Professor Tong recently presented his developing ideas about the nature of the constitutional ordering of the state apparatus in China in a presentation at the 6th Annual Meeting of the Shanghai Law Society. Set out below is a summary of his presentation in English and Chinese. My thanks to my SJD student GAO Shan for his translation. The ideas are quite innovative and worth careful study for those interested in comparative constitutional law and those who are students of Chinese law and politics.
Translate by Shan Gao
I. People’s Congress is the principle part of constitutional principle of Rule of the State in accordance with Constitution.
1. The Framework of Rule the State in accordance with Constitution (Rule of Constitution, hereinafter): People, People’s Congress, and Communist Party of China.
2. Correct understanding of democracy and representative democracy
i. PRC Constitution Art. II:
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.
The people administer State affairs and manage economic and cultural undertakings and social affairs through various channels and in various ways in accordance with the provisions of law.
The State organs of the People’s Republic of China apply the principle of democratic centralism.
The National People’s Congress and the local people’s congresses at various levels are constituted through democratic elections. They are responsible to the people and subject to their supervision.
All administrative, judicial and procuratorial organs of the State are created by the people’s congresses to which they are responsible and by which they are supervised.
ii. Upholding principle role of people (reference to Important Decision on certain important issues of Full and Deep Reform)
Theoretically and Practically, it (upholding principle role of people) can only be expressed as upholding the principle role of NPC and local people’s congresses at various levels.
II. Major theoretical issues need to be resolved in order to uphold the principle role of people’s congress
1. The relationship between representative democracy and deliberative democracy.
2. The triangle of Party’s leadership, People as Master, and Rule the state in accordance with law
Relationship and difference between Party’s Leadership, People as Master, and Rule the state in accordance with Law (hereinafter rule of law);
What’s the relation between conflict and difference?
The natural unification of Party’s Leadership, People as Master, and Rule of Law, true or not?
The unification of triangle, condition or not?
--If the unification is unconditional, how to explain the non-unification?What’s the role of people’s congress within triangle unification (three unification)?
--If the unification is conditional, what are the conditions?
What function is need and how to implement it in order to fulfil the unification of three?
3. Relation between current Constitution and principle of “rein the power within the cage” (the relation between current constitution and socialist constitutionalism)
First is the understanding—Easy to Do, Hard to Know
- Public power system with restrictions, the list of power (function, authority) the relation between constitution and division of power (function, authority; There is a Constitution, There are must be divisions of power (or division of authority, separation of power, division of functionality, shan’s note) when state apparatus apply the power according to the constitution, ie. not override authority, not malpractice, restrictions of power would be formed in this process.
- Understanding the theoretical implication of the accepted the constitutional expression on power restriction:
Members of NPC Standing Committee and Standing Committee of local Congress at various level cannot serve on State administrative institution, Courts and procuratorate;
- Relation between court, procuratorate, and public security.
III. Rule of Constitution requires the progress of People’s Congress System with the pace of time
--“Central Committee of CPC’s Decisions on Certain important issues concerning Full and Deep Reform:”
--Progress the People’s Congress System with the Pace of Time. Upholding the principle role of people, advance the theory and application of people’s congress system, and implement the core political function of people’s congress.
Major Research & Study on Theory and Application
a. How to properly understand and interpret People’s Congress System (reference with president system, parliament system and semi-parliament, semi-president system)?
b. How to understand the coordination and cooperation between political life principle (planned politics) and economic life principle (market economy)?
The reform of People’s Congress (the core issue is to install representative function within the vanguard leadership of party)
a. Election system reform;
b. The constitute member and institution reform;
c. Fully implement constitutional duty: such as protecting basic rights (of people), legislation, and constitutional supervision.