China Constitution Now Respects Property, Human Rights -- Maybe

by Mark Baker

China watchers appear divided over the significance of recent changes to the country's constitution that mark a further shift -- at least on paper -- toward a market economy and democratic rights.

China's parliament, the National People's Congress, this month formally approved amendments to the constitution that protect private property and human rights. The changes were part of a larger package of amendments approved earlier by the ruling Communist Party.

The wording of the amendments is notable. Private property, the constitution says, is "inviolable," provided it was obtained legally. The state also is now formally obliged to "respect and preserve" human rights.

James Dorn, a specialist on human rights and economic matters at Washington's Cato Institute, says the changes are more than mere symbolism. He says that, over time, they will provide a legal basis for private property and a market economy that subsequent laws can build on.

"More [legal] cases -- economic cases -- are going to be brought against the government or against violations of contracts. As this occurs, a new body of law is going to be formed and people's rights are going to be more secure. It also gives lawyers in China an excuse to go to the constitution -- the basic document -- and argue strongly for this," Dorn said.

Dorn is quick to acknowledge, however, that amendments alone won't necessarily bring the desired changes.

"There's already amendments in the [Chinese] Constitution for freedom of expression, etc., that have never been enforced. The problem is, of course, that there's really no judicial review, no final arbiter in the Chinese system except the Communist Party. And as long as that's the case, no one's rights will really be fully secure," Dorn said.

David Bray, a lecturer in modern Chinese politics at Britain's Cambridge University, is generally less impressed by the amendments, although he, too, says they are positive. He points out that China has changed its constitution several times in the past to suit prevailing ideological fashion. In other words, the amendments -- in theory, at least -- are reversible.

Bray adds that the new wording on human rights is vague. He says it's not clear which kinds of human rights the state is obliged to preserve.

In the past, Chinese authorities have tended not to see human rights in the Western sense of the term. For Beijing, human rights have meant rights to social harmony, stability, and community -- not rights to free assembly and free expression.

"All they've put into the constitution is that the state 'respects and preserves human rights.' Just that one line. It doesn't say anything about what they mean by 'human rights.' So, you know, really, the whole issue is still open to debate," Bray said.

He says if the constitutional changes have a larger significance, it's not the legal protections they offer but what they say about where China is going as a society. The past couple of decades have seen an important shift away from socialist and collectivist economic values in favor of personal enrichment. The result has been a hollowing out of ideology but a boom in the Chinese economy.

Bray says he wouldn't be surprised to see China's complete abandonment of the socialist model sometime in the near future.

"I think there are an enormous amount of contradictions [in Chinese society]. There are increasingly [fewer] aspects of the Chinese political system, which you could say have any resemblance to communism or socialism. And it wouldn't surprise me if in the not-too-distant future, the Communist Party changed its name," Bray said.

Bray says in the past, Beijing has used the constitution almost as a marketing device to tell the world where it's heading. This time, he says, is probably not any different.