For 2012, this site introduces the thought of Zhiwei Tong (童之伟), 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 (童之伟) 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 assistants, YiYang Cao and Zhichao Yi for their able work in translating these essays.
Reform of the Political System Should Start with the Party Constitution rather than the Constitution
Abstract: This article is an academic response to the important point “reform of the political system should start with the Constitution," made by Professor Jiang Ping. The progresses of the 1982 Constitution compared with previous ones are all driven by reforms of the Party Constitution, since then, major changes in the Constitution have always been guided by reform of the Party Constitution. Implementation of the Constitution depends on the implementation of constitution-related provisions in the Party Constitution. National People’s Congress’ interpretation of the Constitution is determined by the interpretation made by the ruling party. The status of the implementation of constitution-related provisions in the Party Constitution has decisive influence on the building up of the constitutional supervisory system. The reform of the political system should begin with reform of the ruling party itself and its rules. The author advocates: establish party code of conduct to guarantee the strict compliance of party organizations and officials with the law; gradually form within the ruling party multi-candidate, direct and competitive electoral system; start with the enrichment and protection of the rights of party members in order to enrich basic rights of citizens and improve related protection system; use changes and application of the Party Constitution as the starting point to reform the judicial system; start from reviews based on the Party Constitution to gradually build an effective constitutional supervisory system to conduct constitutional reviews.
The legal system, however, is only a component of the political system. The results will probably not be the same if the reform of the political system is discussed beyond the scope of the legal system. The logic of historical experience and political behavior has demonstrated that the function of the Constitution is to document and fix the achievements of reforms of political systems; it is the result and not the starting point. Therefore, reform of the political system is not likely to start with the Constitution. So, if it cannot start with the Constitution, where shall it start then? I think, if we must look at the problems from a normative view, then the reform of the political system should start from the Part Constitution. The Party Constitution here is mentioned in a general sense, referring to the Constitution of the Communist Party of China and fundamental rules or norms provided by guideline documents of the Party that hold the same level of authority as the Party Constitution.
Why do we say political system reforms should start with the Party Constitution? Allow me, referring to the reality after “Reforms and Opening Up,” tersely state the reasons with which I derived my conclusion from. I very much respect Mr. Jiang’s point. I write this article, not to deny Mr. Jiang’s opinions but attempt to push further the discussion initiated by Mr. Jiang, regarding where to start political reforms.
1) Progresses made in 1982 Constitution are all results of the reform of the Party Constitution.
As a whole, the Constitution of 1982 is the best one among all the constitutions after the foundation of the new China: this is the consensus in the academia and among politicians. The progressiveness of the 1982 Constitution in comparison with other ones is mainly seen in four aspects, and the root of the progress in these four aspects can all be found in the constitution and guideline documents of the ruling party.
1) Compared to previous constitutions, the most outstanding progress of the 1982 Constitution is the focus on the modernization of the country and establishment of the fundamental task for the nation. The seventh paragraph of the Preamble of the Constitution provides clearly: “The basic task of the nation in the years to come is to concentrate its effort on socialist modernization.” This is a decisive turning point or milestone in the historical development of the new China, its positive significance cannot be exaggerated.
However, the above-mentioned reform of the Constitution had roots in the changes of the Party Constitution and improvement of ruling party’s awareness. In December 1978, the Third Plenary Meeting of the Eleventh Session of the Chinese Communist Party, adapting to domestic and external development, had decided to “to transfer the inclination of Party’s work and the attention of the People to the building of socialist modernization.”[ii] On September 6 1982, the new Party Constitution passed at the Twelfth Session of the CCP after stating: “ most conflicts in the society of our country do not have a class-struggle nature, class-struggle is no longer the main conflict,” “the major conflict in the society of our country is between people’s growing cultural and material demand and backward social forces of production,” demanded the general task with the core content of gradually realizing the “four modernizations,” and defined the inclination of the woks of the CCP as “to lead the people of all ethnicities in the nation to build a socialist modernized economy.”[iii] Without the improvement of CCP’s awareness and changes in the Party Constitution, it would have not been possible for the 1982 Constitution to establish the determination to “concentrate strength to build socialist modernization” as the fundamental task of the nation.
2) Another progress made by1982 Constitution compared to previous ones is that it provided that all political parties have to comply with the Constitution and the Law. The last paragraph of the Preamble provided: “the people of all nationalities, all state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings in the country must take the Constitution as the basic norm of conduct, and they have the duty to uphold the dignity of the Constitution and ensure its implementation.” Article 5 also provided that: “All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be investigated. No organization or individual may enjoy the privilege of being above the Constitution and the law.” Here the expression “all political parties” includes naturally the ruling Chinese Communist Party.
The provision in the Constitution of 1982 requiring CCP’s compliance with the Constitution and the Law is also based on the improvement of CCP’s awareness and changes in the Party Constitution occurred earlier. In December 1978, the Third Plenary Meeting of the Eleventh Session of the CCP demanded: “it is necessary to assure equality for the people in front of their own laws; nobody is allowed to have privileges overriding the Law.”[iv] “Resolution on Some Historical Issues of the Party since the Founding of the People's Republic” passed during the Sixth Plenary of the Eleventh Session of CCP in 1981 wrote: “organs of the Party at all levels, like other social organizations, must act within the scope of the Constitution and the Law.”[v] The Party Constitution passed in the coming year provided: “the Party must act within the scope of the Constitution and the Law.”[vi] If there had not been a consensus within the ruling CCP on the compliance with the Constitution and the Law which had be written into the Party Constitution, it would have been impossible for the Constitution of 1982 to establish such provision.
3) Similarly, the provision in the Constitution of 1982 that prevents excessive concentration of power was also rooted from guideline documents of the ruling party. The third progress of the 1982 Constitution compare to previous ones is the establishment of necessary provisions that prevents excessive concentration of power, among these provision the following ones have had particularly evident effect and received favorable comments both at home and abroad: Article 66 providing that “The Chairman and Vice-Chairmen of the Standing Committee shall serve no more than two consecutive terms;” Article 79 providing that “The term of office of the President and Vice-President of the People's Republic of China is the same as that of the National People's Congress, and they shall serve no more than two consecutive terms;” Article 87 providing that “The Premier, Vice-Premiers and State Councilors shall serve no more than two consecutive terms;” Article 124 providing that “The term of office of the President of the Supreme People's Court is the same as that of the National People's Congress; he shall serve no more than two consecutive terms;” and Article 130 stating that: “The term of office of the Procurator-General of the Supreme People's Procuratorate is the same as that of the National People's Congress; he shall serve no more than two consecutive terms.”
These provisions in the Constitution can all be traced to the “Reform of the Leadership System of the State and Party” which serves as “the guideline document that directs reforms of the political system in our country” to the ruling party.[vii] This documents was originally a speech made by Deng Xiaoping on August 18 1980 at an expanded meeting of the Politburo, the Politburo however passed this speech on August 31 1980. This speech became since then the guideline of the reform of the political system in our nation. The “Reform of the Leadership System of the State and Party” writes: “power should not be too concentrated. Excessive concentration of power impedes the implementation of the system of socialist democracy and Party's democratic centralism, it hinders the development of socialist construction and full play of collective wisdom, it is likely to cause arbitrary decision by individuals and destroy collective leadership, it is also an important cause for the emergence of bureaucracy under new conditions,” “the Central Committee has presented to NPC’s Third Meeting of the Fifth Session the proposal to revise the Constitution……The principle of prohibition of excessive concentration of power will also be demonstrated on the Constitution.”[viii] Following that, the “Resolution on Some Historical Issues of the Party since the Founding of the People's Republic” has also reflected on the historical lesson that “excessive concentration of power and emergence of arbitrary behavior by individual and personality cult, made it extremely difficult for the Party and State to prevent and impede the launching and development of the Cultural Revolution.”[ix]
4) Regarding the protection of basic civil rights, fundamental political system of the nation and advancement of the legal system, the Constitution of 1982 contains also contents surpassing previous constitutions. These contents are essentially reflections of corresponding contents of guiding documents passed by the ruling party some time earlier. Guiding documents of the ruling party had already made relevant discourses: “civil rights provided by the Constitution must be strongly protected, nobody may violate them;” “in order to safeguard people’s democracy, it is necessary to strengthen socialist rule of law; institutionalize and legalize democracy; let these institutions and laws possess stability, consistency and great authority; make sure that there are laws to rely on, follow a law when there is one, implement laws with seriousness and investigate any violation of the Law.”[x]
2) Important changes of the Constitution since 1982 had always been guided by changes in the Party Constitution.
Since its publication and implementation, the Constitution of 1982 underwent four partial revisions and thirty-one amendments were passed. Without any exception, all of these amendments were passed after they had been presented as advises to the Standing Committee of NPC by the Central Committee of CCP, and important contents included in these amendments were all written into the Party Constitution and other guideline documents of the ruling party beforehand. Let us take a look at the guiding function of the Party Constitution and guideline documents on important changes of the Constitution.
1) The First Amendment passed by National People’s Congress in April of 1988 which has the core content of “the State permits the private sector of the economy to exist and develop within the limits prescribed by law,” came from the same proposition of the Report of CCP’s Thirteenth Assembly passed in October of 1987. The Report wrote: “reforms we have conducted, including development of an multi-form ownership economy based mainly on public ownership, allowing even the existence and development of private ownership economy, are all determined by the objective situation of productive forces of the initial stage of socialism,” “regarding urban-rural cooperative economy, individual economy and private economy, all of them have to be encouraged to develop.”[xi]
2) Amendments 3 and 7 passed by NPC in March of 1993 confirming that “our nation is at the initial stage of socialism” and “the State implements socialist market economy,” all came from the Constitution of the Communist Party of China passed at the Fourteenth Assembly of the CCP in October 1992. This Party Constitution passed during the Fourteenth Assembly recognized in its the general statement: “our nation is at the initial stage of socialism,” and presented the proposition “it is necessary to reform radically the economic system that restrains development of productive forces, and build the socialist market economy.”[xii]
3) The Thirteenth Amendment passed in March of 1999 by NPC providing that “the People’s Republic of China implements the rule of law, builds a nation of socialist legal system,” came from the propositions of “rule the country in accordance with law, develop socialist democratic politics,” and “complete the legal system, build a nation of socialist rule of law,” passed by CCP’s Fifteenth Assembly.[xiii]
4) The Twenty-Second Amendment with the core content of “lawful private property of citizens may not be violated” passed in March of 2004 is based on the proposition of the Sixteenth Assembly of CCP regarding “building legal institutions that protect private property.”[xiv]
5) The Twenty-Fourth Amendment passed in March 2004 by NPC, added to Article 33 of the Constitution the item “the State respects and protects human rights,” this item is based on the proposition “respect and protects human rights” in the Report of the CCP’s Sixteenth Assembly passed in November 2002.[xv]
The above five aspects can be seen as landmark reforms of the 1982 Constitution since its publication and implementation. These reforms are all realized under the guidance of the Party Constitution and guideline documents of the ruling party, without the changes in the latter, no reforms could have happened to the Constitution. This conclusion is consistent with the establishment of the entire Constitution of our nation, from its preamble to main body.
A constitution is significant if it is implemented, and it is also valued with its implementation.
The basic content of the implementation of the Constitution is the compliance with the Constitution. Abiding by the Constitution is the obligation of all parties regulated in the Constitution. The Constitution of our nation provides: this very Constitution is the fundamental law of the nation and has the supreme legal power; the people of all nationalities, all state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings in the country must take the Constitution as the basic norm of conduct; All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings must abide by the Constitution and the law. All acts in violation of the Constitution and the law must be investigated.
A higher level content in the implementation of the Constitution is the application of the Constitution. Application of the Constitution refers to activities of public affairs or resolutions of specific disputes performed with active used of constitutional provisions in accordance with statutory power by state organs with statutory qualifications provided by the Constitution. Application of the Constitution consists firstly and mainly in the application of legislation, that is activities of state organizations with legislative power making laws in accordance with the Constitution to implement the specific provisions of the Constitution. There are also some content of executive application in the application of the Constitution, but there is basically no space for juridical or procuratorial application.
Under the current system of our nation, without the pushing forces of the ruling party, “to enhance the implementation of the Constitution” to a great extent is a declaration in vain. Regarding the implementation of the Constitution, the Party Constitution provided that “ the Party must act within the scope of the Constitution and laws;” it is necessary to “expand socialist democracy, improve socialist legal system, build social socialist country under the rule of law.” The Seventeenth Assembly of the CCP also asked to “ enhance the implementation of the Constitution and laws,” “All party members and party organizations at all levels must act within the scope of the Constitution and laws voluntarily, and act as example in protecting the authority of the Constitution and laws;” “fully implement basic policy of ruling the country in accordance with law, accelerate in building a country under the socialist rule of law.”[xvi]
However, how can the implementation of the Constitution be enhanced? Enhancing the implementation of the Constitution requires stricter obedience to the Constitution. Whether the Constitution can obtain strict obedience, depends essentially on whether the ruling party can obey to the provision “the Party must act within the scope of the Constitution and laws” as written in the Party Constitution. The half-century history of the implementation of the Constitution demonstrates, if the organizations or the leader of the ruling party can act within the scope of the Constitution then the Constitution can be strictly followed; if the organizations or the leader of the ruling party do not act within the scope of the Constitution, then no force can prevent the Constitution from being violated or even trampled as scratch papers.
Enhancing the implementation of the Constitution requires also more extensive application of the Constitution. Legislative agenda and focus of the NPC and its standing committee, radically speaking, are all determined by the central leadership of the ruling party in accordance with the Party Constitution and other guideline documents. In this sense, the implementation of the Constitution depends on the level of ruling party’s compliance to and application of the Party Constitution. Whether a certain law should be included in the legislative agenda of the NPC or its Standing Committee, or when it will be included in the agenda, in practice, mainly depends on the judgment and considerations of the central leadership of the ruling party acting in accordance with the Party Constitution.
For example, after the basic formation of the legal system, the first topic that the application of the Constitution faces in our country is to continue in establishing or improving laws that protect basic civil rights, such as establishing laws that protect freedom of speech and press, freedom of association and improving laws that protect personal rights and freedom etc. The other important topic that the application of the Constitution faces is to establish, following the provisions of the Constitution, laws necessary for the implementation of ruling party’s policy on the rule of law and for ruling party’s governance in accordance with law. The main content here consists of laws that regularize constitutional supervision and regularize the relationship between party organizations and state organs at various levels. When these topics are going to be planned into the agenda of nation’s highest legislative body, depends on the arrangement of the ruling party.
4) Ruling party’s interpretation of Party Constitution’s provisions regarding the Constitution determines NPC’s interpretation of the Constitution.
The Constitution of the Communist Party of China contains numerous provisions regarding important constitutional issues. Provisions in the Party Constitution as the following ones involve important constitutional issues: “It is compulsory to adhere to and improve the basic economic system based primarily on public ownership combined with multiform types of ownership; adhere to and improve the distribution system based primarily on the distribution system according to work combined with multiform types of distributions;” The Communist Party of China “leads the people in promoting socialist democracy. It integrates its leadership, the position of the people as masters of the country, and the rule of law, takes the path of political development under socialism with Chinese characteristics, expands socialist democracy, improves the socialist legal system, builds a socialist country under the rule of law, consolidates the people's democratic dictatorship, and builds socialist political civilization. It upholds and improves the system of people's congresses, the system of multiparty cooperation and political consultation under its leadership, the system of regional ethnic autonomy, and the system of self-governance at the primary level of society.” “The Party must meet the requirements of reform, opening up and socialist modernization, persist in scientific, democratic and law-based governance, and strengthen and improve its leadership,” “The Party must conduct its activities within the framework of the Constitution and laws of the country. It must see to it that the legislative, judicial and administrative organs of the state and the economic, cultural and people's organizations work with initiative and independent responsibility and in unison.” Interpretation the ruling party’s leadership has on these provisions, determine their interpretation of relevant constitutional provisions and corresponding terminology, which will ultimately determine NPC and its Standing Committee’s interpretation of corresponding constitutional provisions and terminology. The mechanism with which things work here is self-explanatory.
The impact on the implementation of the Constitution by the leadership of the ruling party in accordance with the Party Constitution is extensive. In this aspect, even a careless action by those in charge may often cause confusion of the constitutionally provided relationship between state organs, making the relationship distorted or even reversed, impacting to a great extent the statutory power distribution among state organs. The Party Constitution provides that in social and public affairs the Party implements “political, intellectual and organizational leadership.” The form of leadership in any of these aspects can directly or indirectly influence the implementation of the Constitution. Regarding this aspect we can probably explain using the example in which the ruling party implements leadership within the judiciary system by using party organizations. For example, arranging the secretary of legal affairs to be the permanent member of the party committee and head of the Public Security Bureau of the same administrative region was a common and is still a not totally abandoned form of leadership by using party organizations implemented by the ruling party within the state judiciary system. One of the many consequences of this form of leadership is that the head of the Public Security Bureau, who has a lower constitutional status than the head of the court and procuratorate, enjoys a higher political status and power than both of them in practice. According to the above arrangement, head of the Public Security Bureau has replaced the political status of the leaders of the court and procuratorate, therefore the head of the Public Security Bureau can summon leaders of the court and procuratorate of the same administrative region and guide the processing of cases, at any time he or she feels necessary under the name of “coordination.” This is an important reason why since a long period the processing of criminal cases in our country are often controlled by public security departments while procuratorates and courts cannot have effective restrictions on the public security departments involved in the investigations. Currently, this type of practice is retreating from judicial stage, at the same time a non-concurrent post system is close to replacing the old practice. Bearing in mind the requirements for strict implementation of the Constitution, whether the ruling party needs to establish a committee for “political and legal affairs” at all levels of party committees; if yes, whether the position of its secretary should not allow concurrent posts or be concurrently hold by the head of the court (a system implemented by Mr. Ren Jianxin when he was the Chief Justice of the Supreme People’s Court) or head of the Public Security Bureau, are all important questions that should be carefully addressed when the ruling party implements leadership by using party organizations in accordance with the Party Constitution. This is only one of the many aspects of traditional relationship between Party and administration, concerning other aspects, there would not be fundamental difference concerning the decisive impact of the leadership of the ruling party can exert on the implementation of the Constitution.
What needs to be particularly explained is that: ruling party’s interpretation of the basic political system provided in the Party Constitution, has decisive impact on the constitutional status and statutory power of relevant state organs and relationship between different state organs in terms of functions and powers, determining thus also the implementation of relevant constitutional provisions. The Constitution of the Communist Party of China provides that it is necessary to “persist and improve the system of People’s Congress.” But, what is the system of People’s Congress? How to have an up-to-date interpretation of such system? How are the relative status and functional powers of the deferent state organs under the People’s Congress system determined? These are all problems that can cause large discrepancy in interpretations. However, regardless of discrepancies, the content and form of implementation of the “People’s Congress System” in the Constitution, are essentially dependent on ruling party’s interpretation of relevant provisions in their Party Constitution. In the Constitution of our country, under the National People’s Congress there are the State Council, Central Military Committee, Supreme People’s Court and Supreme People’s Procuratorate, these are four parallel central state organs. However, the ruling party, evidently influenced by the mentality of warring period and planned economy, has never seen the four organs as parallel, instead it views the Supreme Court and Supreme Procuratorate as lower organs than the State Council and Central Military Committee, putting the two “Supreme” institutions as important ministries under the State Council (the Public Security Bureau). This is in fact the result of ruling party’s interpretation of the People’s Congress system. According to this interpretation, despite the fact that both the office of the Chief Justice of the Supreme People’s Court and the office of Chief Procurator of the Supreme People’s Procuratorate are vice Head of State-level posts, evaluating their status in the Party, the index most valued by the current system, neither of them enjoy a status higher than a minister. Here there is a question of whether the interpretation of relevant provisions in the Constitution is done to suit the market economy and the environment of the rule of democracy. Under the environment of planned economy, rule of man and class struggles, administrative power and strong institutions are the most important, judicial branch cannot contribute much, appearing thus less important, therefore it is normal to place the State Council and Central Military Committee above the Supreme People’s Court and Procuratorate. However, in the time of market economy and building up of a country under the rule of law, the Supreme People’s Court and Procuratorate can be and should be, as the text of the Constitution provides, placed at the same status of the State Council and Central Military Committee. If the central leadership of the CCP considers the Supreme People’s Court and Procuratorate as parallel central state organs as the State Council and Central Military Committee, in the future, they should totally nominate two permanent members of the Politburo to the National People’s Congress for the office of the Chief Justice and Chief Procurator, and place the two offices as vice Head of State-level posts institutionally.
Of course, ruling party’s interpretation of provisions related to the Constitution contained in the Party Constitution and its leadership behavior has essential impact on all fields of the implementation of the Constitution, the text above is only a simple discussion focusing on the judicial field, and it is not a systematic discourse.
5) The application of constitutionally related provisions in the Party Constitution also has decisive impact on the establishment of the constitutional supervisory system.
Put in simple terms, constitutional supervision is constitutional judicial review or protection of the Constitution. Without an effective constitutional supervision system, the Constitution cannot be fully implemented.
Reading from the text of the Constitution, China does have its constitutional supervisory system. The tragic end of the 1954 Constitution and painful lessons learned through the experience of the Cultural Revolution allowed the “people and the Communist Party of China to notice profoundly that the authority of the Constitution is related to political stability and national fate, no harm will be allowed to the foundation of the Constitution.”[xvii] Therefore, the authors of the current constitution have attached more importance to constitutional supervision. The Constitution provides: “This very Constitution ..is the basic law of the national, and has the supreme legal power;” none law, administrative regulation and regional normative regulation can be in conflict with the Constitution. The Constitution also provides that, National People’s Congress supervises the implementation of the Constitution; it has the power to change or abolish inadequate decisions made by its Standing Committee; NPC’s Standing Committee explains the Constitution and supervises the supervision of constitutional implementations, it has the power to abolish administrative regulation, decision and orders made by the State Council when they are in conflict with the Constitution or laws, it also has the power to abolish regional regulations and resolutions made by provincial, regional (autonomous regions) and municipal (direct municipalities) state authority if they are in conflict with the Constitution, laws and administrative regulations; local People’s Congresses guarantee compliance to and implementation of the Constitution, laws and administrative regulations; People’s Congresses above the county level has the power to alter or abolish inadequate decision made by its Standing Committee, has the power to alter or abolish inadequate decisions of the government of the same level and abolish inadequate resolutions made lower level People’s Congresses etc. The “Legislation Law,” passed in March of 2000 during the Third Meeting of the Ninth Session of the NPC and activated on the 1st of July made numerous complementary provisions to the supervisory system determined by the Constitution.
In practice, the constitutional supervisory system provided by the text of the Constitution and relevant complementary law have some evaluative, educational and guidance functions. However due to the absence of specific constitutional supervisory institution and relevant procedural laws, the constitutional supervisory system in our country remains still largely on paper so far. No public review of provisions of any law or normative regulation has been done in regard of their constitutionality. Therefore, this present system cannot be considered as an effective one. Secretary General Hu Jintao at the celebration of the twentieth anniversary of the promulgation of the Constitution in Beijing pointed out that “some unconstitutional phenomena varying in degrees still exists,” and proposed that “it is necessary to accelerate research and strengthening of the constitutional supervisory system, further clarify constitutional supervisory procedures, rectify timely all unconstitutional behaviors. National People’s Congress and its Standing Committee have to serve to fundamental interests of the State and people, fully protect citizens’ freedom and rights provided by the Constitution during the process of legislation, take effectively the functional responsibility of supervising constitutional implementations and rectify unconstitutional behaviors with determination.”[xviii]
Considering the above situations, and according to the provision “to strengthen State works in legislation and legal implementation, realize the legalization of all State works” written in the current Constitution of the Communist Party of China, and the requirement by the Seventeenth Session of CCP’s National Representative Assembly of “persist characteristics and advantages of socialist political system, advance the institutionalization, regularization, proceduralization of the socialist democratic political system, in order to provide political and institutionalized legal protection for the long-term stability of the Party and nation,”[xix] the ruling party should make pragmatic efforts in the building up of an effective constitutional supervisory system. Two things can be done in this regard: 1) establish the long-proposed and long-discussed specific constitutional supervisory institution; 2) plan and establish procedural legislation regarding the constitutional supervision.
Actual advancement in constitutional supervision depends on the will with which the ruling party implements relevant content of the Party Constitution and its judgment on the appropriateness of timing.
6) Conclusion: political reform should start with the reform of the ruling party itself and its rules.
In the recent 30 years, huge changes occurred in the society and economy of our country, during this time, although the political system has had some reforms, but the steps taken were small. Since CCP’s Twelfth Assembly in October 1992, the Constitution of the Communist Party of China has provided to initiate economic reforms, “and accordingly, it is necessary to initiate political system reforms and reforms in other domains.” Regarding political system reforms, the society has huge expectations from the ruling party. Evidently to respond to this expectation, CCP’s Sixteenth Assembly hold in November 2002 modified the Party Constitution, propositioning the task of “advance coordinated development of socialist material, political and spiritual civilizations.” Afterwards, the Eighteenth Amendment of the Constitution passed at NPC’s meeting in March 2004 included the task of “advancing material, political and spiritual civilization” in the Constitution. Since then, seven years have passed, and evidently the expectation of the society for the ruling party has only increased.
Social economic reforms unavoidably lead to political reforms. Political reforms are divided into two distinct forms consisting in political revolution and political system reform (or political system moderation). In long terms, the occurrence of political changes is unavoidable, therefore the question remain only whether the society chooses to adopt the form of revolution or reform. As political phenomenon, it is difficult for us to mark every single political change with the stamp “revolution” or “reform,” but it seems like we can provide a general judgment: in a country where the leading or ruling status of a political party is recorded and fixed by the Constitution, all changes willingly activated, voluntarily accepted and advanced by the ruling party are all reforms in nature; not all phenomena of change prohibited by the ruling party who is unable of exerting full control are of revolutionary nature, but evidently there is danger that they may turn into revolutions.
Although in contemporary China social problems are rather acute due to unbalanced economic and political development, unfair distribution of economic and political resources and corruption of public authority, there are rare social conditions that may cause “revolution” or prominent risk. However, our society is still in development, for the sake of long-term stability, our nation has to initiate political system reform sooner possible, it cannot attempt to avoid the necessary reforms of the political system, because the longer it avoids, the harder it will find reforming the system and greater are the risks.
After going through circle, we still have to address the question asked at the introduction of this article: where shall the reform of the political system start from? Thousands are issues reform of the political system may involve, I proposition to start with the ruling party itself and the implementation and changes of its Party Constitution, concretely speaking, starting from the following aspects:
1) Establish party regulations that reassure its organizations and officials’ strict compliance with laws. Strict compliance with laws by party organizations, official and state organs under their governance, is an precondition for effective advancement of political system reform. The Constitution of the Communist Party of China demands: “the Party has to act within the scope of the Constitution and laws,” party members to “follow state laws and regulations as example.” However a question, often ignored in the past and becoming increasingly prominent recently, is that public authority and its officials act in evident violation of law but not investigated by any institution. The victims cannot even find a place to appeal. There are already multiple ways in which public authority and its officials act in violation of law: violent demolition, illegal detention, forced “missing accident,” forced psychiatric treatment, deprivation of rights to appeal, investigation with torture, joint process by Public Security Bureau, Procuratorate and Court, judgment before investigation, establishment of temporary non-statutory institutions overriding state institutions etc. These are all disorderly phenomena for a country that is determined to build a rule of law, they should be put to an end. Under the current environment in our country, the most effective way to manage these disorderly phenomena is to severely implement party disciplines in accordance with the Party Constitution.I invite courteously readers to criticize and advise regarding the above tentative plan.
2) Gradually revise or improve regulations regarding candidate nomination and election of party assembly representatives at all levels as well as members, permanent members and secretary of party committee at all levels, and also gradually form a multi-candidate, direct and competitive election system within the party. Then include the new regulations regarding elections in the Constitution or laws with the same principles, spreading it to the nation and society. Whether it is a party, nation or society, the most fundamental institutional element for democracy is election, if there is not an election valued with multi-candidacy, directness and competition then it has lost the fundamental meaning of party democracy and social political democracy. Single-candidate, indirect and uncompetitive election, especially single candidacy and non-competition are essentially a gibe to election, they do not have the original meaning of election. Single candidacy, indirect and uncompetitive election are a suitable political form for planned economy, non-democracy and rule of man; the political form suitable for market economy, democracy and rule of law is expressed in terms of multi-candidacy, direct and competitive election. There is no conclusion more materialist (the word “materialist” is often used as the equivalent of “scientific” in mainland China----------translator) than this.
3) Enrich basic rights of citizens and build the protection system by starting with the enrichment and protection of rights for party members. Historical facts prove that the protection of the rights of ruling party members determines, and at the same time reflects, the protection of basic civil rights provided by the constitution, although these two types of rights might may not match. Although Article Three of The Party Constitution passed at the Eight Assembly of CCP in 1956 provided seven rights for party members, seeing from the real situations between 1956 and 1969, this provision in the Party Constitution is close to being nonexistent. Party Constitution of the Ninth Assembly in 1969, Tenth Assembly in 1973 and Eleventh Assembly in 1977 simply abolished the provisions of party members’ rights of the Eighth Assembly in 1956, especially party constitutions of 1969 and 1973, they almost did not recognize any right for party members while providing numerous duties. The current Constitution of the Communist Party of China is passed in 2007 at the Seventeenth Assembly. Its Article Four provided eight rights for party members, and is the same text of Article Four of the Party Constitution passed at the Twelfth Assembly, unchanged for 30 years.
Although the current party constitution is unrivaled in terms of number of rights by party constitutions passed before 1982, and the situation of the protection of these rights is rather good, but it is evident that the current party constitution does not fit the society which has had great changes after the “Reforms and Opening Up” in many places. The unfit situation can be generalized in the following three aspects: 1) there are rare opportunities and platforms to participate in policy discussion of the Party, especially there are rare opportunities and platforms to expresses different opinions, such opportunities and platforms are almost inexistent. 2) There are rare or zero opportunities to directly participate in the elections of Party Assembly Representatives, Party Committee members, permanent members or secretaries at various levels, and the opportunity for independent candidate is simply inexistent.3) Although Article Sixteen provides : “it is forbidden for any leader to conduct personal arbitrary judgment and override the party organization,” due to reasons such as imperfection of the supervisory system, the situation in which secretary of local party committees makes arbitrary judgments and suppresses lower officials and party members is still quite common.
The ruling party should push for the solution of the above problems through revision and improvement of the Party Constitution and similar party regulations. By solving first issues of enriching and protecting rights for party members, the party can accumulate experience to advance enrichment and protection of basic rights for citizens under new historical conditions. With a strong base built with the experience of enrichment and protection of rights for party members, the ruling party will be more agile in managing the difficult problems of enriching basic right for citizens and implementing protection for such rights. These difficult problems include freedom of speech and press, freedom of association, and freedom of movement, freedom to strike which are rights the Constitution should have but not yet recognized, as well as other basic rights that the public feels the necessity to be recognized by the Constitution.
4) Use the revision and application of the Party Constitution as starting point to gradually reform the judicial system, maintain judicial independence, and elevate judicial authority in order to let justice produce social economic and even political functions present in a normal region or country ruled by law. Judicature in our country lacks severely in authority, this situation leaves numerous potential dangers for the normal development and stability of the society, while also harming the authority and leading status of the ruling party. Reasons for the failure of the establishment of judicial authority in our country are: judicial organs and its officials do not have neutral appearances, regarding sensitive issues the public general sees the judgment of the court as judgment of the organization of the ruling party of the same or superior level; harmonious resolutions of social conflicts cannot be obtained if the court cannot be a neural and liable arbiter in various social disputes. If our country wants to create a neutral, fair and liable judicature, then the judgment of the court should not absolutely be something that can be influenced or even determined in advance or retrospectively by relevant organization and leaders of the ruling party.
Constitution and laws of any country rule by law allow the ruling party to directly control legislative and administrative organs, but none of them allow the ruling party to directly control the court and its juridical activities. This arrangement is reasonable. Applying the language of social class analysis, it can be said that such arrangement matches the fundamental interest of the ruling class, it is a necessity of the ruling class to maintain long-term stability of the society and country. Same reason, in the judicial domain, the ruling party should realize its leadership by revising the Constitution, establishing laws and advancing the implementation of the Constitution and laws. The ruling party should not realize its leadership by letting local party organizations and its officials to take over the court; otherwise it will be very probable that undesired consequence arise.
In order to solve this problem from its root, the ruling party perhaps needs to revise the Party Constitution after a general consensus within the party is gathered, and then modify the relevant provisions that explain the national Constitution. Before accomplish this, it is possible to reduce the influence and intervention on judicature by local party organizations and their leadesr, by prohibiting for example party organization and its leaders from giving orders on cases and being involved in the judgment of cases.
5) Establish gradually effective constitutional supervisory system by starting with judicial review based on the Party Constitution (party-constitutionality review---translator). There are greater difficulties to establish effective constitutional supervisory system according to the provisions of the Constitution and realize judicial review on the constitutionality of laws and normative documents, because it involves establishment and improvement of procedural laws and specific institutions. Implementations in this regard can come some steps after. A feasible way is to start with the review of behaviors of party organizations and leaders in accordance with the Party Constitution, realizing indirectly constitutional review on them. According to the provision of the Party Constitution “the Party has to act within the scope of the Constitution and laws,” party members have to “follow state laws and regulations as examples,” it is totally possible to achieve this point. After this system is established, at least policies, resolutions or orders by leaders of party organizations of various departments and regions (including the Central Department of Propaganda and Central Department of Organization) can be presented to or receive review by superior Committee of Party Discipline in accordance with Party Constitution, following certain procedures. Such reviews may not have the name of constitutional reviews, but they conduct the substantial work of constitutional reviews. Perhaps a considerable number of people have the concern that the establishment and improvement of procedural laws, and establishment of specific institutions may weaken Party’s leadership, but the indirect constitutional review exercised by Committee of Party Discipline mentioned in this article will only enhance and improve Party’s leadership, such problems will not exists.
By using transitorily reviews on behaviors of local party organizations and its leaders in accordance with the Party Constitution by high level Committee of Party Discipline, the following three institutional effects can be obtained: 1) rectify concretely policies, resolutions, decisions and orders in violation of the Constitution and laws and ease the pressure created by calls for establishment of effective constitutional supervisory system at national level. 2) Accumulate experience in constitutional and judicial reviews 3) It is possible to use the experience of Party-Constitutionality reviews as base and form a judicial review system on administrative regulations and normative documents when the time is proper. Step one stair up when the conditions are established: transform the Party-Constitutionality reviews system into a feasible national constitutional supervisory system. Many years and hard works of constitutional scholars are necessary in order to accomplish this mission.
[i] Jiang Ping, "Political Reform should first begin with the Constitution.” May 12 2011 at the Establishing Ceremony of “Cai Dingjian Constitutional Education Fund”
[ii] Report of the Third Plenary Meeting of the Eleventh Session of the Chinese Communist Party
[iii]Constitution of the Communist Party of China passed in1982 at the Twelfth Assembly of the CCP
[iv] Report of the Third Plenary Meeting of the Eleventh Session of the Chinese Communist Party
[v] “Resolution on Some Historical Issues of the Party since the Founding of the People's Republic”
[vi]Constitution of the Communist Party of China passed in1982 at the Twelfth Assembly of the CCP
[vii] “Reform of the Leadership System of the State and Party”
[viii] “Reform of the Leadership System of the State and Party”
[ix] “Resolution on Some Historical Issues of the Party since the Founding of the People's Republic”
[x] Report of the Third Plenary Meeting of the Eleventh Session of the Chinese Communist Party
[xi] Report of the Thirteenth Assembly of the Chinese Communist Party
[xii] Constitution of the Communist Party of China passed in1992 at the Fourteenth Assembly of the CCP
[xiii] Report of the Fifteenth Assembly of the Chinese Communist Party
[xiv] Report of the Sixteenth Assembly of the Chinese Communist Party
[xv] Report of the Sixteenth Assembly of the Chinese Communist Party
[xvi] Report of the Seventeenth Assembly of the Chinese Communist Party
[xvii] Report on the Revision of the Constitution of the People’s Republic of China, delivered by Peng Zhen at the Fifth Meeting of Fifth Session of NPC in Movemebr 26 1982
[xviii] Secretary General Hu Jintao ‘s Speech at the Celebration of the Twentieth Anniversary of the Promulgation of the Constitution in Beijing http://news.xinhuanet.com/newscenter/2002-12/04/content_649124.htm
[xix] The current Constitution of the Communist Party of China