Yanhuang Chunqiu, a political journal associated with more liberal, pro-reform elements within the Chinese Communist Party, has published a bold and important “New Year Greeting” in its latest edition. The article, called “The Constitution is a Consensus for Political Reform,” argues that China’s Constitution already lays out the priorities to be addressed in carrying out meaningful political reform.
The article is listed on the online Table of Contents of the January issue, but an image of the issue’s cover issue is not yet available on the journal’s website.

[ABOVE: The December 2012 issue of Yanhuang Chunqiu. (The January 2013 issue is not yet available online).]
Without further ado, we offer a translation [in progress] of the “greeting.”

Yanhuang Chunqiu, No. 1, 2013
New Year Greetings
“The Constitution is a Consensus for Political Reform” (宪法是政治体制改革的共识)
From the editorial department
Through 30 years of reform, the fact that political reform has lagged behind economic reform has become more and more manifest, and factors contributing to social unrest have continued to gather. Promoting political reform is a task of pressing urgency. And yet, to date, there is great divergence over this issue, and no consensus has been reached on how to carry out political reforms. There is an old saying: plan first, act later (谋定而后动). But without a consensus how can plans be laid. And so, there is a great deal of “playing it safe” (稳妥) with political reform these days, and not enough “motion” (积极).
Actually, [a basis for] consensus on political reform already exists. This consensus is the Constitution of the People’s Republic of China. While the Constitution presently in force is by no means perfect, if only we can carry it out in full political reform in our country will take a huge step forward.
Article 57 of our Constitution says that “the National People’s Congress of the People’s Republic of China is the highest organ of state power.” Article 62 says that the National People’s Congress (NPC) has 15 functions and powers. Article 63 says the NPC has the power to recall or remove from office the President, Premier and other national leaders.
The Constitution also states that national administrative authority (行政机关), auditing authorities (审计机关) and procuratorial authorities (检察机关) all emerge through the NPC, are responsible to it and are monitored by it. The armed forces of the nation belong to the people, and the armed forces are led by the State Central Military Commission (国家中央军事委员会). But we must candidly admit that the National People’s Congress has not in fact become the highest organ of state power, and none of these stipulations in our Constitution have been put into practice.
Article 13 of the Constitution states that the “state protects the right of citizens to own lawfully earned income, savings, houses and other lawful property.” If this article were to be put into effect, we would not have the constant barrage of vicious incidents we have today stemming from violations of personal property. [NOTE: This is a reference primarily to unrest arising as a result of land grabs by government officials.]
Article 33 of the Constitution states that the “nation respects and protects human rights.” If this article were put into effect, we would not see such rampant use of “violent administration” (暴力执法) and “violent interception” (暴力截访) [of citizens petitioning for redress of wrongs against them].
Article 35 of the Constitution states that the “citizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.” If this article were put into effect all the various types of limits placed on our news media would not exist. What’s more, we would no longer have cases in which “words incriminate” (以言治罪). With freedom of speech and press we would also have public opinion checks on corruption.
Article 37 of the Constitution states that the “freedom of person of citizens of the People’s Republic of China is inviolable.” If this article was put into effect, we would not have such things happening as the “strike black” [anti-crime] campaign in Chongqing [under Bo Xilai] or black jails run by firms like Anyuanding that persecute petitioners.
Article 126 of the Constitution states that the courts “shall, in accordance with the law, exercise judicial power independently and are not subject to interference by administrative organs, public organizations or individuals.” If this article was put into effect, we would not have so may [unwarranted] rejections of lawsuits, and we would not have so many cases in which people are falsely and unjustly accused.
Political reform is about building a system in place than can check power, and that means conscientiously protecting the rights of citizens. There is much language within our Constitution that preserves human rights, and that limits the power of the state. If we compare and contrast our Constitution and our reality, we discover that the system, policies and laws currently in force create a massive gap between the Constitution and the conduct of our government. Our Constitution is essentially void.
Any nation governed by rule of law must take its constitution as the basis for the design of its political system. Making the Constitution void is not only a breach of the promise made to the Chinese people, it is also a breach of the promise made to the international community.
Without trust a nation cannot stand, and the situation must be changed with regard to this breach of promise over the Constitution. Ever since the 12th National Congress of the Chinese Communist Party, the CCP Charter has read: “The Party must operate within the scope of the Constitution and the law.” This is what is meant by “the Party under the law” (党在法下) . . . Achieving a “Party under the law” would avoid the occurrence of various abuses resulting from conflict between the nominal system in effect and the actual system.
The Constitution is the most basic and most important of our country’s laws (根本大法). There is no higher authority than the Constitution, and there will not, nor should there be, any controversy about promoting political reform according to the Constitution.
As the Constitution provides the consensus for political reform, we must all spring into action, turning our voided Constitution into real political and legal systems — and that means we must change all current systems, statutes and policies that violate the Constitution, so that [laws and systems] accord with the Constitution. In this sense, political reform is really a “movement to preserve the Constitution” (维宪行动).
The law alone does not suffice (徒法不足以自行). To put the Constitution into effect, [we] must have related institutional guarantees, for example building a system of constitutional review (宪法审查制度), building a constitutional court (宪法法院), or creating a special committee within the National People’s Congress, or making the Constitution a matter of judicature (将宪法司法化). Building a system to put the Constitution into effect is an important task in carrying out political reform.
Even though the Constitution currently in effect is not perfect, if we make this Constitution real this would mean huge progress for political reform. On this foundation of political progress, we can in the future amend our constitution and then work these amendments into the political system. In this way we can promote reform in a gradual way. This gradual reform is all about using the Constitution as a means to improve the political system.
The voiding of the Constitution for so many years has not only meant huge advantage for the few, but it has also created complicated and deep-rooted interest groups. This “movement to preserve the Constitution” will come up against numerous obstacles. General Secretary Xi Jinping said during his recent tour in Guangdong: We must “dare to take on the tough challenges, and dare to navigate the dangerous shoals. We must have the courage to break through our mental obstacles, and the courage to break down the fences of entrenched interests.” If we only have this spirit, everyone working together from top to bottom, this “movement to preserve the Constitution” will surely succeed.
As this new year begins, we have a new group of leaders, and certain changes in the way these leaders operate have been cause for encouragement. In this new year, what we hope among a multitude of other things is that there can be real action to make our Constitution real.
《炎黄春秋》2013年第一期 新年献词
《宪法》第57条规定,“全国人民代表大会是最高国家权力机关”; 第62条规定了全国人民代表大会有15项职权;第63条有罢免国家主席、国务院总理等国家领导人的权力。《宪法》还规定了国家行政机关、审计机关、检察机关都由人大产生,对它负责,受它监督;国家的武装力量属于人民,国家中央军事委员会领导全国武装力量。我们必须坦率地承认,全国人民代表大会并没有成为最高国家权力机关,《宪法》的这些规定没有落实。
《宪法》第33条规定,“国家尊重和保护人权”。如果这一条落实了,“暴力执法”、 “暴力截访”等恶劣行径不会如此猖獗。
任何一个法治国家,在政治体制的设计上都必须以宪法为依据。将宪法虚置,不仅是对中国人民的失信,也是对国际社会的失信。国无信不立,宪法失信的状况必须改变。十二大以来的党章都有规定:“党必须在宪法和法律的范围内活动”。这就是“党在法下”。 “党在法下”是重要的宪法原则和政治原则。做到了“党在法下”,就能避免宪法层面的名义制度和运行层面的实际制度相悖而产生的种种弊端。

David Bandurski

CMP Director

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