Governing the country according to law must first adhere to the constitution.

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The Fourth Plenary Session of the 18th CPC Central Committee took "ruling the country according to law" as the theme for the first time, and clearly and comprehensively promoted the rule of law, built Socialism with Chinese characteristics’s legal system and built a socialist country ruled by law.

"Improve the socialist legal system with Chinese characteristics with the Constitution as the core and strengthen the implementation of the Constitution."

"To adhere to the rule of law, we must first adhere to the constitution, and to adhere to the rule of law must first govern according to the constitution."

"Improve the constitutional implementation and supervision system, improve the constitutional supervision system of the National People’s Congress and its Standing Committee, and improve the procedural mechanism of constitutional interpretation."

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The series of statements in the communiqué of the Fourth Plenary Session of the 18th CPC Central Committee are raising the full implementation of the Constitution to a new level, and have laid down a clear "road map" for comprehensively promoting and governing the country according to the Constitution, and then fully implementing the basic strategy of governing the country according to law.

党内重要文件首提“依宪治国”

党的十八届四中全会闭幕了，一张依法治国的新的“路线图”也由此展开。

“坚持依法治国首先要坚持依宪治国，坚持依法执政首先要坚持依宪执政。”这是新中国成立以来，中国共产党第一次在重要文件里明确提出“依宪治国”和“依宪执政”的概念。

著名法学家郭道晖对此格外看重。他和李步云、江平一起被学界尊称为中国“法治三老”，他说：“这是公报里一个重要的亮点，也是最高领袖总书记在几次会议上提到的。”

的确，当选中共中央总书记刚刚20天，最高领袖就在纪念现行宪法公布施行30周年大会上提出：“依法治国，首先是依宪治国；依法执政，关键是依宪执政”。今年9月他在全国人民代表大会成立60周年大会讲话中再次强调这一理念。

关注有关信息，多位专家认为，这次四中全会公报给出了一个明确的信号，只有推进依宪治国和依宪执政，才能将形式上的法治逐步上升为实质上的法治。

上海交通大学凯原法学院院长季卫东解读认为，对于党来说，依宪治国是一个要不要把统治建立在共识的基础上的问题，要不要履行对人民的承诺的问题，要不要使得整个法律体系不会发生矛盾、一以贯之的问题，更重要的是要不要保障人的基本权利。

Xiaomei Liu, an associate researcher at the Institute of International Law of China Academy of Social Sciences, believes that the leadership of the Party, the people being the masters of the country and the rule of law can form a platform by governing the country according to the Constitution, and the three can be unified under the Constitution.

Another expert explained that the life of law lies in its implementation, and the constitution is no exception. Without the comprehensive and effective implementation of the constitution, the goal of governing the country according to law cannot be truly realized. How the constitution is implemented can be regarded as a "yardstick" for governing the country according to law.

Insisting on governing the country according to the constitution still faces challenges and problems in concrete practice. Han Dayuan, a professor at the Law School of Renmin University of China, said in an interview with Xinhua News Agency that civil servants, especially some senior cadres, have a weak constitutional concept, a weak constitutional consciousness and a lack of constitutional self-confidence on issues related to the core values and interests of the country, which leads to confusion of social values, damage to constitutional authority, and the phenomenon that the society does not act in accordance with the Constitution from time to time.

Mo jihong, vice president of china law society Constitutional Law Research Association, thinks that governing the country according to the constitution mainly refers to the specific strategies and methods of governing the country according to law. Governing the country according to law means that under the leadership of the party, the people are the masters of the country and govern the country according to the law, and the premise is the leadership of the party, and the key point is to govern the country according to the constitution.

Mo jihong said that every piece of legislation put forward in the communique is in line with the spirit of the Constitution. If legislation is not based on the Constitution, the Constitution will be shelved. Therefore, the communiqué of the Fourth Plenary Session particularly emphasized the guiding role of the Constitution in legislative work. To govern the country according to the constitution, we should do a good job in several tasks: constitutional implementation, constitutional interpretation and constitutional legislation.

Improve the constitutional supervision system, and the unconstitutional review will be ready.

The communiqué of the Fourth Plenary Session of the 18th CPC Central Committee put forward: "Improve the system of constitutional implementation and supervision, and improve the system of constitutional supervision of the National People’s Congress and its Standing Committee".

This is the first time that the "constitutional supervision system" was written into the important document of the the Central Committee of the Communist Party of China Plenary Session after it was written into the 1982 Constitution.

"A timely investigation of unconstitutional acts is better than a thousand lectures on constitutional provisions and values." According to experts, during the 32 years since the "constitutional supervision system" entered the constitution, there has not been a constitutional review of a certain law, normative document or one of its provisions in China.

In this context, the new formulation of perfecting this system in the communique is particularly interesting. Among them, around "why should we implement constitutional supervision? Who will supervise? How to supervise? " Relevant experts made an interpretation.

"Without the supervision system, the constitution is a constitution without teeth." Li Buyun, a member of the Honorary Faculty of China Academy of Social Sciences, believes that "to establish the authority of constitutional laws, we must establish a constitutional supervision system."

Guo Daohui, on the other hand, said that some laws and regulations and red-headed documents that only take care of the narrow interests of the department and local area, but infringe on the interests of the whole and citizens, and some administrative laws and regulations are ultra vires and violate the legislative procedures in formulating procedures, which are essentially unconstitutional.

The top leadership of the country has noticed that unconstitutional situations exist in different degrees throughout the country. On the 30th anniversary of the promulgation and implementation of the current Constitution, when talking about the shortcomings and problems in the implementation of the Constitution, the Supreme Leader pointed out that "the main performance is that the supervision mechanism and specific system to ensure the implementation of the Constitution are still not perfect".

At present, there are two kinds of unconstitutional review systems in the world, one is the unconstitutional review system of ordinary courts, and the other is the unconstitutional review system of specialized agencies, the names of which are mostly constitutional courts or constitutional committees.

Articles 62 and 67 of the Constitution of People’s Republic of China (PRC) clearly stipulate that one of the functions and powers of the National People’s Congress and its Standing Committee is to "supervise the implementation of the Constitution".

To improve this system, people in the legal field have concentrated their opinions on setting up a special constitutional supervision institution in the National People’s Congress.

Some experts pointed out that a basic common sense of constitutional science is that the ruling of constitutional disputes by the subject of constitutional supervision and unconstitutional review must be legally binding on all public authorities in the country, otherwise the relevant ruling will not be a real constitutional ruling.

A representative idea is that, on the basis of the existing nine special committees of the National People’s Congress, a constitutional supervision committee, composed of members of the Standing Committee of the National People’s Congress and the most qualified jurists, can be set up to put forward opinions on unconstitutional review and report them to the National People’s Congress Standing Committee (NPCSC), and finally the Standing Committee of the National People’s Congress will discuss and decide.

"It is not of great significance to conduct an abstract review of the constitution, because it is unlikely that there will be a blatant violation of the explicit provisions of the Constitution." Ji Weidong believes that the unification of the legal system and the protection of human rights should be the two most important functions of unconstitutional review.

Improve the procedural mechanism of constitutional interpretation and make the constitution "live"

It is noteworthy that the Central Plenary Session with the theme of ruling the country according to law proposed to "improve the procedural mechanism of constitutional interpretation".

Ma Huaide, vice president of China University of Political Science and Law, explained: "This is a brand-new formulation, which puts forward specific requirements for the interpretation procedure of the Constitution. In fact, it is to make the Constitution’ live’."

"Many provisions of the Constitution are principled provisions and need to be explained in specific implementation." Mo jihong said that without constitutional interpretation, the implementation of the Constitution would fail.

Qin Qianhong, a professor at Wuhan University, believes that when the reform enters the deep water stage, there will often be "fights" between legislation and legislative and judicial interpretations. In order to unify the legal system, there must be a unified interpretation. No one can have the right to interpret the constitution, and everyone is a constitutional judge.

"In 1982, the Constitution was revised many times, which adapted to the development of the country and society to a certain extent. However, not all problems must be solved through constitutional amendment, and establishing a constitutional interpretation mechanism is one way. " Qian Hongdao, a professor at Zhejiang University, said.

Constitutional interpretation is considered as a shortcoming of the current rule of law construction by the legal circles. According to Article 67 of China’s Constitution, the first power exercised by the NPC Standing Committee is to "interpret the Constitution", but the National People’s Congress Standing Committee (NPCSC) has not exercised this power for many years.

Formulating the Constitutional Interpretation Procedure Law has become an important voice in the legal field in recent years, and some experts are committed to seeking the idea of "perfecting the constitutional interpretation procedure mechanism" on the basis of existing laws.

Focusing on the subject of constitutional interpretation, Wang Gongyi, former director of the Research Office of the Ministry of Justice, said: "We have a problem now, that is, replacing legal interpretation with a large number of judicial interpretations, and sometimes even replacing constitutional interpretation, which is not in line with the law."

Another jurist pointed out that under the current constitution and people’s congress system, it is absolutely impossible for ordinary courts (including the Supreme People’s Court) to interpret the constitution.

Focusing on activating the existing system or mechanism, experts suggest that the mechanism stipulated in Article 90 of the Legislative Law can be effectively linked with the constitutional interpretation.

Article 90 of the Legislative Law stipulates that five major organs may request constitutional review of regulations. These five organs include the State Council, the Central Military Commission (CMC), the Supreme People’s Court, the Supreme People’s Procuratorate and the standing committees of people’s congresses of all provinces, autonomous regions and municipalities directly under the Central Government.

The article also stipulates that citizens can also put forward suggestions for constitutional review to the National People’s Congress Standing Committee (NPCSC): "If they think that administrative regulations, local regulations, autonomous regulations and separate regulations are in conflict with the Constitution or laws, they can submit a written request for review to the NPC Standing Committee, and the working organs of the Standing Committee will distribute it to the relevant special committees for review and comments."

Lin Laifan, a professor of constitutional law in Tsinghua University, thinks that citizens can activate the "procedural mechanism of constitutional interpretation" with the help of individual cases, because this mechanism is closely related to citizens’ interests and has sufficient motivation to activate constitutional interpretation.

(In-depth news reporter Dong Lilong comprehensively reported by Xinhua News Agency, People’s Daily, Guangming Daily and other media)

be relevant

What does "the leadership of the party" express in the communique for 13 times?

In the communiqué of the Fourth Plenary Session of the 18th CPC Central Committee with more than 5,000 words, there were 13 times of "Party leadership". Experts believe that this shows that the rule of law construction in China aims at strengthening the leadership of the Party, rather than promoting the Western-style political system.

"The leadership of the party is the most essential feature of Socialism with Chinese characteristics and the most fundamental guarantee of socialist rule of law." This important concept was written in the communique for the first time, and it was put forward: "It is a basic experience in the construction of socialist rule of law in China to implement the party’s leadership in the whole process and all aspects of governing the country according to law."

Experts interpret that this is the first time to clarify the relationship between party leadership and governing the country according to law in the form of plenary documents, and to clarify the party’s position in governing the country according to law.

Ma Huaide, vice president of China University of Political Science and Law and professor of administrative law, believes that China has established the Communist Party of China (CPC)’s leading position in the Constitution, and upholding the leadership of the Party is the proper meaning in promoting the rule of law.

The communique pointed out that it is necessary to strengthen and improve the party’s leadership over the rule of law and implement the party’s leadership throughout the whole process of comprehensively promoting the rule of law.

"Implementing the Party’s leadership in the whole process of comprehensively promoting the rule of law" is interpreted by experts as four major responsibilities: leading legislation, ensuring law enforcement, supporting the judiciary and taking the lead in obeying the law. The relationship between "the leadership of the party" and governing the country according to law is clearly defined, from the concept declaration level to the responsibility level. This clarity itself is the adherence to the concept of governing the country according to law.

In the view of Chun Wong, president of China University of Political Science and Law and vice president of china law society, the leadership of the Party used to be mainly ideological, political and organizational, but we neglected that there is another kind of leadership, that is, the leadership of the Party is realized through the formulation and implementation of the Constitution and laws.

At the legislative level, in February this year, General Secretary of the Supreme Leader said at the second meeting of the Central Leading Group for Deepening Reform that all major reforms should be based on the law and ensure that reforms are promoted on the track of the rule of law. The person in charge of the research office of the the National People’s Congress Standing Committee (NPCSC) Legal Affairs Commission said that after the CPC Central Committee has made political decisions, it should first legislate and then implement them to ensure that all reform measures are carried out on the track of the rule of law.

Ruling by law requires both the party to govern the country according to the constitution and laws, and the party to govern the party according to the internal laws and regulations of the party. The communique further clarified that "leading cadres at all levels should take the lead in obeying the law, take the lead in handling affairs according to law, and must not exercise their power illegally, let alone substitute words for laws, suppress laws with power, and bending the law."

"Take the effectiveness of the rule of law construction as an important part of measuring the performance of leading bodies and leading cadres at all levels, and incorporate it into the performance appraisal index system, and take whether you can abide by the law and act according to law as an important part of inspecting cadres." Experts believe that this clear requirement of the plenary session will undoubtedly further improve party member cadres’ legal thinking and ability to handle affairs according to law.