Chapter 43 The constitution is the most important weapon of the country, and its authority should be guaranteed

On June 6, 2003, a small-scale high-level expert meeting was held in Beijing.Wu Bangguo, chairman of the Standing Committee of the National People's Congress and head of the Central Constitutional Revision Group, specially invited jurists Jiang Ping, Ying Songnian, and economist Wu Jinglian to the meeting.He wants to hear their views on the new round of constitutional amendments. For a modern democratic country, the constitution is its fundamental law, the basis for the legitimacy of the state system and government organization, and the source of rules for a country to make important decisions.Amending the constitution refers to making certain amendments to the constitution to adapt to the new social conditions. It is an important means for the constitution to ensure its stability and ability to respond to social changes, so it is as important as the constitution itself. Since 1949, my country has promulgated four constitutions, namely the 1954 Constitution, the 1975 Constitution, the 1978 Constitution and the 1982 Constitution.The current 1982 Constitution is the more mature of the four constitutions.However, this constitution, like other laws enacted later in China, has the disadvantage of emphasizing substantive rules and ignoring procedural rules.

In 1987, 1992, and 1997, the Communist Party of China held the 13th, 14th, and 15th National Congresses respectively. Correspondingly, China carried out three constitutional amendments in 1988, 1993, and 1999, respectively. A total of 19 constitutional amendments were produced in these three revisions of the constitution, which resolved the contradiction between the 1982 constitution and social development to a certain extent.But this only solves some problems that must be solved on the surface, and does not touch some deep-seated problems in the system.It has become almost customary to raise the issue of constitutional amendments after party congresses.

Whether a constitution is included in the amendment under certain circumstances depends on a large number of factors, such as whether the constitution itself really has the highest authority in the country's political life, whether the society's attitude towards the constitution really respects it, and so on.Taking legal circles as an example, among scholars who study constitutionalism as their profession, their attitudes and views on constitutional amendments are often varied. Jiang Ping boldly talked about his views on constitutional revision at the symposium of the constitutional revision expert group.In his view, "the Constitution cannot be amended frequently."Amendment to the Constitution is a serious issue, and only when there are major changes in the political system and economic system or when more emphasis is placed on the protection of citizens' rights and interests can the amendment be meaningful.

Regarding the procedure for constitutional amendments, he suggested that the best way is for the ruling party to propose constitutional amendments to the National People's Congress. The National People's Congress discusses the need for constitutional amendments and establishes a constitutional amendment committee or leading group composed of people from all walks of life.The constitutional amendment body of the National People's Congress proposes a revised draft after soliciting opinions from all parties.It is not impossible for the ruling party to come up with a draft constitutional amendment and submit it to the NPC Standing Committee and its plenary session for approval, but such a procedure makes the NPC Standing Committee and its plenary session passive.The role of the National People's Congress will become a mere formality.The revisions to the Constitution that have already been passed by the Central Committee of the Communist Party of China have been passed without changing a single word. It is meaningless for representatives and members to raise some opinions.But if the revision of the constitution is presided over by the adults of the whole country, it can establish the status of the constitution in the hearts of the people of the whole country, and it also shows that the revision of the constitution should also be a matter for the people of the whole country.

Whether the protection of private property should be clarified in the Constitution has always been an issue of concern to people. Many scholars believe that it is best to write "private property is sacred and inviolable" in the Constitution to further strengthen the protection of private rights.The most serious manifestations of current violations of citizens' property are urban demolition and expropriation of peasants' land.The houses of ordinary people are demolished as soon as they are said, and the compensation given is extremely unreasonable. Most of them are based on local regulations, government regulations, or even a demolition method of the city.Therefore, the most important thing to propose private property into the constitution is to prevent state power from encroaching on private property. The Constitutional Amendment in 1999 provided a clearer legal basis for private property rights.Article 16 of the amendment clearly mentions "non-public economy" and recognizes its legitimacy, but limits it to "an important part of the socialist market economy".Although the Constitutional Amendment took a key step in recognizing the legitimacy of private property rights, it did not use the expression "protecting private property rights", let alone directly address privatization and the positioning of private ownership.Economist Wu Jinglian once said that the "Constitution" does not clearly protect private property, which is not conducive to the further growth of China's economy.

Jiang Ping believes that there should be no problem in giving a clearer statement in the revision of the constitution. The key is how to change it. The common people are concerned about three issues.One is what is called "social public interest needs"; when dealing with conflicts between private property and social public interests, all countries in the world have the principle of giving priority to social public interests, but priority cannot be abused and must be genuine social public interest needs.The abuse of the social public interest principle is common in our country.The second is how to make compensation; in the existing laws, there are different ways of writing compensation for expropriation, some are "corresponding compensation", some are "appropriate compensation", while international investment protection uses "sufficient, timely and effective compensation". The draft civil code of our country Use "reasonable compensation".He suggested that it must be established that citizens cannot be more or less deprived of their property through expropriation, and the principle of "fair and reasonable compensation" must be established.Third, what should ordinary people do if the compensation methods for demolition or land acquisition formulated by governments at all levels are unfair?According to the current law, ordinary people can bring administrative lawsuits to the courts against the government's specific administrative actions, but they cannot bring lawsuits to the courts against the government's abstract administrative actions.This prevents the illegality and irrationality of administrative decisions from being effectively corrected.When my country joined the WTO, it has promised that foreign investors and traders can apply to the court for judicial review when the decisions made by the governments at all levels of our country violate the commitments made when my country joined the WTO, and the court can revoke these decisions.He suggested that judicial review be included in constitutional amendments.Regarding the suggestion that "private property is sacred and inviolable" be written in the constitution, he believes that there is no need to be too superstitious about modifiers such as "sacred". up.

From the Sun Zhigang incident, Jiang Ping thought of the issue of the constitutional supervision mechanism.Because of the Sun Zhigang case, the court sentenced the principal culprit to death, but he believed that the fundamental problem cannot be solved by the death penalty. We do not have a special institution for reviewing and monitoring violations of the Constitution. This is the key.Although the regulations on detention and repatriation have now been abolished, the Regulations on Reeducation Through Labor have remained unchanged for several years after the Legislative Law took effect.This is already a looming problem. When the supervision law was drafted more than 10 years ago, there was a provision for the Constitutional Council, but it is still silent more than 10 years later.Although the existing law clearly states that the power to supervise the implementation of laws lies with the Standing Committee of the National People's Congress, the Standing Committee of the National People's Congress is not a permanent body.There must be a permanent body to carry out this function.Currently, at least a constitutional committee should be established within the National People's Congress. In the future, when the conditions are met, the supervision of the parliament should be replaced by the supervision of the courts, that is, a constitutional court should be established.

The issue of human rights is a sensitive issue. In fact, a core of the Constitution is the issue of human rights, but the current Constitution does not reflect this core well.Jiang Ping believes that the revision of the Constitution over the years has made great changes on the issue of the planned economy, but traces of class struggle still appear in the Constitution. Taking the provisions on freedom of religious belief as an example, more and more people who believe in religion in the country today The more, how to better unite them?Article 51 of the Constitution already stipulates that "citizens, when exercising their freedom and rights, shall not harm the interests of the state, society, or the collective, or the legitimate freedom and rights of other citizens."However, when the Constitution stipulates the freedom of religious belief, it also emphasizes that "no one may use religion to engage in activities that disrupt social order or damage the health of citizens" and that "religious groups and religious affairs are not subject to the domination of foreign forces." In today's social environment, such The regulations will make people feel that the Constitution is not protecting freedom of belief, but warning people about the dangers of religion.

SARS has brought us some bloody lessons. People believe that citizens' right to know should be guaranteed in the constitution.Citizens' right to know also means that the government has the obligation to make government affairs public.Of course, the openness of government affairs does not mean that everything must be made public, but this principle must be established.It is time to formulate a law on the disclosure of government affairs, which clearly stipulates what government information must be disclosed, and at the same time stipulates the legal responsibility of the government and its responsible officials for disclosing false information or concealing important information.

Other protections such as the right of citizens to a fair trial and the presumption of innocence should be reflected in order to prevent the abuse of judicial power. In Jiang Ping's mind, the Constitution is the cornerstone of the legal system.But the cornerstone of the law, and what plays the most fundamental role, is the Constitution.The most fundamental political system of a country is also embodied in the Constitution.From this perspective, he believes that everyone should establish the concept of the supreme authority of the Constitution.But he saw that it is precisely because people do not pay enough attention to the importance of the Constitution. In our country there is a phenomenon of "law inversion", as if the more specific the law is, the more important it is. Separate laws, separate laws are not as good as the regulations of the State Council, and the regulations of the State Council are not as good as the decisions of a township government. A document of the township government seems to surpass the constitution. In people's minds, it is the most specific.This is an inverted sense of law.It also shows that the publicity of the Constitution is not enough, and people's awareness of the Constitution is not enough.

In addition, he believes that the constitution and constitutionalism are closely linked.Having laws does not mean having the rule of law, and having a constitution does not mean having constitutional government.Constitutionalism must be embodied as democratic politics, as a spirit of power restriction.This is a very important concept.The important function of the constitution is to maintain a country's democratic political system, which is the cornerstone of a country's democratic political system, and the content of the democratic political system can be different from country to country. We have the people's congress system, and other countries have different forms. .However, democracy must be established before it can be called constitutionalism, and it cannot be called constitutionalism without democracy. This is very important. The 16th National Congress of the Communist Party of China specifically analyzed the content of democratic politics into four aspects: democratic election, democratic decision-making, democratic management and democratic supervision.This is the first time that our country has clarified the meaning of democratic politics.As far as democratic elections are concerned, the democratic elections we are emphasizing now are elections at the grassroots level.Jiang Ping believes that democratic politics and democratic elections should really start from the grassroots. It is very important to do a good job in democratic elections at the grassroots, and our democratic elections at the grassroots are indeed more and more democratic; but we should also see that democratic elections only have grassroots elections. Not yet.There should also be higher-level elections, such as the election of deputies to the National People's Congress, including the election of deputies to the party congress. There is also a question of how to further improve it. In his preface to "Political System Reform Cannot Be Slowed", he said: "Discussing the issue of political system reform in a democratic way is one of the important ways to reduce conflicts and increase consensus in the practice of political system reform. Use rational methods to discuss the issue of political system reform. Discussing political issues, using procedures to get rid of the shortcomings in the political system, and solving the problems faced by the political system are not only the goals to be achieved by the political system reform, but also should become an established procedure and process of the political system reform.” Many years ago, Jiang Ping called on China to formulate a "Press Law".This proposal began to be discussed as early as the Seventh National People's Congress, and it has been more than 10 years, but it has not yet been introduced.He is well aware of the hardships involved. Jiang Ping believes that the "News Law" involves major ideological issues. Whether it is introduced or not, it cannot be viewed only from the perspective of protecting or regulating the rights of journalists, but from the perspective of the entire social environment. The three laws such as the "News Law", "Publication Law" and "Association Law" cannot be regarded as the laws of a certain department or the moral codes of practitioners in a certain department. They involve the civil and political rights stipulated in the Constitution. That is, how "citizens have freedom of speech, publication, assembly, association, procession, and demonstration" will be implemented concretely.Properly handling the relationship between news supervision and news censorship is necessary for sound public opinion supervision.If the censorship is too strict, the role of supervision will not be able to play a role, but if news criticism becomes irresponsible, or even vents personal anger through news criticism, then supervision may go astray.There are many examples of this in all countries in the world. From the perspective of ensuring the normal development of public opinion supervision, it is also very necessary to formulate the "Press Law". Jiang Ping affirmed that the supervision of news and public opinion has taken a big step forward compared with the past when the legal system in our country is not perfect.But at the same time, he saw such a phenomenon that he thought it was better to go to the news media than to go to the court, and it was better to go to "focus interviews."He believes that the good side of this phenomenon is that the supervision of public opinion has indeed played a supervisory function, but what is abnormal is that it is easy to make people feel that public opinion determines everything.Public opinion is not completely in line with the law, and public opinion may have its own tendencies.The occurrence of this situation shows that the supervision by public opinion is not yet standardized enough. Just after Professor Jiang Ping reported his opinions on constitutional revision to Chairman Wu Bangguo, the non-governmental constitutional revision seminar held in Qingdao by more than 40 famous scholars from the Mainland on June 19 attracted attention both at home and abroad.The seminar was jointly organized by Beijing Siyuan Social Science Research Center and Qingdao University Law School.Professor Jiang Ping, former Propaganda Minister of the Central Committee of the Communist Party of China Zhu Houze, economist Feng Lanrui, and vice president of China Economic System Reform Research Association Shi Xiaomin attended the meeting. Professor Jiang Ping once said that whether we call democratic politics political civilization or political democracy, since we talk about civilization and democracy, the most important thing is respect and tolerance. Just having one voice is not a blessing for the country.Establishing a peaceful democratic system and political situation with the spirit of respect and tolerance is exactly the endeavor of Professor Jiang Ping, a Chinese jurist, and also the long-term goal of the Chinese government.