the core of governance according to the law


 (Zhiwei Tong, PIX (c) Larry Catá Backer)
For 2012, this site introduces the thought of Zhiwei Tong (童之), one of the most innovative scholars of constitutional law in China.   Professor Tong has been developing his thought in part in a essay site that was started in 2010.  See, Larry Catá Backer, Introducing a New Essay Site on Chinese Law by Zhiwei Tong, Law at the End of the Day, Oct. 16, 2010.  Professor Tong is on the faculty of law at East China University of Political Science and Law.  He is the Chairman of the Constitution Branch of the Shanghai Law Society and the Vice Chairman of the Constitution Branch of the China Law Society.

The  Zhiwei Tong (童之) Series focuses on translating some of Professor Tong's work on issues of criminal law and justice in China, matters that touch on core constitutional issues.  Each of the posting will include an English translation from the original Chinese, the Chinese original and a link to the original essay site. Many of the essays will include annotations that may also be of interest.  I hope those of you who are interested in Chinese legal issues will find these materials, hard to get in English, of use.  I am grateful to my research assistant, YiYang Cao for his able work in translating these essays.

(pix (c) Larry Catá Backer)

Part I

Socialist constitutionalism is the core of governance according to the law
Zhiwei Tong

Whether socialist constitution or constitutional socialism is the correct position is entirely a matter of opinion. In my opinion, the key is to accurately determine China’s actual situation and to confirm the constitutional content.  As long as there is good content, either formulation can be adapted in the context of use. Whether it is socialist constitutionalism or constitutional socialism, the core content is according to the rule of law.

From a dynamic perspective, constitutional performance in politics in the implementation of the constitution and according to constitutional governance; from a static perspective, constitutional governance in politics is the effectiveness of the constitution to be implemented to a greater extent after the formation of the state. From an integrated perspective, the lack of a constitution or if a constitution has not been properly implemented, then it is not constitutionally governed.  With the constitution and especially a constitution respected by public authorities, and with implementation, then there is constitutional government. Whether the constitution has been completely implemented or where its level of development stands is still an issue.

People usually consider constitutionalism, freedom, democracy, equality, harmony (or fraternity), human rights, rule of law and other values together.  This view is undoubtedly justified, but the key is, by what means or path is used to achieve those values linked with constitutionalism. From a dynamic view, at the primary stage of socialism in China, the constitutional core according to law is only the Communist Party of China. This is because, the Communist Party ensures that all state organs, armed forces, social organizations, and business enterprises complies and observes the law is the only link between socialism and constitutionalism.

According to law, clear requirements of leadership were defined by the 16th and 17th National Congress of the Chinese Communist Party. In November 2002, the 16th National Party Congress Report for the first time proposed that the National Congress “adhere to the rule of law.” In October 2007, the National Party Congress Report further stressed the need to improve “rule of law level.” In order to ensure understanding, the National Party Congress also amended the constitution to require the party to adapt to reform and the requirements for socialist modernization requirements, so that “governance according to the rule of law would strengthen and improve the party’s leadership.”

The establishment of governance through law is not only a major milestone for the leadership Chinese Communist Party on the road to modernization, democratization and rule of law, but also a historic challenge to the party.  The party must overcome enormous difficulties to solve problems with unprecedented complexity.

First, “governance through law” requirement is higher than the ruling party’s own requirement that “the party’s activities must be within the bounds of the Constitution and legal system.” This party requirement forces party organization and their leaders to comply with the requirements of the Constitution and laws, while “governance through law” requires that all the actions taken by the ruling party and its leaders in public service or dealing with national affairs have a legal basis. The foremost legal basis is the Constitution.

So far, “governance through law” has only been a goal for the development of a socialist country ruled by law, not a political or legal reality. “Governance through law” requires that all governing behavior have legal precedent.  If there is no corresponding legal mention, then it is no longer governance through. China has almost no party law governance that can serve as the basis of the law. Although China’s legal system has basically taken shape, the system has no law to regulate the governing behavior of the ruling party and its leader. This is because, for many years, China’s legislative behavior was “wound closely around the central task of economic development.” As a result the formation of the legal system was also measured by this standard.  Governance through law involving the broad interactions between party organizations and state organs requires the development of laws like the “Party and State Relations Act” or “Political Parties Act” or the formation of some policies in line with democratic, rule of law and transparency.  Otherwise it would be difficult to govern through the law.

Secondly, they need to assess and deal with economic development and the relationship between democracy and the rule of law to reasonably input limited resources such as human, financial, attention and time. “Communist Party of China Constitution” provides that the party “in leading the socialist cause, must persist in taking economic development as the core with all other work subordinate to and serving this central goal.” The Constitution also required that “the fundamental task is to follow the socialist road with Chinese characteristics, concentrate its effort on socialist modernization.” From the current situation, have too much resources been poured into the field of economic development, while too little invested in democracy and the rule of law, thus creating an imbalance between economic development and democratic, rule of law development?  Has it reached the point in time where unilateral focus on economic development is adjusted to an equal emphasis upon economic development and democratic, rule of law? These fundamental problems need to be reexamined and reevaluated, and now needs to be answered.

Third, the ruling party leadership must address the problem of a shortage of legal talent. Now many leading party cadres, especially senior cadres, lack the essential legal training to ensure governance through law. While they can shout the governing through law slogan, and under normal circumstances have no problem, it is when specific problems arise and need to be dealt with according to the law that they are often powerless to deal. For some cadres, emphasizing governance through law would prevent them from exercising their duties; to get things done, they can only operate illegally. If such conditions cannot be improved, the Chinese Communist Party’s target of governing through law will be difficult to achieve. In addition, the existing party system is not conducive to the recruitment of outstanding legal talent management talent into the senior party governance.  This also requires reform.

Fourth, governance by law would require the pull back of the ruling party’s direct
control over a range of social and public affairs. Governance through law requires that the ruling party’s governing behavior abide by the law, therefore, governance through law will
require a substantial contraction in the allowable scope of activities.  The party and government will be separated.  Assets and property will be separated based upon ownership by the state or party. In the framework of our Constitution, the party’s responsibilities can be specifically divided into the following main elements:

1.     Controlling people’s congresses at all levels; leading legislation and decisions on major issues
2.     Recommending party members to take on administrative responsibilities and lead administrative organs, military leadership
3.     Recommend candidates to courts, procuratorate, to investigate, perform judicial duties and apply the law.
4.     Recommend leaders for state owned enterprises

Fifth, governance according to law also requires that the Communist Party of China improve the existing leadership of state agencies and to distinguish between the different natures of state power. In the management of state or society, governance is more sophisticated than leading the way. Even with the various agencies and organs within China, there exists a tendency to apply the one size fits all view. In fact, one of the basic experiences of the rule of law is that the governing party directly controls many agencies and the administrative authorities, while wielding an indirect influence over the judiciary through the power to recommend and approve. All other powers are largely surrendered. China currently still does not understand the special nature and importance of the judiciary. This lack of awareness of the consequences of judiciary results in the lack of independence of the judiciary and the power to administer justice.

Sixth, governance through law also calls for the reform of the current distribution of political resources, so much so that noncritical resources are returned to the society, and allocate these resources through competition. The basic requirement of governance through law is transparency. Therefore, to implement governance through law, the allocation of resources by party organizations at all levels cannot refer to the current prevailing economic life as principles of reform.

In addition to these six areas of difficulties or problems, to implement governance through law and the development of socialist constitutionalism requires that traditional challenges continue to be addressed, including addressing the failure of party officials to obey the law, the issue of impunity, the drift of behavior towards using the party to rule the country, the unconscious denial of the rule of law and the resurgence of the rule of man, and so on.

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