I am delighted to be able to post here the text of Professor Tong Zhiwei's Concluding remarks at the joint seminar of the Chinese Constitutional Law and Criminal Procedure Law Society [在中国宪法学和刑诉法学会联合研讨会上的总结发言] which were delivered 15 November 2017.
Entitled 在民主法治的基础上修改好监察法草案 [On the basis of democratic rule of law, amend the draft law on supervision], the remarks provide a summary of the points of concurrence by the leading Chinese academics in the constitutional and criminal law fields respecting the drat Supervision Law now being considered by Chinese officials. It is highly recommended for anyone interested in constitutional law, criminal law and developments of the law of China.
The text of the remarks in the original 中国语言follow along with a crude English translation (which will be cleaned up in the next few days).
On the basis of democratic rule of law, amend the draft law on supervision
- Concluding remarks at the joint seminar of the Chinese Constitutional Law and Criminal Procedure Law Society
Constitutional law and criminal law jurisprudence Colleagues, experts, everyone!
To undertake the task of summing up is a hard work, we must always listen carefully and make the necessary records. This matter was originally done by Professor Qin Qianhong, but because of the second half of his activities there are arrangements, but I have to replace. Of course, this is because we trust me. Incidentally, the foundation of democracy and the rule of law is the constitution. The revision of the draft law on supervision based on the rule of law and democracy is strictly based on the constitutional amendment.
A few days before the Standing Committee of the National People's Congress made its first trial in June 2017, the "Law of the People's Republic of China on Supervision (Draft)" was finally published for comment. It should have been announced earlier. Our constitutional law and criminal law jurisprudence colleagues read the draft, it seems most people are mixed, hi finally has a preliminary text, the worry is that there are more problems. The problem needs to be solved. The existing problems are the impetus. It quickly prompted a group of representative scholars from both the constitutional and criminal law jurisprudence groups to come together in the conference room of Beijing Friendship Hotel. The purpose of this seminar we open is to hope that with the joint efforts of the two seminars, we will consult the draft Ombudsman Act and promote its updating or improvement.
The highlight of today's seminar is the keynote speech by Prof. Chen Guangzhong, who is highly respected, who made some revisions on the draft law on supervision. Mr. Chen said that the reform of the state supervisory system is a major anti-corruption and anti-corruption arrangement made by the party Central Committee and an important measure for promoting the state governance system and the modernization of governance capabilities. There are quite a few places to be sure about the draft law on supervision. Of course, the purpose of today's academic seminar is to study and promote the perfection of the draft law on supervision under the Constitution, so the main purpose of the symposium is to address its shortcomings or deficiencies. After making eight specific comments on amendments to the draft law on monitoring, Mr. Chen concluded that the formulation of the "Law on Supervision" within one year was too rapid and should be carried out in two years and not more than three years.
Here is a brief summary of my eight suggestions made by Mr. Chen:
1. The draft must state "the enactment of this Act in accordance with the Constitution."
2. The supervision committees at all levels must report their work to the people 's congress at the corresponding level every year and accept the vote evaluation of deputies to the NPC.
3. The draft should increase the provisions that respect and safeguard human rights;
4. The draft must not undermine the constitutional status of procuratorates in procuratorial power independently;
5. The draft should be reduced to apply for detention; detention should be communicated to family members; criminal investigations apply in principle to the Code of Criminal Procedure;
6. The investigation phase should allow lawyers to intervene;
7. Remove from the draft the contents of the procuratorial power of attorney-at-liberation; the draft shall not provide for the procedure after the case is transferred for examination and prosecution;
8. The draft amendment is led by the NPC Standing Committee.
In addition, all participating scholars also fully agreed with Mr. Chen's proposal to complete the monitoring law in at least two years.
After Mr. Chen gave a keynote speech, Prof. Han Dayuan, president of China Constitutional Law Society, and Prof. Jianmin Bian, president of China Society of Criminal Procedural Law, respectively made speeches and their interviews strongly supported the opinion of Mr. Chen Guangzhong. Of course, they also each published their own important academic point of view. I counted a total of 40 experts and scholars on the agenda, speaking on their own terms or freely speaking. All formed a broad consensus on a series of issues concerning the revision of the draft law. First of all, the participating experts and scholars fully agreed with the eight-point opinion raised by Mr. Chen Guangzhong on the draft of the supervision law and supported his claim that the "supervision law" be completed within two years. Exceptions were made by the participants of the seminar and many consensuses were reached on many of the issues that Mr. Chen did not address. Below I put these consensus in order according to their own record:
1. The development of the law of supervision shall be concerned with the basic rights of every Chinese citizen and should be of concern to all.
2. Some provisions of the draft law on monitoring are not in conformity with the Constitution nor do they comply with the number of international human rights conventions to which my country has ratified it.
3. The draft law on supervision should not only state "the enactment of this law in accordance with the Constitution," but should be effectively revised in accordance with this standard;
4. In terms of constitutionality, there are still many other articles in addition to those mentioned by Mr. Chen Guangzhong who have doubts and should be taken seriously;
5. The development of supervision law can not take the first unconstitutional constitutional amendment;
6. The name of the state supervisory authority in the draft law on supervision should be the People's Procuratorate (Professor Qian Qinhong's call specifically: Comrade Xi Jinping stated in his speech at the congress of the 60th anniversary of the founding of the People's Republic of China that "the name of our country, The names of state organs at all levels are all given the title of "people," which is our basic orientation of the Chinese socialist regime. ");
7. The draft supervision law refers only to the "mutually restrictive working mechanism" within the supervisory authority and does not stipulate the mutual restraint with the people's court, the people's procuratorate and the public security department, nor does it really reflect the mutual restraint.
8. The statement that anti-corruption is mostly anti-political corruption may deviate from the original intention of anti-corruption. In order to prevent the derailment of anti-corruption, the draft law on supervision and supervision should define the anti-corruption content.
9. Judging from the circumstances so far, the democratic participation in the development of the supervisory law has weakened over the previous legal formulation.
10. There has been a clear reversal of some aspects of the protection of human rights in the draft law on supervision;
11. Without the authorization of the people, constitutional provisions may not establish a state organ, and the commission must be unconstitutional under the existing constitutional provisions;
12. The modest derogation of some rights of public officials does not contravene the rule of law and the guarantee of human rights, but can not be unduly detrimental to the derogation of citizens' fundamental rights as expressly stipulated in constitutional law. In particular, they can not be derogated from the rights of those protected by criminal procedure law, Rights are fundamental to people;
13. The objects of detention and search as stipulated in the draft law on monitoring have in fact gone beyond the scope of public officials and these elements violate the principle of proportionality in the Constitution.
14. The draft law drafting team does not have enough legal experts and the professional structure is unreasonable. There are no well-known experts in both the Constitution and the Criminal Procedure Law.
15. Lien shall not be signed by the secretary, and the signature of the secretary makes it impossible for the people's procuratorate and the people's court at the same level to independently exercise the power of supervision and jurisdiction;
16. On the one hand, the draft Ombudsman Law stipulates that the supervisory organ independently exercises its supervisory power in accordance with the law. At the same time, the state media widely publicizes the fact that the object under investigation is signed and ratified by party secretaries and other party secretaries. In the end, The draft should be clearly defined;
17. The supervision over people's congress deputies, judges, prosecutors and other personnel should only be limited to corruption and should not be extended to other aspects. The scope of self-government usually held by people's congresses, courts and supervisory courts should be respected.
18. If the commission has the right to supervise the establishment of institutions and personnel, the people's congresses and people's procuratorates at all levels shall have the right to supervise the work of the commission. The supervision of the draft law should be more regulated People's congresses at all levels have supervisory bodies and personnel attached to the commission, and the procuratorates have the same;
19. If the supervisory commission's oversight of people's congresses at all levels is personal and not directed against the organs of state power, it should not assign agencies and personnel to this state organ;
20. The draft Ombudsman's law and the Constitution, the Code of Criminal Procedure and other relevant laws are so contradictory to each other that the content structure is too messy and the rules are too general to appear to be very hasty.
21. The personnel of the supervisory organ are suspected of duty crimes and should be independently investigated by the People's Procuratorate; the individuals and institutions shall report to or report to the people's procuratorate on the suspected crimes of the personnel of the supervisory organ. For this purpose, both the criminal law and the criminal procedure law may have to modify;
22. The legislation on supervision should not be too coarse. The draft should pay attention to this requirement and can not leave too many loopholes for the future supervision and explanation.
23. From the draft regulations, the oversight organs have too much power and lack both official power constraints and lack of supervision from the society and citizens. The possible adverse consequences to the state when amending the draft supervision law should be adequately protected .
In today's discussion, some scholars have expressed some views on the following issues, but they have not shown any consensus on the opinions they have expressed with other participating scholars:
1. There is no need to develop a monitoring law;
2. Scope of derogation of public officials' rights;
3. Which of the basic constitutional rights is an individual may decide to give up, what is not;
Under what circumstances should constitution be amended?
5. Whether the content of the supervision law is bound by the international conventions to which China is a party;
6. Should the director of the Central Commission be concurrently chaired by the president of the country;
7. Whether the term of office of the chief commissioner of the Central Commission should be set to a limit;
8. If the term of office of the chief commissioner of the Central Inspection Commission is limited, should it be restricted in the constitution or in the law of supervision;
9. Supervision Law on the publicity of leading cadres should have provisions;
10. Whether local supervision committees at all levels implement double leadership or vertical leadership is good.
Dear Colleagues and Experts, I feel that during the process of attending the meeting and the tea break, we have formed three general opinions and expectations at today's meeting:
1. The draft supervision law far fails to embody the spirit of the constitution and fails to implement the principle of democracy and the rule of law. Many of the provisions clearly contravene the provisions of the Constitution and there are too many constitutional disputes.
2. The relationship between the draft law on supervision and the law on criminal procedural law has not been straightened out in many places;
3. From the timetable and roadmap, the timetable for setting up the supervisory law is too hasty and should be two years or longer.
My concluding remarks say this. Today's seminar such a comprehensive summary is accurate, there is no inappropriate place, please advise. Please tell me if you have any disagreement. This concluding remarks is to be published, explain. Thank you!