China’s Constitutional Change a Prophecy based on Past and Present

China Plus Published: 2018-03-11 17:00:08
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By Dr. Peng Qinxuan

During this year’s national legislative and political advisory sessions, heated discussion has arisen on the draft revisions to China's Constitution. The draft, which has been constructed based on 118 written proposals and 2,639 pieces of written advice from all departments and sectors across China, consists of 21 amendments to the current Constitution. Undoubtedly, the move to amend the Constitution speaks to the legal and political future of China.

China's Constitution [Photo: IC]

China's Constitution [Photo: IC]

China has undergone rapid development since the 1978 Reform and Opening-up Policy and the ensuing 1982 Constitution. There have already been 31 constitutional amendments adopted respectively in 1988, 1993,1999, and 2004 to the 1982 Constitution to adapt it to meet the changing situation in China. Yet it is not necessary to abandon the 1982 Constitution as a whole, as it has lay a solid foundation for the general direction of China’s development, and specifically, the country’s continuing opening up to the international community and its ongoing and evolving reforms.

As a set of fundamental principles that prescribes how a political organization is governed, a constitution is the fruit of social consensus. Therefore its revision reflects the context of the society and the political consensus of the citizens that live within in. When we look around the world, each sovereign state has their own style of constitution and their own procedures to amend it, whether it is a codified or uncodified constitution. In the UK, there is no specific constitution or "constitutional amendment" procedures, apart from the Bill of Rights, Human Rights Act, and the Magna Carta, which are deemed almost constitutional. In the U.S. 27 amendments of the Constitution have been ratified since it was put into law on March 4, 1789. By contrast, some states never change their constitution, such as the German constitution. These are known as “absolutely unmodifiable articles”.

Unlike Germany or the UK, China has a codified constitution with openings for amendments according to legal procedures. This time, the 21 amendments, if adopted, will lead China further into significant changes. The changes signal the intention to build a country that is ruled of law. 

First and foremost, item 7 emphasizes the importance of perfecting the rule of law, instead of simply perfecting the legal system per se. Such a change indicates a direction to amplify the existing legal system and to modernize state governance with laws and procedures. Another example that merges to this direction is found in the amendment to authorize the establishment of local people’s congress and its standing committee to make local regulations according to local needs.

Secondly, an emphasis on ecology and “beautiful China” can also be found in the draft constitutional amendments. In contrast to the development track of the past that prioritized GDP growth that polluted the environment and created food security problems, the new focal point of “beautiful China” will, hopefully, lead to a greener China and a country that contributes its green energy to the international community. We can see that in recent years, China has established an increasing number of environmental protection rules, enhanced the roles of environmental agencies, been actively involved in international climate change negotiations, given a boost to new energy industries, and encouraged comprehensive development plans in the rural areas for both poverty alleviation and anti-pollution purposes. 

Last but not least, the construction of the National Supervision Commission and its local subsidiaries is also elaborated in the draft amendments. To deal with the massive problem of corruption in the society in China, the jurisdiction of the Supervision Commission covers all governmental officials, including CPC party members and non-party members. The omnipresence of the commission in all institutions enlarges the role of the Commission for Discipline Inspection of the Central Committee of the CPC and the Anti-Corruption Bureau. The constitutionalization of the supervision commission lays the legal foundation for its work. However, ensuring the procedural justice of the work of the commission is another legal task yet to be completed. 

(Dr. Peng Qinxuan is a graduate of Utrecht University in the Netherlands. She now works as a post-doctorate researcher at the International Law Institute of Wuhan University.)

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