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The Principle of the Constitution is the Principle of Human Rights

-- On the 60th Anniversary of the Germany’s Constitution
Overseas Chinese Democracy Coalition
May 23, 2009

Sixty years ago today, the Basic Law of the Federal Republic of Germany was promulgated and then came into force. Today is the 60th birthday of the Federal Republic of Germany. This year is also the 60th year of the People’s Republic of China. Since then, Germany under the democratic system has become more and more democratic. With human rights as its guideline, and relying on social fairness and social safeguards to resolve social disputes peacefully, the society of Germany has reached the most harmonic time in its history.

In comparison, the People’s Republic of China under the one party dictatorship of the Chinese Communist Party has moved to become more and more dictatorial than ever. The Chinese Communist Party uses violence to suppress the people, to persecute any dissidence. Social conflict in China has intensified. The society is displaying many disturbing signs that were repeated during the changes of the dynasties in ancient China.

At this time of the 60th anniversary of the birth of Federal Republic of Germany, the German society and its political circles are reflecting on its past 60 years, in an effort to carry forward the cause and forge ahead into the future, so its people can enjoy more of the human rights granted by the constitution. However in the People’s Republic of China, the Chinese government is only trying to put a false show of peace and prosperity, and more flesh and blood of the people will be consumed in this time of world economic crisis. In comparing the history and current reality of these two systems, we could benefit by many thoughts and inspirations.

The historic Germany was the typical feudalist country described by Karl Marx until the 19th century Prussia, when it became a country ruled by an emperor yet had its legal system designed after political reforms, including independence of the courts, freedom to choose professions, and local autonomy, etc. In 1919, Weimar Germany was founded which brought Germany into a republic. However, although the emperor was not there anymore, the emperor still existed in the peoples’ mind. The president established by the Weimar Germany’s constitution had such big powers (naming the chancellor, dissolving the parliament, issuing decrees, etc.), the president effectively became an “emperor”.

All sorts of malpractice by the democratic system of the Weimar Republic had the result that this young republic could not bear the backlash from the 1929 world economic crisis. Within a few years, two political parties that were anti-democracy and promoting violence – one the Nazi Party on the extreme right, while the other the Communist Party on the extreme left – turned the democratic system of Germany into a dictatorial system by the president. Finally the Nazis took over the power and moved to a totalitarian autocracy, which directly lead to the disaster of World War II. The constitutional committee established in 1948/1949 learned the painful lesson from the Weimar Republic and thus were able to depart forever from “a replacement emperor” by way of establishing today’s constitution.

This part of German history is really quite similar to the democratic road of China, especially the establishing of its first republic (the Republic of China), in both time and style. In 1911, the newly established Republic of China did not bring the Chinese peace; instead there were years of tangled warfare and scores of lives lost. Even before the May 4 movement in 1919, people had already realized that, despite China being a formal democracy, the president in people’s minds was just “a new emperor” with a different name. People were still hoping for a good emperor. Without realizing the concept of citizenship by each citizen in the Chinese society, the whole society could not become a real democratic society. So during the May 4 movement, people called out “democracy and science” as their slogan, yet was short in taking their responsibility.

Thus, unfortunately, this May 4 movement only left us a spirit. After 90 years, we the Chinese have yet to realize the dream of democracy. To the opposite, the current government is even more dictatorial than it was then. On March 18, 1926, when 47 people including some students, were killed during a protest, the then BeiYang government composed of warlords quickly responded by opening an investigation of these who opened fire. The head of State Duan Qirui immediately arrived on the scene, and knelt in front of the dead for a long time and afterwards become a vegetarian for rest of his life. In comparison, the June 4 massacre in Beijing where thousands students and citizens were murdered has gone 20 years, yet the Chinese Communist government not only did not start a criminal investigation of these murderers, it did not even publicize the truth of this massacre. Back in 1926, the schools of the students killed could hold memorial activities and publicize their memorial articles, such as the well-known ones written by Lu Xun, Zhu ZiQing and Lin YuTang in memory of Ms. Liu HeZhen, etc. Yet nowadays, the Chinese Communist Party dares to arrest and persecute all the people who try to organize and participate in memorial activities for the victims who died in the June 4 massacre.

Some people claim that the reason that China does not realize the protection of human rights is because China lacks a human rights tradition. As a matter of the fact, the Germany that realized the protection of human rights did not have human rights traditions either. Just the opposite: because its people suffered extreme human rights abuses during the Nazi period, after the Nazi period they learned their lesson. The Basic Law of Germany has become the best example for a human rights constitution. From the initial draft of this constitution, people wrote at its beginning: “This country is to be built according to the will of the people, not to have people exist to realize the will of the country.” In comparison, the constitution of the People’s Republic of China has its purpose not to protect human rights of the Chinese people, but to kidnap China along with the Chinese in an effort to realize one ideology (so called “socialism”), and to maintain the existence of one dictatorial government by insisting on the leadership of the Chinese Communist Party. Later on, the German Constitution Committee finalized its language for the first sentence of Article 1: “Human dignity shall be inviolable. (Die Würde des Menschen ist unantastbar.)” Regardless what kind of system the country shall use, there is one principle we must hold: Human dignity shall be inviolable, the basic human rights shall not be exploited.

The first 19 articles of the German constitution are to define various protections of human rights. Thus, all the detailed laws following are effectively the extension and detailization of the human rights contents of these 19 articles. Here we list a few examples: to build social safeguards, to assure that the poorest people of the society are still able to maintain their basic dignity as humans; to establish student assistantships to enable the children of poor families to gain free academic development despite their family financial limitations. Any law that is enacted by the National Parliament of Germany (Der Deutscher Bundestag) can be overturned by the Constitutional Court if it is found to be in conflict with the human rights content of the first 19 articles of the Basic Law. This Constitutional Court is independent from both the government and the parliament. This Constitutional principle places “human rights above democracy”. It also reflects the spirit of modern international laws of “human rights above the sovereignty”. From it we could conclude that, exactly because the Chinese people suffered the most serious human rights abuses both historically and in the current time, when China becomes democratic the Chinese people will detest human rights abuses (such as “literacy inquisition” since the ancient times) more than people of other countries. The constitution of a democratic China will likely emphasize more human rights protection than that of any other country.

However, despite that there are such strict definitions for human rights protection in the German constitution, the parliament can still change the constitution by a majority vote greater than 2/3 (the common laws only need a simple majority). When the Weimar constitution was drafted, no one pictured that the Nazis would come to play a decade later. To prevent the dangers of deterioration of the constitution from the root, the constitution established “the forever articles.” Even with a unanimous vote in the German Parliament, the following two articles shall not be changed. One is article 1, which started with “Human dignity shall be inviolable”. (Die Würde des Menschen ist unantastbar.) The other is article 20: The Right of Resistance, which defines that all state authority is derived from the people, and is exercised by the people through elections and that the legislature shall be bound by this constitutional order. In particular article 20 also states that the people “shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available. (Gegen jeden, der es unternimmt, diese Ordnung zu beseitigen, haben alle Deutschen das Recht zum Widerstand, wenn andere Abhilfe nicht möglich ist.)”

As a matter of fact, peoples’ rising up against tyranny is one of the oldest basic human rights of human history. For examples: At the end of the Qing Dynasty in China, the peasants rose up against the tyranny of Emperor Qing ShiHuang; in the classic legend stories of “Shui Hu”, Wu Song and Lin Chong were driven to revolt to the Liang Mountain, and are praised as heroes in the moral courts of the people. These examples are the affirmation of peoples’ “right of resistance” by the Chinese history and Chinese culture, and also a prove that Chinese peoples’ human rights conscience really surpasses many countries in Europe and America. The German Constitution took a lead in the world and directly state that people have the “right of resistance” in the constitution. This happened in Germany, a country that suffered through severe human rights abuses. Therefore, we could imagine that a constitution of a democratic China shall also give all the Chinese people the right to protect human rights, to resist the tyranny, and thus the right of revolt. The Chinese have the tradition to rise against tyranny, and also have suffered the most unprecented and unrepeatable abuses by the Chinese Communist regime.

“Human rights” is not just an ideology. The content of human rights is distributed in every field of our social lives. Without human rights, it is impossible to realize social justice and social safeguards, even less possible to realize a harmonic development of the society. A country without human rights protection, despite having the dissident voices suppressed and people’s resistance to violence carried out in bloody suppression, still cannot resolve its social conflict. Behind the facade of prosperity, the hidden social conflict and social crisis only gets more severe. Should the crisis explode, it would affect the whole society and even expand into a world wide human disaster, a turmoil possibly crueler than World War II. This is the current situation in China that we all must clearly be in recognition of. To push China toward democracy and to protect human rights is not just the sincere wish of the Chinese people, but also the basic guarantee of world peace.

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