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.
TABLE OF CONTENTS FOR THE SERIES AVAILABLE HERE. For this contribution to the Zhiwei Tong (童之伟) Series /(Part XXXI) we translate (via Shan Gao):
Fundamental Understanding must be Installed for Full and Effective Implementation of the Constitution (March 4, 2015).
ORIGINAL CHINESE VERSION HERE [全面有效实施宪法须确立的基本认知]
Fundamental Understanding must be Installed for Full and Effective Implementation of the Constitution
童之伟 by Tong Zhiwei
When it comes to ‘rule the nation according to law’ and ‘build socialist rule of law state,’ the first priority is ‘rule the nation in accordance with the Constitution.’ If we don't implement it, constitution is nothing but a piece of paper, regardless how well it has been written. Constitution implementation is the centrality of the “Rule the state in accordance with law.” Currently, the central authority pointed out to “Comprehensively implement constitution,” which is a timely proposal that critically important and necessary to China. Constitution, as well as its implementation are real and specific, they are not abstract idea. The main focus of this article is about the implementation of Constitution. Key elements that shore up the characteristics of constitution framework, the constitutional rights protection mechanism and vertical and horizontal distribution of state sovereign rights are the principles such as, “socialist democracy”, “rule of law”, “respect and protect human rights”, “democratic centralism;” and normative infrastructures that represent these principles, such as People’s Congress and other constitutional supervision system. In order to fully and effectively implement constitution, one must have some fundamental understanding on the following matters:
I. The Essence of Constitution implementation
No constitution implementation without a constitution. It is a common view among scholars of different states that constitution is designated as a basic or fundamental law to restrain the public power for the protection of individual’s rights and freedom. Chinese leaders commonly consider constitution as the core charter for efficient governance. Each view is reasonable with its different focus. The former one is more academic and neutral while the later one reflects the view of leadership as it more concentrate on the angle of governance.
The implementation of constitution is the application of constitution and norms into the real life. Under current academic paradigm, the implementation of constitution could be theorized by ‘Three Section Theory’ or Two Section Theory’. Under Three Section Theory, constitution implementation means: Constitution Compliance, Constitution Enforcement and Constitution Application. The compliance could be further sub-categorized as individual compliance and public organization compliance. The constitution enforcement means organ of sovereign/ political power enforcement and organ of administrative power enforcement. The application of constitution means the court system application and prosecuting system application. Three section theory captures the idea but less concise as the following indicates.
The two section theory consider constitution implementation as constitution compliance and application. The compliance means individual and public organ compliance. The application means state sovereign/ political organ application, administrative organ application, court and prosecuting system application.
Constitution compliance is a passive duty that require all subjects of the constitution, regardless official or nonofficial, to comply with the norms and principle of the constitution. The preamble provided that: “The people of all nationalities, all State organs, the armed forces, all political parties and public organizations and all enterprises and institutions in the country must take the Constitution as the basic standard of conduct,” The article 5 provided that: “All State organs, the armed forces, all political parties and public organizations and all enterprises and institutions must abide by the Constitution and other laws. All acts in violation of the Constitution or other laws must be investigated.”
Constitution application means state and other organs exercise their prescribed power under the authorization of the constitution in accordance with the requirement of constitutional procedural. The distribution of such power depends on the constitution system, some have more and some have none. In China, first and foremost, constitution application is the responsibility of the state sovereign organ, which is National People’s Congress. It exercise legislative authority and decision making power on certain important issues. Second, constitution application refers to administrative application. For a concise and clear analysis, administrative application here is an overarching concept that includes not only the administrative authority of state council, but also the constitutional responsibility of the President and Chairman of Central Military Commission.
Although logical and theoretical speaking China shall have infrastructure for court and prosecuting application of the constitution, instead, the current constitution system had already established People’s Congress, which means no place for court and prosecuting application. Thus, the system of people’s congress under democratic centralism has fundamental differences in comparison with other nation’s constitutional system such as “separation of power, checks and balance.” In later discussion I will talk more on it.
The above discussion is direct application of the constitution and we shall not overlook the indirect application, which means implement constitution through the enforcement of other laws and rules. The commons and differences between direct and indirect application is a broad topic that I shall specially discuss in a different time.
II. Experience and Lessons of constitution application
There were quite some highlights during the short journey of constitution application for the past 60 years since the Oct 1949.
One of the main experience for China is to rely on People’s Congress system and use legislation to implement the constitution. Under common law system, the court, especially supreme court plays an equally important role as the legislature to implement constitution through the process of judicial review. One of the classic example is US. Under china’s constitutional system, People’s congress elect and supervise the judge while the judge is responsible to the people’s congress. Thus the court cannot directly apply constitution for judicial review. Furthermore, china is traditionally a civil law country that refuse the authority of case law since 1949. After 1982, three decades of legislation has displayed tremendous legislative achievements that build up the socialist legal system.
Some scholar proposed that political guidance is also part of Chinese constitution implementation. “The constitution implementation has following a dualism system of political implementation and legal implementation, and the political implementation is guiding normative legal implementation. The discussion of constitution implementation shall fully understand this feature. The key of exercising political norms is to establish a political review mechanism with Chinese characteristic, especially started from China’s political practice to establish an internal party political review system.” There are some merits in such discussion.
On the other hands, we do have so many issues in our implementation for the past 60 years. Take the example of 1954 constitution: prior to the passage, Mao Zedong, Liu Shaoqi and other cadres had pointed out that Constitution must be implemented, and state organ staff shall be the model. Violation occurs when there is a lag in enforcement. However, there were many serious violations disturb the normal functioning of the constitution in the following year since its passage.
Movement for the Suppression of Counter-revolutionaries' of 1955 or Hu Feng’s Counter Revolutionary Clique is a typical nationwide high profile constitution violation. Hu Feng submit Report on the practice and state of art and literature in recent years to central CPC, AKA “Three-hundred-thousand-word letter,” with his personal opinion on literature critics. Unfortunately his critics were considered as counter revolutionary, which subject himself into the imprisonment. He was arrested on May 16th of 1955, before the People’s Congress’s approval on May 18th. He stayed in the prison for 10 years before a court trail with 14 years sentence. The ‘evidence’ for conviction is private letters between Hu and his colleagues and friends. According to the Report on reviewing Hu Feng Counter-Revolutionary Case by Supreme Court and Supreme People's Procuratorate, 2100 people under investigation during 1955-1956. 92 was arrested, 62 was segregated, 73 had been suspended from their posts and 78 people been officially labeled as ‘Hu Feng Elements’.
Without doubts, the case of Hu Feng exposed large scale violations of article 86 and 90 of 1954 Constitution about constitutional rights of freedom of speech and privacy of correspondence of citizen, violation of article 37 that deputy to the National Congress may not be arrested placed on criminal trial without the consent of NPC or standing committee of NPC when NPC not in session, by the supreme leaders.
The second lesson is the expansion of 1956 ‘anti-right campaign,’ which greatly violated the basic constitutional rights of private citizens, mainly the freedom of speech and personal freedom. During the campaign, although denying socialism is minority, this cannot serve as the basis of depriving private citizen’s constitutional rights of freedom of speech and punishing them without the trail. The web encyclopedia, baidu baike, provided that: based on the repeatedly statistics, 552877 people had been ruled as right-wing. 97% of the ruling was wrong. This was a huge mistake on a unprecedented level.
The third lesson also the most serious one is the “culture revolution” and its negative outcomes. The Culture Revolution had entailed a dark time where private citizen’s constitutional rights been ruthless violated. The people’s congress system was almost paralyzed and the constitution has been de facto nullified. The article 2 of 1954 constitution provided that: “All power in the People’s Republic of China belongs to the people. The National People’s Congress and the local people’s congresses at various levels are the organs through which the people exercise state power.” Disregard the fact that the people’s congress system is China’s fundamental political system, Culture Revolution had paralyzed it for more than 8 years. The constitution has other provisions detailed the important rights of individual, while during the culture revolution even high level official from executive branch cannot protect themselves.
There are substantial improvement of these issues since Open Up, but that does not mean all difficulties ends.
III. Priority, Difficulties and specialty
Every constitutional state today placed great focus on the protection of individual’s basic rights with different variations. Normally after a country adopt the constitution, it would spend a great deal of time to explore a proper vertical and horizontal distribution of sovereign power and establish a system to address issues arise from the operation of such distribution. When a sounding system installed, the country would shift its focus on the protection of people’s basic rights. This is why most constitution text book would spend almost half of the chapters on the discussion of the protection.
There are different types of basic rights with different priority under the constitution. For the past 30 years, the main focus is people’s basic livelihood and economy rights. As the development of economy with more stability and prosperity, the strategy would shift to a more balanced protection in the future.
A simple way to put constitution implementation is: ask the official and masses to follow the written rules. This was easy to say especially in China where there is a lack of self-consciousness on rules.
The first difficulty is the compliance, precisely, let the officials and agents with powers to follow the rules. “To put rules in the cage” is to let these officials and agents follow the rules. Looking back to other countries’ experience, the common practice is to limit the power that state agents can exercise by given a specific list of limited authorization, no one and no agent is allowed to exercise power without constitutional authorization; power shall distribute among different agents to avoid over centralization and create certain level of counter balance so the limited power cannot penetrate constitutional order; further by creating people’s right protection mechanism to restrain and supervise the public power.
Second difficulty. This is the issue of the lag of legislation where proper enforceable secondary rules and laws has yet installed and thus make it is impossible to implement the constitutional rights. This issue is common among many countries in the history and termed as “legislature inaction.” In China, for example, freedom of assembly, of association, of procession and of demonstration has been written into the constitution albeit no laws specified the exercising of these rights until 1989. Also, the constitution provided freedom of speech, of the press, religious and privacy of correspondence, but yet laws and rules to specify on this area.
Third difficulty is about the application of laws and rules promulgated under the constitution. The implementation of constitution cannot achieve without the improvement of legal governance for the administrative agency, the independency of judicial system of court and prosecutor.
Like many other nations around the globe, Chines constitutionalism is one of the written constitution. The specialty emerged with our following comparison.
In comparison with presidential system; United States is the first nation in the history adopt a written constitution. Under common law tradition, the presidential system subject to the separation of power between legislature, administration and judicial, and the principle of checks and balance. The implementation of constitution is mainly rely on courts, then congress. The president has limited authority of exercising constitution and mainly exercise it through the signing of the law.
In comparison with parliamentary system under the principle of separation of power, and checks and balance; many countries like Germany, Italy distribute the authority of implementation between congresses, cabinet and constitutional court. British and Japanese parliamentary system are quite different because of British unwritten constitution tradition and American influence on Japan. Both UK and Japan let Supreme Court to take the responsibility of constitutional court.
In comparison with semi-presidential and parliamentary system under the separation of power and checks and balance principle; In countries like France and Russia, the president, parliamentary and constitutional court has separate authority on particular aspect of constitution implementation.
The implementation of constitution in China is quite different, which is results from the People’s Congress system under the principle of Democratic Centralism. Under People’s Congress system, people’s congress create and supervise state organs and state organs report duties to the congress. Although all state organs has equal duties for constitution compliance, people’s congress including its standing committee is the entity possess the decisive authority. Other organs, such as president, state council, and central military committee either has some limited direct authority or no authority at all, such as Supreme court and supreme people's procuratorate.
IV. supervision of the implementation
Many Chinese readers are quite familiar with the concept of ‘constitutional review’ or ‘review of constitutionality.’ The supervision of constitution implementation under PRC constitution context carries a similar idea. The supervision of constitution is interchangeable with these concepts. Under china’s constitution, supervision of constitution means, with the authorization of constitution, an entity review the constitutionality of the subject in accordance with constitution or laws and prosecute any violation.
It is worth to point out that including china in all the other sovereign state with constitutional system, violation of constitution mainly referring the conduct of the entity act on behalf of state power, not includes individual or private citizen’s conduct. This is because; first, constitutionality entails political consequences (such as resign, impeachment and nullification), which is different from civil, criminal or administrative liabilities that focus on individual person. Second, individual’s constitutional responsibility had already been reified by specific laws and rules, it is unnecessary to use constitution to prosecute individual.
The people’s congress system is fundamentally different from supervision system based on the principle of separation of power, and checks and balance. The US established common law court supervision system, which means the court exercise constitutional review, aka judicial review. Under US federal system, the constitutional review by federal courts set the precedent that could bind the behavior of all state organs under its jurisdiction. Such binding power is higher than the Congress. Nations influenced by US with president system all adopt the US constitutional review model. Under Constitutional Reform Act 2005 by British parliament, UK established the constitutional review system carried out by Supreme Court on Oct 1 of 2009.
Unlike US, many countries established a specialized entity to supervise the constitution implementation. There are two models: the German model with constitutional court and French model with constitutional committee. There is one common feature of these two models, the court or committee has the authority to decide the principle and make interpretation of the constitution in reviewing the case.
under article 62 and 67 of the constitution, NPC and its standing committee possess the power of supervising the constitution. For the past 30 years, there are quite some achievements by them but there are still a huge space for improvement. Hu jingtao’s conclusion on the 20th anniversary of the constitution implementation could be quite useful even today:
Due to the insufficiency of a developed legal system and the lack of professional law enforcement staff, there are many issues focused on the enforcement and implementation. Unconstitutional acts still persist. We need to speed up the study of the constitutional supervision system in order to improve it and establish it, so violations could be corrected promptly.
I notice some scholars advocate courts and supreme court to take the responsibility of constitution review. This proposal shows goodwill but complete overlook the basic feature of Chinese constitutionalism that is a people’s congress system premised on democratic centralism. Under current system, there is no court has such authority that could make a court decision on the constitution to bind the authority of the NPC and its standing committee. It is the basic law of Chinese constitutionalism paradigm and constitution that without such binding power, the court cannot conduct constitutional review and interpretation.
For an effective supervision of the implementation of the constitution, we shall honestly and sincerely promote the constitutional responsibility of NPC and its standing committee. This is the way and the only way.
本 文原载《人民法治》2015年2-3期，是 2014年国家社科重大项目“人民代表大会制度理论创新研究”(批准号14ZDA014)的阶段性成果。See VOL 2-3 Renmin Fazhi 2015, This paper is a working paper of 2014 state social science project “New Study on the Progress of People’s Congress System.”
 殷啸虎：《中国宪法实施的政治路径经验》，见《法学》 2014 年11期。Yin Xiaohu, 2014, Political Path and Experience of the Implementation of Chinese Constitution, FA XUE Vol 11.
原 全国人大法律委员会委员刘政先生曾撰文做过详细介绍。见刘政：《1954年宪法施行三年后为 什么被逐渐弃废》见《中国人大》2002年14期。Liu Zheng, why 1954 Constitution been abandoned after the first three year of implementation, Vol 14 ZHONG GUO RENDA, 2002.
 《关于建国以来党的若干历史问题的决议》,1981年6月27日中国共产党第十一届中央委员会第六次全体会 议通过。Resolutions for Certain Historical Issues of the Party Since the Establishment of the P.R.C
胡 锦涛：《在纪念宪法施行二十周年大会上的讲话》（2002年12月4 日），ttp://www.people.com.cn/GB/shizheng/16/20021204 /881379.html
Hu jingtao, 2002, Dec,4, Speech on the 20th Anniversary of Constitution Implementation
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