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Amendments protect private property
( 2004-01-04 10:50) (China Business Weekly)

The word "private" has long been a centre of attention and the focus of much debate among politicians, scholars, and the public over its place in society.

But now, the seemingly certain revision of China's Constitution specifying the inviolability of legal private property, among other things, will put a final punctuation mark to most of the debate surrounding the word and the social concepts that tag along with it.

Yet China still has a long way to go to fully protect private rights.

"Even if the constitutional amendment is passed without problem at the plenary meeting of National People's Congress (NPC), there will still be a lot of work to be done, such as adjusting laws and regulations, to ensure the implementation of the amended constitution in society," said Cai Dingjian, a senior legal researcher with the standing committee of the NPC, China's legislature.

Members of the Standing Committee of NPC passed the draft amendments to the Constitution in Beijing on Saturday. The draft was proposed by the Central Committee of the Communist Party of China (CPC).

The amendments will be handed over to the second annual session of the NPC in March next year for final approval.

The concepts embodied in the "Three Represents" are also to be written into China's constitution, along with the amendments to safeguard the ownership of private property.

The proposed revision on private property protection puts private assets of Chinese citizens on an equal footing with public property, both of which are "not to be violated."

This is a natural result of China's social and economic development in recent years, said Lian Xisheng, a renowned legal scholar with China University of Politics and Law.

Lian was former vice-chairman of the China Constitution Society, and he has participated in the process of constitutional amendments.

But such amendments are by no means easily achieved. According to Lian, before the constitutional amendment in 1999, many legal scholars had appealed to add the article on the inviolability of private property, but the proposal was eventually abandoned due to strong opposition within the CPC.

Following the founding of the People's Republic of China in 1949, the word "private," and such terms as private interests, private property, and private concerns, became targets of attack.

Chinese people over 50 years of age still clearly remember the old slogans like: "Destroy the word private whenever it appears."

China's reform and opening-up, which began in 1978, loosened the strict social and economic controls exercised by the State and produced millions of private entrepreneurs or capitalists. However, for a rather long period they could only be called "minying," (citizen-operated) enterprises, not private enterprises.

"However, the practice of encouraging the private sector of the economy but avoiding reference to its existence in ideology and the law no longer sits well with the rising private sector," Lian told China Business Weekly.

Many private entrepreneurs feel their assets might be subject to State takeover or control, if they have not been given legal status in the Constitution, Lian added.

The concepts embodied in former president Jiang Zemin's "Three Represents" indicate that the CPC is not only the vanguard of the working class but also the representative of the basic interests of the majority of the people, and Jiang's call to allow eligible private entrepreneurs to join the Party, eventually led them to enjoy equal status with the working class.

So enshrining the "Three Represents" in the opening section of the Constitution is in no way bowing to dogma, Lian said.

Mao Yushi, a famous economist with the Beijing-based private Institute of Unirule, said that what the private property amendment in the constitution will protect is far more than just private capitalists or entrepreneurs.

According to Mao, China's private assets had surpassed 11 trillion yuan (US$1.33 trillion) by the end of 2002, exceeding State assets by about 1 trillion yuan (US$121 million).

Most of these private assets are not owned by private entrepreneurs but by common citizens.

Common citizen's assets need more protection in the constitution because their right to hold their own assets is more likely to be infringed upon by the public power and the rich, Mao said.

A typical public infringement of private property rights is the forcible relocation of urban and rural residents in the process of developing real estate projects or the construction of economic projects.

Millions of urban and rural residents have been forced to leave their homes with inadequate compensation.

To address this problem, the proposed constitutional amendment adds "the State should give compensation" to the original stipulation that "the State has the right to expropriate urban and rural land."

In China, urban land belongs to the State while rural land is legally stipulated as being collectively owned, which in practice means that it is owned by township governments.

However, legal scholars argue that residents' housing on State-owned land should also be compensated for as private property at a market-based price.

"The new stipulation that the 'State should give compensation' is a major step forward in protecting private property, but exactly what kind of compensation should be given is not stated in the amendment because during the constitutional revision process there was conflicting debate over this issue," Lian said.

The proposed constitutional amendment also adds that "the State protects human rights" and includes provisions on State emergencies, and extensions of the president's authority in foreign affairs as well as on the national anthem.

It also specifies that special administrative regions like Hong Kong and Macao must be given equal footing in electing NPC delegates.

Other legal scholars question the draft constitutional amendment's use of the word "State."

"What is State, is it the government or a combination of the government and the people? The articles of the Constitution should clearly define the term so that laws which use the term, such as the proposed State-owned asset management law, can be made crystal clear," said Sun Jianjun, a legal columnist with China Youth Daily.

Quite apart from the debate over constitutional terms, it is important to ensure the authority of the Constitution and its full and effective implementation through appropriate adjustments to the current legal system.

While some existing laws contradict some of the stipulations in the proposed Constitutional amendments, many more elements of the currently and commonly accepted laws are contradictory to the amendment, Cai said.

China's laws give too many advantages to the government and too few to the common people, making it hard for ordinary people to win against government in legal and economic disputes, Cai said. The situation runs contrary to the principle that "the State protects private property and human rights," he added.

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