The word "private" has long been a matter of attention and the
focus of debate among politicians, scholars, and the general public
over its place in society.
But now, the near certain revision of China's Constitution,
specifying the inviolability of private property through law, among
other things, will put a final punctuation mark to the debate
surrounding the word and the social concepts that tag along with
it.
Yet China will still have a long way to go to fully protect
private rights.
"Even if the constitutional amendment is passed without problem
at the plenary meeting of National People's Congress (NPC),
there will still be a lot of work to be done, such as adjusting
laws and regulations, to ensure the implementation of an amended
constitution in society," said Cai Dingjian, a senior legal
researcher with the standing committee of the NPC, China's
legislature.
Members of the Standing Committee of the NPC passed the draft
amendments to the Constitution in Beijing on Saturday. The Central
Committee of the Communist Party of China (CPC)
proposed the draft.
The amendments will be handed over to the second annual session
of the NPC in March?this?year for final approval.
The concepts embodied in the "Three Represents" are also to be
written into China's constitution, along with amendments to
safeguard the ownership of private property.
The proposed revision on private property protection puts
private assets of Chinese citizens on an equal footing with public
property, both of which are "not to be violated."
This is a natural result of China's social and economic
development in recent years, said Lian Xisheng, a renowned legal
scholar with China University of Politics and Law.
Lian was former vice-chairman of the China Constitution Society,
and he has participated in the process of constitutional
amendments.
But such amendments are by no means easily achieved. According
to Lian, before the constitutional amendment in 1999, many legal
scholars had appealed to add the article on the inviolability of
private property, but the proposal was eventually abandoned due to
strong opposition within the CPC.
Following the founding of the People's Republic of China in
1949, the word "private," and such terms as private interests,
private property, and private concerns, became targets of
attack.
Chinese people over 50 years of age still clearly remember the
old slogans like: "Destroy the word private whenever it
appears."
China's reform and opening-up, which began in 1978, loosened the
strict social and economic controls exercised by the state and
produced millions of private entrepreneurs or capitalists. However,
for a rather long period they could only be called
"minying" (citizen-operated) enterprises, not private
enterprises.
"However, the practice of encouraging the private sector of the
economy but avoiding reference to its existence in ideology and the
law no longer sits well with the rising private sector," Lian told
China Business Weekly.
Many private entrepreneurs feel their assets might be subject to
state takeover or control, if they have not been given legal status
in the Constitution, Lian added.
The concepts embodied in former president Jiang Zemin's "Three
Represents" indicate that the CPC is not only the vanguard of the
working class but also the representative of the basic interests of
the majority of the people, and Jiang's call to allow eligible
private entrepreneurs to join the Party, eventually led them to
enjoy equal status with the working class.
So enshrining the "Three Represents" in the opening section of
the Constitution is in no way bowing to dogma, Lian said.
Mao Yushi, a famous economist with the Beijing-based private
Institute of Unirule, said that what the private property amendment
in the constitution will protect is far more than just private
capitalists or entrepreneurs.
According to Mao, China's private assets had surpassed 11
trillion yuan (US$1.33 trillion) by the end of 2002, exceeding
state assets by about 1 trillion yuan (US$121 million).
Most of these private assets are not owned by private
entrepreneurs but by common citizens.
Common citizen's assets need more protection in the constitution
because their right to hold their own assets is more likely to be
infringed upon by public power and the rich, Mao said.
A typical public infringement of private property rights is the
forcible relocation of urban and rural residents in the process of
developing real estate projects or the construction of economic
projects.
Millions of urban and rural residents have been forced to leave
their homes with inadequate compensation.
To address this problem, the proposed constitutional amendment
adds, "the state should give compensation" to the original
stipulation that "the state has the right to expropriate urban and
rural land."
In China, urban land belongs to the state while rural land is
legally stipulated as being collectively owned, which in practice
means that it is owned by township governments.
However, legal scholars argue that residents' housing on
state-owned land should also be compensated for as private property
at a market-based price.
"The new stipulation that the 'state should give compensation'
is a major step forward in protecting private property, but exactly
what kind of compensation should be given is not stated in the
amendment because during the constitutional revision process there
was conflicting debate over this issue," Lian said.
The proposed constitutional amendment also adds that "the state
protects human rights" and includes provisions on state
emergencies, and extensions of the president's authority in foreign
affairs as well as on the national anthem.
It also specifies that special administrative regions like Hong
Kong and Macao must be given equal footing in electing NPC
delegates.
Other legal scholars question the draft constitutional
amendment's use of the word "state."
"What is state, is it the government or a combination of the
government and the people? The articles of the Constitution should
clearly define the term so that laws which use the term, such as
the proposed state-owned asset management law, can be made crystal
clear," said Sun Jianjun, a legal columnist with China Youth
Daily.
Quite apart from the debate over constitutional terms, it is
important to ensure the authority of the Constitution and its full
and effective implementation through appropriate adjustments to the
current legal system.
While some existing laws contradict some of the stipulations in
the proposed Constitutional amendments, many more elements of the
currently and commonly accepted laws are contradictory to the
amendment, Cai said.
China's laws give too many advantages to the government and too
few to the common people, making it hard for ordinary people to win
against government in legal and economic disputes, Cai said. The
situation runs contrary to the principle that "the state protects
private property and human rights," he added.
(Xinhua News Agency January 5, 2004)