|
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, China.org.cn
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.
China.org.cn: 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.
China.org.cn: 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.
China.org.cn: 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.
China.org.cn: 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.
China.org.cn: 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.
China.org.cn: 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.)
(China.org.cn March 13, 2004)
|
