A consensus for political reform

Yanhuang Chunqiu, a political journal associated with more liberal, pro-reform elements within the Chinese Communist Party, has published a bold and important “New Year Greeting” in its latest edition. The article, called “The Constitution is a Consensus for Political Reform,” argues that China’s Constitution already lays out the priorities to be addressed in carrying out meaningful political reform.

The article is listed on the online Table of Contents of the January issue, but an image of the issue’s cover issue is not yet available on the journal’s website.


[ABOVE: The December 2012 issue of Yanhuang Chunqiu. (The January 2013 issue is not yet available online).]

Without further ado, we offer a translation [in progress] of the “greeting.”

Yanhuang Chunqiu, No. 1, 2013
New Year Greetings
“The Constitution is a Consensus for Political Reform” (宪法是政治体制改革的共识)
From the editorial department

Through 30 years of reform, the fact that political reform has lagged behind economic reform has become more and more manifest, and factors contributing to social unrest have continued to gather. Promoting political reform is a task of pressing urgency. And yet, to date, there is great divergence over this issue, and no consensus has been reached on how to carry out political reforms. There is an old saying: plan first, act later (谋定而后动). But without a consensus how can plans be laid. And so, there is a great deal of “playing it safe” (稳妥) with political reform these days, and not enough “motion” (积极).

Actually, [a basis for] consensus on political reform already exists. This consensus is the Constitution of the People’s Republic of China. While the Constitution presently in force is by no means perfect, if only we can carry it out in full political reform in our country will take a huge step forward.

Article 57 of our Constitution says that “the National People’s Congress of the People’s Republic of China is the highest organ of state power.” Article 62 says that the National People’s Congress (NPC) has 15 functions and powers. Article 63 says the NPC has the power to recall or remove from office the President, Premier and other national leaders.

The Constitution also states that national administrative authority (行政机关), auditing authorities (审计机关) and procuratorial authorities (检察机关) all emerge through the NPC, are responsible to it and are monitored by it. The armed forces of the nation belong to the people, and the armed forces are led by the State Central Military Commission (国家中央军事委员会). But we must candidly admit that the National People’s Congress has not in fact become the highest organ of state power, and none of these stipulations in our Constitution have been put into practice.

Article 13 of the Constitution states that the “state protects the right of citizens to own lawfully earned income, savings, houses and other lawful property.” If this article were to be put into effect, we would not have the constant barrage of vicious incidents we have today stemming from violations of personal property. [NOTE: This is a reference primarily to unrest arising as a result of land grabs by government officials.]

Article 33 of the Constitution states that the “nation respects and protects human rights.” If this article were put into effect, we would not see such rampant use of “violent administration” (暴力执法) and “violent interception” (暴力截访) [of citizens petitioning for redress of wrongs against them].

Article 35 of the Constitution states that the “citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” If this article were put into effect all the various types of limits placed on our news media would not exist. What’s more, we would no longer have cases in which “words incriminate” (以言治罪). With freedom of speech and press we would also have public opinion checks on corruption.

Article 37 of the Constitution states that the “freedom of person of citizens of the People’s Republic of China is inviolable.” If this article was put into effect, we would not have such things happening as the “strike black” [anti-crime] campaign in Chongqing [under Bo Xilai] or black jails run by firms like Anyuanding that persecute petitioners.

Article 126 of the Constitution states that the courts “shall, in accordance with the law, exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals.” If this article was put into effect, we would not have so may [unwarranted] rejections of lawsuits, and we would not have so many cases in which people are falsely and unjustly accused.

Political reform is about building a system in place than can check power, and that means conscientiously protecting the rights of citizens. There is much language within our Constitution that preserves human rights, and that limits the power of the state. If we compare and contrast our Constitution and our reality, we discover that the system, policies and laws currently in force create a massive gap between the Constitution and the conduct of our government. Our Constitution is essentially void.

Any nation governed by rule of law must take its constitution as the basis for the design of its political system. Making the Constitution void is not only a breach of the promise made to the Chinese people, it is also a breach of the promise made to the international community.

Without trust a nation cannot stand, and the situation must be changed with regard to this breach of promise over the Constitution. Ever since the 12th National Congress of the Chinese Communist Party, the CCP Charter has read: “The Party must operate within the scope of the Constitution and the law.” This is what is meant by “the Party under the law” (党在法下) . . . Achieving a “Party under the law” would avoid the occurrence of various abuses resulting from conflict between the nominal system in effect and the actual system.

The Constitution is the most basic and most important of our country’s laws (根本大法). There is no higher authority than the Constitution, and there will not, nor should there be, any controversy about promoting political reform according to the Constitution.

As the Constitution provides the consensus for political reform, we must all spring into action, turning our voided Constitution into real political and legal systems — and that means we must change all current systems, statutes and policies that violate the Constitution, so that [laws and systems] accord with the Constitution. In this sense, political reform is really a “movement to preserve the Constitution” (维宪行动).

The law alone does not suffice (徒法不足以自行). To put the Constitution into effect, [we] must have related institutional guarantees, for example building a system of constitutional review (宪法审查制度), building a constitutional court (宪法法院), or creating a special committee within the National People’s Congress, or making the Constitution a matter of judicature (将宪法司法化). Building a system to put the Constitution into effect is an important task in carrying out political reform.

Even though the Constitution currently in effect is not perfect, if we make this Constitution real this would mean huge progress for political reform. On this foundation of political progress, we can in the future amend our constitution and then work these amendments into the political system. In this way we can promote reform in a gradual way. This gradual reform is all about using the Constitution as a means to improve the political system.

The voiding of the Constitution for so many years has not only meant huge advantage for the few, but it has also created complicated and deep-rooted interest groups. This “movement to preserve the Constitution” will come up against numerous obstacles. General Secretary Xi Jinping said during his recent tour in Guangdong: We must “dare to take on the tough challenges, and dare to navigate the dangerous shoals. We must have the courage to break through our mental obstacles, and the courage to break down the fences of entrenched interests.” If we only have this spirit, everyone working together from top to bottom, this “movement to preserve the Constitution” will surely succeed.

As this new year begins, we have a new group of leaders, and certain changes in the way these leaders operate have been cause for encouragement. In this new year, what we hope among a multitude of other things is that there can be real action to make our Constitution real.

——————–

《炎黄春秋》2013年第一期 新年献词
宪法是政治体制改革的共识
本刊编辑部

经过三十多年的改革,政治改革滞后于经济改革的弊端日益显露,社会不安定因素逐渐积累,推进政治体制改革是当务之急。但政治体制改革如何进行,众说纷纭,迄今没有共识。古语云:谋定而后动。没有共识,何以定谋?所以,我们当今的政治改革“稳妥”有余,“积极”不足。

其实,政治体制改革的共识已经存在。这个共识就是中华人民共和国宪法。虽然现行宪法并非十全十美,但只要把它落到实处,我国政治体制改革就会前进一大步。

《宪法》第57条规定,“全国人民代表大会是最高国家权力机关”; 第62条规定了全国人民代表大会有15项职权;第63条有罢免国家主席、国务院总理等国家领导人的权力。《宪法》还规定了国家行政机关、审计机关、检察机关都由人大产生,对它负责,受它监督;国家的武装力量属于人民,国家中央军事委员会领导全国武装力量。我们必须坦率地承认,全国人民代表大会并没有成为最高国家权力机关,《宪法》的这些规定没有落实。

《宪法》第13条规定,“国家依照法律规定保护公民的私有财产和继承权”。如果这一条落实了,就不会有层出不穷的侵犯私有财产的恶性事件。

《宪法》第33条规定,“国家尊重和保护人权”。如果这一条落实了,“暴力执法”、 “暴力截访”等恶劣行径不会如此猖獗。

《宪法》第35条规定,中华人民共和国公民有言论、出版等多项自由。如果这一条落实了,对传媒的种种非法限制就不会存在,更不会“以言治罪”。有了言论、出版自由,对权力腐败也就有了必要的舆论遏制。

《宪法》第37条规定,公民的人身自由不受侵犯。这一条如果真正落实,就不会有重庆式的“黑打”和北京安元鼎式的迫害访民的黑监狱。

《宪法》第126条规定,法院依照法律规定独立行使审判权,不受行政机关、社会团体和个人的干涉。如果这一条落实了,就不会有那么多不受理、不立案,就不会有那么多冤假错案。

政治体制改革就是要建立一套对权力制衡的制度体系,就是要切实保证公民权利。《宪法》中有很丰富的保障人权、限制国家权力的内容。将《宪法》和现实对照,就会发现现行的制度、政策、法令和很多政府行为,和宪法的差距十分遥远。我们的宪法基本上被虚置。

任何一个法治国家,在政治体制的设计上都必须以宪法为依据。将宪法虚置,不仅是对中国人民的失信,也是对国际社会的失信。国无信不立,宪法失信的状况必须改变。十二大以来的党章都有规定:“党必须在宪法和法律的范围内活动”。这就是“党在法下”。 “党在法下”是重要的宪法原则和政治原则。做到了“党在法下”,就能避免宪法层面的名义制度和运行层面的实际制度相悖而产生的种种弊端。

宪法是国家根本大法,宪法的权威至高无上,依照宪法推进政治体制改革,不会、也不应当有争议。

既然宪法是政治体制改革的共识,我们就应当行动起来,将虚置的宪法变成现实的制度体系、法律体系,就应当将现行一切违反宪法的制度、法令、政策改变过来,使其与宪法一致。在这个意义上,政治体制改革实质是一场“维宪行动”。

徒法不足以自行。落实宪法,必须有相应的制度保证,例如建立宪法审查制度:或者建立宪法法院,或者在人大设立专门的委员会,或者将宪法司法化。建立落实宪法的制度,本身就是政治体制改革的重要内容。

尽管现行宪法并不一定完美,但是,只要我们将这部宪法落实了,政治体制就会前进一步。在政治进步的基础上,将来修订宪法,再将新的宪法修订条款落实到政治制度中。如此这般,就是渐进式改革。这种渐进式改革,就是通过宪法途径不断改善政治制度。

多年将宪法虚置不仅给少数人带来了巨大的利益,还形成了盘根错节的利益集团。“维宪行动”必将遇到重重阻力。习近平总书记最近在广东视察时表示:我们要“敢于啃硬骨头,敢于涉险滩,既勇于冲破思想观念的障碍,又勇于突破利益固化的藩篱”。只要有这种精神和魄力,全民努力,上下互动,“维宪行动”一定会成功。

新的一年,新的领导集体,新领导人一些新的作风令人高兴。在新的一年,千头万绪中我们最为期盼的是,在落实宪法上有切实的行动。

3 Comments to “A consensus for political reform”

  1. AG King says:

    The New Year Greetings are provoking. However, one question is: If PRC’s Constitution constitutes a consensus for political reform, does that mean any potential political reforms must be consistent to the Constitution itself?
    It seems that the New Year Greetings selectively highlight Articles 57, 62, 63, 13, 33, 35, 37, 126, while ignoring
    the fundamentals of the Constitution in defining the polity and the nature of the PRC state. Saying this, does political reform the Greetings refer to mean institutional improvements and development while maintaining
    the Constitution’s foundations intact?

  2. Clement says:

    几点翻译上的小建议。
    “宪法被虚置”似翻译为”the Constitution is circumvented/disregarded”更好。void指的是法律上的无效。而宪法在法律上是当然有效的,只是在制度实施的过程中被架空、放置一旁而已。
    另外,“宪法司法化”一般指的是宪法的条文可以在诉讼中直接引用,作为审理的依据,而不是指宪法与司法机构的一般关系。故似翻译为”judicial enforcement of the Constitution”、”making Consitution applied in courts”更准确

  3. DSLAM says:

    It’s true and relevant. I’ve always wondered what CCP members thought when they read their own constitution. It is so plainly being ignored.

Leave a Comment