MODEST PROPOSALS FOR CONSTITUTIONAL REFORM

By Willy Lam

Although political liberalization seems to have met with at least a temporary setback in China, a modest proposal about constitutional reform put forward by veteran reformer Cao Siyuan merits special attention.

The 56-year-old Cao, who runs a consultancy on mergers and bankruptcy, has suggested ten revisions to the 1982 Constitution that he hopes will be endorsed by the National People’s Congress (NPC) early next year.

The avant-garde intellectual’s views are taken seriously because of his long involvement in legal and constitutional reform. Cao was briefly jailed after the June 4, 1989, massacre because of his efforts to persuade members of the NPC Standing Committee to hold a special session to declare as unconstitutional the state of martial law imposed by then Premier Li Peng in May.

First and foremost, Cao wants to abolish the opening clause of the charter, which states that China is a socialist country where “the people’s democratic dictatorship” is being exercised by workers and farmers. “The idea of ‘dictatorship’ is way, way behind the times,” Cao says. “It contradicts the spirit of the World Trade Organization and the requirements of globalization.” Moreover, Cao adds, since the party has already recognized the contributions of non-state entrepreneurs, the concept of “proletarian dictatorship” has become ludicrous.

Two other proposed changes have to do with the recent rise of the “new class” of private businessmen and professionals. Thus, the charter should recognize the inviolability of private property. Cao says that this will help to reassure the still-jittery “red capitalists,” the majority of whom are eager to send a good portion of their earnings overseas. Moreover, now that the non-state sector (including “collectively owned enterprises”) already accounts for more than 70 percent of GDP, the clause “the state sector is the mainstay of the economy” should be excised from the charter.

An additional four revisions are aimed at protecting people’s rights. Cao, who earlier this year gave a series of lectures at U.S. and European universities, wants a stipulation that “citizens’ rights override everything–and governance must be open and transparent.” He argues that human rights comparable to those enshrined in international covenants must be included. “The new constitution should specify that no organization or individual can interfere with the judiciary and the due process of the law,” says Cao. He is apparently referring to the long standing practice of the Chinese Communist Party (CCP) exercising “political leadership” over the law courts. Moreover, the reformer wants the legal principle of “innocence unless proven guilty” written into the charter.

Two other suggested additions deal with political processes, including the kind of limited “elections” being held to pick party and government officials. Without saying that he is after one person, one vote, Cao indicates that the principle of cha’e xuanju–that the number of candidates should outnumber the positions available by a reasonably large margin–should be enshrined. “So-called elections where there is only one candidate for one job–or where the candidates only outnumber the posts available by a few percentage points–are bogus ones,” he says. For example, when members of a provincial people’s congress convene to “elect” a governor, there is usually only one candidate, namely the CCP’s nominee.

Cao also wants China to adopt a presidential system, one in which the state president would have powers over the government and military forces. Again, without specifying his eventual goal of elections based on universal suffrage, Cao says this will facilitate the principle, endorsed by the late patriarch Deng Xiaoping in the mid-1980s, of separation between party and government. Finally, the influential scholar thinks the NPC must establish a constitutional committee to ensure that laws and government practices do not violate the supreme charter.

How realistic are the chances of some of Cao’s proposals being adopted? Analysts say President Hu Jintao and his allies may not object to tinkering with the constitution so long as the CCP’s status as ruling party is not jeopardized. After all, it was Hu who first started the campaign to “protect the constitution” in a ceremony last December marking the twentieth anniversary of the promulgation of the 1982 Charter. And legal and constitutional reform could be the main items on Hu’s agenda for liberalization in the foreseeable future.

By contrast, bolder experiments such as elections, even within the context of “intra-party democracy,” will likely be played down. This is because such experiments would encourage pro-Western intellectuals to demand a larger degree of power-sharing than Hu and allies such as Premier Wen Jiabao would want. And there would be a backlash from conservative party elements led by ex-president Jiang Zemin.

That radical reforms are out for the time being is evident from the humdrum speech that Hu delivered on July 1. Until late May, there were expectations that the president and party general secretary would deliver a major address on “democracy within the party” to celebrate the CCP’s eighty-second birthday. Some believed, for example, that Hu would make pledges about more transparency in decision-making–and more leeway for cadres to pick provincial and municipal party secretaries.

However, the term “intra-party democracy,” which figured prominently in the first draft of the July 1 speech, did not even make it into the final version. Instead, Hu merely underscored the importance of studying ex-president Jiang’s “Theory of the Three Represents” (that the party must represent the foremost productivity, the most advanced culture and the masses’ interest). And while Hu had given the Three Represents Theory a new twist by emphasizing the “close to the masses” credo, he did not go beyond such hackneyed slogans as “the party’s basis is serving the public, and administration is for the sake of the people.”

However, Hu seems genuinely committed to constitutional and legal reforms. The leadership’s abrogation last month of the draconian administrative decree on “detaining and sending back vagrants and beggars in the cities”–which mostly targeted migrant workers coming from rural provinces–has illustrated at least a basic level of sincerity about legal modernization. The decision followed the outcry over the death of graphic designer Sun Zhigang, who was detained earlier this year by police in Guangdong Province for being a “vagrant”–and who soon afterward was beaten to death in a detention center.

It is significant that, a couple of months ago, the CCP Politburo set up a six-member high level committee to look into the modernization of the constitution. The main task of this Leading Group on Revising the Constitution (LGRC) is to lay the groundwork for a thorough updating of the charter at the plenary session of the NPC next March. The committee is dominated by stalwarts of the Jiang Zemin or Shanghai Faction lacking a track record of reform. It is headed by NPC Chairman Wu Bangguo, a former Shanghai party secretary and a long time Jiang crony. Other members include the conservative head of the Propaganda Department, Liu Yunshan, as well as Jiang’s former speechwriter, Teng Wensheng. It is understood that one of Wu’s main goals is to enshrine Jiang’s “Theory of the Three Represents” in the charter.

Nonetheless, Cao and a number of constitutional experts in Beijing are hopeful that the LGRC may be willing to entertain revisions that have to do with raising the status of the non-state entrepreneurs and protecting private property. After all, Beijing wants to encourage private businessmen to reinvest their riches inside the country. Moreover, members of China’s expanding middle class, who already own such substantial assets as apartments and stocks and shares, are anxious that the constitution enshrine the principle of the inviolability of private property.

Other relatively non-sensitive points raised by Cao, such as administrative transparency and presumption of innocence in the law courts, have already been informally recognized by CCP and government cadres. Moreover, it is understood that quite a few legal scholars who have advised Hu favor the establishment of an NPC Constitutional Committee to safeguard the sanctity of the charter.

Cao is cautiously optimistic that once the less contentious of his suggestions for updating the constitution have been accepted, he and other liberal intellectuals can lobby for more far-reaching elements of political reform. These will include the expansion of village-level elections to the cities, and later, the provinces. For the time being, Cao is busy soliciting support from the nation’s increasingly assertive academics and private businessmen for his package of modest but significant constitutional revisions.

Willy Wo-Lap Lam, one of Asia’s best known journalists and authors, is a senior China analyst at CNN’s Asia-Pacific Office in Hong Kong.