Prof. Li Buyun Talks about Constitution
China Reform: This year is the 30th anniversary of the 1982 Constitution;you participated in its formulation, and put forward many important suggestions.
Li Buyun: From July 1980 to July 1981, I was temporarily transferred to work in the Research Center of the Secretariat of the CPC Central Committee. After I reported for duty, the first task for me was to draw up the text of the speech for the first session for Ye Jianying, chairman of the Constitution Amendments Committee.
In the text of the speech, I put forward two principles: one was democratic legislation, and another was judicial independence. The text of the speech was adopted without big revisions. These two principles have been recovered in the 1982 Constitution.
My substantial suggestions for the constitution amendments were mainly put forward in the 10 articles successively published on People’s Daily in November and December 1981. For example, I suggested that the item of “those who have the nationality of the People’s Republic of China are all citizens of the People’s Republic of China” be written in the Constitution. Many people who were formerly not regarded as Chinese citizens gained their due legal personality.For the structural arrangement for the Constitution, I suggested that “the Rights and Obligations of Citizens”be put in front of the paragraphs of state institutions. Thereby it indicatedthat the people are the master of the state, the state institutions are generated by the election of the people, and they serve the people.
China Reform: People all say that in the Chinese Constitution, there are many regulations that are beneficial for democratic rule by law have not been practically implemented, how do you see this problem?
Li Buyun: In China, we have a Constitution,but it is not perfect; it basically inflects our current situation, but it has not reached the ideal status. We not only need a good Constitution, but also require the full implementation of it,making it possess great authority and making the basic principles that it embodies be realized.
There are three major basic principles for modern Constitutions; I summarize them as democracy, rule of law,and human rights. These are also the four factors of being in power with the Constitution as the basis that I put forward: democracy, rule of law, human rights, and Constitution as the supreme. Among them, the first three are the substantial content, the fourth item of the Constitution as the supreme, that is, the Constitution shall have supreme authority, and this is the form element.
We should persuade people not to fear, and there is no need to be afraid. Only by holding the flag of Constitution being supreme high, can a ruling party maintain its position and a nation may realize the great rejuvenation.
China Reform: The Constitution is called “the guarantee of human rights”. At present are there any shortcomings for the guarantee of human rights in the Constitution?
Li Buyun: In my opinion, the shortcomings for the guarantee of human rights in the Constitution mainly include: in political rights and freedom, like the right to know, freedom of expression and freedom of the press etc. of citizens,some have not yet been confirmed, some lack operability. In the aspect of personal freedom right of citizens, the migration and citizens’ right of free migration has not been confirmed. In the aspect of social and economic rights,it lacks the special protection regulations for the poor. In the aspect of environmental right, the environmental right has not been introduced into the Constitution as a basic right for citizens.
China Reform: In China, for the realization of the rule of law, an important factor is how to deal with the relationship between the Party and laws.
Li Buyun: The Party organization must act within the scopes of the Constitution and laws, and the Party shall not replace government and laws. This is a key link for China to build a legal state. The opinion that the Party’s status will be more stable by grasping more power is totally wrong.
China Reform: You’ve said that it will take 30 to 50 years to realize the rule of law. Does it need such a long time?
Li Buyun: Viewing subjectively, the speed of such a historical progress will depend on the foresight and courage of politicians, on the sense of the responsibilities and conscience of legal practice workers, on the independent characters and courage of jurists, and also on the political awakening andactions of the nationwide vast masses of the people.
In 1987, when I answered the questions of Mr.Louis Henkin, a famous US jurist, I was optimistic for China’s democracy and rule of law, there are four reasons:
Firstly, democracy, rule of law and human rights are the common fundamental interests and wishes of all Chinese people, any Party can’t be against the people’s will.
Secondly, the market economy is irreversible and will certainly bring profound changes for our ideas and social system.
Thirdly, the progress of opening-up to the outside world is irreversible. China has already connected with the world, it’s impossible for turning back.
Fourthly, all levels of our future leaders will be much younger.With wider vision, they have less and less historical burden. In this sense, Iam an optimist, and I believe no one could stop China’s grand historical trend of going toward a nation of laws.
Excerpts from the journal’s interview with Prof. Li Buyun
