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Thursday, March 18, 2004

China adds protections to Constitution


HONG KONG -- The 2004 session of China's National People's Congress closed Sunday with the passage of several constitutional amendments. Attention focused on those relating to human rights and the protection of private property.

China is sensitive to foreign criticism of its human-rights record and has reacted defensively, first by setting up an institute to study human rights and, more recently, by counterattacking with the issuance of an annual human-rights report on the United States. The amendments will enable Beijing to say that human rights are given constitutional protection. Hopefully, however, there will be implementing legislation to provide for the protection of specific rights.

While the new clauses on human rights and private property may not translate immediately into improved behavior by government officials at all levels, they are of important symbolic importance. Certainly, it is better for Chinese citizens to have those provisions in the Constitution than not.

Also added to the Constitution is former President Jiang Zemin's "important thought of 'Three Represents,' " which provides ideological justification for allowing entrepreneurs to join the Communist Party.

Just as important -- possibly even more so -- was an amendment stipulating that if the state expropriates or requisitions land it "shall make compensation for the land expropriated or requisitioned." Previously, the Constitution simply declared the state had the right to expropriate and requisition land, without mentioning compensation.

Another interesting amendment stipulates China's national anthem. A new paragraph says: "The National Anthem of the People's Republic of China is the ' March of the Volunteers.' "

Actually, the "March of the Volunteers" was the national anthem in 1949, when the People's Republic of China was proclaimed. However, during the Cultural Revolution, Tian Han, who had written the lyrics, was purged. He died in disgrace in 1968 in a prisonlike hospital without proper medical care, after having been repeatedly interrogated and tortured by Red Guards.

During the Cultural Revolution, "The East is Red," a paean in praise of Chairman Mao Zedong, became the de facto national anthem, although it never received formal endorsement by the National People's Congress. After the end of the Cultural Revolution, the NPC restored the "March of the Volunteers" as the national anthem, but its lyrics were changed.

It wasn't until 1982 that the National People's Congress restored Tian Han's original lyrics and recognized that song as the national anthem. And it has taken 22 more years for the anthem to formally be incorporated into the Constitution.

Another amendment relates to the role of the president. In the past the Constitution stated: "The President of the People's Republic of China receives foreign diplomatic representatives on behalf of the People's Republic of China." This gives the president little more than a figurehead role where foreign policy is concerned. Indeed, President Hu Jintao's substantive powers derive not from the presidency but from his position as head of the Communist Party.

The amended constitution adds that the president, "on behalf of the People's Republic of China, engages in activities involving State affairs." While this description is still vague, it does show that the president's duties are more than ceremonial ones.

The amended Constitution gives the government authority to declare a "state of emergency," instead of proclaiming "martial law." Presumably, the phrase "state of emergency" gives more flexibility to the government, since it can include the proclamation of martial law.

Another amendment says "special administrative regions," in addition to provinces, autonomous regions and municipalities directly under the central government, elect deputies to the NPC. This recognizes the position of Hong Kong, which became an SAR in 1997, and of Macau, which followed suit in 1999.

A paragraph has been added to the Constitution that says: "The State establishes a sound social security system compatible with the level of economic development." This recognizes the obligation of the state to provide for people who are unable to provide for their own needs and suggests that the social safety net will be improved over time.

The Preamble, too, has been amended. In describing the "broad united front" under the leadership of the Communist Party, in addition to "democratic parties," "people's organizations" and "socialist working people," the phrase "all builders of socialism" has been added, presumably to make it more inclusive.

These amendments are to the constitution adopted in 1982, the fourth constitution adopted by China since the end of World War II. The People's Republic adopted its first constitution in 1954, although many of its provisions were not recognized during the Cultural Revolution. A new one was adopted in 1975 during the Cultural Revolution. Another constitution was adopted in 1978 after the Cultural Revolution. The 1982 constitution has proved the most enduring, although it has been amended four times, most recently this month.

Frank Ching is a Hong Kong-based journalist and commentator.


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