| On March 14, 2004, a new constitutional amendment was adopted by China’s 10th
National People’s Congress (第十届全国人民代表大会, NPC). The following
discussion on Xihuanet (新华网) is a reflection of some of the
public’s view on what the new Constitution means to them:
• [It means] spending money on lawyers
to bring suits and then pay more to thank them.
• The Constitution comes from high
up but there is resistance from below. Ordinary citizens
are powerless about the local authorities who are subject
to no control or oversight.
• So long as there is not an environment
for free press, nothing can protect our constitutional rights.
For example, if a high-ranking leader such as Cheng Weigao
(程维高) did not like you, a word from him would instantly wipe
you off the face of the earth. [Editor: Cheng is the ex-Communist
Party chief in Hebei Province (河北省) who was removed from
his post on corruption charges]
• The implementation of the Constitution
requires oversight: oversight within the Communist Party,
oversight by the NPC and the National Political Consultative
Conference (全国政协委员会), judicial and administrative oversight,
as well as monitoring by the media and the public.
• The authority of the Constitution
can only be maintained in a constitutional system; only then
can we expect our constitutional rights be protected.
• The central government has made
political reform a priority. The current reform is different
from the empty slogans of the past and some changes are in
fact quietly taking place. Political reform is critical because
other reforms rely on it.
• How does [the Constitution] define
the legal status, legal relationship, authority and responsibilities
of organizations such as political parties, the trade unions,
the Communist Youth League (共青团) and the Women’s Federation?
What is their relationship with ordinary citizens? Whose
power and interests stand to gain the maximum protection
of the Constitution and the laws? The answer is not clear.
• A Constitution is supposed to be
a country’s basic law which has the highest authority. But
for various reasons, the provisions of our Constitution cannot
be invoked by courts as legal basis in adjudicating cases.
In other words, the Constitution cannot be used in legal
adjudication, nor do our courts have the authority to engage
in constitutional review. Thus our Constitution is still
quite superficial and hollow. Only when the provisions of
the Constitution are “judicialized” can its provisions have
any substance. In other words, the NPC and its Standing Committee
（人大常委会）need to promulgate corresponding laws; the State Council
(国务院), when necessary, will issue regulations based on these
laws; and finally if necessary, the Supreme People’s Court
(最高人民法院) will issue corresponding judicial interpretations.
Only then can courts adjudicate cases based on these laws,
regulations and judicial interpretations and therefore provide
the only recourse for the rights of the citizens. Legal reasoning
tells us that “having rights without recourse is the same as having no rights”.
• If there is no liability associated
with constitutional violations, the Constitution is nothing
but a piece of paper. We urgently need to establish a mechanism
of finding such liability.
(Source: Xinhua Forum 新华论坛, www.forum.xinhuanet.com,
April 11, 2004)