Zhang Xuezhong's open letter on China's Constitution
Updated: May 13, 2020
Chinese scholar calls for political reform, criticising ‘tight control’ over Covid-19. A day later, police come for him
Source: SCMP 11 May 2020
Widely shared open letter posted on WeChat urges legislature to draft a new constitution, release political prisoners and remove Communist Party’s status
Three police cars arrive at his house the following day, friend says
A constitutional scholar has been taken away by China’s authorities after writing an open letter to representatives of the country’s legislature, criticising the government’s handling of the coronavirus outbreak and calling for freedom of speech.
Zhang Xuezhong was removed from his Shanghai home on Sunday night, according to multiple sources. His letter (see below), posted on WeChat on Saturday and addressed to deputies of the National People’s Congress (NPC), was widely circulated online as China prepares to convene its most important parliamentary sessions in less than two weeks’ time.
“He was taken away on Sunday night. Three police cars came to his house,” said Wen Kejian, an independent political analyst and a close friend of Zhang.
Another of Zhang’s friends, who requested anonymity due to the sensitivity of the matter, also confirmed that Zhang had been taken. He said: “He is mentally prepared after his open letter.”
In his WeChat post, Zhang, 43, wrote alongside his attached letter: “The best way to fight for freedom of expression is for everyone to speak as if we already have freedom of speech.”
Multiple calls to Zhang’s mobile phone and messages to his WeChat account by the South China Morning Post went unanswered. Calls to the Shanghai municipal police bureau were also unanswered. In his strongly worded letter, Zhang – a regular contributor to overseas newspapers and a well-known critic of China’s political and legal system – said that in the absence of a modern constitution, China’s governance was very backward, and “the outbreak and spread of the Covid-19 epidemic is a good illustration of the problem”.
Since first being reported in Wuhan, central China, in late December, the coronavirus has infected over 4.1 million people globally, killing more than 282,000.
There were calls for freedom of speech in February, triggered partly by the death of Dr Li Wenliang, who had alerted colleagues in December about a pneumonia-like illness in Wuhan, only to be one of eight people reprimanded by police for “spreading rumours”. Li, who was required to sign a document vowing he would “keep in line in thought and action” with the Communist Party, later died from Covid-19, the disease caused by the coronavirus.
Zhang said in his letter: “Twenty-two days before the [lockdown to contain the outbreak] in the city, Wuhan was still investigating and punishing citizens who had disclosed the epidemic, including Dr Li Wenliang … showing how tight and arbitrary the government’s suppression of society is.”
The letter said the Chinese political system had resulted in a lack of transparency and scrutiny. China has dismissed claims that it mishandled the outbreak, against accusations led by the United States that it had withheld information and allowed the outbreak to escalate into a global pandemic. Beijing has strongly denied a claim – referenced repeatedly by US President Donald Trump – that the outbreak’s origin was linked to a virus research lab in Wuhan.
“Since January 3, 2020, the [Chinese] foreign ministry had been regularly notifying the US government about the epidemic, but the disease control department was not notifying the people of [China] at the same time. Such an irresponsible attitude towards their people’s safety is rare,” Zhang wrote.
“There were few independent professional media to investigate and report on the outbreak, nor did medical professionals provide independent advice to the public … It only shows that the government’s long-term tight control of society and people has almost completely destroyed the organisation and self-help capabilities of Chinese society.”
Zhang called on NPC deputies to turn the legislature into a “transitional authority” to create a broadly representative committee empowered to draft a constitution conforming to “modern political principles”.
He also urged the NPC to make resolutions to immediately release all political prisoners, end bans on political parties and non-state media, and enshrine that no political party should enjoy the status of a national public service institution.
Zhang, who teaches an online constitutional class, was removed from his teaching post at East China University of Political Science and Law in 2013 because of his critical commentary on China’s constitution, and was expelled from the faculty four months later. The university accused him of “forcibly spreading his political views to the school staff and teachers, and also using his position to spread his political views among students”.
A defence lawyer for Chinese activists including human rights lawyer Guo Feixiong and civil rights activist Liu Ping, Zhang was stripped of his lawyer’s licence last year after the authorities said he was no longer employed by his law firm.
[Please scroll down for text of LETTER IN ENGLISH]
ORIGINAL LETTER AND CONSTITUTION DRAFT AS POSTED ON 9/5/2020 WECHAT IN CHINESE WITH GOOGLE ENGLISH TRANSLATION BELOW:
宪法是对政治活动进行法律化的一种手段。它的作用不是消除政治活动，而是要规范政治活动，并使各种政治分歧和争议，可以在各方都认可的原则和框架下得到解决或处理，由此便可实行基于说理的治理（government by discussion）。在宪法框架下，人们不再将武力作为夺取政权的手段，失败的一方不但不会被消灭，而且还有在未来赢回来的机会。宪法为政治争端的解决所提供的原则和框架，使得各种信念和利益的追求者，都能从中体会到某种共同感和归属感，因此有助于维系政治共同体的统一性，并不断强化整个社会的团结与和谐。
要做到这一点，宪法对执政权力的约束，必须是周密而全面的（complete and comprehensive），也就是必须规范执政权产生、运行和更替的全过程。假如一位君主或一个政党，可以将一部“宪法”强加给一个国家，并利用“宪法”永久地垄断政治权力，那就意味着他们在宪法制定之前便已经掌握了政权，也必然掌握了一支有组织的武装力量。但这样一来，他们在“宪法”制定之后的统治，其实就不是基于“宪法”，而只是基于武力。这样的“宪法”根本不可能对权力进行周密而全面的约束，反而只会是掌权者利用、忽视、轻蔑和任意改动的对象。这样的“宪法”，当然只是一部虚假的宪法，或者说是一部伪宪法。
（3）草案采用“中华统一共和国”之国号（可英译为United Republic of China），是因为“统一”一词，既能顾及国家主体部分一直实行单一制的事实，又能容纳不同地区的不同情形，特别是它们与中央政府之间在关系及权限上的差别。在由多个原本独立的政治实体组成一个新国家的情况下，采用联邦制是较为恰当的选择；而在一个原本实行单一制的国家，贸然采用联邦制，则很可能导致中央与地方关系的失调，甚至有可能引发难以预料的政治动荡。在后一种情况下，更稳妥的选择是在延续单一制的同时，着力强化和扩展地方自治。
第一条 人的尊严不可侵犯。尊重和保护人的尊严是一切国家权力的义务。 基本权利是有效约束立法、行政和司法的准则。
第三条 国民在法律上一律平等。 在政治、经济和社会关系中，不得因性别、种族、信仰、政治见解、籍贯、出身或财产状况的不同而差别对待。 任何人不得因残疾而受到歧视。 保障和促进男女平等。 国民有确定和表明民族身份的权利。任何人不得被强迫选择和表明自己的民族身份。尊重和保障少数族群的平等地位与权利。尊重、保障和促进语言和文化生活的多样性。
第四条 思想及良心自由不受侵犯。 宗教信仰自由不受侵犯。国家尊重和保护宗教活动，但不得赋予任何宗教团体以任何特权。国家不得从事宗教教育及其他任何宗教活动。
第五条 国民享有言论自由和以通常途径获取信息的自由。保障新闻出版自由和广播、电视、电影、网站等媒体的报道自由。禁止事先进行内容审查。 出于保护青少年和个人名誉、隐私等正当目的，得以一般法律对前款规定之权利予以限制 保障艺术、研究和教学自由。专利权、商标权、著作权等知识产权受法律保护。
第六条 国民享有不携带武器进行和平集会的权利。集会无需事先申请或批准。 得制定法律或依照法律对露天集会予以规范和限制。
第七条 国民享有结社的权利。 政党内部秩序须符合民主原则。政党须公布其财产状况及经费来源与使用情况。得以法律对法官、现役军人、警官和警察、驻国外的外交使节和领事人员参与政党的权利予以限制。 保障国民为维护和改善劳动、经济条件而结社的权利。限制或妨碍此项权利的协议均属无效，为此采取的措施均属违法。 对具有专业性或公共性的职业团体，得以法律规定强制设立和强制加入制度。 得制定法律或依照法律限制和规范罢工权的行使。
第八条 名誉和隐私受法律保护。 通讯秘密不受侵犯。此项权利只能依法律予以限制。 住宅不受侵犯。非经法律授权，并持依法定程序和正当理由签发的命令，不得进入和搜查住宅，亦不得搜查、扣留任何人的文件或物品，但屋主、文件或物品持有人同意及搜捕现行犯时除外。得以法律规定其它必要的例外情形。
第九条 国民享有迁徙自由。为了公共安全及福利，或出于保护未成年人之目的，得制定法律或依照法律对此项权利予以限制。 国民享有出境旅行、移居国外和脱离国籍的自由。国籍的取得与丧失由法律规定。为保障法律义务之履行而限制出境的事由及程序，由法律规定。 国家依法保护居住于国外的侨民。
第十一条 财产权不受侵犯。保障财产继承权。财产权的内容和限制由法律规定。 在法律允许的范围内，土地及其他自然资源可由私人所有。使用土地及其他自然资源的条件、方式、范围及限制由法律规定。 财产权之行使，不应违反社会公共利益。 只有为了公共利益且予以正当补偿时，方可征收财产。对财产的征收，须依照法律规定的方式进行。
第十二条 国民享有与社会发展程度相适应之最低限度的健康与文化生活权利。 保障与促进社会福利和公共卫生。自然环境应受保护。 风景名胜、历史遗产和文化遗产的保护范围及方式，由法律规定。
第十三条 保障国民的受教育权。义务教育为免费教育。 保障开设私立学校的权利。开设私立学校须符合法律规定的条件并得到国家许可。私立学校的教学目的、教学设施和师资水平不低于公立学校。
第十四条 国民享有劳动的权利。 有关工资、劳动时间、休假及其他劳动条件的基本标准，由法律规定。 禁止一切有害儿童身体健康和人格发展、完善的役使童工行为。
第十五条 婚姻和家庭受国家保护。 关于婚姻和家庭的法律，必须在尊重个人尊严与配偶平等的基础上制定。 抚养和教育子女是父母的权利和义务。非婚生子女享有与婚生子女同等的地位和权利。
第十六条 选任和罢免公务员是国民的固有权利。一切公务员都是为全体国民服务，而不是为一部分国民服务。 年满十八岁的公民，其选举权不得因年龄而被剥夺或限制。对于选举人的投票选择，不得以任何方式追究责任。 如有必要，得以法律限制公务人员、公共服务职员、在役军人和法官的被选举权。
第十九条 任何人不得被剥夺在法院接受审判的权利。 只有依照法律才能设立审理专门案件的法院。不得设立特别法院或特别法庭。行政机关不得实行作为终审的审判。 陪审制度由法律规定。
第二十条 非经法律规定的正当程序，不得剥夺任何人的生命、自由或财产，也不得处以其他刑罚。 任何人非经生效法院判决认定有罪，均为无罪。 在废除死刑前，应以法律规定，死刑作为极端惩罚措施仅适用于谋害他人生命的严重暴力犯罪。
第二十一条 在刑事案件中，当事人享有自行辩护和委托律师辩护的权利、充分质询证人的权利、使用公费和借助法定强制手段为自己寻求证人的权利，以及由法院迅速而公正审判的权利。 除作为现行犯被拘捕外，如无主管司法机关签发且明示犯罪事由的拘捕令，任何人不得被拘捕。得以法律规定其他必要的紧急拘捕之情形。 任何情形下，取得拘捕令之前的临时羁押不得超过48小时。不得在身体上或精神上虐待被羁押的人。 任何人不得被强迫做不利于自己的供述。强迫、拷问或威胁所得的口供，或在非法拘禁状态下所作的口供，不得作为证据。绝对禁止刑讯逼供。 对在实行时合法的行为，不得追究刑事责任。对同一行为，不得重复追究刑事责任。
第二十二条 国会由众议院和参议院两院组成，行使国家立法权。 两院议员由普遍、直接、自由、平等和无记名的选举产生，是全体国民的代表，不受任何委托和指令的约束，只凭自身的良心和判断行使代议职责。
第二十三条 众议员人数不得超过500人。 众议员名额依人口数之比例分配至各省、自治区、直辖市和特别行政区，但每省、自治区、直辖市或特别行政区至少应有一个名额。根据人口统计所得数据重新分配议员名额的时限和方法，由法律规定。 依本宪法进行之第一次众议员选举名额分配如下：安徽省20名；福建省12名；广东省35名；甘肃省9名；贵州省12名；河北省24名；湖北省19名；黑龙江省13名；海南省3名；河南省32名；湖南省22名；吉林省9名；江苏省26名；江西省15名；辽宁省15名；青海省2名；四川省27名；山东省32名；山西省12名；陕西省13名；云南省15名；浙江省18名；广西壮族自治区16名；内蒙古自治区8名；宁夏回族自治区3名；新疆维吾尔族自治区7名；西藏自治区1名；北京市7名；重庆市10名；上海市8名；天津市5名；澳门特别行政区1名；香港特别行政区3名。
第二十五条 众议院选举与总统选举应于同一年进行，并应于新当选总统预定就职日期前完成。 得以法律规定新选出国会首次集会和新当选总统就职的具体日期。
第二十八条 众议院得选任和罢免本院议长及其他工作人员，并得于议长缺席会议时选举临时议长。 议长或临时议长无表决权，但某项议案之通过仅差一赞成票时除外。
第三十二条 副总统任参议院主席，除与会参议员所投赞成票与反对票相等外，无表决权。 参议院得选任和罢免本院其他工作人员，并得于副总统缺席或行使总统职务时选举临时主席。
第三十八条 两院各自裁决关于其议员资格的争议，但取消议员资格，须有出席议员三分之二以上多数赞成的决议。 两院各自制订其内部规章和议事规则，并可惩戒议员，但开除议员，须有出席议员三分之二以上多数赞成的决议。
第三十九条 两院得各自监督政府工作及调查政府工作中的特定事务，并可要求提供相关的书面材料、证言或供述，也可要求证人出席作证。 监督和调查政府工作的程序及其他必要事项由法律规定。
第四十条 两院各自议员出席过半数即构成进行工作之法定人数；不足法定人数时得延期开会，并得依各院规定办法与罚则强迫缺席议员出席。 两院议事时，除本宪法另有规定外，以出席议员半数以上的表决议决之。 在国会开会期间，一院未经另一院同意不得休会三日以上，亦不得将开会地点移往他处。 两院联席会议的召开程序、议事范围和决议效力等事项，由法律规定。
第四十一条 两院的会议为公开会议，但经出席议员三分之二以上多数赞成，得举行秘密会议。 两院各自保存其会议记录，除秘密会议记录中特别载明需保密者外，均应公开发表，并须公之于众。 经五分之一以上出席会议之议员要求，各议员的表决须载入会议记录。
第四十二条 国会每年至少举行一次定期会议。临时会议应总统或任一议院四分之一以上议员之要求而召开。总统要求召开临时会议，应说明开会理由和会期。 定期会议会期不得超过120天，临时会议会期不得超过30天。 得以法律规定定期会议和临时会议的相关事宜。
第四十三条 法律草案得由国会议员、总统和总统下属行政部门主管官员提出。最高法院、宪法审判委员会和中央选举委员会得就各自管辖范围内的事务提出法律草案。 包括国家预算提案在内的一切财税法案，须先在众议院提出及审议。 与地方自治有关的法案须先在参议院提出及审议。 总统及总统下属行政部门主管官员为就议案发言，得随时出席两院会议。行政部门主管官员在被各议院要求出席作说明时，必须出席。
第四十五条 国会通过的法案移送给总统，由后者于15日内签署成为法律。 总统对法案有异议时，可于前款规定的期限内，附上异议书退回最初审议该项法案的议院，要求重新审议。国会闭会期间亦照此办理。总统不得要求只重新审议部分法案，或修改法案要求审议。 总统未于本条第一款规定的期限内签署或要求重新审议的，国会通过的法案即成为法律。 总统于本条第一款规定的期限内要求重新审议的，最初审议该法案的议院应重新审议，经该院半数以上议员出席，并经出席议员三分之二以上多数赞成，即应将该法案连同总统的异议书送交另一院，另一院亦应重新审议，经该院半数以上议员出席，并经出席议员三分之二以上多数赞成，相关法案即成为法律。 本条关于法案生效之规定，亦适用于国会通过的决议和命令，但不适用于国会通过的无约束力之声明。
第四十六条 国会审议和批准国家预算。 总统或其下属行政部门编制各年度财政预算提案，并在财政年度开始的90天前呈交国会。国会应在财政年度开始的30天前予以决定。 如果预算提案在新的财政年度开始后仍未通过，政府可依照上一财政年度的预算标准，为下列项目所需经费支出资金，直到预算提案被国会通过为止：（1）依宪法和法律设置之机构和设施的维持及经营；（2）履行法律上的支出义务；（3）继续进行预算已批准的项目。
第四十七条 当需要支出的资金超出一个财政年度时，总统或其下属行政部门应规定年限，以继续费的名目提交国会议决。 预备费用总额应由国会通过，其支出应获当届国会批准。
第五十三条 总统、副总统、总统下属行政部门主管官员、最高法院大法官、宪法委员会委员、中央选举委员会委员及其他法律所定之公职人员，在执行公务中违反宪法或法律，或有严重不端行为者，由参议院进行弹劾。 前款规定的弹劾，须由三分之一以上本届参议员提议，经五分之三以上本届参议员赞成通过，但对总统、副总统的弹劾，须由二分之一以上本届参议员提议，经四分之三以上本届参议员赞成通过。对总统、副总统的弹劾，由最高法院首席大法官任主席。 对本条第一款规定之外的公职人员，得以法律规定不同的弹劾机构与程序。 弹劾通过之效力仅限于免除公职，但并不影响当事人依照法律所应承担的民事或刑事责任。
第五十四条 总统是国家元首，对外代表国家。 国家行政权力属于以总统为首的国家行政机构。 总统、副总统及总统下属行政部门官员必须是文职人员。
第五十五条 总统、副总统由全体国民通过普遍、直接、平等、自由和无记名的选举产生。 一名总统候选人必须与一名副总统候选人共同参选，且两人的姓名必须出现在同一名单上，该名单不得出现任何其他人的姓名。 在40%以上选民参与投票的选举中得票最多的候选人，如得票数达到总投票数的50%，或在50%以上选民参与投票的选举中得票最多的候选人，如得票数达到总投票数的40%，即当选为总统、副总统。 如在选举中未有候选人符合本条第三款规定的当选条件，众议院应尽快召开由三分之二以上新近当选之议员参加的集会，并在14天内以半数以上与会议员的赞成票，在得票最多的两组候选人中选定总统、副总统。 所有与总统、副总统选举有关的事项均由法律规定。
第五十六条 总统任期为四年，副总统任期与总统任期相同。 无论何人，当选担任总统职务不得超过两次。无论何人，于他人当选总统任期内担任总统职务或代理总统职务两年以上者，不得当选担任总统超过一次。 总统不得兼任其他任何职务。
第五十九条 如当选总统在规定就职日期前亡故，由当选副总统就任总统一职。如当选总统不合资格，则由当选副总统代行总统职权，直至以本宪法第五十五条规定的选举程序补选出一位合资格的总统。 如当选总统和当选副总统均不合资格，国会得以法律宣布代理总统之人选或规定遴选代理总统之方式，该被宣布或遴选之人即可代行总统职权，直至以本宪法第五十五条规定的选举程序补选出一位合资格的总统。
第六十一条 当总统死亡、辞职或被免职时，副总统成为总统。 当副总统职位出缺时，总统应提名一名副总统，经国会两院均以本届议员半数以上多数票通过后就职。 当总统、副总统职位同时出缺时，适用本宪法第五十九条第二款之规定。
第六十二条 当总统向参议院临时主席和众议院议长提交书面声明，声称其不能履行职务时，在其再向参议院临时主席和众议院议长提交一份内容相反之书面声明前，总统的权力和职责应由副总统以代总统身份行使。 当副总统和行政各部多数主管官员，或副总统和宪法委员会多数成员，依法律规定向参议院临时主席和众议院议长提交书面声明，声称总统不能履行职务时，总统的权力和职责应立即由副总统以代总统身份行使。此后，当总统向参议院临时主席和众议院议长提交书面声明，声称其不能履行职务的情况并不存在，其总统职务应予恢复，除非副总统和行政各部多数主管官员，或副总统和宪法委员会多数成员，于此后三日内向参议院临时主席和众议院议长提交书面声明，声称总统不能履行职务。在此种情形下，国会应在四十八小时内召集会议，如于召集会议后二十一天内，两院均以本届议员三分之二以上多数票决定总统不能履行职务，副总统应继续以代总统身份行使总统的权力和职责，否则总统应恢复其职务。
第六十五条 总统根据国会的决议宣布战争状态，并根据国会的决议宣布结束战争状态。总统提请国会作出宣战决议的，该决议须经国会两院各自以本届议员之半数以上赞成方可通过。 总统对外媾和须事先获得国会的批准。
第六十七条 总统有权派遣和接受外交使节。 大使、领事等驻国外和驻国际组织的外事代表，由总统提名，经参议院批准后由总统任命。
第六十八条 行政各部主管官员及一切国家行政官员由总统提名，经参议院批准后由总统任命。如国会认为适当，得以法律将下级官员之任命权授予总统单独行使，或授予各部主管官员行使。 政府各部的设置、组织和职务范围由法律规定。
第七十一条 国会得制定法律，设置若干为总统决策提供咨询的专业机构，并规定此等专业机构的组织、地位及职能范围。 法律可规定总统作出某项决策，必须事先征询特定专业机构的意见。
第七十二条 总统可对有关法律规定的具体范围、委任事项和执行法律的必要事项发布总统令。 行政各部主管官员可依法律授权、总统委托或依职权就其管辖事务颁布规章。
第七十三条 在发生国内冲突、外部威胁、自然灾害或重大经济危机时，为维护国家安全和维持公共秩序而必须采取紧急措施且无暇召开国会时，总统可采取必要的财政和金融措施，或发布具有法律效力的命令。 在危及国家安全的重大交战状态时，为保证国家完整认为有必要采取紧急措施且无法召开国会时，总统可发布具有法律效力的命令。 在发布或采取本条第一款和第二款中的命令或措施时，总统应不延迟地通知国会，并获得国会的批准。 未能获得本条第三款规定的批准时，总统的处分或命令立即失效。出现此类情况时，被该命令废止或修改的法律同时恢复法律效力。 总统应不延迟地公布本条第三款和第四款中的事态。
第七十四条 因战争、武装冲突及类似的国内紧急状况，有必要动用兵力以应付一定军事需要或维持公共秩序时，总统可依法宣布戒严。 在宣布戒严后，可依法对有关法令制度、言论、出版、集会、结社、政府或法院权限方面，采取特别措施。 国会两院任一议院半数以上本届议员要求解除戒严时，总统必须予以解除。 宣布戒严后，总统应毫不迟延地通知国会。如逢国会休会，此项通知视同总统要求国会召开临时会议，国会必须于48小时内集会。在此种情况下，总统应尽力促成和协助国会开会。 总统任何以强力阻扰国会开会的行为，均应视为叛国行为。
第七十五条 总统每年向国会提交关于国内状况和对内对外政策主要方针的国情咨文。 在必要时，总统可出席国会发言，或以书面形式发表意见。
第七十六条 总统有权对他人予以特赦、减刑、免除刑罚执行和恢复权利，但弹劾案不在此列。 总统作出普遍的赦免决定，应征得国会同意。 与此有关的事项由法律规定。
第八十二条 最高法院设九名大法官，组成大法官会议，其中兼任院长者为首席大法官，主持大法官会议。大法官会议得就法律的适用作出解释。 最高法院大法官由总统提名，经参议院批准后由总统任命。最高法院院长由总统从大法官中提名，经参议院批准后由总统任命。 最高法院大法官不得加入任何政党或参与任何政治活动。 如无相反之法律规定，最高法院可设大法官之外的法官。
第八十三条 最高法院以不与法律规定相抵触为限，有权就关于诉讼手续、律师出庭、法院内部纪律及司法事务处理的事项制定规则。 检察官必须遵守最高法院制定的规则。 最高法院得将制定与下级法院有关之规则的权限，委托给下级法院行使。
第八十四条 法官的任职条件由法律规定。 最高法院大法官之外的法官，其选任方式由法律规定。
第九十条 宪法审判委员会行使以下职权： （1）对中央机关之间、中央机关和地方自治团体之间，以及地方自治团体之间的权限争议进行裁决。 （2）对法院提交的关于某项法律是否违反宪法的问题进行裁决。 （3）在必要时，提审与本宪法第一章规定的基本权利有关的案件。 （4）对国际条约是否与本宪法相抵触的问题进行裁决。 （5）审理本宪法和法律规定的其他争议。 国会得于必要时制定法律，将部分宪法审查事务授予宪法审判委员会以外的审判机构，但不得损及宪法审判委员会在此等宪法审查事务上的终审地位。 宪法审判委员会的裁判以多数委员的意见为准。宪法审判委员会的裁判不得上诉，具有普遍约束力。
第九十一条 宪法审判委员会由九名具有法官任职资格的委员组成，其中三名由总统提名经参议院批准后由总统任命，三名由众议院议长提名经参议院批准后由总统任命，三名由最高法院院长提名经参议院批准后由总统任命。 宪法审判委员会主席由总统从九名委员中提名，经参议院批准后由总统任命。
第九十二条 宪法审判委员会委员任期为九年，得依宪法规定的方式连任。 宪法审判委员会委员每三年改任三分之一。宪法审判委员会委员出缺时，新委员的选任方式同于出缺者。 第一届宪法审判委员会有三名委员任期三年，三名委员任期六年，三名委员任期九年。总统、众议院议长和最高法院院长各提名三类委员中的一名。
第九十九条 中央选举委员会由九名委员组成，其中三名由总统提名经参议院批准后由总统任命，三名由众议院议长提名经参议院批准后由总统任命，三名由最高法院院长提名经参议院批准后由总统任命。 中央选举委员会委员出缺时，新委员的选任方式同于出缺者。 中央选举委员会主席由九名委员以互选方式提名，由总统任命。
第一百一十一条 地方公共团体可依照法律规定享有一部分国家管理职能，并可获得为行使此种职能所需的物资和资金。此种职能的行使受国家监督。 国家监督、保障宪法和法律在地方公共团体辖区内的实施。
第一百一十五条 本宪法经具有广泛代表性的制宪委员会起草，由过渡性最高国家权力机构交付国民投票，在过半数选民参与的投票中，经过半数投票赞成后通过，由过渡性最高权力机构公布后施行。 本宪法为国家最高法规，任何法律、行政法规、规章、地方性法规、条例、命令及处分均不得与之相抵触。
第一百一十六条 本宪法的修改，须经国会两院各由全体议员三分之二以上赞成，由国会创议，向国民提出，并在得到国民批准后生效。此种批准须于特别国民公投或国会规定的选举时，得到全体选民的半数以上投票赞成。 国民投票前须将宪法修正案公布60日以上。 由总统提出的修宪议案， 国会应予讨论和议决。同一内容之修宪议案，总统不得于两年内再次提出。
第一百二十四条 普遍公认的国际法原则、准则和中华统一共和国批准的国际条约是中华统一共和国法律体系的组成部分，并在效力上优先于国内法律。 国际条约若含有与本宪法相抵触的条款，则须在宪法修改后方可施行。
第一百二十八条 中华统一共和国国会第一次召集会议前颁布的法律，如不与本宪法相抵触，则继续有效。 就法律是否继续有效产生争议时，由宪法审判委员会予以裁决。
第一百三十一条 中华人民共和国的财产原则上成为中华统一共和国的财产。 如中华人民共和国的财产依其原来目的主要用于公共管理和公共服务之任务，而依本宪法此项任务不属中央政府之任务时，则财产应无偿移转给今后承担此类任务的主管机关。如有关任务今后由各省、自治区、直辖市或特别行政区负责执行的，此项财产的使用有助于此项任务且不只是临时性的，则应将此项财产无偿移转给各省、自治区、直辖市或特别行政区。 国家得基于属地原则、公平原则及地区均衡原则，将财产移转给各省、自治区、直辖市和特别行政区。 得以法律就此进行具体规定。
第一百三十二条 本宪法施行时在职之公务员、公共服务机构工作人员和公营企业管理人员，本宪法未以明示或默示方式否认其相应地位者，除法律另有规定外，其地位不因本宪法之施行而自然丧失。 前款规定之人员，在依本宪法选出或任命其后任时，其地位自然丧失。此时，前任者的任期至继任者就任前一日止。
第一百三十三条 在本宪法施行后，中华统一共和国第一届国会和第一任总统、副总统的选举，可适用由制宪委员会起草并由过渡性最高国家权力机构颁布的选举法令。 制宪委员会于本宪法公布时解散。过渡性最高国家权力机构于中华统一共和国第一届国会首次集会时解散。
GOOGLE TRANSLATION OF CHINESE TEXT: [editor's note]
Initiate the national constitutional procedure as early as possible, and strive to achieve a peaceful political transformation
-to all the delegates who will attend the third session of the 13th National People's Congress
My name is Zhang Xuezhong and I am an ordinary Chinese citizen living in Shanghai. When you attend the third session of the 13th National People's Congress on May 22, 2020, this new crown epidemic may not be over. I hope you can take the necessary protective measures and wish you safety and health, just like I wish all People who need to go out to work or study during the epidemic are the same.
Although I don’t know you, I know that many of you have achieved outstanding results in your work, so I admire you very much. However, admiration for your personal performance does not mean that I recognize your legitimacy as a representative of the Chinese people. For the following two main reasons, I don’t think you are the legitimate representatives of the Chinese people, nor do I think that the National People’s Congress is a legitimate representative body:
First, you are not representatives (presenters) freely elected by the Chinese people. The modern political representative system is based on the principle of national sovereignty. Although the representatives who form the national representative body should have a certain independence from the voters when exercising their powers, that is, when conducting deliberations and decisions, their representative powers must be derived from the grant and delegation of nationals. Therefore, it [the congress] must be produced through regular, free and competitive elections. But your representative status was not obtained through fair elections. In fact, no such elections exist in our country.
In addition, real representative institutions must go through the necessary debate procedures when making public decisions. This not only helps to understand the pros and cons of the relevant legislation and policies, so as to improve the level of public decision-making, but also protects the people's right to know the decision-making process and content. But for so many years, people have never seen you debate policy issues. Your performance in meetings is more like a machine that only knows how to raise your hand, rather than a serious and devoted representative.
Second, the current "Constitution" is the basis for the NPC to produce and exercise its powers, but it is not a real constitution at all. The modern constitution is a legal document that implements national sovereignty. On the one hand, national sovereignty means that all nationals are the highest political power holders in a country. On the other hand, a large number of scattered and resident nationals, in fact, cannot personally and directly conduct state governance, so it is necessary to create a representative government and select government officials to carry out daily governance. It is this state of separation of sovereignty and governance that makes the constitution a necessity: all citizens formulate a written constitution to create, restrict, regulate and restrict government agencies and their powers, and then follow the constitution's established procedures to select, supervise and control government officials.
The Constitution should be the product of the political will of all the people, and the writing and immobilization of the national political will. When all the citizens as sovereigns cannot directly be present, it replaces all the citizens in the community’s political sphere and oversees, supervises and warns all public institutions and public officials with their supreme legal authority to promote the latter’s imperative. Don’t forget your responsibilities and don’t abuse your power.
Since the Constitution should reflect the political will of all citizens, its formulation and revision must include the link of national participation, and is a decisive and authoritative link. Such participation can be direct, for example, a referendum is used to determine whether a draft constitution or a constitutional amendment will take effect; it can also be indirect, for example, for all citizens to choose [when] a special constitution-making conference is issued and the latter is authorized to directly formulate or amend the constitution. The key point here is that government institutions (including legislative bodies) that cannot be created by the Constitution become the authoritative institutions for making or amending the Constitution. In other words, the power to formulate the constitution (constitutional power) and the power created by the constitution (constitutional power) must be separated, otherwise, the constitution cannot play the role of restricting, regulating and restricting the government power (constitutional power) effect.
However, the formulation of the current "Constitution" in our country does not include procedures for national participation. The National People’s Congress, which originally formulated it, was not freely elected by all citizens, and therefore was not a legitimate representative body that could implement the political will of all citizens. Moreover, the National People’s Congress is not a special constitution-making institution, but a constitutional institution that generates and exercises power in accordance with the provisions of the Constitution, and an absurd vicious circle has emerged: on the one hand, the National People’s Congress is a daily, ordinary [body]. The legislature (one of the branches of government) must be regulated by the Constitution in its production and operation; on the other hand, it is the creator of the Constitution and can make and amend the Constitution on its own. In this way, the National People's Congress is created by the Constitution and the Constitution, just like a person is the father and son of another person at the same time! Moreover, the Constitution was originally used by all citizens to bind to all government agencies (including legislative bodies), but if ordinary legislative bodies can formulate and amend the Constitution on their own, such a binding effect is completely lost.
In addition, the current "Constitution" on the one hand stipulates that "all power belongs to the people", and on the other hand it stipulates the permanent leadership of a single political party, which is also paradoxical: if all power belongs to the people, the people have no obligation to accept a certain [party]. The leadership of political parties; and if the people must accept the leadership of a political party, it is impossible to say that all power belongs to the people. Leadership above all power is like a stone larger than the largest stone, which is simply ridiculous.
If you don't consider the "Government Covenant" and the constitutions of the states of the United States under Cromwell's rule, the United States Federal Constitution is the first formal modern written constitution in human history. With the successful implementation of this Constitution, more and more people began to realize the role of the Constitution in restricting government power and guaranteeing the rights of citizens. Many countries have also begun to imitate the United States and formulate their own constitutions based on similar political principles. The country's constitutional system.
In this process, the "constitution" gradually became a very positive term, even those regimes that did not completely agree with modern political principles (these political principles are inseparable from the concept of modern constitutions), began to concoct Constitution "documents". The first thing to do in some authoritarian monarchies (such as Prussia in the nineteenth century): the monarch, as the supreme sovereign, gave the citizens a "constitution" that embodied the monarch's will. Later, some countries that monopolized all political power from a single party did the same (such as the former Soviet Union and the current North Korea): the ruling party imposed a "Constitution" reflecting the will of the party on the people, and stipulated in the "Constitution" its own permanent ruling status. These things are called "pseudo-constitutions" in professional constitutional science, because they just cover up the authoritarian regime that is incompatible with modern constitutions with the term "constitution".
Unfortunately, the current "constitution" of our country is a pseudo-constitution. The Constitution should be a manifestation of the political will of all the people who do not directly govern, rather than a certain monarch or a certain political party. One of the basic functions of the Constitution is to ensure the continuous production and replacement of the state power. It is to provide clear and stable principles and institutional frameworks for daily political competition and policy formation, thereby enabling peaceful domestic political competition and realizing the community.
Civilization of political life.
The Constitution is a means of legalizing political activities. Its role is not to eliminate political activities, but to regulate political activities, and make all kinds of political differences and disputes can be resolved or dealt with within the principles and frameworks recognized by all parties, so that governance based on reasoning can be implemented ( government by discussion). Under the constitutional framework, people no longer use force as a means to seize power. The losing party will not only be eliminated, but also have the opportunity to win back in the future. The principles and framework provided by the Constitution for the settlement of political disputes enable seekers of various beliefs and interests to experience a certain sense of commonality and belonging, thus helping to maintain the unity of the political community and continuously strengthen it. The unity and harmony of the whole society.
To do this, the constitutional constraints on the ruling power must be complete and comprehensive, that is, the entire process of the creation, operation, and replacement of the ruling power must be regulated. If a monarch or a political party can impose a "constitution" on a country and use the "constitution" to permanently monopolize political power, it means that they have mastered the power before the constitution, and they must have an organized armed force. However, in this way, their rule after the "Constitution" was formulated is not based on the "Constitution", but only on the use of force. Such a “constitution” simply cannot impose a thorough and comprehensive restriction on power, but it can only be the object of use, neglect, contempt, and arbitrary changes by those in power. Such a "constitution" is of course only a false constitution, but a pseudo-constitution.
Fellow deputies, just as you are not the real representatives of the people, the current "Constitution" is not a real constitution. It is not a fundamental law used by the Chinese people to create and regulate government power, but only an operation manual used by the ruling party to form and run its own power. We might as well do a thought experiment. If the Republican Party of the United States cooperates with the army, abolish the federal constitution and democratic system, and establish a one-party regime supported by the army and police that does not allow any political competition: (1) this regime can be ruler by continuously issuing special decrees; (2 ) But for efficiency and convenience, it can also formulate a "Regulations on the Formation and Operation of Republican Permanent Regimes"; (3) In order to make the regime look like a modern regime, it can also name this regulation "People's Republic of America" constitution". But who can deny that this so-called "Constitution" and the abolished US Federal Constitution are two fundamentally different things?
It is impossible for a country to modernize its political system and social governance through a pseudo-constitution. A politically modern country is one in which citizens ’rights are reliably guaranteed. But in our country, people are not only deprived of their right to participate in politics, they cannot freely elect government officials at all levels, and they also lack effective protection of property rights and personal rights. For example, the original completely legal private residential area, just because the government issued a new planning plan, turned into an illegal building that must be demolished overnight; the public authority can use the name of anti-crime to abuse the enterprise at will. Legal property; in some places, the government even forcefully and savagely removes the tombs of people ’s ancestors, or dismantles crosses in legally built churches ... Another example is that since the law petition system, petition should be a Citizen's Right, but the actual situation is that local governments often appoint interceptors to limit the personal freedom of petitioners; in recent years, more and more people have been summoned, detained and sentenced for making statements on the Internet; In many so-called "sensitive" cases, the parties are not only convicted by words, but even the right to normally entrust a lawyer to defend and obtain a public trial cannot be guaranteed ...
When citizens ’rights cannot be implemented through a true constitution and government powers cannot be constrained through a true constitution, people’s livelihood cannot be valued by the government. Although the government has imposed a very high tax burden on the people, the resulting fiscal revenue must first meet the needs of officials at all levels and be included in the private bag by all kinds of oversight, ways and means. In normal countries, social welfare expenditures in government budgets are given priority to people with financial difficulties, while in our country, they are given priority to those with power. In many places, the salaries of public servants are originally several times that of employees of enterprises, and they usually enjoy more generous benefits than the latter. The pension they receive after retirement is also several times the latter. Not to mention the shocking corruption and waste at all levels of government. The entire bureaucracy and civil servants are no longer like public servants serving the people, but more like monsters that devour social wealth without a bottom line.
The outbreak of the new coronavirus epidemic has caused great impact on the lives of people in various countries and brought great difficulties. Most people have not made psychological and financial preparations in advance. Under such circumstances, it is a common practice for elected governments in many countries to allocate some of the money from the finances at all levels to the people to help them overcome the difficulties. However, in our country, the government that shouts "ruling for the people" all day long does not want to do so. Why is this happening? Because it is too difficult for all levels of government and various government goalkeepers to get the fat out. Relatively speaking, it is easier to ignore the needs and demands of the people, because government officials at all levels are not elected by the people and do not need to seek the authorization of the people. Civil rights have not been implemented, but people's livelihood can be valued [taken/removed?] by the government. Such a situation has never been seen in China and abroad.
Since a modern constitution has not been established through a real constitution, China's social governance is still in a very backward state. The widespread corruption of government officials, the general lack of justice, the general deterioration of the natural environment, the repeated occurrence of food, medicine, and vaccine safety accidents, the excessively rapid rise in prices relative to the income of residents, the deficit and untrustworthiness in the field of social security, business increasingly difficult, and the increasingly difficult employment of urban and rural residents, including college graduates, have all seriously weakened the national happiness and security, and made everyone feel confused and anxious about the future. In my opinion, the root cause of these crises is the political system where power is monopolized by a few people. In this pre-modern system, the power of public officials lacks the minimum restrictions and constraints, which makes them abuse their power for their own self-interest and at the same time neglect to fulfill the vital interests of the public and even the safety of life. Irresponsibility, the widespread corruption of officials and the collapse of social governance have therefore become inevitable results.
The outbreak and spread of the epidemic can explain the problem very well. When responding to public health crises, full and timely information disclosure can help the public to make safe and reasonable behavior choices and living arrangements, so it is extremely critical to prevent the escalation of the crisis. However, the logic of information disclosure for responding to crises reasonably is completely opposite and incompatible with the logic of social control in pre-modern regimes. Judging from the existing public reports, the Wuhan local government not only concealed the epidemic from the public for a long time, but also severely suppressed citizens who disclosed the epidemic information. Since January 3, 2020, foreign affairs agencies have frequently notified the U.S. government of the epidemic, but the disease control department has not notified the people of the country at the same time: Such an irresponsible attitude towards the safety of the lives of their people is rare in the world!
On the other hand, for a long time after the earliest known cases appeared, there were few independent professional media to investigate and report on the outbreak, nor did medical professionals provide independent professional advice to the public. Neither did we see public welfare organizations play a role. This is not to say that China does not have good journalists, good doctors, or citizens who love public welfare; it only shows that the government's long-term tight control of society and people has almost completely destroyed the organization and self-help capabilities of Chinese society. In the 22 days before the closure of the city, Wuhan was still investigating and punishing citizens who had disclosed the epidemic (including Dr. Li Wenliang, who had unfortunately passed away), showing how tight and arbitrary the government's suppression of society is.
After the epidemic broke out in Wuhan, the local government's inefficiency, incompetence, and catharsis were also attracting worldwide attention. After the "closure of the city" in Wuhan, a large number of suspected patients could not be detected and effectively isolated in a timely manner, and a large number of actual infected persons could not be treated in a timely manner. When the frontline medical staff took great risks to fight the epidemic, the governments at all levels who usually brag about their achievements could not provide them with the minimum logistics support. During the duration of the epidemic, the governments of various regions took advantage of the neighbors' separatist "self-protection" actions and intercepted each other's materials; a large number of human rights violations occurred in various places; and countless humanitarian disasters throughout the epidemic area, which fully demonstrated: Both in terms of national construction and social governance, it was a complete failure.
At present, China urgently needs to replace the current extremely backward and unjust pre-modern regime with modern political regimes including national sovereignty, social autonomy, political party competition, decentralization, judicial independence, and press freedom to implement civil rights and guarantee people's livelihood, and realize the peaceful transformation of national politics and the modernization of social governance. This means that it is necessary to replace the current pseudo-constitution with a true constitution that reflects the political will of all the people.
Fellow deputies, although I cannot recognize your legitimacy as a people ’s representative [congress] based on my own political beliefs, I also believe that you have formed a de facto state authority, so you can start the national constitutional process for China. China ’s political transformation and modernization have made significant and historic contributions. Here, as a member of Chinese citizens, I would like to make the following suggestions to you:
(1) Although the National People's Congress is unjustified as a regular and ordinary legislative body, it can transform itself into a special body that initiates the country's political transformation, and the special body's main job is to formulate election rules and appointments, neutral and impartial election committee, and appoint the committee to organize free, universal and direct elections to produce a new national representative body. The representative body is the highest authority in the transition period (hereinafter referred to as "the highest transitional authority").
(2) The highest transitional authority has the right to form the highest administrative institution during the transition period, and appoint officials of the institution, as well as the necessary reforms to the judicial institutions at all levels.
(3) The highest transitional authority has the power to promulgate the necessary decree, complete the election of local representative institutions at all levels, and produce local administrative institutions at all levels.
(4) As soon as the highest transitional authority is born, it should create a broadly representative constitution drafting committee as soon as possible, and appoint the committee to draft a draft constitution that conforms to modern political principles. After the draft constitution is drafted, it should be submitted to the highest transitional body for voting. If the vote is not passed, it should be sent back to the Constitution Drafting Committee for revision. If the vote is passed, the national vote should be dealt with and implemented after the vote is passed.
(5) To create conditions for the election of the highest transitional authority, the National People's Congress as a special body should make a resolution to immediately release all political prisoners and prisoners of conscience.
(6) To create conditions for the election of the highest transitional authority, the National People's Congress, as a special body, should make a resolution to immediately open party bans and newspaper bans, allowing the people to freely associate and freely establish and operate news media.
(7) To create conditions for the election of the highest transitional authority, the National People's Congress, as a special body, should make a resolution stipulating that no political party can enjoy the status of a national public service institution and any member of the political party can no longer enjoy the treatment of a public official.
(8) When the supreme transitional authority meets for the first time, the National People's Congress as a special agency shall be dissolved. When the national representative bodies produced under the new constitution meet for the first time, the highest transitional authority is dissolved.
Distinguished delegates, when you start a meeting on the 22nd of this month, you can walk through the field as before and become a prop that only knows how to raise your hands. But you can also choose to face up to the various disadvantages and crises of our country, shoulder a major historical responsibility, and create a new political situation for your country, so that your country has a better future. If you choose to do this, you will not, like the previous irresponsible deputies of the National People's Congress, be completely obliterated in the long river of history, but will be permanently recorded in the history book as a great pioneer of China's constitutional system: your name will be permanently remembered by future generations, and your achievements will be permanently felt by future generations.
It is universally recognized that all citizens, not a certain person or a certain group of people, are the holders of constitutional power. However, any person or part of people who have their own thoughts and ideas about the constitutional arrangements of their country can submit them to all citizens for consideration and reference in a way that they deem appropriate. The individual citizens' right to make recommendations on constitutional affairs not only does not infringe the constitutional rights of all citizens, but is more conducive to the exercise and realization of the constitutional rights. Based on this consideration, I will submit the "Draft Constitution of the United Republic of China" (scholar's recommended draft) that I have compiled as an annex to this letter for possible reference. At the same time, the contents of the draft are briefly described as follows (If necessary, I can provide more detailed interpretation of the provisions):
(1) The "Draft Constitution of the United Republic of China" is abbreviated as "Eighteen Constitution Draft". In addition to the preamble, it is divided into "Basic Rights", "Congress", "President", "Court", "Constitutional Trial Committee", and "Electoral Administration" ”,“ Local autonomy ”,“ enforcement and amendment of the Constitution ”,“ other provisions ”and“ transitional clauses ”, a total of 133 articles. The draft takes full account of the actual situation in various aspects of the country, and draws on the strengths of the constitutional theory and practice of various countries and regions in order to not only respect and adapt to the reality of the country, but also strive to ensure the rationality and perfection of the draft itself.
(2) Under the premise of implementing modern political principles such as democracy, the rule of law, and decentralization, the draft respects and accommodates existing rules, practices, and administrative divisions as much as possible to avoid people having to accept and adapt to too many strange things at the same time. If some of the existing technical arrangements are not adequate and reasonable, you can wait for the operation of the new constitution to stabilize and then calmly improve it under a relatively mature constitutional framework.
(3) The draft adopts the country name of "United Republic of China" (which can be translated into United Republic of China) because the word "unification" can take into account the fact that the main body of the country has always adopted a single system and can accommodate different regions [and] different situations, especially the difference in relationship and authority between them and the central government. In the case of a new country composed of multiple originally independent political entities, the adoption of the federal system is a more appropriate choice; while in a country that originally implemented a single system, the rash use of the federal system is likely to lead to the relationship [breakdown] between the central and local. Disorder may even cause unpredictable political turmoil. In the latter case, the safer option is to strengthen and expand local autonomy while continuing the unitary system.
From the perspective of the constitutional practice of various countries, the distinction between federalism and unitary system has been relatively reversible: in the federal system, there has been a trend of strengthening central authority, and in the unitary system, there has been a trend of expanding local autonomy. The difference is getting smaller. The internal driving force and political principle of this trend are: within a constitutional framework of democracy and the rule of law, the distribution of various government powers will gradually become reasonable through continuous adjustments, thus making different powers gradually belong to the most suitable for exercising them [in different] levels and institutions. The expression in Article 72, paragraph 2, of the French Constitution exemplifies this principle: "For all matters that can exercise power in the best way at its level, local organizations have to make their own decisions."
(4) Regarding the superiority and inferiority of the presidential system and the parliamentary cabinet system, there is currently no research conclusion that can be generally accepted by the people. Judging from the political practice of various countries, different countries mostly choose between the two based on their historical traditions and reality. The draft adopts a presidential system, which respects traditional habits and national psychology, and also expects that the administrative branch of the government will maintain the necessary stability and efficiency in the future. The "presidential system" implemented in Taiwan, and the chief executive system implemented in Hong Kong and Macau, provide a relatively cordial and familiar reference resource for implementing the presidential system nationwide. In contrast, we Chinese are even more unfamiliar with and unsuited to the practice of the parliamentary cabinet system. However, while adopting the presidential system, a series of system settings stipulated in the draft can also constitute effective constraints on the power of the president to avoid a situation of personal dictatorship.
(5) A good constitution should of course conform to modern political principles such as democracy, the rule of law, and decentralization, but it should not only be a general declaration of these principles, but should be implemented and internalized into specific system design. And going [on] to the institutional setting. The draft pays special attention to the operability and normative role of the Constitution as the fundamental law of the country, so as to ensure that once the Constitution is implemented, people can follow the relevant provisions to form the necessary state organs smoothly, and can define their respective authorities more clearly.
(6) In the process of transition from the pre-modern system to the modern system, there will be many problems left over from history that need to be resolved. Dealing with these issues fairly and reasonably can win the approval and support of as many people as possible for the system transformation. Therefore, the draft has a dedicated chapter on "transition clauses" to ensure the smooth and smooth transition process.
(7) The most important point is that the draft particularly emphasizes respect and protection of individual rights. In today’s China, the general corruption of government agencies and the overall defeat of social governance are, from one perspective, due to the lack of restrictions and constraints on public power, and from another perspective, due to the lack of respect and protection of individual rights. In order to change the political tradition of not respecting individual rights, the draft first listed "protecting individual freedom" as the primary value of the existence of the new system and new government in the preamble, and then detailed the basic rights of the citizens in Chapter I. Article 1 of the draft also draws on the content of Article 1 of the German Basic Law, stipulates "respect and protection of human dignity" as an obligation of all state powers, and regards basic rights as laws that effectively restrict legislation, administration and justice. The German Basic Law particularly emphasizes the importance of human dignity and basic rights. This is not only a reflection on the massive violations and abuses of human rights by the Nazi regime, but also a vigilance and precaution against similar situations in the future. As far as the violation and abuse of human rights by state power is concerned, we Chinese have too many painful lessons, so it is also necessary to take special precautions against this.
(8) Finally, it should be emphasized that anyone who wants to find particularly novel content in this draft will be disappointed. Because, in the process of compiling this draft, innovation has never been the goal pursued by the editor. In order to compile this draft constitution, the writers not only examined the constitutional practice of the country since the end of the Qing Dynasty, but also studied the texts, theories, and practices of constitutions in nearly 30 countries. In order to learn from the experience and lessons of predecessors and other countries. Whether it is the overall structure of the entire draft or the specific provisions of each article, it is only trying to pursue the content itself to be reasonable, appropriate and safe. If there are provisions in the constitutions of other countries that are particularly well-prepared and fit the actual situation in China, the editors even prefer to copy them intact. As far as the compilation of this draft is concerned, the editor's main goal, or even the only goal, is to make it as close as possible to the practical needs of China in establishing a modern political system.
Fellow deputies, the above are my real thoughts on the current "Constitution", the current administrative system, the social status quo, and the best way for China's political modernization. Although I express my personal views in the most frank manner, I have no intention to offend anyone, nor do I want to impose my views on anyone. My opinion cannot be all right, it may be all wrong, more likely some are wrong, and some are right; but whether it is right or wrong, as a member of Chinese citizens, I treat myself to public affairs, Thinking about the results and submitting them to a group of people called "people's representatives" for review and reference should not be considered particularly inappropriate.
I sincerely wish you all good health and a happy life.
Attachment: "Draft Constitution of the United Republic of China (Scholar's Proposal)"
Draft Constitution of the United Republic of China (Scholar's Recommendation)
Based on the general principle that all state powers should come from the solemn entrustment of the nationals and be exercised by representatives formally elected by the nationals, and their interests should be shared by the nationals, all our nationals, in order to implement democratic politics, establish a country ruled by law and prevent autocracy and dictatorship. To form a stable and efficient government to protect individual freedom, enhance social well-being, maintain domestic peace, promote international peace, and specially enact the Constitution of the United Republic of China.
Chapter One Basic Rights
Article 1 Human dignity is inviolable. Respecting and protecting human dignity is the duty of all state power. Fundamental rights are the norms that effectively restrict legislation, administration and justice.
Article 2 The right to life, body and the pursuit of happiness shall not be violated. Personal freedom is inviolable. Intervention of such rights must be carried out in accordance with the law.
Article 3 Nationals are equal in law. In political, economic, and social relations, it is not allowed to be treated differently based on gender, race, belief, political opinion, birth place, origin, or property status. No one shall be discriminated against because of disability. Guarantee and promote equality between men and women. Nationals have the right to determine and indicate their national identity. No one may be forced to choose and declare his national identity. Respect and guarantee the equal status and rights of ethnic minorities. Respect, guarantee and promote the diversity of language and cultural life.
Article 4 Freedom of thought and conscience is inviolable. Freedom of religious belief is inviolable. The state respects and protects religious activities, but it shall not grant any privilege to any religious group. The state shall not engage in religious education and any other religious activities.
Article 5 Nationals enjoy freedom of speech and freedom to obtain information in the usual way. Guarantee the freedom of press and publication and the freedom of reporting in media such as radio, television, movies, and websites. Content review is prohibited in advance. For the legitimate purposes of protecting the reputation and privacy of young people and individuals, the rights stipulated in the preceding paragraph can be restricted by general law to guarantee freedom of art, research and teaching. Intellectual property rights such as patents, trademarks, and copyrights are protected by law.
Article 6 Nationals enjoy the right to peaceful assembly without arms. No prior application or approval is required for the assembly. Laws may be enacted or regulated and restricted in accordance with the law.
Article 7 Nationals have the right to form associations. The internal order of political parties must conform to democratic principles. Political parties must publish the status of their property and the source and use of funds. The law restricts the right of judges, active duty soldiers, police officers and policemen, diplomatic missions and consulates abroad to participate in political parties. The right of citizens to protect and improve labor and economic conditions is guaranteed. Agreements that restrict or hinder this right are invalid, and the measures taken for this are illegal. For professional groups that are professional or public, the law provides for mandatory establishment and mandatory entry into the system. It may enact laws or restrict and regulate the exercise of the right to strike in accordance with the law.
Article 8 Reputation and privacy are protected by law. Communication secrets are inviolable. This right can only be restricted by law. The house is inviolable. Not authorized by law, and holding orders issued in accordance with legal procedures and legitimate reasons, shall not enter and search the house, nor search or detain anyone ’s documents or articles, but when the owner, document or article holder agrees and arrests the current criminal except. Other necessary exceptions can be stipulated by law.
Article 9 Nationals enjoy freedom of movement. For public safety and welfare, or for the purpose of protecting minors, laws may be enacted or restricted in accordance with the law. Nationals enjoy the freedom to travel abroad, emigrate abroad, and renounce their nationality. The acquisition and loss of nationality are regulated by law. The reasons and procedures for restricting exit to protect the fulfillment of legal obligations shall be prescribed by law. The state protects expatriates residing abroad according to law.
Article 10 Nationals have the right to freely choose occupations and jobs. It may enact laws or regulate professional behavior in accordance with the law.
Article 11 The property rights shall not be violated. Protect property inheritance rights. The content and restrictions of property rights are prescribed by law. To the extent permitted by law, land and other natural resources can be privately owned. The conditions, methods, scope and restrictions on the use of land and other natural resources are prescribed by law. The exercise of property rights shall not violate the public interest. Property can only be expropriated when it is in the public interest and is properly compensated. The expropriation of property must be carried out in the manner prescribed by law.
Article 12 Nationals shall enjoy the minimum right to health and cultural life that is compatible with the degree of social development. Guarantee and promote social welfare and public health. The natural environment should be protected. The protection scope and methods of scenic spots, historical heritage and cultural heritage shall be prescribed by law.
Article 13 guarantees the citizens' right to education. Compulsory education is free. The right to open private schools is guaranteed. The establishment of private schools must meet the conditions stipulated by law and obtain state permission. The teaching purpose, teaching facilities and teachers of private schools are not lower than those of public schools.
Article 14 Nationals enjoy the right to work. The basic standards concerning wages, working hours, vacations and other working conditions shall be prescribed by law. All acts of child labor that are harmful to children's health and personality development and perfected are prohibited.
Article 15 Marriage and family are protected by the state. Marriage and family laws must be formulated on the basis of respect for personal dignity and equality of spouses. Raising and educating children is the right and duty of parents. Children born out of wedlock enjoy the same status and rights as children born in wedlock.
Article 16 The selection and removal of civil servants are the inherent rights of citizens. All civil servants serve all the people, not a part of them. Citizens who have reached the age of 18 must not be deprived or restricted of their voting rights because of their age. The elector ’s choice of voting shall not be held accountable in any way. If necessary, the right to be elected by public officials, public service employees, military personnel in service and judges can be restricted by law.
Article 17: Damages caused by civil servants ’illegal acts may, in accordance with the provisions of the law, request compensation from the state or public agencies.
Article 18 Nationals have the right to make peaceful petitions individually or jointly with others. No one should be treated differently for making such a petition.
Article 19 No one shall be deprived of the right to stand trial in the court. Only in accordance with the law can a court be established to hear specialized cases. No special courts or special courts may be established. The administrative organ shall not carry out the trial as the final trial. The jury system is prescribed by law.
Article 20 Without due process stipulated by law, no one shall be deprived of his life, freedom or property, and no other penalty shall be imposed. Anyone who is not found guilty by an effective court judgment is innocent. Before abolishing the death penalty, the law should stipulate that the death penalty as an extreme punishment measure is only applicable to serious violent crimes that murder the lives of others.
Article 21 In criminal cases, the parties have the right to defend themselves and to entrust a lawyer to defend themselves, to fully question witnesses, to use public funds and to seek witnesses for themselves by means of statutory coercion, and the right to a prompt and fair trial by the court . Except for being arrested as a current offender, no person may be arrested without an arrest order issued by the competent judicial authority and expressing the cause of the crime. It is possible to stipulate other necessary emergency arrest situations by law. In any case, the temporary detention before obtaining the arrest warrant shall not exceed 48 hours. The detained person shall not be physically or mentally abused. No one may be forced to make a statement against him. Forced, tortured, or threatened confession, or confession made in an illegal state of detention, shall not be used as evidence. Extorting a confession by torture is absolutely prohibited. No criminal responsibility shall be investigated for acts that were lawful at the time of implementation. Criminal liability shall not be repeatedly investigated for the same act.
Chapter II Congress
Article 22 The Congress is composed of the House of Representatives and the Senate and exercises national legislative power. Members of the House of Representatives are elected by universal, direct, free, equal, and secret elections. They are representatives of all citizens and are not subject to any entrustment or instructions. They exercise representative responsibilities only by their own conscience and judgment.
Article 23 The number of members of the House of Representatives shall not exceed 500. The number of members of the House of Representatives is distributed to all provinces, autonomous regions, municipalities and special administrative regions according to the proportion of the population, but each province, autonomous region, municipality or special administrative region should have at least one quota. The time limit and method for reallocation of parliamentary seats based on data obtained from demographic statistics shall be prescribed by law. The allocation of the first House of Representatives election according to this Constitution is as follows: 20 in Anhui Province; 12 in Fujian Province; 35 in Guangdong Province; 9 in Gansu Province; 12 in Guizhou Province; 24 in Hebei Province; 19 in Hubei Province; 13 in Heilongjiang; 3 in Hainan; 32 in Henan; 22 in Hunan; 9 in Jilin; 26 in Jiangsu; 15 in Jiangxi; 15 in Liaoning; 2 in Qinghai; 27 in Sichuan; 32 in Shandong Province; 12 in Shanxi Province; 13 in Shaanxi Province; 15 in Yunnan Province; 18 in Zhejiang Province; 16 in Guangxi Zhuang Autonomous Region; 8 in Inner Mongolia Autonomous Region; 3 in Ningxia Hui Autonomous Region; 7 in Xinjiang Uygur Autonomous Region; Tibet 1 from the autonomous region; 7 from Beijing; 10 from Chongqing; 8 from Shanghai; 5 from Tianjin; 1 from Macau Special Administrative Region; 3 from Hong Kong Special Administrative Region.
Article 24 For the purpose of the election of the House of Representatives, as long as it does not conflict with laws and resolutions passed by the Congress, each province, autonomous region, municipality and special administrative region may conduct constituency division and quota allocation within their respective jurisdictions. Congress may determine and change such division and distribution at any time by law or resolution.
Article 25 The House of Representatives election and the presidential election shall be conducted in the same year and shall be completed before the scheduled date of appointment of the newly elected president. The law stipulates the specific date for the first election of the new congress and the inauguration of the newly elected president.
Article 26 The term of office of the House of Representatives is four years and may be re-elected.
Article 27 Those who are under 25 years of age, who are citizens of their own country under seven years old or who were not elected residents of provinces, autonomous regions, municipalities directly under the Central Government or special administrative regions at the time of election shall not be members of the House of Representatives.
Article 28 The House of Representatives may elect and remove the Speaker and other staff members of the House, and may elect the provisional Speaker when the Speaker is absent from the meeting. The Speaker or Provisional Speaker does not have the right to vote, except when a proposal is passed by only one vote.
Article 29 The Senate is composed of two senators elected by each province, autonomous region, municipality directly under the Central Government and special administrative regions, and each senator has one vote.
Article 30 The term of a senator is six years, and he may be re-elected. Once the first members of the Senate elected in accordance with this Constitution meet, they should be divided into two groups with similar numbers as far as possible. The first group ends after three years, and the second group ends after six years, so that members can be elected every three years. Half of them.
Article 31 Those who are under the age of 30 and are not citizens of their own country for less than 9 years or who were not elected by the province, autonomous region, municipality or special administrative region when they were elected shall not be senators.
Article 32 The Vice President shall serve as the Chairman of the Senate. He shall have no right to vote except for the votes cast in favour of the senators present. The Senate may elect and remove other staff members of the Court, and may elect a temporary chairman when the vice president is absent or when he is exercising the presidency.
Article 33 If any member of the House of Representatives has a vacancy, the relevant constituency shall by-elect within 45 days after the vacancy occurs. By-laws and related matters can be regulated by law.
Article 34 No one may serve as a member of both houses. Members of the House of Representatives may not concurrently serve as administrative officials, judges or other public positions. Matters concerning the positions and conflicts of interest of members of the House of Representatives in the elections and appointments shall be prescribed by law.
Article 35 Members of both houses receive an appropriate amount of remuneration from the State Treasury in accordance with the law. Before the election of the new House of Representatives, any law that changes the remuneration of members of the House of Representatives from the two Houses of Parliament cannot take effect.
Article 36 Except as otherwise provided by law or as a current offender, during the session of the Congress, members of both houses shall not be arrested without the approval of their House of Representatives. Members of parliament who were arrested before the session should be released during the meeting at the request of their House of Representatives.
Article 37 The speeches and votes of members of the two chambers in the House of Representatives shall not be held accountable in any way outside the House.
Article 38 The two chambers each decide on a dispute concerning the qualifications of their members. However, to disqualify members of the parliament, there must be a resolution approved by a majority of more than two-thirds of the members present. The two chambers each formulate their own internal rules and rules of procedure, and may punish members of the parliament. However, expulsion of a parliamentary member must have a resolution in favour of more than two thirds of the members present.
Article 39 The two houses may supervise the work of the government and investigate specific matters in the work of the government, and may request relevant written materials, testimonies or confessions, and may also require witnesses to testify. The procedures for monitoring and investigating government work and other necessary matters are prescribed by law.
Article 40 When more than half of the members of the two chambers are present, they constitute a quorum for the work; when the quorum is insufficient, the meeting may be postponed, and the absent members may be forced to attend in accordance with the regulations and penalties of each chamber. In the deliberations of the two chambers, unless otherwise stipulated in this Constitution, the resolution shall be decided by the resolution of more than half of the members present. During the congressional meeting, one house may not adjourn the meeting for more than three days without the consent of the other house, and may not move the meeting place to another place. The procedures for convening the joint meeting of the two chambers, the scope of the proceedings and the effectiveness of the resolutions shall be prescribed by law.
Article 41 The meeting of the two chambers is an open meeting, but with the approval of a majority of more than two-thirds of the members present, a secret meeting may be held. The two chambers keep their meeting records, except for those in secret meeting records that specifically state that they need to be kept secret, they should be published in public and must be made public. At the request of more than one-fifth of the members present at the meeting, their votes must be recorded in the minutes of the meeting.
Article 42 Congress holds at least one regular meeting every year. The interim meeting shall be convened at the request of the President or more than a quarter of the members of any House. The President ’s request for an interim meeting should explain the reason and duration of the meeting. The duration of a regular meeting shall not exceed 120 days, and the duration of a temporary meeting shall not exceed 30 days. Allow the law to regulate matters related to regular meetings and ad hoc meetings.
Article 43 The draft law may be proposed by members of Congress, the President, and officials in charge of the executive branch of the President. The Supreme Court, the Constitutional Trial Commission and the Central Election Commission may submit draft laws on matters within their respective jurisdict