A Survey On Deprivation Of Political Right Based On The View Of Constitution

The 54th article of criminal law reads: deprivation of political right covers the following rights: (1) the right to vote and the right to stand for election; (2) right of freedom of speech, publication, meeting, establishment of a society, parade and demonstration; (3) right of working as a government officer; (4) right of being the leader of state-owned companies, enterprises, institution as well as people's group. Therefore, the practical criminal law makes a clear definition on the scale of political right. The 34th article in Constitution reads: every citizen of PRC who is not less than 18 years old has the right to vote and the right to stand for election, not taking his nationality, race, sex, profession, family background, religion, education background, property, residence limitation except for those deprived of political right by law. Thus, the scale of political right in criminal law does not conform to that of political right in Constitution. Apart from the right to vote and the right to stand for election in Constitution, the criminal law also covers right of freedom of speech, publication, meeting, establishment of a society, parade and demonstration; right of working as a government officer; right of being the leader of state-owned companies, enterprises, institution as well as people's group. As the basic law, Constitution is the basic system norm for regulating the basic system, maintaining the normal performance as well as assuring human right. The enacting and establishment of criminal law is based on Constitution. Therefore, it is important and necessary to make Constitution observation on political right in criminal law from the view of maintaining the authority of Constitution and assuring the human right.The author takes the view that the 54th article of existing criminal law disobeys Constitution. Firstly, from the point of the statement of article of Constitution, we can not infer that political right includes right of freedom of speech, publication, meeting, establishment of a society, parade and demonstration. Secondly, from the view of status of law, criminal law should not involve the regulation with larger scale than Constitution. Thirdly, from the trick of constitution, based on the important status of Constitution, no one has the right to make an arbitrary understanding of Constitution. Fourthly, from the aspect of constitutionalism, it disobeys the protection of the human right. Therefore, the author holds the view that it is not suitable to make the deprivation of political right cover the right of freedom of speech, publication, assembly, establishment of a society, parade and demonstration. There is no Constitution gist for taking right of freedom of speech, publication, meeting, establishment of a society, parade and demonstration as political right to deprive. The right of freedom of speech and publication does not mean the freedom of content of speech and publication. Deprivation of right of freedom of speech and publication will affect the realization of other rights regulated in Constitution. Right of freedom of establishing society is the embodiment of democratic politics as well as the insurance of that. Right of freedom of establishing society should not be included in deprivation of political right. Firstly, Right of freedom of establishing society is not only political right. Secondly, it is not practical to deprive right of freedom of establishing society. Thirdly, right of freedom of establishing society disobeys the regulation on the freedom of religion. The right of freedom of meeting, parade and demonstration should no be listed in deprivation of political right since: 1. right of freedom of meeting, parade and demonstration is not only political right but also the right related to politics. 2. From the enforcement of Constitution, deprivation of right of freedom of meeting, parade and demonstration has not the meaning to prevent the criminals from committing the crime again. 3. Deprivation of right of freedom of meeting, parade and demonstration does not conform to other regulations. China is still in primary stage of socialism and will be in this stage for a long time. With the achievement in the modernization of China, deprivation of political right does not apply to the development of socialism as well as punishing the criminals. Therefore, some changes should be done to deprivation of political right based on the times. Therefore, the author suggests that deprivation of political right should be replaced with deprivation of public right. The basic right of the citizens is innate, existing before appearance of Constitution. Constitution is the regulation for the realization of insurance of basic right of citizens. Therefore, in modern society in which ensuring the human right and punishing criminal are important, the 54th article in criminal law about deprivation of right of freedom of speech, publication, meeting, establishment of a society, parade and demonstration should be deleted. The right to vote and the right to stand for election are the basic democratic political right, which is the basis of participation in state management and exertion of right of the host. Through election, the citizens can participate in political life of the country to manage the state affairs. The right to vote and the right to stand for election are not only the effective approach to state management and society management, but also the effective approach to participation in kinds of social groups and organizations. The representative organ--National People's Congress and local People's Congress are voted through election. Therefore, the meaning of election is significant and holly. From the view of the right to stand for election, the people representative through election directly participates in the management of the country, exerts the right of managing the country and represents the right of people. The people representative should be loyal to the people, obey the law and rules and serve the people with the right endowed by the people. The political quality of the criminals deprived of political right does not meet the demand. Zhang Ganmei, a Taiwanese scholar said, the purpose of depriving the right to vote is to prevent the criminals from exerting the right to affect the divinity of election or to result in bad effect on election. Deprivation of the right to stand foe election of the criminals equals with the deprivation of being representative, public servant through election or the juror, assuring the credit of the people elected directly and maintaining the interest of the state and society. Therefore, the right to vote and the right to stand for election should be the core of political right.The third item of the 54th article in criminal law right of being the officer in government and the fourth item right of being the leader of state-owned companies, enterprises, institution as well as people's group are both included in the public servant to be elected in Chinese background. The public servant undertakes the effective management of the politics, economy and culture of the country based on the people's will and they should serve the people with whole heart. However, depending on certain qualification and status, some criminals do some illegal activities, damaging the prestige of the state authority, enterprises and social groups. For these criminals, deprivation of right of being the leader of state-owned companies, enterprises, institution as well as people's group is good for maintaining the purity of the public servants. Since the third term and the fourth one are the result of the deprivation of right to vote and right to stand for election and they listed separately due to the special situation of legislation, the author suggests to put them into right to vote and the right to stand for election.