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Constitutional Amendment: A Look Through Expert Eyes

The 13 proposed amendments to the 1982 Constitution have drawn nationwide attention. The volume alone is worthy of note: the number of proposed changes nearly equals those made over three previous rounds of amendments, in 1988, 1993 and 1999.


For a closer look at precisely how and why these proposed amendments are capturing so much attention, interviewed Professor Hu Jinguang, a legal studies expert with Renmin University of China, on the theoretical background and profound influence of the constitutional amendment on the development of Chinese society. The constitutional amendment has been widely regarded as a milestone in China's 25 years of economic reform and is thought to have far-reaching significance to the development of China's market economy in the future. Do you agree?


Prof. Hu: That is rather broad. In my opinion, among the 13 amendments, there are certain important points that will exert a significant influence on the nation's future.


First, the draft amendment incorporates into the Constitution "the important thought of 'Three Represents.'" The "Three Represents" pay special attention to some subjects beyond those contained in Deng Xiaoping Theory, and serve as an important guideline for the building of the Communist Party of China (CPC). The "Three Represents" have clarified the essential purpose of the CPC, whose building is bound to have far-reaching effects on the country and society. The incorporation of the "Three Represents" into the Constitution is conducive to ensuring that the CPC always represents the development trends of advanced productive forces, the orientations of an advanced culture and the fundamental interests of the overwhelming majority of the people of China.


Second, the draft amendment adds the concept of political progress. As was promulgated at the 16th National Congress of the CPC, political progress is underscored together with material civilization and cultural progress to contribute to coordinated development. Since the 16th National Congress of the CPC, in line with the spirit of political progress, the new Chinese leadership proposed some slogans and concepts, such as wielding state power for the interests of the people, or government for the people; promoting the transparency of policy making; and conducting government affairs according to law and regulated procedures.


Third, the draft amendment introduces the appellation, "builders of the socialist cause," aimed at correcting the prejudice against private entrepreneurs and individual proprietors. In the past, only workers and patriots were referred to in the Constitution, to some extent excluding this new social group in China. Recognized also as builders of the socialist cause now, naturally they should be included in the Patriotic United Front, and their contribution to the progress, stability and development of society should be equally acknowledged. What do you see as the highlights of this constitutional amendment?


Prof. Hu: Obviously, the most striking is to write human rights protection into the Constitution. This can be seen from several amendments that relate to the issue directly or indirectly. For example, one that directly relates to the issue is the clause about the right to property. As everybody knows, basic human rights comprise three fundamental parts: life, property and liberty. The existing laws of our country also have content relating the protection of property, but they are incomplete and by no means systematic. This amendment emphasizes protection of legal private property to a greater extent.


The other section that relates to human rights protection is the proposed clause that adds, "The state respects and protects human rights." The new expression is to be added to Article 33 of Chapter Two of the existing Constitution. In fairness, the 1982 Constitution made a complete statement relating to citizens' basic rights and freedoms. Nevertheless, given the dramatic social progress and further opening of the country, a broader definition of the basic rights and freedoms is talked about among the people.


Worth mentioning here is the fact that China joined two human rights conventions: the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights. Thus, it is becoming necessary for China to include these conventions in its domestic laws.


In addition, a proposed amendment to the Constitution replaces the wording "state of martial law" with "state of emergency." Essentially, the state of emergency relates to human rights protection. Without a sound mechanism to deal with emergencies, human rights may come under attack. The draft amendment says that "the state should encourage, support and guide the private sector of the economy, and supervise and manage the private sector in accordance with the law," which has become a focus of public attention. What effects will this amendment have on the development of the private sector?


Prof. Hu: Besides the private [jointly owned] enterprises and enterprises run by private citizens, the private sector also includes Sino-foreign joint ventures, cooperative businesses and exclusively foreign-owned enterprises in China. The constitutional amendment shows that since the reform and opening policy was adopted, the state has gradually realized the significance of the private sector to social development. The role of the private sector has changed from the original "complement to the public economy" as indicated in the 1988 amendments to the current Constitution, to an "essential part of the socialist market economy" in 1999. The draft amendment now proposes a supporting policy to help develop the private sector.


China used to guide, supervise and manage the private sector; under the draft amendment, the state will encourage and support the development of the private sector, while supervising and managing it according to law.


Then why does the draft amendment suggest in particular the state should encourage and support the private sector? The main reason lies in previous restrictions imposed on the development of the private sector due to traditional modes of thinking. For instance, in the past the private sector was restricted within certain limits in loan grants, taxation, imports and exports.


If the draft amendment is passed, a newly adopted supporting policy will give great impetus to the development of the private sector. The draft amendment also says "legal private property is not to be encroached upon," adding that "the state should protect private property and inheritance rights according to law," and "has the right to expropriate and requisition private property for the interests of the public in accordance with the law, and give compensation." What is the significance of these amendments?


Prof. Hu: These are of great significance. Although the 1982 Constitution stipulates the ownership of lawful income and lawful property, its provision is very simple and defects exist in certain aspects.


The first defect has to do with the concept of private property or right to private property. The existing Constitution includes the protection of private property in its General Principles instead of in the Fundamental Rights of Citizens. The amendment, however, clearly puts forward the concept of private property as a right and defines it as a fundamental right of citizens.


Second, the existing Constitution says that the state protects the right of citizens to own lawfully earned income, savings, houses and other lawful property, while the proposed amendment changes ownership into the right to private property. The two expressions have different connotations. Ownership is just an important element of the private property right. Besides ownership, a citizen enjoys other rights to his or her property, such as the right to possess, the right to use and the right to profit.


The third defect is related to the requisition of individuals' private property. The existing Constitution allows requisition of such property, but has no provision for compensation. Protection of a citizen's property should be a complete system. When the right to property suffers from encroachment or loss, economic compensation is a significant aspect of protection. Without compensation, property protection is incomplete. Compensation is vital to safeguarding the rights of citizens and social stability. The proposed amendment states that some properties of individual citizens may be expropriated or requisitioned in time of emergency, but the state will give appropriate compensation. The draft amendment changes the term "martial law" in Articles 67 and 89 of the existing Constitution into "state of emergency". What is the difference between the two terms? Why is it necessary to make such a change?


Prof. Hu: The enforcement of martial law referenced in the existing Constitution applies to three situations: riots, violence and conflicts. It is a state of control by military force in abnormal circumstances that involve military forces, violence or which are harmful to social order. But in reality, we are confronted by many other circumstances besides the types martial law targets, for instances, the SARS epidemic last year and bird flu this year. In these two cases, we could not enforce martial law in order to control the situation. "State of emergency" has a wider scope of application than "martial law," and therefore meets the needs of contemporary life. There is also a conceptual change from the "enforcement of martial law" to the "state of emergency." "Martial law" reminds people of the role by military forces while "state of emergency" gives the impression of finding a solution within the framework of a democratic system.


What's more, under a state of emergency, the state has to take extraordinary measures to handle urgent issues in order to restore social order. During the process, some provisions of the Constitution and other laws will probably stop working, which will accordingly affect the rights of citizens. For instance, in a state of emergency, citizens will lose the right to demonstrate that they usually have in accordance with the Constitution; when quarantine is required, the freedom of citizens will be restricted. When the state of emergency is legalized, there will be a clear-cut definition as to what rights of citizens are suspended and what rights of citizens can continue to be exercised under the state of emergency. The state of emergency clause is a powerful guarantee of human rights. Why is the term of office of grassroots People's Congresses extended from three to five years?


Prof. Hu: Two reasons. First, it facilitates consistency between the central and local levels when the election of People's Congress deputies is involved. Second, the term of office of the People's Congresses at the township, ethnic township and town level is too short. The deputies often have to face reelection when they've just gotten familiar with their work during their term. They are possibly being restricted from giving full play to their roles and capabilities. This does not help the work of grassroots People's Congresses. It also results in waste of human and financial resources. In my opinion, the amendment is based on consideration of China's reality.


(Professor Hu Jinguang is director of the Research Center for Constitutional Government and Administration by Law of the Renmin University of China, and law adviser for the Policy and Regulation Department of the Ministry of Education. He received his doctorate in 1998.)


( March 13, 2004)


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