China’s Constitutional Amendments: Significant And Historical

The proposed amendments to the Chinese Constitution relating to the right to private property ownership and ‘human rights’ generally currently being debated by the National People’s Congress in Beijing are grossly undervalued as to their significance and historical importance.

They have, quite frankly, the capacity to transform China totally and irrevocably.

But thet have been largely ignored by some China commentators or put down as being either irrelevant or downright useless.

Constitutions are tricky things. It is legislation and like any piece of legislation it is only as good as it’s interpretation and implementation.

Let us look at a hypothetical example.

A State operating under a "constitution" can pass legislation that says practicing religion on Saturday is outlawed.

There is nothing in any Constitution that forbids a Government passing any law it deems fit to in fact it provides for it, so, it is not "illegal" per se to pass such legislation despite what the Constitution may say about freedom of religion.

Now, someone who feels wronged by this law can challenge the validity of the law and can “take the State to court” and argue that the particular law breaches that section of the Constitution guaranteeing religious freedom. The State will argue it’s case and the petitioner his.

In most western countries like Australia and the United States the judiciary is by and large independent and can be expected to hand down a reasonably impartial decision based on the cases argued and their resultant interpretation of the law in question as it applies to this particular case.

The Judiciary and it’s findings are also open to scrutiny by a "free press", opposition political parties and citizen groups which provide a further "guarantee" of transparency and impartiality.

Thus we have the original legislation, a judiciary to interpret it and a free society to monitor it’s implementation.

In a democratic system this is called "checks and balances" and whilst not always working perfectly works as well as can reasonably be expected.

Now, in the case of China, we have the original legislation, in this case rights to property ownership and “Human Rights” generally, we have a judiciary that is not independent and therefore can not be impartial and we do not have the other elements that provide the necessary checks and balances namely a free press, freedom of speech and the existence of an alternative government.

Thus, argues some commentators, the proposed amendments to the Chinese Constitution are not worth the paper they are written on because the mechanisms to ensure impartial implementation do not exist, and they are right to a point, currently it does not. Others argue that the constitutional amendments do not dot all “I’s” and cross all the ‘T’s’ in other words not all encompassing and therefore useless, these commentators are not right.

Firstly let me address the second criticism.

A mistake many people make when understanding Constitutional law is that "more" is not necessarily better when it comes to drafting constitutions. Without going into too much detail a constitution is drafted by a group of particular people, facing a particular reality at a particular point in time.

The Australian Constitution for example became law at the beginning of the 20th century. The world was a far different place then and the people of the time, their views and outlooks were also completely different then they are now. What was considered bad or good then may not necessarily be the same today nor will it necessarily be the same tomorrow.

Lets look at an extreme example by way of exploring this further.

A constitutional clause drafted in say the 19th century might read "People may not ride donkeys into town on Sunday they may only come into town on horseback". Maybe at the time a good law. But what would it mean in downtown New York or Sydney now? No one would be allowed to go into town Sundays at all as we do not travel by horseback any more and, if the government wanted to enforce the constitutional law, there would not be a damn thing that could be done other than by changing the constitution (which is not always easy)..

But if the constitution at the time was drafted to say that "people are allowed to come into town on Sundays but must do so by appropriate transport" then the judiciary of the day will decide what is appropriate, a horse then, a car now?

Therefore I do not have any problems with constitutional amendments drafted as the five or six word generalities of the proposed Chinese ones.

As to the thoughts of some commentators that the amendments are not worth the paper they are written I agree to a point that they are correct, but only to a point.

For example the Chinese Constitution currently, on paper, provides for total freedom of religion for it’s 1.3 billion citizens. However, it also provides that the "right" of freedom of religion shall not take precedence over issues of state security. In other words, you can do what you want, as concerns religion, but if it is deemed that state security is compromised as a result then the rights of the State come first. What constitutes state security? Anything you please if there is not an impartial and independent judiciary to adjudicate the reasonableness of the law or mechanisms of checks and balances available as previously talked about. So these commentators are correct as the situation stands today.

But my contention is that the proposed amendments are very significant and important changes to the law and are so for several reasons.

By being on the "books" it at least allows a person or group to challenge any legislation in a court of law. In China you may not win of course today but you can test it and do so a million times. Drops of water will eventually erode a rock.

As well it’s enshrinement in law sets up certain "expectations’. You may not get it but at least you can expect to get it and as such a whole country’s mindset changes, a new culture develops and grows around it.

What for example is the average person in the United States or Australia’s understanding of their exact constitutional freedoms?

In Australia for very little. If people knew what the Australian Constitution provides for in terms of "rights" (or does not provide for, more to the point) they would be indignant. But they and everyone else "expects" it to do so and as such acts accordingly.

A lot of people would be amazed to know that on paper at least the Chinese Constitution guarantees far more "rights" then the Australian counterpart and that is before the proposed amendments. But regardless we have "expectations" and the Australian society has evolved around those "expectations" There is no "Bill of Rights” in the Australian Constitution but the average person expects there to be and acts accordingly.

On balance I believe the proposed amendments to be of great historical significance. The full weight of their importance may not be felt for generations but it will. The fabric of Chinese society will change, with the assistance of these amendments capitalism will replace communism and human rights will become far more transparent and accountable. They will never of course be to the standards the west expects for a variety of reasons but they will be far greater than today.

Those few words that will become law before the weekend will change China irrevocably