Zhiwei Tong: "Monitor the Nine Constitutional Issues that Legislation Should Handle Well" [童之伟 监察立法应处理好的九个宪法问题]- Keynote speech at joint seminar of China Constitutional Law Society and Criminal Procedure Law Society [在中国宪法学会和刑诉法学会联合研讨会上的专题发言] 14 Nov. 2017

It is my great honor to post the following keynote address given by Zhiwei Tong, Vice president of China Constitutional Law Society and on the faculty of the East China University of Political Science and Law China Construction Research Center. The address, Monitor the Nine Constitutional Issues that Legislation Should Handle Well [监察立法应处理好的九个宪法问题 ], was given at joint seminar of China Constitutional Law Society and Criminal Procedure Law Society on 14 November 2017.

This address presents Professor Tong's most recent thoughts on the draft State Supervision law that appears to be one of the most important legal and political innovations in Chinese law and political philosophy in recent times. Professor Tong recently published an excellent essay on China's State Supervision Law draft legislation. That essay, "国家监察立法预案仍须着力完善 The State Supervision Law Legislation Need Further Improvement," was published by Zhengzhi yu falv 《政治与法律》 [Politics and Law] Vol 10, 2017, the English version of which I published HERE.  The English translation of the Draft Supervision Law (courtesy of China Law Translate) can be accessed HERE; 中国语言 version HERE.

The address Monitor the Nine Constitutional Issues that Legislation Should Handle Well [监察立法应处理好的九个宪法问题] appears in the original 中国语言 with a crude English translation following below (a more refined version to follow in a few days).   

Zhiwei Tong (童之伟) remains 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.

童之伟：监察立法应处理好的九个宪法问题

2017-11-14 童之伟 华政法治建设研究中心

监察立法应处理好的九个宪法问题

——在中国宪法学会和刑诉法学会联合研讨会上的专题发言

童之伟

中国宪法学会副会长

华东政法大学法治中国建设研究中心负责人


本文可以转载，但请注明系本公号首发



中共十九大报告已经为监察体制改革确定了基本内容，即“深化国家监察体制改革，将试点工作在全国推开，组建国家、省、市、县监察委员会，同党的纪律检查机关合署办公，实现对所有行使公权力的公职人员监察全覆盖。制定国家监察法，依法赋予监察委员会职责权限和调查手段，用留置取代‘两规’措施”。其中，制定监察法，是成功推进监察体制改革必须做好的基础性工作。

2017年6月，第十二届全国人大常委会第二十八次会议审议的《中华人民共和国监察法（草案）》（以下简称“监察法草案”）已经公开，正在向全社会征求意见。我们这个研讨会是讨论、表达和集中展现宪法和刑诉法专家意见的重要平台。利用这个机会，我想书生气一点，学术一点，暂不考虑是否有助于解决问题，只按宪法的规定和宪法学原理，在原有相关文章的基础上，再表达几点看法。

一、监察法草案不仅必须在文字上写明“根据宪法，制定本法”，还必须事实上以宪法为根据形成它的全部条款。但是，从监察法草案的真实状况看，这个草案既没有写明“根据宪法，制定本法”，事实上也确实不是根据宪法起草的。因为，与宪法的规定和精神明显相抵触的条款比较多。若干年来，法学界人士一个普遍的感觉，是我们抽象地谈论严格遵守宪法、依宪治国、维护宪法权威的时候多，真正具体碰到违宪情况时，却往往听之任之。我觉得，监察法是一部关系民主法治建设之全局的基本的法律，一定要在全国人大常委会提请全国人大审议之前这个关键的时段消除草案中明显违宪的情况。

如果我们一方面信誓旦旦要遵守宪法，同时又任由违宪的情况畅行无阻，那就难免招致严重的政治道义上的损失。因为，出现这种情况必然造成执政党和国家政权的信用流失，留下危险隐患。毕竟，“自古皆有死，民无信不立。”

二、制定监察法的具体时间节点安排应达到合宪要求。有学者说，制定监察法须先修宪，再立法，这当然是对的，但若仅仅简单地排出修宪、立法的先后顺序，也不一定能达到合宪标准。到底是否合宪，要看“先”与“后”的具体时间安排。正常的的做法，应该是修宪机关先通过宪法修正案，立法机关再根据生效的宪法修正案启动立法程序。因为，完成一项具体立法须走完若干颇费时间的程序。以监察法这样关系全局、争议颇大的法律来说，其制定大体过程应该是自法定主体向全国人大常委会提出法律案始，法律案经三次常委会会议审议修改后交付表决，表决通过后提请全国人大审议，全国人大走完《立法法》规定的审议表决程序后由国家主席公布生效。所以，“制定”是一个过程性概念，不是一次性行为。可惜现在的实际情况是，制定监察法必需的宪法根据还没形成，但监察法已经进入了制定过程，这实际上类似体育比赛的抢跑。因此，全国人大常委会今年六月审议《监察法（草案）》很难说是依照宪法行使职权的行为。

既然已经发现抢跑，退回来待机重新出发就可以了。我国还处在建设法治国家的初期阶段，出现点差错完全可以理解。

三、拟设立的国家监察机关的名称前是否冠以“人民”二字，涉及重大实质性问题。有学者以为这只是形式，不碍大局。有时确实如此，但这次完全不同。不少学者持续呼吁按惯例和宪法精神在监察委员会为前冠以“人民”二字时，草案起草者坚拒这样的安排，这在法学界引发多种猜想，其中包括：（1）监察机关前拒冠“人民”二字，实际上要表明该机关直接是党的机关，相对于“人民”系列的其它所有国家机关，它有高于其它所有国家机关特殊政治地位；（2）认为只有监察机关位高权重且在政治上区别和高居于“人民”系列的所有国家机关之上，才能够有效追究和预防腐败。

如果草案起草者坚持国家监察机关名称不冠“人民”二字确实是基于上述考虑，那也有一定合理性，但我相信这种做法对法治秩序的负面影响会比较大。因为，这种安排不合宪法伦理。迄今为止，由人民代表大会产生，对其负责并受其监督的国家机关都像上文那样以“人民”相冠，如人民政府、人民法院等。在普通公民看来，这就像某家的儿或女坚持在自己名字前不冠自己父亲家族的姓氏，并试图以此举强调自己与另一强大家族关系更亲近是一样的道理。更严重的是，这种安排将全部国家机关分成了两类：一类是执政党本身的机关，另一类只是执政党领导的机关。这样做的后果之一，是极可能进一步加剧宪法秩序下国家权力内部几个部分之间，以及国家权力与公民基本权利之间原本就存在的不平衡。

监察法草案做这样的规定，被法学界私下普遍认为是草案起草者为自己所在机构谋特权的表现。草案的不少具体规定，也确实佐证了人们关于起草者为自己所在机构谋特权、规避受监督义务的猜测。

有人或许认为，1982年宪法关于中央军委的规定有先例。不能这样看。因为，军队确实是特殊组织。再说，全国只有一个中央军委，而监察委从中央到区县一级，是一个庞大的体系，乡镇一级也可能设办公室；此外，全国还有向党政机关和企事业组织派出的大量机构和人员。不论从哪个角度看，都不宜把各级监察委与中央军委比。如果一定要比，那就难免让人想到在全国实行军管，影响和效果都不好。

把监察委员会作为特殊政治组织，违背宪法的规定和精神，不仅会造成宪法伦理秩序混乱，还妨害人大制度的正常运作。本着国家一切权力属于人民的宪法原则和宪法精神，最好还是将草案中“中华人民共和国监察委员会”的称谓修改为“中华人民共和国中央人民监察委员会”，并将地方国家监察机关改称为“省、自治区、直辖市、自治州、县、自治县、市、市辖区人民监察委员会”。
四、党政合一不符合现行宪法的规定和精神，监察体制改革的相关内容需要做合宪性处置。关于体系完整的国家机关党政合一不符合现行宪法的规定和精神，可以用对宪法进行历史解释、结构解释、上下文解释和目的解释等多种学理解释方法来加以证明。中共中央政治局讨论通过、邓小平1980所做的《党和国家领导制度的改革》的报告、中共十一届六中全会《党和国家领导制度的改革》和修宪工作具体主持者彭真的有关讲话与1982年宪法的联系，更能证明除中央军委外，其他国家机关实行党政合一不符合现行宪法的规定和精神。

中共十九大报告在“深化机构和行政体制改革”部分要求：“统筹考虑各类机构设置，科学配置党政部门及内设机构权力、明确职责。统筹使用各类编制资源，形成科学合理的管理体制，完善国家机构组织法。”“在省市县对职能相近的党政机关探索合并设立或合署办公。” 社会在发展，宪法的规定不可能一成不变。一个国家机关的具体工作部门与党委下面职能相近的部门合并设立或合署办公，可能谈不到与宪法抵触的问题，但如果一个体系完整的国家机关（如监察委员会）从中央到地方各级都实行党政合一，其合宪性就应该纳入认真考虑的范围了。

在这个问题上，我的研究结论是，如果党的纪委与国家监察委员会要党政合一，从中央到地方各级都像中央军委那样一个班子两块牌子，这种安排同现行宪法是有些抵牾的，需要做调适性安排。修宪消解两者间的矛盾或为此专门做宪法解释，应都是可考虑的选项。

五、不少条款违反宪法关于建设社会主义法治国家的要求，包括违背法律面前人人平等的规定。《宪法》第33规定：“中华人民共和国公民在法律面前一律平等。国家尊重和保障人权。任何公民享有宪法和法律规定的权利，同时必须履行宪法和法律规定的义务。”记住，是“任何公民”啊！《宪法》第37条规定：任何公民，非经人民检察院批准或者决定或者人民法院决定，并由公安机关执行，不受逮捕。”记住，又是“任何公民”！

现在要合理解释的是，为什么监察法草案违宪剥夺担任公职的公民受刑事诉讼法保障的权利，凭什么说他们不能享有连杀人、放火、强奸嫌犯甚至恐怖嫌疑分子遭逮捕后都能享有的诉讼权利？说不通啊！法治是要讲理的，没有道理就谈不上法治。可能有人说，为了有效反腐顾不了那些。反腐不能成为违反宪法的理由。网上还有人说，公职人员平时得好处多，要求让他们享有平等权利不道德。这更不是违反宪法的理由。要说道德，违宪滥用公权力是最大的不道德。更关键的是，若立法违宪侵害一部分公民基本权利的情况不受到批评和遏止，其后果必定是间接侵害全体公民的基本权利。因为，今天能剥夺这部分人的一些基本权利，明天就能剥夺另一部分公民同样的基本权利，后天、大后天或许就会剥夺全体公民的同样的基本权利。

从宪法角度看，“双规”转留置，若符合法治和平等保护原则，那是进步，否则很难给予进步的评价。“双规”显然不符合法治和平等保护的要求，早该改革。评判这项改革是否符合这些要求的最便捷衡量方法，就是看最终通过的监察法文本是否将犯罪调查纳入了刑诉法调整的范围。

所以，监察法草案中违反法治和平等保护条款的规定，应该完全拿掉。这样做从根本上有利于整个社会，也有利于反腐廉政事业，只是今天来不及论证。如果坚持否定平等保护，那就只好修宪，修改《宪法》第33条和第37条中平等保护的内容。这是难以想象的办法。

六、监察体制改革确定的纪委和监察委员会党政合一的态势和监察法草案的相关规定，必然严重削弱宪法规定的人民检察院作为法律监督机关的地位和行使检察权的独立性。毋容讳言，我国国家机关的地位高低，主要取决于其组成人员在执政党内地位的高低。党的纪委书记现在党委内部就处于第二或第三把手的位置，仅这个职位就对检察院和检察长处于压倒性地位；再加上兼任监察委员会主任的职位，这相对于检察机关享有的职权，差不多是泰山压顶，后者很难对监察委员会行使职权的情况进行有效制约。

上述情况很不利于正常宪法秩序的维护和公民基本权利的保障。新华社新近发表的文章直接证明这种担心不是多余的。这篇标题为《国家监察体制改革试点取得实效》的文章写道：“今年1至8月，3省（市）检察机关共受理监委移送案件219件281人，仅2件3人退回监委补充调查达到审查起诉标准后再次移送，已提起公诉76件85人，法院审结20件23人；检察机关办理监察机关移送案件审查批捕、审查起诉平均用时仅2.7天、22.4天，远少于法律规定的14天、45天。”

我们作为法学专业人员，一眼就能看到这是检察院的法律监督功能近乎已遭严重削弱的结果和证据。

《宪法》规定，人民检察院依照法律规定独立行使监察权，但监察法草案的规定直接削弱其独立性。如草案第45条规定，监察机关“对于证据不足、犯罪行为较轻，或者没有犯罪事实的，应当征求监察机关意见并报经上一级检察机关批准”，以监察委员会党政合一的强大地位，这种要求“征求意见”实质上就是要求检察院行使这种职权须经监察委员会批准。

怎么解决这个问题？看来只能设法缩小监察委员会与检察院在政治上的重量落差，和完善监察法草案加强检察院独立行使职权的保障。

七、纪委和监察委员会党政合一，同样对人民法院构成泰山压顶的态势，在这种态势下，纪委必然主导法院对有关刑事案件的审理结果。将来法院面对党政合一的监察委员会，所需承受的政治压力同检察院是一样的。简单地说，在监察权高压态势下，纪委认为被调查者有罪的案件，法院几乎不可能不给其定罪，监察委员会要求从重量刑的案子，法院也很难依法轻判；反之亦然。过去政法委书记兼公安局长那样的人事安排格局对法院依法独立行使职权的负面效果和审理刑事案件时冤假错案偏多的情况，很难说不会在新的权力配置失衡格局下重演。历史的教训不能忘记。

在公民基本权利保障和维护司法公平公正方面，法院独立行使职权的重要性远大于监察委员会和人民检察院。法院地位的降低会使得国家权力在同一级国家机构内的配置进一步失衡。这很不利于正常的政治秩序的维护和公民基本权利的保障。

为了富有成效地建设社会主义法治国家，维护公平正义，人民法院的宪法地位和政治地位都不能低于监察机关，否则极可能造成权力配置与客观需要本末倒置的状况。这方面，其他法治国家的重视法院地位和权威的经验值得我们参考。

八、监察法草案若不做必要修改，我国根本政治制度有可能事实上从人民代表大会制度向国家监察委员会制度蜕变。《宪法》第2条规定：“中华人民共和国的一切权力属于人民。人民行使国家权力的机关是全国人民代表大会和地方各级人民代表大会。”《宪法》第57条规定：“中华人民共和国全国人民代表大会是最高国家权力机关。”

监察法草案按宪法规定的民主集中制原则规定了各级监察机关由同级人大产生、对其负责并受其监督，但对负责和受监督的内容规定得很抽象、很空虚，缺少落实方式。其中在人民代表大会层次完全没有规定负责和受监督的任何具体形式，连每年一次向本级人大报告工作的内容都没有。至于在人大常委会层次，也仅规定各级人大常委会“可以听取和审议本级监察机关的专项工作报告，并组织执法检查”，代表和委员可以提出询问或者质询。注意“可以”这两个字的意味。

但是，监察法草案对各级人大及其常委会成员进行监督的内容却规定得很充分、很具体。就监督对象而言，监察法草案针对的对象包括了本级人大及其常委会的所有公职人员，其中显然包括主任（全国人大常委会是委员长）、副主任、常委、代表。监察委员会监督人大及其常委会组成人员的内容除反腐外，还包括监督他们遵守宪法、法律法规，行使公权力和职务违法，以及道德操守的情况。监察法草案还规定，监察机关“依法独立行使监察权，任何组织和个人不得拒绝”，其中“任何组织”不会不包括本级人大及其常委会吧？任何个人不可能不包括本级人大常委会主任、副主任吧？监察机关还可以向本级人大派出监察机构、监察专员。但是，监察法草案并没有容许本级人大及其常委会如此具体监督监察官员，更没有规定人大及其常委会可向监察委员会派驻监督机构和监督专员。

有一种观点认为，监察委员会监督的对象不是人民代表大会及其常委会，而是其中的具体成员。不错。但是，按草案规定，监察委员会有权对人民代表大会及其常委会中每一个成员的进行全方位的监督，包括进行调查，这样一来性质就变了。草案事实上给予了监察委员会对人民代表大会及其常委会每一个成员的控制权，从而也就给予了监察委员会对人大及其常委会这个国家权力机关事实上的控制权。老实说，监察法草案的一些文字本身，口气上已有藐视国家权力机关和冒犯其尊严的倾向，如“任何组织和个人不得”如何之类文字。这样针对包括国民代表机关在内的国家机构说话，不仅在人民代表大会制度下不能允许，即使在三权分立制约平衡的国家也是绝对不行的。

从历史上和其他法治国家的情况看，任何监察机关都不可能这样对待产生它的国民代表机关，任何外在于国民代表机关的监察机构对产生它的代议机关或其组成人员的监督，都不可能将职权扩大到贪腐之外的遵守宪法、法律法规、依法行使职权和道德操守领域，因为，各国代议机关组成人员遵守宪法法律和是否依法履行职务的情况，都几乎无例外地主要是代议机关以自治的方式维护的。权力分立制约平衡的国家尚且如此，作为体现根本政治制度权威的人民代表大会岂能没有自己维护宪法法律和道德规范、约束和处置其成员的自治权。人大代表或人大常委会组成人员的行为若涉嫌犯罪，监察机关或公安机关当然有侦查权，但采取强制措施还是要先经人大方面同意，这另当别论。

监察法草案的上述规定不符合宪法的规定和精神，违背人民代表大会制度，若真的成为法律并付诸实行，人民代表大会制度受伤会很严重，我国的根本政治制度会看起来更像国家监察委员会制度。确保人民代表大会的宪法地位事关我国根本政治制度的稳固，这点马虎不得。

九、监察法草案的不少规定，不符合《宪法》第5条“国家维护社会主义法制的统一和尊严”的要求。监察法草案同宪法冲突、与刑诉法和其它法律冲突，如果成为法律，必严重损害国家法制统一。这种状况在不小程度上是一些有关人员刻意模糊和混淆监察委员会调查权的性质造成的。有关官员强调调查权不是侦查权，部分有理，部分没道理。问题在于，不能笼统地谈论调查权，须遵循党的思想路线实事求是、具体问题具体分析。本着这种精神，调查权应该具体分解为违反党纪调查权、违反政纪调查权、一般性违法调查权和职务犯罪（包括贪腐犯罪）调查权。可以肯定，前三种调查权都不是侦查权，但职务犯罪（包括贪腐犯罪）调查权是不折不扣的刑事侦查权。如果我们连这种常识都没有面对的勇气，那就不仅不是彻底的唯物主义者，而且也不是一个合格的中共党员和中共纪检干部。所以，任何人都没有必要再故意忽略“一个实体，多个名称”的常识，强词夺理，混淆视听。犯罪调查权就是侦查权，监察委员会行使犯罪调查权应该适用刑事诉讼法。

如果我们现在不能实事求是面对犯罪调查的性质，让草案这样通过生效，它极可能构成国家法制统一的一个破坏性因素。宪法学者和刑诉法学者如果能实事求是地解决好犯罪调查的定性问题，会有助于解决监察法草案在完善过程中的部分条款背离宪法和同刑事诉讼法激烈冲突的问题。

最后说几句总结性的话。监察法草案虽然起草得辛苦，也确有不少值得肯定的地方，但不能忽视其严重缺憾。缺憾主要表现为：片面追求监察机关位高权重，轻民主参与；偏重独断处置，轻权力制约；崇尚严刑峻法，轻基本权利保障。如果在世界范围内总结反腐廉政的经验，我感觉，现代各法治国家的反腐败体制之所以比较成功，主要是除了运用权力外，还借助了公民运用其权利和自由的反腐功能，以及重视法治和基本权利的平等保护。不客气地说，从监察法草案看，其中展现的反腐败体制和方法，与我国两千多年来片面依靠权力及其运用、缺乏公民参与和权利保障的传统做法，在深层次上并无多少差别。把这样的草案制定为监察法付诸实行，后果堪忧。

前些天，我阅读一篇显然反映监察法草案起草者立场的文章，加重了我的担忧。这篇文章写道： “今年1至8月，北京市处置问题线索6766件，同比上升29.7%；立案1840件，同比上升0.7%；处分1789人，同比上升35.4%。山西省处置问题线索30587件，同比上升40.4%；立案11261件，同比上升26.4%；处分10557人，同比上升11.7%。浙江省处置问题线索25988件，同比上升91.5%；立案11000件，同比上升15.5%；处分9389人，同比上升16.1%。”反腐应重视廉政效果和准确有效适用法律，不能把抓人多、处分人多作为监察部门的政绩，否则势必推动各地竞相追逐抓人、处分人的数量，各级监察机关会力争抓人、处分人在数量上超过前任，会追求今年超过去年，明年超过今年。这样做不仅会在公职人员队伍中造成惊恐、办事谨小慎微，还会在社会上造成反腐败并无效果、腐败越反越严重的印象。

我的结论是，监察法草案最好在反思基本理念的基础上组织班子重新起草，从头再来，至少应全面修改。

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To monitor the nine constitutional issues that should be dealt with in legislation
2017-11-14 Tong Zhiwei; Vice president of China Constitutional Law Society; East China University of Political Science and Law China Construction Research Center

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The report of the 19th National Congress of the Communist Party of China (CPC) has already set the basic content the supervision system reform. That is, We will deepen reform of the national supervision system, conduct trials throughout the country, and establish supervisory commissions at the national, provincial, prefectural, and county levels, which work together with the Party's disciplinary inspection commissions as one office while keeping their own identity. This will ensure that supervision covers everyone working in the public sector who exercises public power. A national supervision law will be formulated. Supervisory commissions will be given responsibilities, powers, and means of investigation in accordance with law. The practice of shuanggui1 will be replaced by detention.  Among thse, enacting the Law on Supervision is the basic work that must be done to successfully promote the reform of the supervision system.

In June 2017, "Supervision Law (Draft) of the People's Republic of China" (hereinafter referred to as "Draft Supervision Law") examined by the 28th meeting of the 12th NPC Standing Committee was published and comments were solicited from the whole of society. Our seminar is an important platform to discuss, express, summarize and display the views of constitutional and criminal law experts. I would like to use this opportunity to get a little angry, to get a little academic, without considering – for a moment – whether this may help in solving the problem. I will express my views only according to provisions in the Constitution, and constitutional law theory, and  on the basis of my original essay.

First, the Draft Supervision Law must not only state clearly in writing "this law is enacted according to the Constitution," but must effectively take the Constitution as the basis to form all its provisions. However, judging from the real state of the Draft Supervision Law, the draft not only does not state that “this law is enacted according to the Constitution”, in fact it is not drafted on the basis of the Constitution. Several provisions are in manifest conflict with the letter and the spirit of the Constitution. For a number of years, one common feeling among legal scholars has been that we often discuss about  strictly abiding by the Constitution, governing the country according to the Constitution and upholding the authority of the Constitution in the abstract. Where an actual and concrete unconstitutional situation is encountered, in many cases we adopt a lassez-faire attitude.  In my opinion, the Law on Supervision  is a fundamental law that concerns the overall situation of  building of  democracy and the rule of law. We must eliminate the apparent unconstitutional situations in the draft in the crucial time before the National People's Congress Standing Committee will examine the law.

If we vow to abide by the Constitution on the one hand, while letting unconstitutional situation go through unhindered, this will inevitably lead to serious losses in political morality. Because the occurrence of these situations will inevitably lead to a loss of credit of the ruling party and of state power, leaving hidden dangers. After all, "From of old, death has been the lot of an men; but if the people have no faith in their rulers, there is no standing for the state".

Second, the specific time chosen to enact the Law on Supervision should meet constitutional requirements. Some scholars have said that the Constitution must be amended before the supervision law can be enacted, and this is certainly correct. However, merely arranging the sequence whereby the Constitution is amended first, and the Law on Supervision is then promulgated will not necessarily meet constitutional standards. In the end, whether the law is constitutional or not depends on concrete arrangements made "before" and "after". The normal course of action should be that the constitutional amendment authority first adopts the constitutional amendments and the legislature then starts the legislative process according to the constitutional amendment in force. This is because a lot of time-consuming procedures are needed in order to complete a specific piece of legislation. Concerning a piece of law as relevant to the overall situation and as controversial as the Law on Supervision, the general process of its formulation should see the authoring authority presenting a bill to the Standing Committee of the National People’s Congress, the law should then be examined by the Standing Committee three times, revised, and put to a vote. After the vote, it should be submitted to the Standing Committee for Consideration. After the National People’s Congress has completed the examination and voting procedures stipulated in the Legislation Law, the law can be promulgated by the President of the State and go into effect. Therefore, "enacting" is a process concept, not a one-time act. Unfortunately, the actual situation now is that the constitutional basis necessary for the enactment of the Law on Supervision has not yet been established, but the  Law on Supervision has already entered the process of enactment. This is in fact similar to jumping the gun during a sports competition. Therefore, it is hard to say that the NPC Standing Committee's review of the "Supervision Law (Draft)" in June this year is an act of exercising its powers in accordance with the Constitution.

Since a jump start has been made already, one can go back and wait for the start again. Our country is still in the initial stage of building a country ruled by law. It is completely understandable that some mistakes can take place.

Third, whether the name of the national supervision institution to be established is crowned with the word "People" before it  involves major substantive issues. Some scholars think this is only a form, which does not hinder the overall situation. This is sometimes true, but this time is completely different. Many academics have persistently urged that the drafters should antepone the two characters for “People” to ‘Supervision Commission’ according to convention and to the spirit of the Constitution, yet the drafters have strongly resisted this suggestion. This has led to many speculations in the community of legal scholars, including:

(1) Supervision institutions’ resistance in anteponing the two characters for ‘People’ actually indicates that the organ is directly a party organ and has a special and higher political status than all other state organs in the "people" series;

(2) A belief that only if supervision institutions enjoy a high status and a significant power and are politically distinct from and higher than all the other state organs in the “people” series will they be able to effectively prosecute and prevent corruption.

If the drafters insisted that the characters for "People" not be used in the name of the national supervision institution on the basis of these considerations, it would still be reasonable. But I believe this will have a negative impact on the order of the rule of law. Because, this arrangement is not consistent with constitutional ethics. So far, the state organs that are created by, responsible before and supervised by the National People's Congress have the "People" in their name, such as the People's government and the People's courts. To ordinary citizens, this is the same as if a child or a woman insisted on not carrying surname their own father's family, and attempted to emphasize that they were closer to another mighty family. What is even more serious is that this arrangement divides all the state organs into two categories: the organs of the ruling Party itself and the organs led by the ruling Party. One of the consequences of doing so is that it is highly likely to further aggravate the existing imbalance between several parts of the state power under the constitutional order and the fundamental rights of state power and citizens.

In legal circles, it is privately and widely believed that such provisions in the draft Law on Supervision are a manifestation of the drafters’ attempt to obtain special privileges for their institution.  Many of the specific provisions of the draft corroborate the People’s conjectures that  the drafters attempted to obtain special privileges for their institution, and to circumvent their duty to accept supervision.

Some  may think that there are precedents in 1982 Constitution regarding the provisions on the Central Military Commission. This view cannot be held. Because the military is indeed a special organization. Besides, there is only one Central Military Commission in the entire country. The supervision commission, from the central government to the district and county level, is a huge system and may also have offices at the township level. In addition, they also dispatch a large number of agencies and staff to Party and government organs, enterprises and institutions in the entire country. Regardless of the point of view chosen, it is not appropriate to compare the levels of the supervision commission with those of the Central Military Commission. If we must make such a comparison, it is inevitable that People would think military control is being implementen in the entire country, with a negative impact and consequences.

Considering the Supervision Commission as a special political organization, contrary to the provisions and spirit of the Constitution, not only causes chaos in the order of constitutional ethics, but it also hinders the normal operation of the National People’s Congress system. In line with the constitutional principle and the constitutional spirit that all state power belongs to the People, it is better to change the name of the "People's Republic of China Supervision Commission" in the draft to "People’s Republic of China Central People’s Supervision Commission" and rename the local state supervision institutions as "People’s Supervision Commissions in Provinces, autonomous regions, municipalities directly under the Central Government, autonomous prefectures, counties, autonomous counties, cities and municipal districts."

Fourth, the merging of Party and government does not conform to the provisions and the spirit of the current Constitution, and the relevant contents of the supervision system reform  need to be treated constitutionally. The merging of Party and state organs in institutions that form a complete system does not conform to the provisions and the spirit of the current Constitution, and this may be proved by a variety of theoretical explanatory standpoints such as historical explanations, structural explanations, contextual and instrumental explanations. Deng Xiaoping's 1980 report on "The reform of the Party and state leadership system", discussed and adopted by the CPC Central Committee Political Bureau, the “Reform of the Party and state leadership system” of the Sixth Plenum of the Eleventh Central Committee, and relevant speeches of Peng Zhen, who was in charge of the work of constitutional amendments are linked to the 1982 Constitution. This is an even better proof that with the exception of the Central Military Commission, the merging of Party and state organs in other states institutions does not conform to the provisions and the spirit of the current Constitution.

In the section on  "Deepening the Reform of Institutions and Administrative Systems," the CPC Central Committee's report to the 19th National Congress of the Communist Party of China demanded to: "Make overall consideration of the establishment of all kinds of institutions, scientifically allocate the power of party and government departments and internal agencies, and clarify their responsibilities. Overall use the resources of all kinds of personnel management systems, to form a scientific and reasonable management system, improve organizational legislation on state institutions”. “In province and citities, explore the merging of Party and state organs performing similar functions, or the creation of joint offices.” Society develops, and constitutional provisions cannot be immutable. If a specific work department of a state organ is merged to or forms a joint office with a department with similar functions under the Party committee, a Constitutional conflict may not exist. However, if a complete system of a state institution (such the Supervision Commission) is merged to the Party from the top to the bottom level, the issue of constitutionality should be seriously considered.

On this issue, my study concludes that if the Party's Commission for Discipline Inspection and the State Commission of Supervision must merge, like the Central Military Commission, they should form ‘one team with two plates’ from the central to the local levels. Such an arrangement still somewhat conflicts with the Constitution, and arrangements must be made. Both a constitutional amendment or a constitutional interpretation to solve this contradiction would be options.

Fifth, many articles violate the constitutional requirements for building a socialist country governed by the rule of law, including the violation of the equality before the law. Article 33 of the Constitution stipulates: "All citizens of the People's Republic of China are equal before the law. Every citizen enjoys the rights and at the same time must perform the duties prescribed by the Constitution and the law " Remember, it is " Any citizen", ah! Article 37 of the Constitution states: “The freedom of person of citizens of the People's Republic of China is inviolable. No citizen may be arrested except with the approval or by decision of a people's procuratorate or by decision of a people's court, and arrests must be made by a public security organ” Remember, it is" any citizen "!

Now it should be reasonably explained why the Draft Law on Supervision unconstitutionally deprives citizens who hold public office of their rights protected by the Criminal Procedure Code. Why they cannot enjoy the procedural rights even murderers, arsonists, rape suspects and  terror suspects enjoy after their arrest right? It does not make sense! The rule of law is to be justified, and there is no reason to say nothing about the rule of law. Some people may say that an effective fight against corruption cannot do without these. Anti-corruption must not become a reason to violate the Constitution. On the internet there are those who say that civil servants usually enjoy more benefits and require them to have the same rights and morality. This is by no means a violation of the Constitution. In talking about immorality, the unconstitutional abuse of public power is the greatest immorality. More critically, if the law unconstitutionally infringes upon some of the basic rights of citizens, it will not be criticized and deterred. The consequence will necessarility be an indirect violation of the basic rights of all citizens. Because, if today we can deprive some people of their basic rights and tomorrow we can deprive some other citizens of the same basic rights, the day after tomorrow we may deprive all citizens of the same basic rights.

From a constitutional point of view, if the transformation of ‘shuanggui’ into ‘liuzhi’ can conform to the principles of rule by law and equality, it will be a progress. Otherwise, it will be very difficult to evaluate the transformation as a progress. “Shuanggui” obviously does not conform to the requirements of the rule of law and equality, and should be reformed soon. The easiest way to make a negative judgment on whether this reform meets these requirements is to see whether the final text of the Law on Supervision will incorporate criminal investigation within the scope of the Criminal Procedure Law.

Therefore, the provisions of the Draft Law on Supervision that violate the provisions on rule by  law and equality should be completely removed. Soing so, will fundamentally benefit the entire community as well as the cause of anti-corruption and clean government. It is only too late to argue today. If we insist on denying equal protection, then we have to amend the Constitution, amend Article 33 and the equal protection clause in Article 37. This is unconceivable.

Sixth, the supervision system reform and relevant provision in the Draft Supervision Law merging Commissions for Discipline Inspection and Supervision Commission will seriously undermine the role of the People’s procuratorate as the institution that supervised legality, and its independent exercize of procuratorial power. It goes without saying that the status of our state organs depends mainly on the status of their members within  the ruling Party. Secretaries of Party Commissions for Discipline Inspection now rank at the second or third place of Party committees. Just y their ranking, they overwhelm the Procuratorate and the President of the People’s Procuratorate. If to this one adds the post of Chairman of the Supervision Commission, which is equivalent to the authority enjoed by the Procuratorate, then the pressure on the procuratorate will be as heavy as the weight of Mount Taishan. Then, it iwill be difficul to effectively control the exercize of power by the Supervision Commission.

The above situation is not conducive to the protection of the normal constitutional order and the protection of the basic rights of citizens. Xinhua News Agency recently published article directly proving that such concerns are not redundant. The article,  entitled "Pilot Reform of the State Supervision System," reported that: "From January to August this year, procuratorial organs in the three provinces (municipalities) handled 219 cases and 281 persons transferred by the Commission, and only 2 cases and 3 persons could reach the standards for prosecution after they were sent back to the Commission for supplementary investigation several times. 76 Cases involving 85 persons were filed for prosecution, and the courts concluded 20 cases involving 23 people. The average time  in which procuratorates handled cases transferred by the Commission by reviewing and approving arrest, and reviewing the case for prosecution was of only 2,7 days and 22.4 days respectively, far lower than the statutory time limits of 14 and 45 days.”

As a law professionals, we can see at a glance that this is the result and evidence that the legal supervisory function of the procuratorate has been seriously weakened.

The Constitution stipulates that people's procuratorates shall independently exercise their powers of supervision in accordance with the law, but the provisions of the Draft Supervision Law directly undermines their independence. For example, Article 45 of the Draft stipulates that supervision organs "shall, in the absence of sufficient evidence of criminal activity, or where the criminal activity is relatively minor, or where facts of a crime are absent, seek the opinion and the approval of the supervision commission at the next higher level”. In reality, such a “seeking an opinion” from a place of significant authority such as a supervision commission merging Party and state organs, essentially means requiring the procuratorate to exercize its authority subject to the approval of the Commission.

How to solve this problem? It seems that we can only try to reduce the gap in political weight  between the Commission and the Procuratorate and improve the draft Law on Supervision so as to strengthen the protection of the independent exercise of power by the procuratorate.

Seventh. The fusion between Commissions for Discipline Inspection and Supervision Commission will place a weight heavier than Mount Taishan on the People’s Courts. Under such a situation, the Commission for Discipline Inspection inevitably leads the courts’ verdicts on  criminal cases. In the future, the court will face the same political pressure as the procuratorate in facing unity between the Commission for Discipline Inspection and the Supervision Commission. Briefly speaking, under the pressure by the Supervision Commission, where the Commission for Discipline Inspection believes the person under investigation has committed a crime, how can Courts possibly not make a verdict of guilt? Where the Supervision Commission requires an aggravated punishment, the court will hardly be able to give a lenient punishment, and viceversa. In the past, personnel arrangements such as the secretary of the Political Legal Commission concurrently holding the post of Director of the Public Security Bureau had a negative effect on the courts’ independent exercise of their powers in accordance with the law and the fact that there were too many unjust and wrong cases in handling criminal cases. It is hard to say that this will not be repeated under the new pattern of imbalance in the distribution of power. The lessons of history can not be forgotten.

In terms of the protection of the basic rights of citizens and the maintenance of judicial fairness and justice, the independent exercize of power is far more important in the case of courts,  than it is for Supervision Commissions and People’s Procuratorates. The reduction of the status of the court will further unbalance the allocation of state power in the state organs at the same level. This is very detrimental to the maintenance of the normal political order and the guarantee of the basic rights of citizens.

In order to effectively establish a socialist country governed by the rule of law and safeguard fairness and justice, the constitutional status and political status of the People's Courts can not be lower than that of Supervision Commission. The oppositve woul mean putting the cart before the horse. In this respect, the experience of other rule of law countries that attach importance to the status and authority of courts deserves our reference.

Eighth, if the Draft law on Supervision is not amended as necessary, the fundamental political system in our country may in fact degenerate from the system of the People's Congress to the system of State Supervision Commission. Article 2 of the Constitution states: "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." Article 57 of the Constitution provides that "The National People’s Congress of the People’s Republic of China is the highest organ of state power. Its permanent body is the Standing Committee of the National People’s Congress "

According to the principle of democratic centralism set forth in the Constitution, the Draft Law on Supervision stipulates that supervision organs at all levels are produced by, responsible to and subject to the supervision of the People's Congresses at the same level, but the content of  provisions on responsibility and supervision is very abstract, very empty and the methods to implement it are lacking. There is absolutely no specific form of responsibility and supervision at the level of the People's Congress. Even provisions about the annual report to the People's Congress at the same level are absent. As for People’s Congresses Standing Committees, the Draft Supervision Law it only stipulates that Standing Committee sat all levels "can listen to and deliberate on the special work report of the supervision organs at the same level and organize the inspection of law enforcement". Representatives and members may raise questions or file inquiries. Note the meaning of "may".

However, the Draft Law on Supervision contains sufficient and specific provisions on the supervision of People’s Congresses and their Standing Committees at all levels. When it comes the objecst of supervision, the object of the Draft Supervision Law includes all the public officials of People’s Congresses and their Standing Committees, including obviously the NPC Standing Committee is the chairman, the deputy chairman, the standing committee and its representatives. In addition to anti-corruption, the Supervision Committee supervises compliance with the constitution, laws and regulations by People’s Congresses and their Standing Committees, as well as their exercize of public power, their violations of professional duties, and their morality. The Draft Supervision Law also stipulates that supervision organs "shall independently exercise their power of supervision in accordance with the law and no organization or individual may refuse it," and "any organization" will not exclude People’s Congresses and their Standing Committees at the same level. It is impossible for any individual not to include the chair and deputy chair of the People's Congress at the same level. Supervision orgnas may also send a supervisory organ and a supervision officer to the People's Congress at the same level. However, the Draft Supervision Law does not allow People’s Congresses and their Standing Committees to supervise supervisors in such a specific manner. Nor does it provide that People’s Congresses and their Standing Committee may appoint supervisory organs and supervisor offirces to supervise the Supervision Commission.

There is a view that the object of oversight by the Commission are not the People's Congresses and their  Standing Committee, but rather their members. This is not bad. However, according to the Draft Law, the Commission has the power to supervise each member of People’s Congresses and  their Standing Committees, including their investigation, in a way that changes the nature of supervision.  In fact, the Draft gave the Supervision Commission the power of control over People’s Congresses and each member of  their Standing Committee, thereby giving the Supervision Commission the de facto control over the power People's Congresses and their Standing Committees. Honestly, some of the text of the Draft Supervision Law flaunts the organs of state power and offends their dignity, such as "no organization or individual can". Speaking in this way to state institutions including institutions which represent the people can not be allowed not only under the system of the People's Congresses, but also in countries with a balance of power and separation of powers.

Judging from the historical situation and other situations of a country ruled by law, it is impossible for any supervision organ to treat the organs representing the nations and which gave birth to them in this way. And it is impossible for any supervision organ that is external to organs representing the nation, and which has procuced them to supervise those organs or their members. It is impossible to broaden their power to the extent that anti-corruption goes beyond compliance with the Constitution, laws and regulations, the lawful exercise of their powers and ethics. Because, whether or not members of the partliamentary organs of all States respect the Constitution, laws and regulations and perform their duties  in accordance with the law, in all cases is assessed by those organs in an autonomous way. The same is true of the countries that have checks and balances on power. How can the People's Congresses, as the authority that realizes the authority of the fundamental political system, not uphold their own constitutional laws and ethics and constrain and dispose of the autonomy of its members? If the People's deputies or members of Standing Committee ares suspected of crimes, supervision organs or  public security organs certainly have the power of investigation. However, the matter of  whether compulsory measures should be adopted first by the NPC should be a separate matter.

The above provisions of the Draft Supervision Law do not conform to the provisions and the spirit of the Constitution and violate the system of the People's Congresses. If it is really implemented and put into practice, the system of people's congresses will be seriously wounded and our fundamental political system will look more like a Supervision Commission system. Ensuring that the constitutional status of the NPC concerns the stability of our country's fundamental political system.

Ninth. Many of the provisions of the draft Law on Supervision do not conform to the requirements of Article 5 of the Constitution: "The State maintains the unity and dignity of the socialist legal system." Conflict between the Draft Supervision LAw and the Constitution, conflicts with the criminal procedure law and other laws will seriously undermine the unity of the state's legal system if it becomes a law. To a very small extent, this situation has been caused by the deliberate vagueness and confusion of the investigative powers of the Commission on the part of some concerned officers. The relevant officials stressed that  the power to question is not an investigative power, and this is partly rational and partly unreasonable. The problem is that if we can not talk about the power to question in a general way, we must abide by the party's ideological line of seeking truth from facts and making a concrete analysis of specific issues. In this spirit, the power to question should be specifically broken down into the power to make inquiries into acts that violate Party discipline, the power to make inquiries into acts that violate political discipline, and the power to make inquiries into ordinary violations of law and official crimes (including corruption crimes). To be sure, the first three  powers are not  investigative powers, but the power to investigate crimes (including corruption crimes) is the right of criminal investigation. If we do not even have the courage to face such common sense, we will not be neither a thorough materialist nor a qualified member of the Communist Party of China, even less a qualified discipline inspection cadre. Therefore, it is not necessary for anyone to neglect the common sense of "one entity or multiple names" intentionally, confounding words and confusing them. The power of criminal investigation  is the power to investigate. The Criminal Procedure Law should be applied to the exercise of powers of criminal investigation by the Supervision Commission.

If we can not face up to the nature of the power of invesgation in a realistic manner and let the Draft Law come into effect as such, it will very likely constitute a devastating factor in the unification of the country's legal system. If constitutional scholars and criminal law scholars can solve the qualitative problems of criminal investigation in a practical and realistic way, it will help to solve the problem that some clauses of the Supervision Law, during its improvement, present a sharp conflict with the Constitution and the Criminal Procedure Law.

Finally, a few concluding words. Although the Draft Supervision Law was painstakingly drafted and there are indeed many places to be affirmed, its serious shortcomings can not be ignored. The main defects are as follows: one-sided pursuit of the higest power fo the supervision authority, overlooking democratic participation; emphasis on arbitrary treatment, overlooking power constraints; advocating strict criminal punishment, overlooking basic rights protection. If we summarize the experience of combating corruption in the world, I feel that the modern anti-corruption system in various countries ruled by law is more successful. The main reason is that apart from the use of power, it also uses the anti-corruption function of citizens in using their rights and freedoms and attaches importance to the rule of law and equal protection of fundamental rights. Frankly speaking, judging from the Draft Law on Supervision, its anti-corruption system and methods, and the traditional practice of unilaterally relying on power and its application for more than two thousand years in our country and the lack of civic participation and protection of rights are manifest. The consequences of developing such a draft are worrisome.

A few days ago, I read an article apparently reflecting the position of the drafters of the Draft Supervision Law, which added to my concern. The article said: "From January to August this year, 6,766 clues were disposed of in Beijing, an increase of 29.7% over the same period of last year; 1840 cases were filed, an increase of 0.7% over the same period of last year; 1789 persons were punished, up 35.4% over the same period of 2007. Shanxi Province disposed of 30587 clues, an increase of 40.4% over the same period of last year; 11,261 cases were filed, an increase of 26.4% over the same period of last year; 10,557 were punished, up 11.7% over the same period of last year; 25,988 clues were disposed of in Zhejiang Province, up 91.5% over the same period of last year; 11,000 cases were filed, up 15.5% , An increase of 16.1% over the same period last year. "

Anti-corruption should attach importance to results in term of clean government, and the effectiveness in the application of law. We should not regard the arrest and punishment of as many people as possible as a success, otherwise we will inevitably induce all provinces to compete in arresting and punishing as many persons as possible. Supervision organs at all levels will do their best to arrest people and dispose a number of cases higher than their predecessors, to pursue more cases than last year. This will not only cause panic among publci officials, and their extreme caution in work. It will also result in anti-corruption being perceived as ineffective and excessively severe. 

My conclusion is that it would be best rethink the basic concepts in the Draft Law on Supervision, and – on the basis of this – to organize a group to re-draft the law, or at minimum to amend it in its entirety.