China rewriting basic laws
Proposed changes in Constitution will aid private enterprise. Butdemocracy lags.
BEIJING — For the first time since China's 1949 communist revolution, the country's Constitution will "protect the legitimate rights and interests of private enterprises," under one amendment that is virtually certain to be passed next month.
Reform-minded Chinese leaders are calling the proposed changes a great step toward jettisoning the country's revolutionary past - an era marked by violent class struggle and radical, egalitarian economics.
Yet news that the national legislature is likely to soon pass the amendments is triggering a wave of calls for a far more extensive constitutional overhaul.
Government critics say they hope the revised Constitution will help set Beijing on a course that protects basic rights and moves China along the road toward democracy.
Most of the changes drafted by the Communist Party's Central Committee, however, focus on developing a market economy - rather than on developing a free marketplace of ideas.
Another states that "The People's Republic of China should implement the principle of ruling the country by law...."
These two amendments "are aimed at replacing the command economy, where individual rulers could control the system through dictates, with a rule-based market that guarantees equal competition for state-run and private companies," says Dong Fureng, a senior legislator in China's National People's Congress.
Following the Communists' victory 50 years ago, Chairman Mao Zedong launched a war on private property. Land, factories, and farms were all forcibly nationalized, while landlords and business owners were branded counterrevolutionaries and executed or jailed.
Everyone was vulnerable
During the violent Cultural Revolution of 1966-76, Mao branded millions of suspected critics as "class enemies" and unleashed his stormtroopers on everyone from judges to monks to the Chinese president.
Mao's destruction of the legal system, churches, and anyone who protested "transformed China into a nation of political serfs," says a former official who asked not to be identified.
"At that time, the Chinese constitution was a farce," says Cao Siyuan, an economist who helped draft China's first bankruptcy law a decade ago.
"If [the] president couldn't use the Constitution to protect himself, how much less could ordinary citizens rely on the law?" he asks.
In an unusually frank admission of the party's destructive past, party chief and President Jiang Zemin was quoted recently in the state press as saying "the blatant trampling of the Constitution during the turbulent Cultural Revolution will never be repeated."
After Mao's passing in 1976, a growing number of liberal legal scholars proposed removing his name from the Constitution, but those calls were silenced after the Chinese Army opened fire on pro-democracy protesters here 10 years ago.
Instead, the party now plans to add the "theories of Deng Xiaoping," who launched China's capitalist reforms 20 years ago but also ordered the Army's 1989 attack on Beijing, as guiding principles in the Constitution.
Andrew Nathan, an expert on Chinese law at Columbia University in New York, says the conflicting goals of ensuring China is ruled by law and following Deng's political theories represent a "battle of slogans" between reformists and conservatives. Even if the rule-by-law amendment is adopted, he adds, the party's power to date has been "neither grounded in popular consent nor limited by laws."
Democracy before rule of law
Jiang Peikun, a professor at People's University in Beijing, says, "Only when China becomes a democracy will its rulers ensure the supreme role of the legal system."
Professor Jiang, whose son was killed in the Army's 1989 march on Tiananmen Square, adds that "the government recently signed the UN's covenants on political and social rights, and all those rights should be incorporated into the Constitution."
The political rights treaty guarantees freedom of speech, assembly, and political participation. But since it signed the treaty last fall, Beijing has continued to arrest everyone from underground church leaders to the founders of the would-be opposition China Democracy Party.
"For several thousand years, we Chinese have lived under a rigid, imperial system and did not develop a sense of individual rights and freedoms," says Professor Jiang. Yet Beijing's opening to the world and market reforms are for the first time in Chinese history creating an "expanding class of citizens who are aware they must struggle to protect their rights and interests," he adds.
Time to end limits on speech
Indeed, a growing number of educated Chinese ranging from professionals to police to liberal officials say they are embarrassed or angry over the ongoing arrest of peaceful dissidents. Many say it is time for the party to end its limits on speech and opposition.
Mr. Cao says the government "should begin a gradual transition to parliamentary democracy by making the Constitution a supreme law that cannot be violated by anyone - no matter how high his position."
Under China's current system, all three branches of government are dominated by the party, and there are no checks and balances to ensure the leadership obeys its own laws.
Even with the party's proposed changes, Cao says, "the current Constitution can't protect us if a second Mao launched another Cultural Revolution."