(Zhiwei Tong, PIX (c) Larry Catá Backer)
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 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.
(Pix (c) Larry Catá Backer 2013)
Part XXVIII—Zhiwei Tong (童之伟) Series: How to restrict power in the cage of regulations
27 Feb. 2013
Original at http://libertyzw.fyfz.cn/b/735339
Simon Zichao Yi translator
Mr. Xi Jinxing, Party Secretary of the Communist Party of China (CPC) vowed recently: “we must enhance restraint and supervision on the use of power; power should be restricted by the cage of regulations.” This is a very advanced ruling concept; it is also one of the goals of the reform of Chinese political system.
Restricting power within the cage of regulations is not an easy task, however. What is the cage of regulation? The cage of regulations is the legal system summarized by the Constitution. It can be said that the principles, rules and spirit of the Constitution are the frame, bars and shape that constitute the cage. The core understanding of “restricting power in the cage of regulations” is that Constitutional institutions and entities must exercise their power following strictly the legal process and within the limits of the Constitution.
Speaking from the jurisprudential prospective, power is the legal form of existence of the state. It is an organized coercive force sustained by public finance and carried out by state organs. Within the territory of a state, it should at least nominally represent the collective interest of the entire society.
In the legal world, there is another protagonist beside power called “right.” Basic understanding of rights can help better understand what power is. Rights are the legal form of existence of a person, whether natural or legal. When valued with personal property, rights are individuals’ legal expression for personal interests. In practice, the concept of right also includes liberty. Comparing the two, power possesses incomparable strength with respect to rights that are dispersed among individuals. In fact, European scholars during the enlightenment period used the metaphor of the mythological ocean Leviathan to refer to state power.
All modern countries under the rule of law in the world have experience the time when royal or imperial power expanded exceedingly, behaved at will and outrageously trampled personal rights. Historically all constitutions, whether statutory or non-statutory, of countries under the rule of law have protected rights from being trampled through restrictions on the scope and use of power. On the other hand power restrictions are a mandatory precondition to maintain the public character of power itself. In this regard, there is no difference between socialist constitutions and other types of constitution.
After the empire was overthrown in 1911, the Chinese society has established a common belief that is the old rule of “there is nowhere under the heaven that does not belong to the king, there is no body under the heaven that is not the subject of the king.” The generally accepted axiom is: every national is a citizen with full capacity for rights; for the sake of their common interests, citizens should concede part of their rights to a unitary organization through the establishment of the Constitution to form the power of state; state organs yielded through elections exercise state power on behalf of citizens; the state belongs to every person, every person shares a portion of the state power.
It is exactly because of this belief that the Constitution calls China a “republic,” refers collectively to “power” as “state power,” and provides that “all the power in the country belongs to the people.“ “All the power” in China’s Constitution is more clearly identified as “functional power,” in some cases it is also referred to as “competence.” Competence is often referred to the functional power of one’s own organ or department. We now know that the power in China is the sum of constitutionally provided “functional powers” and “competence s.”
Therefore, although the people are the owners of all the power in China, those who exercise power are state organs. Depending on the type of state organ, power is all also differentiated into national or local state power, state legislative, executive, judicial and procuratorial powers etc. For decades, cage of regulations in China has been incapable of restricting power, becoming a pure decoration. A common reason for such result is that cage’s bars are too far apart from each other, they are not strong and rigid enough. Fundamentally speaking, however, the incapability of the cage is caused by the economic system primarily based on state/public ownership, which makes high concentration and magnitude of power compared to rights and thus difficult to be locked in. Unrestricted power causes at least consequences in the following two aspects: part of the public character of power becomes degenerated, and the degenerated part denatures to be the source of corruption; basic rights of citizens are comparatively much weaker than power, they are thus seriously violated by it.
The most important part of talking about how to restrict power in a cage in China is to face directly with the realities present outside the cage of regulations: organs of the state and ruling party have unclear relationship and division of functions; the Constitution and laws do not have clear provisions to regulate and restrict the power that is highly concentrated in the hands of party secretaries and party committees at various levels; freedoms of speech, press, association and religion have not yet been protected through legislation; some other civil rights, despite corresponding protective laws, yielding to power bodies are in practice far from fulfilled; there are also cases in which violations of the law by party or state organs cannot be investigated.
In order to make the cage of regulations that can restrict power within it and lock the power in tightly, China has to fulfill some basic requirements of institutional building through reform of the political system. The fulfillment of these requirements is like forging the frame and bars of the cage that restricts power:
1) Functional powers and competencies provided by the Constitution can only be exercised by constitutional entities following legal process provided by the Constitution. Organs, institutions and officials provided by the Constitution must be maintained by public finance, and they also must exercise their constitutional functional powers and competencies using public finance; this is a sacred rule. No organization, except organs and departments provided by the Constitution, can be supported by public finance; they cannot either exercise state power. Supporting party organs and offices that are outside the scope of state organs with public finance is a violation of the principle of the rule of law provided by the Constitution. Therefore, an institution would have exercised state power if it is dependent on public finance and undertakes affairs within the scope of functional powers and competencies of state organs. If these institutions are not statutorily provided by the Constitution then the power they exercised would be outside the cage of regulations. The only ways to put these powers into the cage would either be handling them to a constitutional statutory institution or including the current exerciser of such powers within the scope of subjects regulated by the Constitution.
2) In order to restrict power in the cage of regulations, organs of the ruling party, must return to the positions that are ordinary for party politics, in accordance with the requirements of democracy, the rule of law and constitutional politics. Currently, there is no clear distinction between party organs and state organs. Under this type of system, party organs and officials are not only de facto equivalent to state organs and officials; they have also become the most important public organs and officials at various levels. However, nor the Constitution or the law can regulate party secretaries and committees, in addition subordinate organs of party committees do not have to be responsible for any action against the Constitution or law. Under such institutional environment, it would be extremely difficult to require exercisers of power to strictly comply with the Constitution and stay uncorrupted.
Therefore, the main task for China is to put the power of party secretaries and party committees in the cage. How can we do it? Constitutionalize the roles of party committees of the CPC at various levels or separate party organs from the state are two possible choices. According to the Constitution and the requirement of constitutional politics, however, the ruling party should maintain the non-state character of its organs and cadre while allowing them to enter state organs in accordance with the law.
3) Handle three major constitutional relationships with strict compliance with the principles of democracy and the rule of law. The first relationship is the one between individual rights and state power. The basic principle with which the Constitution regulates citizens is “free to do unless prohibited by law,” instead the Constitution regulates the state with the principle of “prohibited unless allowed by law.” The ideal scenario between the two would be the formation of a dynamic equilibrium between rights and power. The second one is the relationship of power among state organs at various levels. The requirement of the Constitution in this regard is to handle the relationship toward the direction of checks and balances. It requires that all state organs behave within the scope of functional powers and competencies provided by the Constitution. Neither can they derelict their duties, nor can they interfere with affairs that are within the scope of functional powers and competencies of other state organs. The third relationship is the one between individual citizens, a right-right relationship that falls within the field of fair trade of interest and property. The main rule to follow here is the autonomy of individuals; power generally does not interfere with this type of relationship.
4) Respect and use the “checks” provided in the Constitution. When talking about checking power with power, we generally think of the Constitutional provision regarding the reciprocal restrictions among the court, pracuratorate and public security bureau during criminal cases. But there is more. In fact, if every state organ maintainsclear division of functional powers and high transparency, reciprocal restriction would be formed at different degrees. It is not only valid for restriction among the executive, judicial and procuratorial organs, the same is also valid for the relationship between state legislative body and other state organs. The abolishment of the constitutional provision in 1982, that required the court and procuratorate to provide working reports to National People’s Congress and answer to inquiries of the NPC and members of its permanent committee, was to avoid interference of the NPC of the same administrative level with the affairs of the court and procuratorate. Unfortunately, the NPC has not revised corresponding organizational law to implement the change.
5) Put into effect citizen’s right to vote and to be voted, freedom of speech and press, right to criticize state organs and their officials and etc.; use rights to restrict power. The Constitution has provided citizens with the rights to vote and to be voted. If citizens are allow to freely participate in direct elections with some degree of competition, then they will form a strong restrictive force against power using their voting rights. This is an axiom proved by history and realities in many countries. Moreover, sound protection of citizen’s rights of speech, press, association, religion and etc. can also form effective restriction against power. Power would be much weaker when attempting to break the cage if it is checked by rights.
6) Establish special constitutional review organs and build effective constitutional supervisory system. What is called by other countries “judicial review” in China is called “constitutional supervision.” The significance of the constitutional supervisory system lies in that it impedes unconstitutional behavior of state organ and parties, making them bear the corresponding responsibility if they violate the Constitution. Major subjects of judicial review include 1) legislative actions, including also dereliction of the duty to protect basic rights through legislation; 2) unconstitutional actions of state organs and political parties during the implementation of the Constitution. A broader definition of the constitutional supervisory system also includes legality review of legal documents.
7) Advance education of constitutional knowledge and introduction of constitutional politics; educate billions of citizens with constitutional awareness, understanding of democracy and concepts of the rule of law. These citizens and individuals only are those who can really forge a cage of regulations that can lock power in. what is most important to know is that power does not enter into the cage by itself. It occurs strong external force to push it in. since the Reform and Opening Up, the number of up-to-standard citizens in China is increasing rapidly. The force to push power into the cage is now approaching maturity. What is missing is mainly the organization and planning that advance reforms of the political system.
There must be more conditions to be achieved in order to restrict power in the cage of regulations, but the above seven are the major ones, and they are also the ones that we can gradually achieve at the present stage.
如何才能将权力关进制度的笼子
发表时间：2013-02-27 22:13 阅读次数: 4727 所属分类：未分类
如何才能将权力关进制度的笼子
童之伟
中共中央总书记习近平先生最近提出：“要加强对权力运行的制约和监督，把权力关进制度的笼子里。”这是很先进的执政理念，也是中国政治体制改革要实现的战略目标之一。
但是，“把权力关进制度的笼子”绝对不是一件容易的事情。制度的笼子是什么？制度的笼子就是法律体系，它集中表现为宪法。可以说，宪法的原则、规则和精神，构成关权力的笼子的支架、栏杆和形态。所以，“把权力关进制度的笼子”之核心内容，是相关宪法关系主体严格在宪法法律规定的限度内，按宪法法律规定的程序行使权力。
在法律世界，权力之外的另一大主角名叫“权利”。权利以个人或个体所有之财产为物资承担者，属个人或个体利益的法律体现，在其现实性上，权利概念的外延包括了自由。两相比较，权力的强度远非分散在个人手中的权利所能抗衡和平衡。所以，欧洲启蒙时代有学者从国家角度将权力比喻为传说中的海中巨兽利维旦。
当 今世界各法治国家无不经历过以王权或皇权为代表的权力恶性膨胀、恣意妄为、蛮横践踏个人权利的时代。历史上所有法治国家的宪法，无论是不成文的还是成文 的，都是通过限制权力的范围和运用程序的方式来保障权利不受践踏的。另一方面，权力受限制是其有效保持自身公共性质的必要前提。在这些方面，社会主义宪法 与其它类型的宪法，并没有根本的不同。
自从1911年推翻帝制之后，中国社会就确立了一条与“普天之下，莫非王土，率土之滨，莫非王臣”相对立的公理：每一个国民都是享有完整权利能力的公民，他们应该为了共同的利益，通过制定宪法把一部分权利转让给一个统一组织体，形成国家的权力，由他们选举产生的国家机构代表他们行使这些权力；国家是大家的，国家的权力每人都有一份。
正因为如此，宪法将中国称为“共和国”，将“权力”笼统地称为“国家的权力”，并规定国家的“一切权力属于人民”。
但“一切权力”在中国宪法中一般具体化为“职权”，在少数情况下被称为“权限”。“权限”强调的往往是相对于其它国家机关或部门而言属于本机关或本部门的那部分职权。我们据此可知，中国的权力，是宪法规定的“职权”和“权限”之总和。
所以，中国全部权力的所有者虽是全体人民，但其行使者却是各级各类国家机关，因而它也因其行使主体的不同而区分为不同职权，如中央国家机关与地方国家机关的职权，国家权力机关、行政机关、审判机关、检察机关的职权，等等。
数十年来，中国制度的笼子往往关不住权力、很大程度上成了摆设，究其原因，在一般意义上说是因为笼子的“栏杆”太稀疏、漏洞太大，或没有足够刚性和强度。从根本上看，是因为国有制为主导的基本经济制度造成了权力相对于权利来说，体量特别大且集中程度甚高、强度很大，难以被关住。
关不住的强大权力至少造成了两方面的严重后果:权力自身的公共性质发生部分蜕变，蜕变部分就沦落成了谋取私利、贪污腐化的根源；公民基本权利相对于权力而言太过于弱小，不足以平衡权力，进而受到权力的严重侵害。
在 中国谈论将权力关进制度的笼子的问题，必须正视权力的最主要部分还游荡于制度的笼子之外的各种现实：执政党的机构与国家机关法律关系模糊，职能混淆，宪法 法律中缺乏可以规范、制约高度集中于各级党委和党委书记个人手中的权力；公民言论出版自由、结社和宗教信仰自由尚无立法保障；还有一些基本权利虽有保障性 立法但却因过于迁就权力主体的需要而实际上无法落实；存在执政党的机构和国家机构违宪违法但难以追究违宪违法责任的情况，等等。
要打造能够关进权力的制度笼子并实实在在地关住权力，中国必须通过政治体制改革满足一些制度建设方面的基本要求。
宪法规定的“职权”和“权限”只能由宪定的主体依照宪法、法律规定的程序行使。宪法规定的机关、机构和官员由公共财政供养，其他任何组织不能由公共财政供养，也不能行使国家权力。所以，任何机构，如果基于国家财政收入存在，处理属于国家机关“职权”和“权限”范围的事务，就是行使了国家的权力。如果这些机构不是宪定机构，它们行使的这些权力就处于制度的“笼子”之外。将这部分权力关进笼子的办法只能是，要么将其交由相应宪定机构行使，有么将现有行使者的行为纳入宪法条款规范的对象。
要 把权力关进制度的笼子，执政党的机构必须按宪法的民主、法治原则和宪政的要求，回归其在政党政治中通常应处的位置。中国目前国家机构与执政党的机构事实上 不分，在这种国与党不分的体制下，地方党委和党委书记不仅事实上等同于国家机关和国家官员，而且是本地最重要的公共机构和官员。但宪法、法律却不能规范和 调整党委、党委书记的行为，且党委及其下属机构在任何情况下都可以不承担违反宪法、法律的责任。在这种制度环境下，要让权力的运用者严格依宪法法律办事， 做到位高不擅权、权重不谋私，在多数情况下肯定是难以做到的。
所 以，中国当今主要应该把地方党委和党委书记现有的权力关进笼子。怎么落实呢？中共各级党委地位宪法化或党的机构非国家化，是可供选择的两条不同路径。所谓 宪法化，指把各级党委的组织和职权明确写进宪法；而所谓党的机构非国家化，则是要求党的机构放弃现有的国家机构地位，成为不靠国家或地方预算维持的民间社 团组织，其中未担任国家公职的党员也不具国家官员地位，不拿国家工资。但是，按宪法和宪政的要求，执政党各级党委显然不宜宪法化，而是应该在依法让自己的 党员进入国家机构执政的同时，保持自己组织机构和专职党务干部的非国家化。
严格按民主、法治原则处理三种宪法关系。第一种宪法关系是个人与国家间的权利-权力关系。宪法规范公民行为的基本原则是“法律无禁止即自由”， 宪法规范国家行为的基本原则却是“法律无授权即禁止”。处理这种关系的理想状态是形成和维持权利与权力的动态平衡。第二种宪法关系是各级各类国家机关之间的权力-权力关系，宪法在这个领域的基本要求，是按分权和制约的方向来理解和处理这些关系。它要求一切国家机关都在宪法、法律规定的职权或权限范围内活动，既不能不作为，也不得越权干预其它国家机关职权或权限范围的事务。第三种宪法关系是平等主体即公民个人之间的权利-权利关系，这实际上是个人之间利益乃至财产平等交换的领域，其所应遵循的主要原则是个人意思自治（指当事人依法享有自愿订立合同的权利，任何单位个人不得非法干预）和权力一般不进入。
尊 重和运用现行宪法本身包含的权力制约内容。谈到以权力制约权力，我们往往只想到宪法关于办理刑事案件，法院、检察院和公安部门三方相互制约的规定，似乎除 此之外宪法没有别的制约要求。但事实上，只要各个国家机关坚守职权分际，办事透明公开，就会形成不同程度的相互制约，不仅行政、审判、检察机关相互之间是 这样，甚至国家权力机关与其它国家机关之间的关系也是如此。1982年宪法，拿掉了此前宪法关于法院、检察院接受人大及其常委会组成人员质询和向人大报告工作的规定，本意就是让法院、检察院得以免受本级人大及其常委会的干预。可惜此后全国人大未修改相应组织法落实这些规定。
落 实公民选举权、被选举权、言论出版自由和对国家机关及其官员的批评权等基本权利，利用权利制约权力。宪法规定公民有选举权和被选举权，只要实行直接的和有 一定竞争性的选举，允许自由参选，把选票真正交还给公民，公民就能通过行使选举权与被选举权对权力形成强有力制约。这是历史和各国现实证明了的真理。另 外，切实保障公民言论、出版、结社、宗教信仰等自由，也会形成对权力的有效制约。权力受到权利制约，其冲击或拆毁笼子的力道势必被降低。
设 立违宪审查专门机关，建设行之有效的宪法监督制度。各国通常所说的违宪审查，在中国宪法中称为宪法监督。宪法监督制度的价值在于遏阻国家机关和政党的违宪 行为，让违宪者承担违宪责任。必须运用宪法监督体制进行违宪审查的主要对象，一是立法行为，包括基本权利保障方面的立法不作为；二是国家机关和政党在宪法 实施过程中的违宪行为。广义的宪法监督制度还包括对法律的下位法文件进行合法律性审查。
要把权力关进制度的笼子，相信必须具备的条件还有不少，但以上几点是主要的，也是现阶段就可以逐渐做到的。
（转引自纽约时报中文网，2013年02月27日 ）
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