Thursday, November 8, 2012

Call for Constitutionalism at the 18th Party Congress

18th National Party Congress Press Conference Center. Photo: Xinhua

At a press conference on the eve of the 18th Party Congress, a spokesman told reporters that the delegates assembled in Beijing to select China’s newest leadership group “brought with them the wishes of the Chinese people.” Indeed, as they did at the time of China’s last leadership transition 10 years ago, many in and outside China have high expectations for China’s incoming leadership, looking to them to push forward all sorts of much-needed economic, legal, and political reform.

In a recent interview with the Economic Observer newspaper, Shanghai-based constitutional scholar Tong Zhiwei expresses his own hopes that China’s coming decade will bring a renewed commitment to the principles of constitutional governance. As Tong explains, such a commitment to limiting state power and protecting individual rights would have profound ramifications for China’s economy, its legal institutions, and especially its political system.

Constitutional Rule: Current Realities and Future Visions
Meng Lei
Economic Observer, November 3, 2012

Conscientiously Protect Citizens’ Fundamental Rights

Economic Observer [hereafter, EO]: A few days from now, the Chinese Communist Party will hold its 18th Party Congress and there will be a transition of the party’s central leadership. This year is also the 30th anniversary of the promulgation of the 1982 constitution. As a constitutional scholar, what prospects do you see for “ruling the country according to the constitution” in the coming decade?

Professor Tong Zhiwei. Photo:

Tong Zhiwei: It’s great that you’ve chosen to discuss things from the angle of ruling the country according to the constitution! To rule according to the constitution is a concrete requirement of constitutionalism; ruling according to the constitution means implementing constitutionalism, and implementing constitutionalism requires ruling according to the constitution. Governance is not an issue for ordinary citizens; it’s only a problem for state leaders and the ruling party. So, during the 18th Party Congress, it is necessary to discuss this fundamental issue.

Essentially speaking, the most important aspects of constitutionalism are, first, the need to implement the restrictions and checks on [the exercise of] supreme power provided for in the constitution and, second, the need to conscientiously protect all of the fundamental rights of citizens that are affirmed by the constitution.

In the 30 years since the current constitution took effect, constitutional implementation has made major achievements overall, but has also encountered some fairly major problems. We don’t lack for self-praise, so with respect to ruling according to the constitution I think I’ll focus on what hasn’t been done well and where it is necessary to exert significant effort to improve.

Whether one is talking about rule according to the constitution or constitutionalism, the first requirement is the need to place all public power under the regulation or restriction of the constitution and not allowing [the existence of] any power that is unchecked or not subject to restriction by the constitution. But in our country, there are some basic issues of constitutionalism that have yet to be resolved. For starters, have a look at the power [enjoyed by] the party secretaries in some cities and counties—how are they restrained by the constitution? The most extreme [example] is Bo Xilai when he was in Chongqing. There he was called a leader of the ruling party, but the constitution and laws that were established in accordance with party proposals were simply unable to restrain him. He was called the leader of the municipal party committee, but in fact [he ran] a personal dictatorship where local institutions of state power and other state institutions set forth in the constitution were only for show. Under these circumstances, how can it be acceptable not to reform?

Another requirement of rule according to the constitution or constitutionalism is the conscientious protection of citizens’ fundamental rights. Citizens’ fundamental rights refer to those individual rights affirmed in the constitution; rights that the state is obliged to protect. Over the past 30-plus years, our citizens’ fundamental rights have received fuller protection than they ever did in the past, but unfortunately, obvious defects exist. China is a country that strictly adheres to a statutory-law system in which the fundamental rights provided in the constitution generally must first be expressed through legislation before they can actually be protected. In reality, it remains an open question how to implement and how to use the law to protect these constitutional rights of citizens.

EO: Without special legislation, these specific constitutional rights cannot be protected. In other words, when these rights are subjected to restriction, the constitution is not enough to be used as a “shield.”

Tong: You’re a reporter, you’ve certainly heard sayings such as “there is freedom to research, but expression must be disciplined.” But can citizens’ fundamental rights be restricted through discipline? If so, it is the same as the deprivation of relevant fundamental rights.

Citizen’s fundamental rights can only be restricted by laws. Moreover, laws restricting fundamental rights cannot protect these fundamental rights in form but negate them in practice. Also, laws restricting citizens’ fundamental rights cannot violate the constitution, because laws that violate the constitution are invalid. Of course, this necessitates an effective system of constitutional review, or, as our constitution puts it, a system to “oversee constitutional enforcement.”

Here, it’s crucial to understand why all norms that are not laws, like administrative regulations, have no power to restrict citizens’ fundamental rights. The logic is simple. Taking China’s constitution as an example, if a fundamental right affirmed in a constitution that was passed by more than two thirds of all of the delegates to the National People’s Congress (NPC) could be restricted arbitrarily by central state organs like the State Council or by local state organs, it would effectively mean a veto over this right’s essence as a fundamental right and be no different in consequence from the constitution not affirming this right.

Of course, this is not to say that without legal protections citizens are entirely unable to enjoy these rights. Without corresponding legal provisions, citizens more or less still enjoy some fundamental rights affirmed in the constitution, but this kind of enjoyment lacks stable, reliable protection.

EO: Just now you were discussing constitutional rights that are not yet protected through specific laws. But in reality, there are some fundamental rights for which there is already specific legislation but the protection [of these rights] is still not ideal. What causes this?

Tong: There are many reasons that can lead to this kind of situation.

The first situation is that the legislation itself is problematic. Even though there are legal protections, things like violations of the principles of rule of law mean that the legislation doesn’t meet the standards of effective protection that are commonly necessary. For example, there are procedures in the Criminal Procedure Law that protect the right to personal liberty. According to rule-of-law principles, criminal coercive measures and investigative methods taken by investigative departments should be reviewed and approved by a court. But in the majority of situations our laws do not require review or approval by a court; rather, the public security departments decide and implement [these decisions] on their own. This is the case for residential surveillance, release on guarantee pending further investigation, seizure of property, monitoring, etc.

The second scenario is when laws exist but are not followed. This has been particularly noticeable in recent years. I won’t discuss this in detail; readers can recall some of the more notorious cases from recent years.

The third situation is when laws or administrative regulations violate the constitution. From a certain perspective, the system of reeducation through labor, which we have all had enough of, can be put in this category.

The fourth situation is when a law’s derivative laws or normative documents violate the constitution or the law but cannot be reviewed in order to remedy the situation.

Aside from this, there are also outrages committed by state agencies or officials who don’t follow any rules at all. These are even more terrifying.

Exercise Power, Rule in Accordance with the Constitution

EO: Besides protection through dedicated legislation, I’d like to ask you to discuss why courts can’t directly apply the constitutional provisions protecting fundamental rights. In this regard, didn’t we once discuss “judicialization of the constitution”?

Tong: Constitutional adjudication is different from ordinary judicial discretion. Valid constitutional rulings must effectively restrain all state agencies and officials, otherwise they cannot be considered constitutional rulings and would have no significance. Our courts have a lower status than the people’s congresses and their standing committees. It would be unimaginable for a Chinese court ruling to restrain the NPC and its standing committee or even the people’s congress and standing committee at its own administrative level. So, there is no way to accomplish this so-called “judicialization of the constitution.” However, even if we cannot judicialize the constitution, it is possible to implement constitutional review, or, as provided for in our constitution, the oversight of constitutional enforcement. Oversight of constitutional enforcement is a power of the NPC and its standing committee. A dedicated body ought to be established to deal with this matter. We’ve discussed this issue for decades, ever since 1982 when the constitution was promulgated. Unfortunately, it has yet to be resolved. What we can strive for at the moment is to establish a dedicated constitutional oversight body.

There has been much discussion of this subject. One of the more radical ideas is to have the NPC establish a constitutional committee, equal in status to the NPC Standing Committee, that would be able to review the constitutionality of all legislation except that passed by the NPC. A more moderate proposal is to establish a dedicated state agency under the NPC and its standing committee equal in rank to the State Council and the Supreme People’s Court. The most modest reform would involve setting up a special committee under the NPC, not an independent organ of the state, that would carry out specific review work related to oversight of constitutional enforcement and provide consultative opinions to the NPC and its standing committee. Whether it’s a constitutional court or constitutional committee, the most important thing is that it must not be all talk and no action.

EO: On September 15, 2004, Comrade Hu Jintao said in a speech at the “50th anniversary commemoration of the establishment of the National People’s Congress”: “In order to rule the country in accordance with the law, we must first rule in accordance with the constitution. In order to exercise power in accordance with the law, we must first exercise power in accordance with the constitution.” Nevertheless, when Lu Yongxiang, vice chairman of the NPC Standing Committee, said last week that China’s fundamental [task] going forward would be to “exercise power and rule the country in accordance with the constitution,” the media and the public still treated it as a major, noteworthy event. Why do you think that some comrades, like theoreticians and leading cadres, treat this subject as taboo?

Tong: If the constitution and laws are properly utilized, they can be used to resolve all problems. However, because many leading cadres are not familiar with the constitution, they don’t have a clear understanding about how to resolve problems within the framework of the constitution or law. When there is no effective implementation of the constitution or laws, much of the time it is mainly because of poor use by institutions of public power and their officials.

Moreover, it’s much easier to talk about doing things or governing in accordance with the constitution than it is to have correct understandings. A fundamental requirement of ruling in accordance with the constitution is, first, that those bodies that exercise constitutional state authority are themselves based in the constitution. In other words, the name of that body or official position can be found in the constitution. Bodies or official positions that are not named in the text of the constitution cannot exercise constitutional state power—that is most important. A big problem we currently face is that some party and governmental bodies commonly exceed their authority and exercise state power. All state power derives from the people, and the people express themselves legally through voting. Only organizations or persons that are directly or indirectly elected by voters are those that have been granted state power by the voters. At present, there are still many matters with which there is a gap from this standard.

EO: Returning to the constitution itself, how do you assess the results of constitutional amendments over the years?

Tong: I normally divide constitutional amendments into comprehensive and partial amendments. The 1982 constitution was a comprehensive amendment of the 1978 Constitution, while since 1982 the constitution has undergone four partial amendments. Without question, the 1982 Constitution is more advanced than the 1978 Constitution, and the current constitution is a relatively good one.

No matter whether one is talking about comprehensive or partial amendments, the biggest problem that has emerged in our country over the course of all previous amendments remains an insufficient mentality regarding constitutional enforcement. The constitution is emblematic of [the state of] democracy and rule of law, and without a constitution you cannot even speak of these things. So, in the past, consideration mostly went to creating a constitution in order to represent [these things], whereas relatively little consideration was given to how to seriously enforce it. This can be seen in the way that amended constitutions have immediately taken effect after their promulgation. Never once at the time of promulgating and implementing a new constitution was a thorough constitutional review of existing law, regulations, and other normative documents conducted and the results of it released.

The 1954 constitution was like this, and the 1982 constitution and the four subsequent amendments were each handled this way as well. In order to seriously enforce the constitution, there definitely needs to be a transitional period before it takes effect, during which time two things must be done in earnest: first, the enactment of necessary laws as concrete protections of the new fundamental rights affirmed in the new constitution; and, second, the weeding out of legal and regulatory provisions that contradict [the new constitution] and the announcement of [these provisions] as in violation of the constitution and abolished. You cannot say that this kind of new basic law can take effect immediately after it is announced. That’s impossible.

EO: Can you give a few examples of old laws or regulations that were in conflict with the new constitution or constitutional amendments at the time they were announced that should have been reviewed and abolished but never were?

Tong: There are too many. For example, the Methods for Custody and Repatriation of Urban Migrants and Beggars that led to the Sun Zhigang affair count as an administrative regulation that should have been sorted out and abolished at the time the 1982 constitution was promulgated and implemented, but it never was. Similarly, the State Council Decision on the Issue of Reeducation through Labor and its Supplementary Regulations, as well as the NPC Standing Committee’s Decision Regarding the Handling of Offenders Undergoing Reform through Labor and Persons Undergoing Reeducation through Labor who Escape or Commit New Crimes are normative documents that should at least have already been sorted out and abolished when constitutional amendments were promulgated to respect and protect human rights [in 2004] and to establish a socialist country under rule of law [in 1999].

EO: Just now you mentioned institutional regulations, which definitely include administrative regulations. This makes me think of some rules of government and administrative bodies, such [as those involving] so-called property tax, about which there has been furious speculation of late. I’d like your opinion: if the State Council or local governments pass new rules or revise old rules to levy a tax, would it satisfy constitutional principles?

Tong: The State Council is a state administrative body. Even though it is the highest state administrative body, for it to decide to levy a tax would not satisfy constitutional principles. The right to private property is a citizen’s fundamental right protected in the constitution. Moreover, the levying of taxes on citizens is a major state issue. Looking from these two perspectives, levying of taxes can only be decided through legislation passed by the NPC. I believe that the next amendment to the constitution should add some new provisions regarding taxation and financial budgeting in order to more fully protect citizens’ private property rights and the effective control over budgeting by people’s congresses at all levels.

Constitutionalism and the Economy

EO: Turning to look at economic development, how do you see the relationship between constitutionalism and economic development?

Tong: There is an extremely close relationship between constitutionalism and economic development. We need long-term, sustainable development. The American legal scholar [Richard] Posner once suggested that a state structured on separation of powers and the principle of checks and balances is the lowest-cost, most efficient constitutional system there is. In saying this he pretties-up their political system, but he makes a significant point about the relationship between constitutionalism and healthy, sustainable economic development. Historically, some totalitarian, dictatorial governments have sometimes appeared more efficient and able to make rapid and timely decisions about various matters. But they often make big mistakes and, once having made them, it is extremely difficult to rectify them, which leads to especially major economic waste. With a system of constitutionalism and rule of law, the situation is precisely the opposite. These days, we all talk about “low-carbon economics” and “green economics.” I think that constitutionalism is the rule-of-law low-carbon and green environment that most suits economic development.

There are many counterexamples in China. For example, during our history the Great Leap Forward and “Cultural Revolution” were economic disasters seldom seen in world history. Everyone knows that more than 10 million people starved to death during the Great Leap Forward and that the “Cultural Revolution” brought China’s national economy to the brink of disaster. These problems were all caused by China’s lack of constitutionalism and rule of law. They were economic disasters caused by flaws in the political and legal [systems].

EO: Since reform and opening, some constitutional changes such as provisions to establish a market economy and emphasize the status and role of the non-state-sector economy have fundamentally pushed forward our country’s economic development or, at least, played an irreplaceable role.

Tong: The state-sector economy certainly played an important role in the rapid economic development over the past 30 years, but first and foremost we must recognize that it was [the introduction of] new elements that brought about this sort of high-speed development, starting with the private economy and then the market economic system and the introduction of foreign capital through reform and opening. Under 30 years of the state-owned, planned economy, things didn’t go well. Then, after the constitution provided for the co-existence of a variety of economic actors and the implementation of the market economy, growth immediately picked up. But after things picked up, many people forgot [the reasons for this]. The [policy of] advancing the state sector and shrinking the private sector is, on some level, that is, to a real degree, following the old path and, it ought to be said, has no future. We will see that none of the modern economic powers with reasonably balanced development rely on a state-run economic sector, and some countries, such as the United States, can almost be said to have no state-sector economy. These are things we should consider but not necessarily replicate. I’m not advocating privatization but advancing the state sector and shrinking the private sector is definitely no good. China’s economic future mainly rests on the strong growth of the non-state economy. Our current economy is still a kind of “identity economy” in which things are unequal and [success] depends on the identity of the actor. We need to devise a way to fix this.

EO: What concrete reform measures could be [implemented] next to realize rule and governance according to the constitution? Put another way, in the next 10 years, in what areas should constitutional rule and governance be promoted?

Tong: I’ll make a few simple points:

  1. Institutions of the state and ruling-party organization, along with their powers, should return to the constitution. The ruling party ought to use its political leaders to have its positions written into the constitution and the laws, and recommend its trusted party-member cadres to positions in state organs through legal procedures. State institutions must truly take up the duties of state institutions and handle matters strictly according to the constitution and laws, rather than doing things according to speeches or temporary [policy] documents issued by one body or another. There should be a true separation.

  2. Enact necessary constitutional legislation. First of all, this includes a News Law and Publication Law to protect citizens’ freedom of speech and publication, an Association Law to protect the people’s right to form associations, and a Protection of Religious Freedom Law to protect citizen’s freedom of religious beliefs. The highest organ of state power should establish legislation to protect the fundamental citizens’ rights provided for in the constitution.

  3. Step-by-step, planned implementation of direct, competitive elections of people’s congress delegates at all levels. Even if for the time being we still cannot have direct elections of NPC delegates, we should at least gradually introduce direct election of local people’s congresses at all levels. There should be no problems with having direct competitive elections for local people’s congress delegates. If there are no competitive elections, the people’s congresses serve no representative function.

    Presently, people’s congresses clearly serve no representative function. For instance, consider the example of the recent incident in Ningbo, as well as those in Qidong and Shifang. We can see that in these incidents, people’s congresses did not participate substantively in making major local decisions, not to mention make those decisions themselves. Even if they had participated, they wouldn’t reflect public opinion. When there are matters that ought to be discussed before decisions are made and people’s congresses don’t even engage in substantive discussion, the results will be conflict appearing in the streets.

  4. Effective protection of judicial independence. An independent judicial system is an important sign of a modern nation. All types of disputes in society ultimately rely on resolution through the judicial system, but today, because courts and judges are not independent, judicial rulings lack the authority they ought to have. For this reason, the party and government always have to face social conflicts directly. This is extremely harmful to China’s stability and sustained development.

  5. Set up a body dedicated to constitutional review (or constitutional oversight and protection) and properly deal with review of the constitutionality and legality of derivative legislation and normative documents. It is because the 1954 constitution had no system for constitutional review that [the idea] silently died. In response to this lesson, the 1982 constitution specially enacted some provisions with the hopes that they would remedy the unfortunate deficiencies of the 1954 constitution. However, because for more than 30 years it has been all talk and no action, constitutional review today remains something relegated to paper only. In more than 30 years the highest organ of state power has not enacted the necessary procedural law and has not carried out a thorough review of the constitutionality or legality of laws or relevant administrative regulations. This is a major problem that concerns the unity of the state legal institutions, and one that ought to be resolved in a timely manner.

    I hope that the 18th Party Congress can set out an encouraging blueprint for the construction of constitutionalism for the coming decade. This would have profound significance for China.


Tong Zhiwei: Vice president of the China Constitutional Studies Association and professor at East China University of Political Science and Law