For 2012, this site introduced 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 Series continues.
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, Bo Wang, and Zhichao Yi for their able work in translating these essays.
For this contribution to the Zhiwei Tong (童之伟) Series /(Part XXIX) we translate: Five Theoretical Issues Should Be Addressed to Restart Political Reforms
Part XXIX—Zhiwei Tong (童之伟) Series: Five Theoretical Issues Should Be Addressed to Restart Political Reforms
(Pix (c) Larry Catá Backer 2013)
Five Theoretical Issues Should Be Addressed to Restart Political Reforms
April 11, 2013
Notes: this article is a revised version of my speech in “Strategy and Forecast in 2013”, Annual Conference of Caijing dating back to Nov. 29, 2012. After revision, it was published on IBTIMES, available on http://cn.ibtimes.com/articles/25685/20130410/43346.htm. In the last 10 years, the political reform is essentially in stagnation, and here my wording is “restart” rather than further political reform. Comprehensive reform involves many areas, but the mainly it refers to furthering economic reform and restarting political reform. To restart political reform, there are many complicated issues. However just raise five fundamental points in theory, namely presenting my basic relevant viewpoints in political reforms.
Firstly, it should face that primary contradictions in the society have changed.
In addition to Cultural Revolution time, the estimate of principal contradiction in the society has not been changed. In 1981, Resolution on Certain Questions in the History of Our Party since the Founding of the People’s Republic of China has asserted that the 8th National Congress of the Communist Party of China had positioned that “the primary social contradiction is the current economy and culture cannot satisfy people’s needs of economic and cultural growth.” Later on in 1987, the 13th National Congress of the Communist Party of China has made it clear again that “the primary social contradiction is the growing material and cultural needs of the people and the backwardness of production.” The report of 18th National Congress of the CPC reiterates this primary social contradiction. I think it is acceptable to define the primary contradiction in our society, but it is not acceptable to say there is no change happening to the primary social contradiction, which is not in line with the truth.
Through more than thirty years, the economic development in China, which is a tremendous achievement, has greatly alleviated social contradiction. Official statistics has showcased that the average actual GDP growth in China was 9.8%; in the next five years to 2012, the average growth was also around 9%. In 1987, the GNP of China doubled that of 1980 and in 1995 the GNP doubled that of 1987. It is predicable that in seven years, namely 2020, our country can achieve the goal of moderately well off society. So why so huge economic development cannot alleviate the contradiction between the growing material and cultural needs of the people and the backwardness of production? Common sense, rationale and life experience all have told us these economic developments have alleviated our social primary contradiction to a large degree.
Also, it should be noted that the contradiction between people’s growing needs of fundamental rights and freedom and the limited space and insufficient ways of protection, is historically generated and become increasing sharp in our society. In the last decade or so, petitions, forced house-removing, mass disturbance and others, the numbers and scales have demonstrated the realities; and Weibo (Microblog) has directly reflected the social needs that our citizens are supposed to expand their fundamental rights as well as protections.
To be practical and realistic in the evaluation of social development, also for breaking a path in theory of political reform, I suggest making an adjustment on the definition of our social primary contradiction. Namely, throughout more than thirty years’ fast economic growth, the contradiction between people’s material and cultural needs and the backwardness of social production has greatly been alleviated; simultaneously, the contradiction between people’s needs of guaranteed fundamental rights and the limited space and insufficient ways of protection under current political system is becoming increasingly sharp. The later contradiction has been more severe in some of China and possibly it might turn out to be the primary social contradiction nationwide. In layman’s terms, we are not supposed to put emphasis on “eating food” while ignoring protection of people’s fundamental rights, democracy, and rule of laws.
Secondly, eliminate the conflict between the statements of state form and core values of laws.
It is necessary to theoretically incorporate and solve the problems with conflicts between constitutional statements of state form and law values such as democracy, civilization, harmony, freedom, equality, fairness, rule of law. Theoretically and constitutionally, there are two aspects which should be taken into consideration. The first is that the theoretical constitution identifies that China is a socialist country under the people’s democratic dictatorship; on the other hand, the 18th National Congress of Communist Party of China has addressed core values, such as democracy, civilization, harmony, freedom, equality, fairness, and rule of laws, which obviously includes the respect and protection of human rights under the constitution.
However, there is a prerequisite under the wording of people’s democratic dictatorship, namely that the Chinese are divided into “people” and “enemy” and the “enemy” is excluded from the body of democratic dictatorship. On this premise, the nature of this country is actually defined under “dictatorship” and it is translated into explanation of dictatorship. Therefore, there is intrinsic conflict in the elements of the wording. It is noted that the positioning, wording and explanation of this country’s nature have intrinsic conflicts with declaration of values, such as democracy, civilization, harmony, freedom, equality, fairness, rule of law, and human rights protection.
How to deal with this? I believe, theoretically and constitutionally China should be positioned as a socialist democratic country. If so, domestically it is helpful for the implementation of values of democracy, civilization, harmony, freedom, equality, fairness, rule of law, human rights protection; internationally the image of China will be more friendly and positive to others. To solve this problem, it is necessary to emancipate our minds and use more political wisdom.
Thirdly, democracy should be interpreted and translated based on its intrinsic meaning.
There are two forms of democracy. One is direct democracy; the other is indirect democracy. Direct democracy is that citizens participate into institutional creation, referendum, and voting to make decision on public affairs; indirect democracy is that citizens implement the exercise of rights by election of representatives which constitute the related institution. As regard to direct democracy, there is no stipulation or description. Therefore, our country is representative democracy, which means citizens participate into decision making on public affairs through different levels of people’s congress.
Democracies are totally different under different constitutions. The democracy under Chinese Constitution is revealed in the system of People’s Congresses. Different administrative regions or units elect their People’s Congress members, who constitute the Congress of different levels, and these members as well as their affiliated congresses exercise their functions and official powers. This is the fundamental content of China’s democracy. In addition to the people’s congress system, all the rest are extended and affiliated sense of this system, including the Political Consultative Conference which belongs to consultative democracy. Democracy in any means which bypasses the vote of People’s Congress as well as its members is not real Chinese constitutional democracy. The democracy our government talked about often digresses from the keys of democracy.
The situations above are abnormal. The core for Chinese development of democratic politics is to enhance the competitiveness and directness of election of People’s Congress members, which is helpful to practice citizens’ rights to vote and be elected. This is also the key of political reform. Only with the change of this political part, can the core reform be enforced. Other reforms are necessary too but they can be considered the periphery part of the political system.
In addition, the meaning of democracy should be differentiated with populism. The citizens here in democracy refer to overall mass people. When making decision on public affairs, it is majority rule; at the meantime, the minority should be protected as well. The way to enforce protection of minority is ensure their rights of criticism and objections on the decision making and implementation process. From the root of democracy, if the minority’s rights of criticism and objection cannot be ensured in the system, there is no democracy in fact. The citizens in populism in theory and practice are in the abstract of “most people” and it emphasizes the minority’s compliance to majority, while there is no institutional guarantee of minority’s rights of criticism and objection.
Related laws based on the constitution protect citizens’ freedom of speech, press and association. This is the fundamentally institutional guarantee of democracy and the implementation protects democracy from shifting to populism. There is much lesson in China that democracy has degenerated into populism, including Cultural Revolution and reverse flow in Chongqing led by Bo Xilai is another example illustration of same nature.
Fourthly, there should be good relation management between rule of law and social stability.
Some think that the rule of law and social stability are mutually exclusive, which is quite wrong. In fact, to achieve sustainable social stability, the rule of law is the only way. The premise of social stability is that individual citizens can get protection of their rights. No protection of citizens’ fundamental rights leads to unstable society. The historical experience has demonstrated that rule of man cannot ensure citizens’ individual rights protection and only rule of law can achieve this to the largest extent. The most difficult part of rule of law is to restrain the power, and guarantee the effectiveness of the constitution and other laws in ruling. There is a constantly prominent issue in Chinese politics, namely the lack of power restraints. The main causes are from two aspects. One is that there is no separation of function between the Party’s agencies and government agencies and the power is centralized in the party’s committee and secretary where there is no supervision or restriction among each other. The problem that there is no distinction between party agencies and government agencies can only be solved through political reform. However, the restrictive relation among government agencies can be made and achieved as long as the government agencies function well within the purview that the constitution and related laws stipulate.
Some mistakenly think only the courts, protectorates, and public security agencies need constraints while other government agencies may not need constraints. Actually, this understanding is not reasonable. There is no specific constitutional article that specifies constraints of these agencies, but it doesn’t mean constraints are not necessary. As a matter of fact, the separation of power under the constitution itself is meaning the necessity of mutual constraint. Furthermore, as long as different functional governmental agencies perform based on their function and power, there should be an effective system with mutual constraints.
There is a close relation between rule of law and democracy, but the base of rule of law should be formed on certain democratic facts. Different social classes have different interests. The main ways of institutionalized democracy are that different interest groups elect their representatives to discuss, argue, fight for their groups’ interest and the voted decision will become the rules. There is conflict of interest in every society and one great function of rule of law is resolve conflict within certain established rules and orders, including through the coordination and negotiation within representative organizations, which could prevent street fights or other unrest. This requires that different groups of interest have more or less representative members in the democratic institutions maintaining and maximizing their interest.
Therefore, if there is heated dispute or fierce conflict in a representative institution, it shows this institution is functioning well. If the social contradiction is very sharp, but the representative institutions have no dispute and live peacefully, actually this generally indicates that certain social classes don’t have representatives in this institution or this representative institution dysfunction. There is a general rule in the relationship between representative institutions and external society: the intensity of dispute in the representative institution is in direct proportion to the degree of harmony in the society and in inverse proportion to the intensity of conflict among different social classes. Taking China for example, if there are no representatives from different social classes in People’s National Congress and its standing committee, there should not be sufficiently substantial disputes, conflicts, negotiations and compromises. However, these conflicts may turn out to be show up on streets or squares, which are not willing to be seen.
In addition, disputes also should be coordinated and resolved by independent judicial departments. Ensuring the judicial adjudication to be the end of social disputes is another basic requirement by rule of law. Therefore, judicial independence is absolutely necessary for the social stability. The rationale between rule of law and social stability can be applied to relation between rule of law and social harmony too.
Fifthly, confirm the legitimacy and justification of constitutionalism
Some people in our political leadership do have a fear of constitutionalism, but actually constitutionalism is not that dreadful. The practice of constitutionalism is simply to strictly implement the constitution. I never heard about any constitutionalism without implementing the constitution. As long as there is no objection to implementation of the constitution, there should be no reason to oppose constitutionalism. The implementation of constitutionalism actually brings no more benefits to the constitutionalism advocates. Therefore, constitutional phobia should be eliminated for better understanding of constitutionalism.
More specifically, there are a few things to mention here in politics and laws to better implement constitutionalism.
1. Constitutional supremacy is critically important and others words by anyone or other powers are second to the constitution. Historically in our country, there were too many cases that some people’s words and powers have had superiority to the constitution. Basically, the pattern of manifestation is that when there is conflict between the constitution or laws, and superiors’ words, instructions, or official documents, the constitution and laws are often disregarded in reality.
2. The public power should be restricted within the constitution; to take command of public power should be based on the constitutional grounds and the operation of public power must not go beyond what the constitution stipulates. The constitutional grounds refers to that the command of public power has corresponding support from the constitution. Simply put, the public can find the public power organizations’ responsibility and function from the constitution correspondingly. If no corresponding stipulations can be found under the constitution, the powers should not be exercised. Ultra vires is not effective and the public power organizations or agencies are supposed to bear responsibility for any harm caused by their behaviors that are not conformed to laws. .
3. The ruling party should strictly abide by the constitution and take power within the legal boundaries. Now the ruling party’s governing to a large extent, there is no legal base. Although it is claimed that our socialism law system has been built up, the legal base for the ruling party’s governing is so limited. Not just requiring the enactment of laws of press, publication, association and other laws that protect citizens’ fundamental rights, governing by law should cover issues that how to specify the relations between ruling party and government agencies. However, there is nothing about this area yet, and more needs to be done.
4. It is very necessary to eliminate the mismatch and confusion of state agencies and ruling party’s institutions. If the relation between the party and government agencies cannot be made in line with laws, it is very difficult to implement governing by law strictly. The fundamental way to separate and streamline the two is separate their assets. The party committees of different levels should use their independent accounts and full-time party cadres should not be financed by public.
5. Establish an effective system of constitutional supervision. Constitutional supervision means investigation of violation of the constitution. If the legislation doesn’t function well, or situations that laws and regulations violate the constitution cannot be stopped, the implementation of constitutionalism will be weakened severely. The constitutional supervision system which stipulated by our constitution should be activated and enforced by political reform.
These basic points should be satisfied to fulfill the implementation of constitutionalism. Unfortunately, the word constitutionalism doesn’t have too much legitimacy or justification in our official discourse system. Hopefully, the Chinese government and people from different social classes can realize that strict implementation of the constitution will inevitably make constitutionalism take root and the future of China lies in the establishment of constitutionalism.
I look forward to discussion of the five points.