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Constitutionalism Development of Modern China:The Status Quo and the Future

By Wang Jin-yuan*Wang Xiang-guo**39)

Introduction

Since the Hundred Days Reform (1898)1), the constitutionalism development of China

has gone through more than one hundred year. After vicissitudes of a century, what is today's

constitutionalism in China like? What is the trend of its development? The author will begin

with discussing various definitions of constitutionalism components and look forward to the

future of China's constitutionalism by commenting on the status quo.

. Views of Constitutionalism by Chinese Scholars

Regarding the composition of constitutionalism, views of modern Chinese scholars fall

into three: Democratic Constitutionalism, Liberal Constitutionalism and Power-Check

* Wang-Jinyuan (Wuhan City, P.R.C), Associate Professor of Wuhan University, Law School, JD.

** Wang-Xiangguo(Wuhan City, P.R.C), Wuhan University, Law School, LLM.

1) The Hundred Days Reform: The intellectual ferment that ushered in the Guangxu emperor's related

modernizing effort. The reform lasted one hundred day and so called "The Hundred Days Reform".

Introduction

. Views of Constitutionalism by Chinese Scholars

. The Status Quo of Constitutionalism Development in

China

. The Trend of Constitutionalism Development in

China

Contents

87

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88 Asia Law Review [Vol. 3 : 87107

Constitutionalism.

1. Democratic Constitutionalism

In 1940, on the opening ceremony of the Constitutionalism Promotion Committee in

Yan'an2), Mao Tse-tung3)delivered a speech titled "New Democratic Constitutionalism". He

said, "what is constitutionalism? Constitutionalism is democracy"4)

Mao's speech had a far-reaching impact on the research of constitutionalism in PR China.

Lots of scholars believe that Constitutionalism equals to democracy. And the view was

considered authoritative for a long time. Professor Xu Chong-de holds the view that

constitutionalism should be constitutional democracy.5)

Professor Li-long believes that constitutionalism is a political form or political process

with constitution being the premise, democracy the core, Rule of Law the basis, and human

rights the ultimate purpose.6)

While professor Guo Dao-hui argues that constitutionalism is a political process of

making, enforcing, and upholding constitution, which, with the principle of democracy and

Rule of Law, aims at safeguarding the rights of people and citizens.7)

Professor Zhang Qing-fu insists "constitutionalism is democracy, constitutionality or

constitutional politics. Its underlying characteristic is to settle the obtained democracy in the

form of constitutionthe fundamental lawso as to consolidate and develop the democracy."8)

2. Liberal Constitutionalism

Professor Du Gang-jian argues that liberty is the direct purpose of constitutionalism.

2) Yan'an, the cradle of Chinese Civilization; set up as a city in 1937, being the capital of

Shaanxi-Gansu-Ningxia Border Region; grew into a county in 1949; in 1972; being the famous

revolutionary resort in China; used to be the headquarter and general rear during the China's War

of Liberation (1945-1949); used to be the location of the Central Committee of the Chinese

Communist Party.

3) Mao Tse tung or Mao Zedong (1893-1976), foremost Chinese Communist leader of the 20th century

and the principle founder of the People's Republic of China.

4) See Mao Zedong Omnibus[M], Vol.2, People's Publishing House, 1991, p752.

5) See Xu chong-de, the Unusual Journey of Socialist Constitution[A], China Legal Science [J], 1994, 5th

Issue.

6) See Li-long,A Basic Theory of Constitution[M], the Publishing House of Wuhan University, 1999, p144

7) See Guo dao-hui,A Brief Discussion on Constitutionalism[A], Law Journal [J], 5th Issue, 1993.

8) See Zhang qing-fu,A Basic Theory of Constitution[M], the Publishing House of Social Science Documents, 1999, p144.

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2005] Constitutionalism Development of Modern China: The Status Quo and the Future 89

Constitutionalism aimed at safeguarding liberty when it was initially put forward in modern

history. He stated that constitution may not turn people into masters, but is capable of

guaranteeing them freemen. If there is a certain association between constitutionalism and

democracy, it must be that constitutionalism is the inevitable course to democracy.

Constitution is the first step toward democracy. The direct purpose of constitutionalism is to

make the people freemen. Constitutionalism is no other than to bring the running of state

power into the orbit of constitutionalism.9)

3. Power-Check Constitutionalism

At present, there are no unitary meanings of constitution domestically or internationally.

The author believes that constitutionalism is a Power-Check politics. Democratic

Constitutionalism has a flaw in its definition of constitution and constitutionalism. That is

they believe constitutionalism means democratic politics. Their logic is where there is

democracy, there is constitution and constitutionalism as well. Whereas, the history of

democracy and constitutionalism has revealed that democracy and constitutionalism are

entirely different. No absolute association has been found between them. Democracy does not

necessarily bring constitution; likewise, constitution does not necessarily lead to

constitutionalism. In his essay entitled Common Law, Civil Law and Constitutional

Democracy,10)American scholar Frank Murphy, discussed the meanings of democracy and

constitutionalism at length, as well as the relationship between them. Chinese scholar

Xin-Chunying also explored the relationship between democracy and constitutionalism in his

treatiseSeeking Balance between Constitutionalism and Democracy.11)

In recent years, more scholars tend to recognize the difference between constitutionalism

and democracy. It is reproachless that Liberal Constitution believer considered liberty as the

direct purpose of constitutionalism. However, it is still questionable whether freedom is the

only components of constitutionalism. Constitutionalism components, especially the kernel

components are the core and primary criteria of constitutionalism, as well as the scale for

constitutionalism to distinguish itself from democracy, liberty or human rights. So,

Democracy and liberty can be treated as the aims of constitutionalism, but not as

9) Du Gang-jian, New Constitutionalism and Political System Reform, Zejiang Academics, 1st Issue, 1993.

10) See Public Review Series [M], Economic Democracy and Economic Freedom [A], Joint Publishing Co. 1997,

p221-p244.

11) See Public Review Series [M], Economic Democracy and Economic Freedom [A], Joint Publishing Co. 1997,

p245-p257.

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constitutionalism itself under any circumstances. Therefore, we believe that pure

constitutionalism refers to constitutionalized power-check politics. The connotative meaning

of constitutionalism covers constitution, check of power, Rule of Law, human rights, etc.,

among which, constitution serves as the premise; "check of power" is the core; "Rule of Law"

provides the safeguard; and human rights protection is the ultimate purpose. Whereas, the

denotative meaning of constitutionalism includes constitutional mentalities, constitutional

norms, constitutional order, etc. among which, constitutional norms include material norms

and procedural norms. To summarize, constitution is an organism integrated with political

mentalities, norms and political orders which is based on the premise of constitution, the core

of power-check, the safeguarding of Rule of Law principle, and the purpose of human rights.

II. The Status Quo of Constitutionalism Development in China

1. Achievements of Constitutionalism Development in China

(1) The introduction of Market Economy system lays a cornerstone for

constitutionalism development

As is well known, 1982 Constitution has been amended partially for four times since

1988,12) and 31 amendments have been added in. Each time, the economic system and

citizens' economic rights became the focus. In the second revision13), "The state practices

socialist market economy" was adopted into the constitution as Amendment 7. After more

than a decade's development, marketization of China's economy has been basically

accomplished. The establishment of market economy system laid a social and economic

foundation for constitutionalism development.

Property right is the kernel of market economy. However, 1982 Constitution failed to

offer sufficient protection over private property before the fourth revision.14)

The fourth revision made great strides in private property protection: Amendment 2215)

specified the legal status of private property. Article 1316)of 1982 Constitution has long been

12) The four revisions were conducted respectively in 1988, 1993, 1999, and 2004.

13) On Mar. 29, 1993, nine amendments (numbered 2 to 11) were adopted by the 8th NPC congress at its first session.

14) On Mar. 14, 2004, nine amendments (numbered 18 to 31) were adopted by the 10th NPC at its second session.

15) Amendment 22: The lawful private property of citizens is inviolable. The state protects according to law the private

property and the right of inheritance of citizens. The state may, in the public interest, nationalize or requisition private

property for its use in accordance with the law, but should compensate for the losses thereof.

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regarded as the protection clause of private property. Comparing it with Article 1217), we can

find 1982 Constitution granted different legal status to public property and private property.

That is because constitutional norms of public property and private property were influenced

by the misinterpretation of public ownership and private ownership. A principle was formally

put forward in the fourth revision: "The lawful private property of citizens is inviolable" and

from the perspective of rights, the misunderstanding between economic system and property

right structure was cleared away. As a result, Article 12 and the revised Article

13(Amendment 22) became the root idea and fundamental principles of China's constitution

in protecting property right. Also, an equal legal status of public property and private property

has been established.Private property in Article 13 of 1982 Constitution refers to the

ownership of lawfully earned income, savings, houses and other lawful property of citizens.

From this point, we can find the constitutional protection of property stressed the means of

livelihood but neglected the means of production. Additionally, from the view of civil law

system, "ownership"is generally limited to the category of rights in rem, and does not include

non-ownerships such as intellectual property, equity, or civil property which restricts rights in

rem. So, 1982 Constitution confined the private property to its narrow limits. This does not fit

in with the pluralized income sources under market economy system. The new constitution

(Amendment 22) accepted the clause "The lawful private property of citizens are inviolable"

as a principle and so broke through the limit of protecting citizen's ownership only. Replacing"ownership" with "property"not only provided private property protection with grounds but

also provided other rights protection with a constitutional basis and therefore enlarged the

scope of private property protection.Amendment 22 further prescribes "the state may, in

the public interest, nationalize or requisition private property for its use in accordance with the

law, but should compensate for the losses thereof". The addition of nationalization and

requisition system of private property is favorable to dealing with the relationship between

public property and private property. To stipulate the compensation thereof at a constitutional

level shows respect to private property in law, and is of significance in protecting privateproperty in practice as well.18)

16) Article 13 of 1982 Constitution:The state protects the right of citizens to own lawfully earned income, savings, houses and

other lawful property. The state protects by law the right of citizens to inherit private property.

17) Article 12 of 1982 Constitution: Socialist public property is inviolable. The state protects socialist property.

Appropriation or damaging of state or collective property by any organization or individual by whatever means is

prohibited.

18) Qian yu-lin,Private Property Protection: from Constitutional Ideas to the Fabric of System [A],Yangzhou University

Journal (Humanities and Social Science Edition)[J], 4th Issue, 2004.

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Similarly, Amendment 20 added a clause about land nationalization and requisition and

compensation thereof into Article 10 as its 3rd section. In China, land is not private property,

but there are large numbers of private holder who enjoy the right of using land. Though the

legislators avoided setting a standard of compensation in the amendment, compared with the

lacking of compensation clause in 1982 Constitution, it is still great progress in private

property protection.

(2) The entry of "Rule of Law" into the constitution safeguards normatively the

realization of constitutionalism

In the report of the 15th national congress of CPC (Chinese Communist Party),

Jiang-Zemin19)

put forward the strategy of "running state according to law" and defined itsconnotation. Jiang stated, "to run state according to law is that the people, under the leadership

of CPC, administrate, state affairs in accordance with the law and manage economic, cultural

and social affairs through various channels, keep all work afloat, institutionalize and legalize

the socialist democracy step by step. These systems and laws are not supposed to be changed

with the changes of leaders' views or concerns." Jiang's interpretation is politically significant

in choosing a proper "Rule of Law" model in China. Most scholars argue that "rule of law"

means the ruling of law. It stresses the supremacy of constitution and laws; the authority of

law overwhelms the authority of the ruling party, the state and other state organs. Namely, thescholars preferred to a citizen-right-oriented Rule of Law model. We agree with most scholars

and believe, in the process of marketization, to construct a Rule of Law model of Chinese

style, the following systems are in urgent need to be established:Establishing a complete

law system, which is the premise of constructing the Chinese-style Rule of Law. Whether it is

"to run state according to law" or the ruling of law, the law system is always the premise;

Constructing a power-check government system, and checking power by power. The western

theory and practice has revealed that to check power by law solely, especially under an

imperfect context of Rule of Law, the checking will not be effective enough. Therefore, tospeed up the progress of Rule of Law in China, we need to employ the mechanism of checking

power by power;Improving the reviewing system of constitutionality and upholding the

supremacy of the constitution as well as the uniformity and dignity of the legal system. The

National People's Congress (NPC) was authorized to supervise the enforcement of the

19) Jiang Zemin, (1926- ), general secretary of the Chinese Communist Party (1989-2002) and president of China

(1993-2002). Under Jiang's leadership, China experienced phenomenal economic growth in response to reforms initially

begun by Deng Xiaoping.

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constitution by 1982 Constitution. However, the supervision lacks regularity and

maneuverability in its actual running. In practice, cases of violating the constitution occur

from time to time, but are unable to be solved reasonably. Hence, improving and perfecting

the reviewing system of constitutionality is vital to constructing a Rule of Law model which

stresses the supremacy of constitution; Reforming the judicial system, as well as

promoting the neutrality and independency of the judicial system. The judicial power is an

adjudicative, ultimate and neutral power. To keep the judicial system independent is a

fundamental principle in most modern counties under the Rule of Law. In western countries,

the examination system in selecting judges, the life-long tenure of judges, the independent

system of judges' salary, and the nonpartisanship system of judges etc. guaranteed the

independency and neutrality of judicial power. In the process of constructing Chinese-style

Rule of Law, after improving the qualities of judges and perfecting various proceedings, we

should absorb those positive factors of the western judge systems, and propel the principle of

judicial independency and neutrality gradually.Emphasizing ruling administration by law

and regulating administrative acts. The administrative power is the most insubordinate one

among the three powers. In a modern state where technology gallops ahead and economy

develops rapidly, administrative jurisdiction is of great flexibility, and administrative

discretion is, very often, free from regular checking. Administration's Dictatorship and abuse

of power are not rare. Thus, Emphasizing ruling administration by law, ensuring theadministration run within the scope determined by law is the key link of constructing the

Chinese-style Rule of Law.

(3) Introduction of human rights clause enhances citizen right protection, and

the values and ideas of human rights are manifested in the constitution

From an ineffable noun to a term acknowledged by documents of the ruling party and

the government, and finally being written into the constitution, China's human right has

gone through a lengthy journey to find its place in politics and law. The entry of humanrights into constitution is a great milestone.20)

During a long period after the founding of new China, the term "human rights" was a

taboo. The concept of human rights rarely appeared, both in law and in theory. On Nov. 1st,

1991, the state council delivered a white book entitledHuman Rights Development in China,

20) See Dong Yun-hu, The Entry of Human Rights into the Constitution-A Milestone of Human Rights Development in

China[A], the People's Daily, Mar.15th, 2003. p10

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in which, Chinese government labeled human rights as a great noun and emphasized that

realizing abundant human rights is a lofty goal for China's socialist construction. It is a

long-term and historical task of the government and the people. The status of human rights in

the political development process of China was hereby affirmed in governmental documents.

In September of 1997at the 15th national congress of CPC, human rights was written into

the theme report of this congress. Respecting and safeguarding human rights was adopted in

ruling party's demarche as a primary goal. On Mar. 14, 2004, the fourth revision (See endnote

2) introduced "human rights" into the constitution for the first time. Amendment 2421)

stipulated clearly that "the state respects and safeguards human rights". "Human rights"

evolved from a political concept to a legal concept. By upgrading the obligor of protection

from the ruling party and the government to the state, the constitution converted the will of the

ruling party and the government to the will of the state. In consequence, a political ethic was

promoted to be a constitutional clause.

Moreover, Amendment 2322)prescribes, the state establishes and improves the social

security system in accordance with the level of economic development. For the first time, the

social security system was introduced into the constitution. "A consummate social security

system is the mainstay of the market economy system;to fulfill the citizens' rights of

existence, government is necessarily required to establish a social security system"23)"it

will propel effectively the construction of the social security system in our country, will besignificant to realize the idea of "People Foremost", and will boost and uphold social justice,

clear people's worry and fear of disturbance and enhance the citizens' welfare."24)

These expositions disclosed the significance of the introduction of social security

system. Indeed, the introduction offered chances and possibilities to the development of the

system. The improving and perfecting of the system lie in the re-organizing and re-integration

of the relevant legal systems and public policies. Thus, the rights to live is to be better

protected and social justice is expected to be done.

(4) Establishment of villager autonomy system and urban resident autonomy

21) Amendment 24 was a new clause added to Article 33of 1982 Constitution to replace the original 3rdsection which,

accordingly, downgraded to be the 4th section.

22) Amendment 23 was a new clause added to Article 14 of 1982 Constitution as the 4th section.

23) Mo Ji-hong, the Entry of Social Security System into the Constitution[A], the People's Daily website

(http://www.jfdaily.com.cn/gb/node2/node17/node167/node29050/node29053/userobject1ai434708.html)

24) SeeZheng Gong-cheng, Social Security Being Ready to Introduced into The constitution [A], 21st Economic Report Web

(http://www.nanfangdaily.com.cn/jj/20040122/jd/200401190161.asp)

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system enhanced grass-roots democracy

The village autonomy system, as a pure democracy mode, arose from the dissociation of

state and society, and was initially an administrative system reform to solve the pressing

public problems occurring in the course of dissociation. The reform is characterized by

transforming part of powers to lower levels, and re-constructing the social coordinating

system. As a result, the society at the grass-roots level and the citizens was able to exercise

their democratic rights directly by using the transformed powers. Thus, the citizens can both

administrate the state affairs indirectly through their representatives and manage the public

affairs of local community directly in the autonomic organization. China's constitutionalism

system is thereby largely featured in a double-layered and compound system combined with

representative democracy and automatic democracy or a system integrated withrepresentative democracy at state level and direct participation of society at lower levels.

Without the autonomic democracy at grass-roots or the wide social participation, China's

constitutionalism could be incomplete or imperfect. So, the village autonomy system, as well

as the self-governance system of urban residents is significant to creating a double-layered

and compound democratic constitutionalism system.

(5) The autonomous legislation converted from the reform legislation speeds up

the democratization of China's legislationTo take a general view of legislation development in China since 1978, we may find that

it is highly characterized by an innovative legislation, namely, legislation plays a role of

promoting social evolvement and economic reform, and legislation initiated by government

fosters the growth of market elements and establishes the social order. The innovative

legislation has its historic rationality. But, its flaws are evident as well, which include:the

innovative legislation involves the attempts to reconstruct the society and pave the way for

future by rational construction; is prone to reverse the relation between law and society or

the relation between law and economy; tends to develop excessive preference for mobilityand adaptability of the law. This will in turn sacrifice the invariability and predictability of the

lawis inclined to make legislation out of joint with judicature,thus judicature loses its

ultimate authority. The creation of law is generally related to the re-collocating and

rearrangement of interest. Owing to the low cost of launching an innovative legislation, the

democratization degree of the law creating process is not high, and the procedure of making

and altering laws are quite simple. All these factors accumulated, the laws which reflect wills

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of authorities but neglect the actual needs of the society will be difficult to get a popular

abidance in society.25)

The establishment of the market economy system pluralized the subjects of the market.

Pluralized subjects are bound to bring pluralized interest orientation. When the pluralized

interest orientation entered into the legislation fields, a strategic transformation will be

unavoidable. Thus, Professor Qing Qian-hong believes that the road of transformation should

be stepping from innovative legislation to autonomic legislation. The so-called autonomous

legislation is that the pluralized subjects compete for materializing their interest and wills in

the law-making process. It calls forthe autonomy of legislative values. Law is the unitary

order people pursuing to organize social life, instead of solidification of certain individuals' or

a minority' values. Though the values of the strong probably win more chances in the

gambling to express themselves, the minority should be respected by democratic procedures

or through the rationality in conversation.It calls forlegislation activities that emphasize

the social evolvement of law, determine law-making in accordance with the real needs of

society and exclude the intent to turn the legislation to a "stamping" of policy. Lastly, in

China,autonomous legislation requires of a clear clarification of relationship between the

party and the legislative organs, as well as a scientific division of their respective jurisdictions

of legislative organs, administrative organs and judicial organs.26)

2. Problems in the Constitutionalism Development of China

(1) The court system is intervened by various forces, and the judicial organs

are still dependent

Though opinions about constitutionalism vary, many scholars view independent court

(judicial) system as an indispensable component of constitutionalism. It reveals the

importance of an independent judicial system to constitutionalism. Article 126 of 1982

Constitution endowed courts with the power to adjudicate independently. "The people's

courts shall, in accordance with the law, exercise judicial power independently and are not

25) Qin Qian-hong, From Innovative legislation to Autonomous Legislation: Reflection on the Evolvement of Chinese

People's Congress Legislation [A], China Public Law Web (http//www.chinapublaw.com/emphases/

2004930224558.htm)

26) Qin Qian-hong, From Innovative legislation to Autonomous Legislation: Reflection on the Evolvement of Chinese

People's Congress Legislation [A], China Public Law Web (http//www.chinapublaw.com/emphases/

2004930224558.htm)

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subject to interference by administrative organs, public organizations or individuals". Yet,

Article 128 prescribed, "The Supreme People's Court is responsible to the National People's

Congress and its Standing Committee. Local people's courts at different levels are responsible

to the organs of state power which created them."In comparison, it is evident that the

independency of courts system is incomplete, for courts are required to be responsible to and

report on its work to the Congress. It differs greatly from the idea and system of independent

judge in western countries. As Karl Max said, the judge has no superiors but the law.In the

west, a judge, once appointed or elected, becomes independent of any individual or

organization and possesses an "arbitrary"jurisdiction. While relevant provisions of 1982

Constitution prevent judicial organs from being independent of outside interference at a

normative level. In the meantime, obstacles also come from the court system itself: the

courts system is established in accordance with administrative division, and courts can hardly

break away from the interference of local governments; the establishments of

Adjudicatory Committee and complicated internal power structure of the courts prevents the

judges from developing their initiatives owing to the correcting system of misjudged cases

in the court system, judges are seriously dependent on the adjudicatory committee, which

results in inefficiency;judicial discretion of judges is few and is influenced by external or

internal factors;judges suffer from a low salary, which is unfavorable to stay incorruptible

there is contradiction between the procedure for adjudication supervision and adjudication

level. The sum of all factors results in the dependency of the court system and therefore

violates the principle of judicial independence.

(2) The constitution supervision system lacks a liability mechanism, which stops

constitutional supervision and legal supervision from being fully enforced

1954 Constitution established the supervision model of the supreme state organ. On

account of lacking related proceedings and practice, the constitutional supervision system has

not been built up materially.27)1982 Constitution followed the precedent, and conferred thestanding committee of NPC the power to supervise the constitution enforcement. Article 88 of

the Legislative Law provides that the state council has the power of altering or removing

inappropriate regulations enacted by its departments or local governments at any level. On the

other hand, the courts system obtains the authority to review part of the administrative acts. So

far, we have established a unitary but poly-branched supervision system, in which NPC, the

27) Xu Chong-de, constitutional jurisprudence[M], Beijing, The Publishing House of Beijing University, 1994.3.8

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leading supervisor, shares supervision power with administrative organs and judicial organs.

Recently, scholars have been criticizing the system. Tang Zhong-min held that the

system lacks special supervision organs.28)Professor Hu Jing-guang argued that the system is

short of review system of constitutionality.29)We believe that the chief disadvantage of the

system is the absence of a liability mechanism. The constitution conferred the CPC powers of

making, altering the constitution and laws, and supervising the enforcement thereof, however,

it did not impose liabilities in any form arising from the unconstitutional laws it made or

slacking its duty of reviewing. A case attracting wide attention across China in the year 2003

demonstrated the disadvantage of the system. A youngster named Sun zhi-gang from Hubei

Province was illegally arrested in Guangzhou only because he failed to take his ID cards with

him. Although the public called for reviewing the constitutionality of the related regulation

made by the state council in strong voice, CPC, the qualified reviewing organ kept silence

from the beginning to the end. In the same year, another case"Seeds Case in Henan", once

again triggered the public reflection on our legal supervision system. Li-Huijuan, the judge in

the case, believing the Crop Seeds Ordinance of Henan Province a regulation adopted by

the people's congress of Henan Province violates the Crop Seeds Law adopted by NPC,

declared the invalidity of the regulation in her decision. The judge was soon dismissed by

local people's congress. Whether a judge in China has the power to determine the validity of

a regulation is not our concern, but the regulation must have been registered to NPC accordingto the Legislative Law. However, NPC never reviewed the regulation, neither at the time of

registry, nor after the case was decided.

(3) The confused logic as to which is supreme, N P C or the constitution

Article 57 of the present constitution stipulates that "The National People's Congress of

the People's Republic of China is the highest organ of state power", which clearly and

inerrably establishes the supreme status of NPC in the state power network. Constitution and

organization law of state organs also stipulates that the state organs are responsible to and aresupervised by NPC. Thus constitution, together with laws constructs the supremacy of NPC.

The supremacy of NPC is embodied chiefly on the fact that NPC is, primarily, the highest

28) Tang Zhong-min, On China's Reviewing System of Constitutionality and Its Perfection[A], Modern Law Science [J],

December, 2004.

29) Hu Jing-guang, Development of China's Reviewing System of Constitutionality by Legislation and Its Flaw [A],

Reprographied Materials of Renmin University of China, Constitutional Jurisprudence and Administrative Juriprudence

[J], 2nd Issue, 2001

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organ of state power; secondarily, it is the highest organ of state legislation; finally, it is the

highest organ of state supervision to constitution and law. And above all, it is the organ to

make and amend constitution. Even the local people's congress of different levels possesses

the highest authority compared to other governmental organs.

The supremacy of NPC above other state organs is beyond reproach. But its relation to

the authority of constitution is confusing. In modern constitutional countries,the supremacy

of constitution roots in the idea and the system that constitution is a contract to bind

government as well as the reviewing system of constitutionality. Accordingly, legislative

organs and the laws it made should naturally be pursuant to the constitution and subject to the

authority of constitution. But in china, NPC can both make and revise the constitution. Since

the representatives of NPC are not the results of direct election, they are unlikely to be

supervised or recalled. Therefore, whether people's representative can really represent the

people is doubtful. Accordingly, whether the laws made by NPC can reflect people's will or

interest is indemonstrable. In such a circumstance, the constitution authority can be under

NPC. Meanwhile, NPC is the supreme and technical organ with the power of legislation. NPC

can make any law which is proper in its view. Additionally, NPC is entitled to interpret the

constitution. If one argues that certain law made by NPC is unconstitutional, NPC could

possibly made them constitutional by interpreting the law instead of revising it. Thus, they

ensured the legitimacy of constitution instead of constitutionality of law. If this is stillineffective, NPC can use its master card of amending the constitution to ensure the

constitutionality of the laws. In such a system, the unconstitutionality of law could be a

pseudo proposition and constitutional review in any form is neither necessary nor possible

unless NPC itself supervise the constitutionality of law on its own initiative.

(4) The absence of the principle of Due Process makes the safeguarding of

human rights short of institutional and procedural supports

A serious disadvantage in China's law tradition is that entity is emphasized whileprocedure is slighted, which brings incontestable negative impact on constitutionalism

construction, especially the procedural system construction. 1954 Constitution established

the principle that the freedom of citizens of the People's Republic of China is inviolable, and

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 enforced by a public security organ, but

this fundamental prescription has not been fulfilled by procedural law and regulations. 1982

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Constitution has not achieved any breakthrough in the procedural system construction of

modern China constitutionalism, either. In recent years, with the reform and opening-up

policy and improvement and perfection of market economy, great progress has been made in

the field of procedural system construction. Code of civil law and criminal law are amended

one after another; voting law, people's representative law, NPC rules of procedure, legislation

law etc. are constituted or improved successively. The debut and introduction of these

procedural laws and regulations indicates that China's legal and constitutional procedures

have been further improved in normative system at least. However, problems existing in

current legal procedures, constitutional procedures in particular, cannot be overlooked.

First, procedural rules of law are not adequately sound in the aspect of normative system.

China's current constitution fails to stipulate how to exercise state power and how to treat with

pretermission of duty and misuse of authority, and corresponding procedural rules of law are

also difficult to be drawn up, among which problems of supervision law and administrative

procedure law predominate. The guarantee of human rights is the premise and foundation of

the existence and development of constitution, and the effective measures to guarantee human

rights are separation of powers and mutual check, as well as procedural control of power

functioning.

Second, procedure designing is not adequately reasonable in the aspect of procedure

structure. Its manifestations are as follows: the independency of judge's position is notcompletely ensured this point has been discussed above; the status and rights of parties in

litigation turn out to be inadequately respected. For instance, current codes of civil law and

criminal law clearly stipulate that the people's court, in accordance with law, guarantee the

litigious rights of litigant participants, but also stipulate that prosecutor, defender, and agent

in proceedings, with the permission of chief justice, can question witnesses and expert

examiner. If chief justice and the court decide not to give their permission, it implies that the

litigant rights of parties cannot be enjoyed and exercised. If the content of the questions to be

asked is especially significant to guarantee the parties' substantial rights, the lack ofpermission is also likely to violate the parties' substantial rights and interests. It follows that

our procedure designing is characterized by ex officio of state, and fails to embody the

procedural autonomy principle sufficiently.

Third, procedure functioning is not adequately rational in the aspect of procedure

proceeding. Take the most distinctive system of juror in China's judicial system as an

example. During the judiciary proceedings, recognition of facts and applicable laws are the

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judge's business. As for the jurors, they enjoy equal position and rights formally, but second

and echo essentially. They fail to exert the restricting function of jurors to judges. Another

example is that the internal frame of court as led by standing committee, and supervised by

people's congress results in consulting and reporting layer upon layer, thus the judge is

unlikely to be isolated from external interference, which severely affects the procedural

autonomy.30)

(5) Gangsterism and rascaldom exist in a few governments at grass-roots level,

and grass-roots democracy is in danger of deterioration

In recent years, in some rural areas, various reasons have caused tension between cadres

and masses, and difficulty in administration. Some grass-root governments even resort to

underground gangsters, just like using poison as an antidote to poison. Some local police

employ gangsters to deal with gangsters. Some grass-root governmental cadres borrow from

underground and evil force to win power battles, to get rid of dissidents, or to deal blow to or

take revenge of masses that prosecute them. Recently, in the provinces of Jiangxi, Fujian,

Guangdong, Liaoning, Jilin, Shangdong, etc, political tit-for-tat murder due to individual

power competition and by employing underground killers to murder rivals occurred. These

rascal-like behaviors of officials make them notorious and detestable in the public.31)

If these phenomena continue, society turbulence is bound to occur, and such grass-roots

governments are to degenerate in nature.

. The Trend of Constitutionalism Development in China

1. From Unitary Power System to Unitary but Poly-branched Power System

Unitary centralization of state power has a history of several millennia in China. PRChina gradually accomplished the transition from monarch centralization to democratic

centralization. Constitutionalism practice of decades shows that over centralization is

inimical to independent decision-making of local affairs and leads to numerous public

30) Wang Jin-yuan, On Good Constitution[M], The People's Publishing House of SanDong, 1st Edition , Jan. 2005

31) Sun Li-ping, The Outlook of China's Cracked Society Since Mid of 1990'[A], China Social Science Web

(http://www.sociology.cass.cn)

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documents intercourse, complicated procedure of examination and approval layer by layer,

overstaffed administrative organs, and spread of bureaucratism, thus results in complicated

procedures, false contents and poor efficiency of decision-making.

The author argues that under the circumstance of market economy, on the premise that

the central government unifies legislation and judicature, we can consider delivering part of

administrative powers involving local interest and essential material measures to exercise

these powers to the local administrative organs elected democratically. This approach is

different from power-division between federal government and states, since it does not

involve the separation of legislative and judicial power, and not equate with simple delegating

power to lower levels. The common point between power delegation and local

power-division lies in the fact that decision is made by local rather than central government,

and they both belong to the technique matter of state power operation. Nevertheless, they are

greatly different in their political and practical meaning. Delegating power to lower levels

implies that all administrative powers are concentrated on the central government and its local

representatives; the central government confers part of powers to the local governments by

means of delegation, and can withdraw the delegation and take back the powers when

necessary. It does not possess democratic value itself. This approach is marked by a

supervision relation of the central government to local governments. The utilization of this

approach is likely to simplify administrative procedures, improve administrative efficiencies,and reduce wastage of manpower and financial resource, to clarify scope of liability, to

diminish the phenomena of many being in charge but no one being responsible, and even to

help to facilitate and realize socialist democracy and freedom.

After we restored the sovereignty over Hong Kong and Macao, we exerted special

administrative region system in these two regions. Hong Kong and Macao, in accordance with

its fundamental law, enjoy high autonomy power in the aspect of legislation, administration

and judicature. In 1984, the state constituted "regional autonomy law of ethnic minorities"

according to Article 432)

of 1982 Constitution, which conferred autonomy power ofsome-degree to minority regions. These are all successful practices of a unitary but

poly-branched power system.

2. From Democracy within the Party to Democracy of the People

32) Article 4 of 1982 Constitution, Regional autonomy is practiced in areas where people of minority ethnic groups live in

compact communities; in these areas organs of self-government are established for the exercise of the right of autonomy.

All the national autonomous areas are inalienable parts of the People's Republic of China.

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There exist three different routes during the democratic construction of PRC.33)

First is the thought of from-top-to-bottom innovation and evolvement, namely,

advancing political system reform gradually from the central to the local to realize democracy

of the whole nation. This is both a theoretical assumption and a practical model of China's

democracy development for a rather long period of time. Despite of some positive results it

achieved, on the whole, it is characterized by super sensitivity, great shaking, great difficulty

and objectively not being permissible of mistakes due to its cut-in point on the central state

organ level, therefore great prudence is essential. Practices of this rout have indicated that

contradiction exists between theory and practical feasibility.

Second is the theoretical designing of from-bottom-to-up impelling, that is, the people's

democracy is impelled by grass-roots democracy, mainly villager autonomy. It is believed

that after the practice of villager autonomy, as the majority of population, peasants may

experience improvement in their democratic quality, and an accumulation in experience,

which, together with institutional innovation, are bound to provide support to the construction

of people's democracy and even likely to make pure democracy at village level advance to a

township or even higher level, and thus achieve the escalating and promoting of social

democratic model to political democracy. Certainly, people may have some doubts in mind to

the capacity of villager autonomy and the tension it possesses. A nation is not the enlargement

of a village, and the village autonomy system, which does not orient toward state power

give-and-accept relation or power structure, is not essentially equal to the complicated

people's democracy as a political governing system. The expectation of depending on the

impact produced by villagers' autonomy to impel people's democracy is hard to have a

definite desired consequence.

Third is the thought of democracy in the party demonstrating and inspiring people's

democracy. This is a point put forward by many academics, as well as a political opinion of

the party and the government. This issue was first put forward in party document in the 4th

plenary meeting of the 14th national congress of CPC, whose consensus included a decision

of several important issues about party construction. The decision pointed out that developing

democracy in the party was bound to impel people's democracy, and was an important

approach to construct socialist democracy. This idea is perfected constantly afterwards. In the

16th congress of the Party, Jiang ze-min made new and complete accounts about it in terms of

33) Wang Shuo-shuan, An Analysis of the Demonstrating and Impelling Effect of Democracy in the Party to People's

Democracy [A], Politics Research [J] 2nd Issue, 2003.

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times and socialist political civilization construction. He pointed out that "democracy in the

party is the lifeline of the party, and has an important function of demonstrating and inspiring

people's democracy". We should say that this option of route is more practically significant.

The reason is that in the party politics dominated democratic pattern, any exploration to

contemporary China's democracy development must first envisage the necessity and

fundamental realities of the country of CPC's persistent administration and overall leadership

to nation and society life, and consider it as the chief and underlying variable to affect

democracy development. Only when surveyed, checked and measured from this angle, can

theory and practice transform from possibility to feasibility.

3. From a Unitary but Poly-branched Constitution Supervision System toa Dual Supervision System by Reviewing Unconstitutional Laws and

Unconstitutional Behaviors Respectively

As discussed above, this NPC unitary supervision system and its disadvantages have

long and commonly been discussed by the academic circle. In the system designing aiming at

ideal supervising models, the unitary but poly-branched supervision system finds favor in

academics' eyes.

As early as 1994, the author suggested of a dual constitution supervision model. On onehand, power of constitution supervision should be conferred to the law committee of NPC

standing Committee, to conduct investigation and surveillance to the violation against

constitution by legal or regulatory documents. The supervising pattern can be investigation

beforehand or afterwards. On the other hand, a constitution court is supposed to be established

in the Supreme Court, to conduct investigation afterwards to the violation against constitution

by specific behavior and general legal or regulatory documents, in accordance with

constitutional litigious procedures. In China, administrative courts have already been

established in the court system to investigate the illegal acts by state administrative organsand its staff. After the establishment of a constitution court, it will cooperate with the

administrative courts to perform the constitution supervising function. Such a constitution

supervision model can both conform to China's political system and guarantee the consistency

of judicial organs. Thus, violation against constitution by both documents and behaviors can

be reviewed effectively.34)

34) Wang Jin-yuan, On Constitution Review Model [A], Social Science [J], 4th Issue, 1994.

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This suggestion is favored by many scholars. The compound review system put forward

by scholar Bao Wan-chao,35)and the two-step model36)designing posed by Ji Wei-dong are

both similar theoretical model choosing and constructing.

4. From Statutory Rights to Deduced Rights

In the ancient society of China, there is neither the idea of right, nor the system of right.

It was not until the modern society that the western concept of right was introduced into

China. At that time, in the west, the normative jurisprudence and positive jurisprudence were

prevailing while the natural law theory was declining. Meanwhile, China was in a state of

being parceling out by the foreign powers; and the feudal forces are setting up independent

regimes. Hence, the democrat thinkers, with Liang Qi-chao and Sun Zhong-shan being their

representatives, interpreted the western individualistic view of rights in a nationalistic way.

They proposed the theory of "statutory rights" and tried to draft constitution in the late Qing

Dynasty, the administration of the northern warlords and the period of the Republic of China.

It is under the guidance of nationalism that the rights and liberty of people was established.

After the founding of P.R.C, the state-will jurisprudence of Marxism dominated in the

academic circle and practice of new China. Therefore, the several constitutions drawn up after

the founding of P.R.C all utilized the model of "statutory rights". We should say that the

establishment of this model, inconsideration of the situation when the idea of right had not

been widely accepted by people, was a practical option. However, due to the non-normative

factors of constitution articles, the insufficiency of the interpretation mechanism and the

absence of lawsuit system of constitution, as well as the complexity and diversity of social

relation brought about by the quick rhythm of institution reform, this single explicitly

instructed delegating model failed to satisfy the citizens' increasing need of right. For these

reasons, in more than 20 years since the promulgation of 1982 Constitution, there have been

31 amendments added, most of which involve rights of citizens and groups. More over, cases

about the infringement of citizens' fundamental rights often occur, and it is hard to seek out a

basis or channel of remedy in the constitution or law. In view of this, we should modify

traditional explicitly instructed delegating model, and combine it to implied delegating,

35) To establish a constitution committee under the National People's Congress and to establish Court of Review of

Constitutionality. The two organs exercise non-litigious, aforehand reviewing and unconstitutional infringement suits,

accessary reviewing.

36) Step 1, to establish the constitutionalism committee; Step 2, after the required conditions being satisfied and a new

constitution adopted, to consider establishing constitutional court.

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namely, we should utilize the principle of combining statutory right and deduced right, and

the statutory principle of restricting rights.37)

The introduction of human rights into the constitution provides us the basis of rights

deducing, and makes it possible. Because legislation is not likely to embrace all rights, it is

advisable to reveal the matrix nature of human rights. When an interest, though not listed by

law, but really enjoyed by people, is being offended, we can protect it by means of deduced

right. Hence it facilitates legislation, for it impels legislation to stipulate and list the rights

already in existence but without formulated articles in law. The stipulation of respecting and

guaranteeing human rights in constitution thus became an important basis for deduced right in

legislation and judicature.38)

5. From One-party Monopolization to a Multi-party Cooperation and Political

Consultation under the Leadership of CPC (the Communist Party of

China)

The current political situation of the world is party government. A majority of countries

depend on parties to lead and organize social life, and China is no exception. But considering

the type of political party system, what is conducted in China at present is neither the popular

two-party system or multi-party system in western countries, nor simply the one-party system

existing in a minority of countries, but a multi-party cooperation system led by one party. To

be specific, the Communist Party dominates, and the democratic parties cooperate; the

Communist Party is in power, and the democratic parties participate in the management of

State affairs. This system is the product of history development in contemporary China, and a

component of political civilization in current China as well. China is a country backward in

the process of modernization, and the emerging of parties is also a sub type, namely, due to the

invasion of imperialism and colonialism, and the stimulation of external political agents, we

imitated the western political developing route and organized parties. The contemporary

history of China tells us that the process of saving the dying country and trying to survive and

realize modernization includes selecting a party system model virtually.

During this process, we have tried multi-party politics, and one-party dictation (during

the Kuomintang government), but they either failed to be consistent with China's practical

37) Wang Jin-yuan, On Good Constitution[M], The People's Publishing House of SanDong, 1st Edition , Jan. 2005

38) Yang Xiao-min, Fundamental Safeguard of People's Interest Concerning Constitution Amendments [A], Construction of

Democracy and Legal System[J], 4th Issue, 2004.

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political situation, or to satisfy the development of politics, and they both ended in vain. CPC

established a friendly cooperative relation with the democratic parties during the

anti-Japanese united front. Later, they united again to oppose Kuomintang dictatorship by

mutual supports. Finally, the Kuomintang government was overthrown and a new China was

founded. On the basis of long-term solidification and cooperation between CPC and

democratic parties, the multi-party cooperation system led by CPC developed gradually.

Thus, this distinctive Chinese new political party system is not only a creation based on

historical and political experience, but also historically reasonable. The multi-party

cooperation and political consultation system under the leadership of CPC is gradually being

systemized and standardized after a devious development of half a century, and it is recorded

in the constitution as a fundamental political system. It can be expected that China's political

party system will go ahead in the direction of multi-party cooperation under the leadership of

the CPC.