Make For Constitutional Government

The study of constitutionalism has not been fulfilled until the Chinese reform and openness, but its limitations are evident so far. This paper tries to manifest the difficult experiences towards constitutionalism since chinese modern times and the changing senses of constitutionalism by way of comparative researches between chinese and western development of constitutionalism. The paper covers introduction part and another five chapters. In the introduction part, it emphasizes on the democracy of constitutionalism. Firstly, constitutionalism is the product of politics and philosophy, for the primary task of politics and philosophy is predicated on the focus of rights, justices, fairness and procedures, etc. Secondly, because some patterned principles cannot explain the essence of constitutionalism, only a certain kind of spiritual pursuing, it can't be solely compiled in some file or code. It doesn't lie in the fact that it regulates the structures of government, but that its aim is to value every member as a political being and to guarantee the real autonomy. In maintaining the self-respect and self-value, "selfness "is the key point. Hence, it is a departure from the constitutional essence to judge whether the constitution is real or not from these aspects: whether or not there exists such code; whether or not such code is institutionalized; whether or not such code is carried out by legal professionals. The first chapter deals with the history and evolution of western constitutionalism, which includes three sides: constitutionalism is the highest level and final destination of democracy, which is set down by the inner elements of constitutionalism; the course of development of western democracy. It originated in Greece democratic model, which is the most direct and widespread, each citizen is entitled to extreme equality, and then developes into republicanism, which is the embryonic form of constitutionalism. It holds that if a government stands for all the people, it is called republic government and it is legal. In this sense, people and government is the same thing. So we can find that classical republicanism really hints certain main idea of modern representative system and democratic theory, at least it defines the government and people. Almost at the same time, democracy appeared and finally took the position of republicanism, developing into the heart of western constitutionalism. Its contribution to constitutionalism lied in the ideas of the division of authority and the practice of representative system. Based on the very concept of freedom, in 20th century, constitutionalism mainly had two streams---political leadership and pluralism, which not only tally with western democratic realities, but also possess mature theoretical system. Its stem remained stable, though criticized from all the fields. Thirdly, freedom, equality and justice are the essence of western democracy and perform a major role in constitutionalism. Chapter Two is involved in the origin of modern constitutionalism. In the first place, it introduces the input and transmission of western democracy and constitutionalism towards the end of Qing Dynasty, focusing on the Three Principles of the People by Dr. Sun Yat-sen, the New Culture Movement around the time of the May 4th Movement in 1919 and the failure of western constitutionalism in China. It tries to illustrate that any democracy is concrete and historic. Western constitutionalism is doomed to failure because in China because its development has drifted off the basic ideas of constitutionalism. China keeps pursuing constitutionalism. In the first half of 20th century, Chinese communist party came on stage. She, closely related with Chinese situation, put forward new democracy and put it into action in practical route,which greatly propeed l the growth of constitutionalism. Several other points are also mentioned in this chapter: New democracy gets developed in spite of its limitations; revolutionary democracy is the central point of new democracy; the lessons from new democracy. With the establishment of People's Republic of China, socialism came into being. Constitutionalism experienced a winding course. People's democratic dictatorship became the social constitutionalism. Since dictatorship easily leaded to autocracy, there appearsed "holistic dictatorship", "mass dictatorship", a kind of misunderstanding of democratic dictatorship, which finally caused so-called culture rev0lusion, a disaster in the path of democracy. After the 11th National People's Congress, the third meeting, our party comes to have a re-acknowledgment towards constitutionalism, proposing "without democracy, without socialism"which is guaranteed by principle and law with the influence of 16th National people's Congress. Mass interests are valued high within the government. All the actions are around Chinese people, and vice verse. Mass interests consist of economic, political and human rights of every member. Our party combines the construction of democracy and whole development of human being together, paying more attention to the inner and holistic development. Our party depends on Chinese people, not only on surface, but on actual content——human-center ness. Chinese democracy is no longer a means to achieve political end, but an independent political element and a realization of political rights for every citizen. Only at this time, can democracy in China become constitutionalism. So far, there are still two cons about future constitutionalism in China. One is the needed principle, and another is the judicature of constitutionalism constitution. As for principles, we should absorb western democracy and freedom, because constitutionalism is based in constitution and constitution is the demonstration of constitutionalism. The relationship between constitutionalism and constitution is determined by the fact that constitution must be very authoritative. A constitution has to be connected with people'sdaily lives and basic benefits, and then it can be regarded as a law, which can't be realized without judicature process. Any action and behavior, which are against the constitution, must get punished in order to ensure that constitution is truly impressive; any right given by constitution is supposed to be fulfilled in the process of judicature in order to ensure that this kind of right is meaningful; otherwise it's like a painted cake. On this aspect, setting up "constitutional committee", though an exotic novelty, is necessary. Chinese 100-year history, to some extent, is a constant seeking history for constitutionalism. No wonder that 20th century is a century of constitutionalism. But, whether the spirit of constitutionalism and constitution is far-reaching and influential needs our careful thinking. We still have a long way to go towards true constitutionalism, maybe several generations'efforts.