Rule of Constitution, a Prerequisite for the Rule of Law
Author： Source： Date：2017-09-01
The decision to comprehensively implement the rule of law as well as other major issues made at the Fourth Plenary Session of the 18th CPC Central Committee is the programmatic document for the rule of law in the new era. On this session, rule of constitution was mentioned, which indeed is the inevitable extension of the concept of rule of law because to rule a nation in accordance with the law definitely requires ruling a nation in accordance with the constitution. This decision should not have caused such a sensation as well as so much concern. It earned special attention possibly due to our divided opinions on the following three issues.
First of all, President Xi Jinping once mentioned rule of constitution before this. However, there was no further report. Thus, some speculated about whether it was due to a central document at that time forbidding discussions about constitutionalism. We all know that at that time a document[] was issued inside the party by the General Office of CCCPC which stated that one feature of liberalization was constitutionalism. Thus, it is forbidden to discuss the constitutionalism means one cannot talk about it or write relevant essays, nor can he or she publish relevant books. Therefore, people may have some complaints on the issues of constitutionalism and the rule of law.
Second, as now the conception of rule of constitution has been brought up with wide publicity, people soon discover such a question that what the relation is between rule of constitution and constitutionalism. Is rule of constitution a feature of constitutionalism? Or are they two quite opposite things?
Of course, there would be a third question. Back then the document was issued by the General Office of CCCPC, rendering this programmatic document forbidding the discussions of constitutionalism nationwide. So are there some conflicts between the way the branch of our party interpret and comprehend constitution and the way we now come up with the conception of rule of law and rule of constitution? What about the outlook? These are the questions that I am going to answer today.
The conception of rule of constitution has been brought to a very high level this time. Constitutional Day is set and it is stipulated that all the public servants must take an oath on that day. It is also suggested that supreme authority should be given to the constitution, which is a good start.
Besides, we also come up with some measures to help perfect the constitutional supervision mechanism. We all know the importance of the constitutional supervision mechanism. How can the constitution be well implemented if there is no one to supervise? Nowadays many in the jurisprudential circle hold that we should eventually have an institution to supervise the constitution called the Constitutional Council or the Constitutional Court and we should not continue with the institution of departmental level under the National People’s Congress within our current constitutional supervision mechanism and count on it to solve the problems about constitutional supervision. There is a huge space of improvement for this issue.
Third, It is time to perfect the constitutional interpretation mechanism. This was mentioned when the constitution was amended last time, and many constitutional issues need to be solved through future constitutional interpretation. Unfortunately, we have no constitutional interpretation system yet. The reason why our constitution comes to nothing and why people do not pay much attention to the constitution has something to do with the lack of a sound constitutional interpretation mechanism.
Fourth, this time the establishment of constitutional review system was put forward, which is of extreme significance as to the protection of civic rights. Can citizens go to court when their civil rights are infringed? According to the judicial interpretation of the Supreme People’s Court, court decisions cannot cite the constitution directly and thus can only use specific laws. However, there is no reference to the safeguard of constitutional rights (freedom of speech, of press and of association) in the specific laws. So the courts will be faced with the dilemma that neither constitutional provisions nor specific laws could be cited to make decisions, which is a quite serious flaw for the protection of our civil rights. Therefore, this time, by putting forward the idea of rule of constitution, we indeed have brought the constitution to a very high level, which is of great significance.
So how on earth should we treat constitutionalism and rule of constitution? President Xi once said “to govern the country in accordance with the constitution” when delivering a speech, which I believe counts for much. The governance of the country hereby refers to our modern ways to run and govern the country. One important thing of our modern way to govern the country is to stick to the constitution. In other words, to govern the country in accordance with the constitution is a basic meaning of constitutionalism we have talked about. Then what is constitutionalism indeed? The answers differ a lot among different circles. However, at least they share a common idea that we need to govern the country in accordance with the law. If so, then there is no big difference between the constitutionalism and the rule of constitution we have talked about and they are mutually inclusive rather than mutually exclusive.
Before the liberation of western countries or our own country, constitution was an important topic in politics, and constitutionalism was indeed to govern the country and the government in accordance with constitution. Mr. Sun Yat-sen once came up with three steps to found a state in his The International Development of China, namely, military rule, political tutelage, and constitutionalism, which constitute the way to found and govern a state. Therefore, from this point of view, we can see that constitutionalism is the most modern way to govern the country, as well as the most ideal pattern which we pursue.
The relation between constitution and constitutionalism is just like that between laws and rule of law. Now we have realized the problem of only talking about law and not talking about rule of law. So we now suggest turning the law system into legal system. Now people believe that law is static while rule of law is dynamic. It can be said that the relation between constitution and constitutionalism is similar as well, that is, constitution is static while constitutionalism is dynamic. We should adopt constitutionalism if we want to establish a pattern under which the country is truly governed in accordance with the law.
Currently, documents of bodies within the party will become instructive documents for the whole country after being issued by the General office of the CCCPC. Under the new situation, this issue needs reconsideration, especially after the decision made at the fourth plenary session to rule the country in accordance with law. We know that the constitution specifies people’s rights (freedom of speech, of press and of association). Unfortunately, now we do not have relevant laws to help safeguard these rights. Under such circumstances, sometimes it will become very abnormal for the document of certain department within the party to become an national instructive document because it undermines the rule of law if we want to strictly govern the country in accordance with the law.
How can a document of certain department within the party to guide the whole country, especially as a legal document to be observed by all, since it cannot even be regarded as party rules. If such problems cannot be appropriately solved, then it would be easy to have phenomena such as substituting laws with words to appear. The document of this fourth plenary session made a special mention of this point: We should let people know that the red line of laws cannot be overstepped, and the baseline of laws cannot be touched. We should take the lead to observe the laws, to act according to the laws, not to exercise rights illegally, let alone substituting laws with words, suppressing laws with power, or bending the laws for the benefit of relatives and friends. This is the discipline that must be observed by the party and all government institutions across the country, that is, the constitutional supremacy, to be specific, all practices against the constitution and the ones executing the constitution wrongly should be abandoned.
Jiang Ping is the former president and tenure of China University of Political Science and Law
Speech delivered at the 1st Dameisha China Innovation Forum. Opinions expressed here belong to the author and do not necessarily represent the position of SZIDI.
First of all, President Xi Jinping once mentioned rule of constitution before this. However, there was no further report. Thus, some speculated about whether it was due to a central document at that time forbidding discussions about constitutionalism. We all know that at that time a document[] was issued inside the party by the General Office of CCCPC which stated that one feature of liberalization was constitutionalism. Thus, it is forbidden to discuss the constitutionalism means one cannot talk about it or write relevant essays, nor can he or she publish relevant books. Therefore, people may have some complaints on the issues of constitutionalism and the rule of law.
Second, as now the conception of rule of constitution has been brought up with wide publicity, people soon discover such a question that what the relation is between rule of constitution and constitutionalism. Is rule of constitution a feature of constitutionalism? Or are they two quite opposite things?
Of course, there would be a third question. Back then the document was issued by the General Office of CCCPC, rendering this programmatic document forbidding the discussions of constitutionalism nationwide. So are there some conflicts between the way the branch of our party interpret and comprehend constitution and the way we now come up with the conception of rule of law and rule of constitution? What about the outlook? These are the questions that I am going to answer today.
The conception of rule of constitution has been brought to a very high level this time. Constitutional Day is set and it is stipulated that all the public servants must take an oath on that day. It is also suggested that supreme authority should be given to the constitution, which is a good start.
Besides, we also come up with some measures to help perfect the constitutional supervision mechanism. We all know the importance of the constitutional supervision mechanism. How can the constitution be well implemented if there is no one to supervise? Nowadays many in the jurisprudential circle hold that we should eventually have an institution to supervise the constitution called the Constitutional Council or the Constitutional Court and we should not continue with the institution of departmental level under the National People’s Congress within our current constitutional supervision mechanism and count on it to solve the problems about constitutional supervision. There is a huge space of improvement for this issue.
Third, It is time to perfect the constitutional interpretation mechanism. This was mentioned when the constitution was amended last time, and many constitutional issues need to be solved through future constitutional interpretation. Unfortunately, we have no constitutional interpretation system yet. The reason why our constitution comes to nothing and why people do not pay much attention to the constitution has something to do with the lack of a sound constitutional interpretation mechanism.
Fourth, this time the establishment of constitutional review system was put forward, which is of extreme significance as to the protection of civic rights. Can citizens go to court when their civil rights are infringed? According to the judicial interpretation of the Supreme People’s Court, court decisions cannot cite the constitution directly and thus can only use specific laws. However, there is no reference to the safeguard of constitutional rights (freedom of speech, of press and of association) in the specific laws. So the courts will be faced with the dilemma that neither constitutional provisions nor specific laws could be cited to make decisions, which is a quite serious flaw for the protection of our civil rights. Therefore, this time, by putting forward the idea of rule of constitution, we indeed have brought the constitution to a very high level, which is of great significance.
So how on earth should we treat constitutionalism and rule of constitution? President Xi once said “to govern the country in accordance with the constitution” when delivering a speech, which I believe counts for much. The governance of the country hereby refers to our modern ways to run and govern the country. One important thing of our modern way to govern the country is to stick to the constitution. In other words, to govern the country in accordance with the constitution is a basic meaning of constitutionalism we have talked about. Then what is constitutionalism indeed? The answers differ a lot among different circles. However, at least they share a common idea that we need to govern the country in accordance with the law. If so, then there is no big difference between the constitutionalism and the rule of constitution we have talked about and they are mutually inclusive rather than mutually exclusive.
Before the liberation of western countries or our own country, constitution was an important topic in politics, and constitutionalism was indeed to govern the country and the government in accordance with constitution. Mr. Sun Yat-sen once came up with three steps to found a state in his The International Development of China, namely, military rule, political tutelage, and constitutionalism, which constitute the way to found and govern a state. Therefore, from this point of view, we can see that constitutionalism is the most modern way to govern the country, as well as the most ideal pattern which we pursue.
The relation between constitution and constitutionalism is just like that between laws and rule of law. Now we have realized the problem of only talking about law and not talking about rule of law. So we now suggest turning the law system into legal system. Now people believe that law is static while rule of law is dynamic. It can be said that the relation between constitution and constitutionalism is similar as well, that is, constitution is static while constitutionalism is dynamic. We should adopt constitutionalism if we want to establish a pattern under which the country is truly governed in accordance with the law.
Currently, documents of bodies within the party will become instructive documents for the whole country after being issued by the General office of the CCCPC. Under the new situation, this issue needs reconsideration, especially after the decision made at the fourth plenary session to rule the country in accordance with law. We know that the constitution specifies people’s rights (freedom of speech, of press and of association). Unfortunately, now we do not have relevant laws to help safeguard these rights. Under such circumstances, sometimes it will become very abnormal for the document of certain department within the party to become an national instructive document because it undermines the rule of law if we want to strictly govern the country in accordance with the law.
How can a document of certain department within the party to guide the whole country, especially as a legal document to be observed by all, since it cannot even be regarded as party rules. If such problems cannot be appropriately solved, then it would be easy to have phenomena such as substituting laws with words to appear. The document of this fourth plenary session made a special mention of this point: We should let people know that the red line of laws cannot be overstepped, and the baseline of laws cannot be touched. We should take the lead to observe the laws, to act according to the laws, not to exercise rights illegally, let alone substituting laws with words, suppressing laws with power, or bending the laws for the benefit of relatives and friends. This is the discipline that must be observed by the party and all government institutions across the country, that is, the constitutional supremacy, to be specific, all practices against the constitution and the ones executing the constitution wrongly should be abandoned.
Jiang Ping is the former president and tenure of China University of Political Science and Law
Speech delivered at the 1st Dameisha China Innovation Forum. Opinions expressed here belong to the author and do not necessarily represent the position of SZIDI.
