National legislators will consider Constitutional amendments in March 2004, which grant the people more rights and liberties.
While many experts have been focusing on the specific provisions of a new Constitution, we would like you to pause and think about the amendments in the context of politics and political thought in China in the last 20 years.
No law grows up alongside trees, herbs or grass. Changing laws reflect social progress. Chinese people have seen their economic and political status elevated thanks to the market-oriented reform that originated in the late 1970s. People are now free to travel, trade, or even quit their jobs. None of these was possible before the reform. The pending Constitutional amendments are not manna from heaven, but recognition of these liberties.
Liberties forgotten are liberties dead, and vice versa.
In December 2003, the NPC Standing Committee convened a meeting to hear the proposal of the Central Committee of the Communist Party of China (CPC) on revising parts of the Constitution. According to the statutory procedure, the NPC Standing Committee will propose a motion for the Constitutional amendment and submit it to the Second Session of the 10th NPC in March for deliberation. This is the fourth revision of the 1982 version of the Constitution.
Most noteworthy points
Professor Xu Xianming of the China University of Political Science and Law said that with concepts such as the "Three Represents," political civilization and human rights being added to the Constitution, the values of the state would change.
With the important thought of the "Three Represents" put into the Constitution, the requirement of the CPC becomes more specified, said Xu. So long as the CPC adheres to the "Three Represents," it can consolidate its position as the ruling party; the missing of any of the "Three Represents" might lead to the loss of such position. As the requirement of the ruling party has become specific, the people are also able to judge the ruling party with specific standards.
The "Three Represents," put forward by Jiang Zemin, former General Secretary of the CPC Central Committee, in February 2000, states that "the CPC must always represent the development trend of China's advanced productive forces, the orientation of China's advanced culture and the fundamental interests of the overwhelming majority of the Chinese people."
Meanwhile, the addition of the concept of "human rights" to the Constitution indicates that human rights have become a value of the state. This change is seen as historic and it will become the fundamental standard for the work of government institutions. Accordingly, the people's concepts and relevant state systems, including the guidelines of legislation, will change. It also further clarifies the objectives of the ruling party's administration.
According to Xu Chongde, a Constitution professor at Renmin University of China, there are five particularly noteworthy points in this revision of the Constitution.
• The important thought of the "Three Represents" is the heritage and development of Marxism-Leninism, Mao Zedong Thought and Deng Xiaoping Theory. Therefore, it is necessary to put it in the Constitution as a guiding principle that the state must adhere to for long-term development.
• It is explicitly stated in the report of the 16th CPC National Congress, convened in November 2002, that new social strata emerging from the social evolution are all builders for the cause of socialism with Chinese characteristics. The addition of this spirit to the Constitution indicates that the state power is more consolidated and the coalition of the people's democratic dictatorship is broader.
• The "three civilizations," namely material civilization, spiritual civilization and political civilization, are added to the Constitution, indicating that pushing forward the "three civilizations" in a coordinated way is a major task of the state.
• The revision clarifies protection of privately owned property in terms of personal rights, private property right and individual ownership.
• The concept of "human rights" will be put in the Constitution, which is unprecedented.
Why the amendment?
Wang Zhaoguo, Member of the Political Bureau of the CPC Central Committee, explained the proposal of the CPC Central Committee on the Constitutional revision. He said the general principle for the revision is to write the important theories and guidelines determined at the 16th CPC National Congress into the Constitution, under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thought of the "Three Represents" and in an effort to carry out the spirit of the 16th CPC National Congress and demonstrate the basic experiences since the Fourth Plenum of the 13th CPC Central Committee in June 1989. Based on this principle, this revision is partial. Only those proven to be mature and necessary to be laid down in the Constitution are added, while those that can be interpreted through the current Constitution will remain unchanged.
Wang said that the Constitutional revision is a matter of significance in the country's political life and the CPC Central Committee has attached great importance to it. On March 27, 2003, the Standing Committee of the Political Bureau of the CPC Central Committee held a meeting to discuss and assign work concerning the revision. The meeting also determined the general principle for the revision and set up a special team that would carry out relevant work under the leadership of the Standing Committee of the Political Bureau of the CPC Central Committee. The proposal was formed more than six months later, after the opinions from all walks of life had been heard in the spirit of giving full play to democracy under the direct leadership of the Standing Committee of the Political Bureau of the CPC Central Committee.
According to members of the NPC Standing Committee, over the past two decades, the current Constitution has maintained stability while being improved in practice. It has played an important role in China's endeavor of reform, opening up and socialist modernization, as well as developing socialist democracy, pushing forward the process of governing the country according to law and making China a socialist country ruled by law, and safeguarding the fundamental interests of the broad masses of the people. Since the 15th CPC National Congress in September 1997, through the concerted efforts of the Party and people throughout the country, China has made historical progress in its reform, opening up and modernization drive. During the process, valuable experiences have been accumulated. Under the new circumstances, it is necessary to lay down these experiences in the state's basic law.
According to members of the NPC Standing Committee, as the proposal was formulated through more than six months of work, after earnest lengthy discussions, while extensively soliciting opinions from all walks of life based on the democratic spirit under the direct leadership of the Standing Committee of the Political Bureau of the CPC Central Committee, it integrates the Party's aspirations with the people's will, embodying the collective wisdom of the entire Party and all the people in the country. A revision of the current Constitution on the basis of the proposal will help strengthen and improve the Party's leadership, give play to the superiorities of the socialist system and mobilize the initiatives of the broad masses of the people. Meanwhile, it will also help safeguard national unification, ethnic unity and social stability and thus help promote the economic development and all-round social progress.
Procedure and debates
Opinion solicitation for the revision of the Constitution started in March 2003. Prior to that, the General Office of the CPC Central Committee had assigned special personnel for relevant research and gathered renowned specialists and scholars in April at a forum on the Constitutional revision. The CPC Central Committee also set up a special leading group for the revision.
In addition, the NPC Law Committee and relevant departments organized a group of people to do preliminary preparations for the Constitutional revision, while the Chinese Academy of Social Sciences (CASS), one of the State Council's think tanks, arranged relevant specialists to work on a research report concerning the revision. The China University of Political Science and Law, the Renmin University of China and other higher learning institutions also conducted research on the issue.
On June 6, 2003, NPC Chairman Wu Bangguo presided over a seminar, at which economists and law experts, including Wu Jinglian, Jiang Ping, Ying Songnian and Xu Chongde, aired their views on the revision of the Constitution.
A CPC Central Committee-held forum at Zhongnanhai, seat of the CPC Central Committee, followed this seminar on August 26-28. Leaders of all the democratic parties (political parties that acknowledge the leadership of the CPC and work in cooperation with it), and the All-China Federation of Industry and Commerce, and representatives of nonparty personages aired their views and suggestions on the Decision of the CPC Central Committee on Issues Concerning the Improvement of Socialist Market Economic System (version for soliciting opinions) and the Proposal of the CPC Central Committee on Revising Parts of the Content of the Constitution (version for soliciting opinions).
After the Third Plenum of the 16th CPC Central Committee in October 2003, the work concerning revision of the Constitution was transferred to the NPC.
During the process of soliciting opinions, experts debated on whether the Constitution should be revised or not, as well as the specific content to be revised.
Some experts were against the revision. They argued that the Constitution should maintain stability and should not be revised frequently. However, China has constantly revised its Constitution; the Constitution passed in 1982 has been revised three times.
But according to Xu Chongde, "Though China revises its Constitution more frequently than Western countries, it has got its own national conditions for doing so."
Some experts called for an overhaul, like in 1975, 1978 and 1982. They argued that the current Constitution does not reflect the reality of Chinese society and a major "operation" should be conducted on it.
Other experts, like Xu Chongde, advised that the Constitution should be revised partially. On one hand, it is necessary to revise the Constitution, and on the other hand, a partial revision will do, so as to maintain the stability of the Constitution. Chinese society is developing rapidly and some content of the Constitution, as the basic law, has failed to keep abreast with social development.
Concerning the content of the revision, experts also held varied views. For instance, on the issue of putting private property in the Constitution, while some members of the Chinese People's Political Consultative Conference vehemently backed the idea, Yu Quanyu from CASS was strongly against it. In his view, the concept of the "inviolability of private property" is outdated and private property is not absolutely inviolable.
Yu said, "I've consulted the constitutions of more than 10 countries, including Japan, Italy, the former West Germany and India. They are common on three points concerning the stipulation of property rights. First, private property should be protected, but private property is not inviolable, i.e. the property right is not absolute. Second, their constitutions set forth various limits on private property, requiring that private property should be subject to public interests and not infringe upon public interests. Third, when necessary, the government may, according to law, expropriate private property with compensation."
Some people stated their suggestions on protecting lawful property. Yang Weicheng, Vice President of the All-China Lawyers' Association, pointed out, "It is true that problems of this or that kind exist for the moment. For example, some people transfer capital abroad and then bring it back to China as foreign capital. Given this, the definition of private property is a prerequisite of protection according to law."
Professor Li Buyun at the Law Institute of the CASS noted that the CPC Central Committee is correct in its prudent decision of "revising major issues of great significance and leaving alone minor issues of less significance." He said that it would be difficult to revise many places at one time, simply because it takes time to reach consensus even on one matter.
He said that in China, usually the ruling party would revise the Constitution after one major meeting. Though some people complain that the revision is too frequent, it is necessary for two reasons. First, China has got its own characteristics and it takes time to realize democracy. Second, in the West, some ruling parties also write their program into the Constitution. The key is that during the process of revising law, especially the Constitution, the principle of democratic legislation must be observed.
Advance with the times
From the perspective of Xu Chongde, the revision of the Constitution aims to make it closer to reality so that it can keep in pace with the times.
He said that the main theme of the 16th CPC National Congress is "to build a well-off society in an all-round way and create a new situation in the cause of building socialism with Chinese characteristics." Through the revision, the theoretical innovations and strategic guidelines put forth at the 16th CPC National Congress can be reflected in the Constitution.
He noted that as the revision is partial, the overall framework and basic content of the Constitution would remain unchanged. The revision will adapt the Constitution to the new circumstances on one hand and maintain its stability on the other.
According to Yang Jingyu, a law expert who serves as a member of the NPC Standing Committee, the Constitution, as a country's basic law, should maintain stability. The stability of the Constitution means the stability of basic systems in the country, which is prerequisite for the country's lasting political stability. As the stability of the Constitution is the basis for the country’s stability, extra precautions should be taken for any of its revision, which should be conducted in a special procedure that is different from the revision of other laws.
The Constitution stipulates: "Amendments to the Constitution are to be proposed by the Standing Committee of the National People's Congress or by more than one-fifth of the deputies to the National People's Congress and adopted by a vote of more than two-thirds of all the deputies to the National People's Congress."
What principle should be followed in revising the Constitution? After the 13th CPC National Congress in 1987, when the leaders of the CPC Central Committee and the NPC Standing Committee discussed the first revision of the Constitution, they laid down two principles: First, the reform should abide by the law, while the law should serve the reform; second, revision of the Constitution is confined to articles that would hinder the reform if they are not changed, and articles would remain as they are where the revision is less significant, and some problems can be solved through interpretation of the Constitution. By doing so, the Constitution can maintain its stability and so can the country.
All the revisions of the Constitution henceforth followed the same principle and adopted the form of amendment, according to Yang. The three amendments to the Constitution total 17 articles, 15 of which are focused on the sections of Preamble and General Principles. The main content is as follows:
1. Establish the guiding position of Deng Xiaoping Theory in the country's political and social life;
2. Clearly state that China will be in the primary stage of socialism for a long time;
3. Confirm the basic policy of reform and opening up, which completes the statement of the CPC guidelines in the primary stage of socialism in the Constitution;
4. Improve China's basic economic system (with the public ownership as the dominant sector and diverse forms of ownerships developing side by side) and distribution system (distribution according to work is dominant and diverse modes of distribution coexist) in the primary stage of socialism;
5. Determine that rural economic organizations should adopt the dual operation system combining centralization and decentralization on the basis of household contract system;
6. Determine the legal status of non-public economic sectors;
7. Determine that the state adopts a socialist market economy;
8. Determine the basic strategy of governing the country according to law and making China a socialist country ruled by law; and
9. Determine that the multi-party cooperation under the CPC leadership and the political consultative system will exist and develop for a long time.
All these revisions made to the Constitution are on issues in relation to the country's development and long-lasting political stability. They reflect not only the self-improvement and development of China's socialist political system and socialist economic system, but also the deepening understanding of the Party and the people concerning the basic issue of what is socialism and how to build socialism.
Evolution of China's Constitution
The Constitution of the People's Republic of China (PRC), as the fundamental law of the country, has undergone three major amendments (in 1975, 1978 and 1982) and three minor revisions (in 1988, 1993 and 1999) since its first promulgation in 1954.
In the five years after the founding of the People's Republic in 1949, the country did not have a Constitution as then national conditions were not ripe for a general election and the convening of the National People's Congress (NPC) to formulate the Constitution. The Common Program of the Chinese People's Political Consultative Conference (CPPCC), adopted by the First Plenary Session of the CPPCC held September 21-30, 1949, was therefore taken as a provisional Constitution during that period.
The first Constitution of the PRC, formulated based on the Common Program, was adopted in September 1954 at the First Session of the First NPC. The "Party's general line in the period of transition," first put forward by the CPC in 1952, was accepted by the NPC and written into the Constitution as the basic task of the nation. The basic system established by the CPC and the basic principles and policies it formulated were also included in the Constitution, laying a foundation for the ensuing building of democracy and institutions.
On January 13, 1975, the Fourth NPC adopted the second Constitution of the PRC at its First Session. Streamlined from 106 articles in the 1954 Constitution to 30 articles, this Constitution was born in a special period in the PRC history—the Cultural Revolution (1966-76).
It stated, "Throughout this historical period [of socialism], there are classes, class contradictions and class struggle, there is the struggle between the socialist road and the capitalist road, there is the danger of capitalist restoration and there is the threat of subversion and aggression by imperialism and social-imperialism." Therefore, it defined the "theory of continued revolution under the dictatorship of the proletariat" as the guidance of the nation for the "entire historical period of socialism, stressing that "particular attention be paid to the class struggle every day, every month and every year."
On March 5, 1978, the Fifth NPC adopted China's third Constitution at its First Session. Though making lots of amendments to the 1975 Constitution, this 60-article Constitution was still defective in many senses.
It affirmed the achievements of the Cultural Revolution and still defined the "theory of continued revolution under the dictatorship of the proletariat" as a guiding thought. And, it still retained such stipulations as citizens having the right "to speak out freely, air views fully, hold great debates and write big-character posters" (also known as Si Da or Four Big), which damaged the democratic rights of citizens.
On December 4, 1982, the Fifth NPC adopted the fourth, or the current, Constitution at its Fifth Session. It defines the basic system and task of the nation and stipulates, "The people of all ethnic groups, all state organs, the armed forces, all political parties and public organizations and all enterprises and institutions in the country must take the Constitution as the basic standard of conduct," and "no organization or individual is privileged to be beyond the Constitution or the law."
Restoring the positive elements in the 1954 Constitution, this Constitution contains 138 articles and cancels the erroneous and confusing stipulations in the 1975 and 1978 Constitutions.
Amendments to the current Constitution
The current Constitution of the PRC was adopted and promulgated by the Fifth NPC at its Fifth Session in December 1982. Later, in light of the need of changing situation, the First Session of the Seventh NPC in April 1988, the First Session of the Eighth NPC in March 1993 and the Second Session of the Ninth NPC in March 1999, respectively, adopted some amendments to the Constitution. Altogether they made 17 revisions, with a fresh focus each time.
1988: Private sector of the economy
The First Session of the Seventh NPC adopted the first amendment to the 1982 Constitution, involving two revisions.
A new paragraph was included in Article 11, which reads, "The state permits the private sector of the economy to exist and develop within the limits prescribed by law. The private sector of the economy is a complement to the socialist public economy. The state protects the lawful rights and interests of the private sector of the economy, and exercises guidance, supervision and control over the private sector of the economy."
The amendment affirmed the positive role of the private sector of the economy by explicitly defining its status in the structure of the socialist public economy, thus exerting a tremendous influence on furthering the sound development of the sector.
The First Session of the Eighth NPC adopted the second amendment to the Constitution, involving nine revisions.
The most prominent revision was the change in the description of the basic task of the nation. It clearly defined that China "is in the primary stage of socialism,' and stipulated, "The basic task of the nation is to concentrate its effort on socialist modernization in line with the theory of building socialism with Chinese characteristics."
When defining the objective of the nation, the amendment used the statement of "turning China into a socialist country that is prosperous, powerful, democratic and culturally advanced" to replace the former description of "turning China into a socialist country with a high level of culture and democracy."
Another major revision this time was replacing the "planned economy" with "market economy" in Article 15.
1999: The rule of law
The Second Session of the Ninth NPC adopted the third amendment to the Constitution, involving six revisions. The inclusion of the description of the rule of law evoked a strong response in the public.
The revised Constitution explicitly stipulates, "The People's Republic of China governs the country according to law and makes it a socialist country ruled by law."
By making the rule of law the will of the nation, the amendment was of epoch-making significance.
(Beijing Review February 26, 2004)