Once-taboo human rights now in Constitution

• Source: Global Times
• [22:33 October 13 2009]
• Comments

NFC: Preserving human rights is highly valued in China's Constitution and laws, but the implementation is less than satisfactory. Why there is such a contradiction? How to resolve the problem?

Guo: China's Constitution and laws have reached a high point of preserving human rights. However, in practice there remains a long and hard way to go.

It must be made known that the Constitution is not only the general rules for running the country, but also a contract between the people and the government that preserves civil rights and restricts the government.

Moreover, besides natural-born citizens, the Constitution should also preserve the rights of foreign nationals, refugees, migrants and stateless persons.

In an era of globalization, a Constitution that only protects natural-born citizens is just an exclusive and ultranationalist Constitution, not a real republican and open one.

According to the principle that freedom means no prohibition by law, people enjoy the rights that are neither recognized nor forbidden by the Constitution and laws – unenumerated rights.

This is why the US's Bill of Rights (the first 10 amendments to the US Constitution) states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

It's a pity that China's Constitution does not recognize the unenumerated rights of citizens. On the contrary, it grants such rights to organs of State power and the State Council.

The bias stems from power-orientated concept. The government takes the Constitution just as the general rules for running the country, but not a contract with its people.

NFC: Many scholars appeal for China to create a mechanism whereby laws and regulations can be reviewed for their constitutionality. What's your opinion?

Guo: The need for such a mechanism is imperative. When I worked at the Legislative Affairs Commission of the NPC, I noticed that although the Constitution states that the Standing Committee of the NPC has the right to annul any laws, regulations and decisions run against the Constitution, once case arise, the Standing Committee just notifies the involved departments in private. There is no such a legal mechanism.

The review of constitutionality is mainly aimed at the government and the Party, and unconstitutional acts are usually carried out by grass-roots organizations of the Party and government.

The Party must obey the law, namely, it cannot regard the country as its tool – on the contrary, the Party is the people's tool, nor can it regard its powers as higher than any other powers.

The people's support is the very foundation of a ruling party's political advantages.