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The myth of Chinese Constitutionalism and the limitations of the CCP's proposed Constitutional Amendments
Fang Jue

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In order to stride into the 21st century, some people are proposing China implement constitutionalism. Toward this end, the Chinese Communist regime plans to review several proposed constitutional amendments this March at the National People's Congress. Therefore, the topic “Constitutional Amendments & Constitutionalism” seem to have become fodder for political talk shows. Nevertheless, the political talk shows have not correctly answered the following three fundamental questions related to the constitution of the People’s Republic of China.

1. Who Should Write, Ratify and Amend a Constitution?

A constitution should be a common contract between all people. It should be a fair agreement outlining the rights and the responsibilities of both the government and its citizens; furthermore, it should be a document arranging the balance of power between diverse political parties. In light of this fact, there is neither substantial meaning, nor even a lawful façade, about the current constitution in China. For the leadership of the Chinese Communist Party (CCP) created the current constitution themselves, and it was ratified by a legislature seated through a closed, undemocratic procedure. Therefore, it primarily reflects the special interests of the CCP. Under these non-democratic circumstances, for people to prattle on about constitutionalism in China is barking up the wrong tree.

Then, in the end, how much practical value is there in the CCP's proposed constitutional amendments?

The first proposed constitutional amendment, put forward by China's conservative leaders, would add Jiang Zemin's hypocritical "Three Represents" to the constitution. This is not only a ridiculous ideology, but politically it is also step backward. Adopting the "Three Represents" would provide constitutional support to Jiang Zhemin's current political status. It would also provide constitutional support to his conservative followers in the CCP after Jiang is gone. This would be the practical political outcome, much-intended, for amending the Constitution to include the "Three Represents".

A second proposed constitutional amendment would add protections for private property. The stipulations would have a welcome side as well as dark side. In terms of a bright side, it would provide constitutional protection for the capital of private entrepreneurs and the assets of common citizens. In terms of a dark side, it would also increasingly encourage government collusion with business, as unscrupulous officials and businessmen seek to build more wealth.

In the past 25 years some CCP officials, aided by bosses in charge of state-owned enterprises, and their relatives and associates, have transformed large amounts of public assets into private assets through corruption, misappropriation and embezzlement. This kind of illegal activity is on the rise. Without effective, legal methods to contain it, adding constitutional protections for private property will encourage a new wave of this “privatization”, which loots public assets.

During the past 25 years, some private enterprises have sought and obtained privilege, encroaching upon public interests, through bribery and other illegal activities. Colluding with government officials with business people has become standard operating procedure for some private enterprises to rapidly accumulate capital. Without an effective, legal method to prevent the colluding of officials and business people, the slogan of general protecting private property will strengthen corrupted union of private capital and government authority.

Furthermore, private enterprises often brutally exploit their workers. Domestic observers, and those in the international community, cite the basic lack of human dignity that have become commonplace: low salaries, vile working conditions, a general lack of protections for labor, dangerously insufficient medical and unemployment insurance, etc. Without an effective, legal method to restrain this type of exploitation, an amendment protecting private property will aggravate cruel oppress and exploit that private enterprises impose on workers.

The third proposed constitutional amendment would put forward safeguards to protect human rights. This is more a piece of propaganda rather than a legitimate measure. In theory, if this was adopted into the constitution, Chinese citizens and the international community would have a basis for appeal to the CCP regime to improve its human rights’ conditions. However, because the proposed amendment lacks any enforcement measures, any such appeals would have little actual effect. As a matter of fact, the 2003 human rights record shows deterioration rather than improvement. Without doubt, it is an affront to the situation at hand to discuss a constitutional amendment safeguarding and respecting human rights. Enforcement of existing laws should come first, and would do far more to help prevent human rights’ abuses.

Therefore, the constitutional amendments proposed by the CCP contain dubious benefits. They are little more than empty political gestures, doing little to right the growing economic gaps and social injustice that China faces.

Furthermore, and most importantly, those who would amend the Chinese constitution lack broad representation and legitimacy.

2. What Kind of Constitution can Lead to “Constitutionalism”?

There are all kinds of constitutions in the world. Even Saddam Hussein’s regime, which defied laws both human and divine, had a constitution. Not all constitutions are created equally. Despite the existence of a constitution, not every constitution can lead to constitutionalism. Take the constitution in North Korea, for example. It is far more suitable to tyranny than for a democratic society. The people that promote China to implement constitutionalism have skipped the more urgent problem about what kind of constitution can be used to implement constitutionalism.

The bases of the current Chinese constitution are the "Four Fundamentals" of Deng Xiaoping. They mandate the leadership of the CCP, a communist road, proletariat dictatorship, and Marxist guidelines. Undoubtedly, there is no point in discussing the validity of a constitution supported by these four pre-conditions. The constitutional amendments proposed by the CCP are not willing to touch the “Four Fundamentals”. Nor, in the foreseeable future, is the CCP regime apparently planning to change these "Four Fundamentals", either. Therefore, relying on the CCP to implement constitutionalism is only a wishful thinking.

3. Should Democratic Reforms or Constitutionalism Come First?

The people who promote China to implement constitutionalism try to tell the public: "As long as there is a good constitution, China will gradually move toward democracy, freedom, and rule by law." However, this is constitutional worship, which puts the cart before the horse.

Constitutionalism is the fruit of democratic reform, but not the tree from which democratic reforms sprout. Only through the advancement of democratic reforms, multi-party system and government leaders elected by free and direct elections can a meaningful constitution be created – one which embodies freedom, democracy and the spirit of ruling by law. When a constitution is implemented by a democratic government, elected by the mass, only then can constitutionalism be realized. Without democratic reforms and general elections, a fair and representative constitution cannot be created. This basic principle has been proved repetitively by the constitutional history of many countries all over the world, through hundreds of years.

Therefore, the focus for Chinese reform is not first whether or not constitutional amendment can be adopted, but whether there is democratic progress. Empty constitutionalism can not replace the necessity of democratic reform.

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