The Constitution of China: the Shaanxi Province Position

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The main source of the law in the People’s Republic of China is the Constitution which was firstly adopted in 1982. The Constitution consists of the preamble and four chapters, including 138 articles (Constitution of the People’s Republic of China 2004). The Constitution was revised four times, and amendments were added to the document in order to expand and explain the definite aspects presented in the Constitution. The amendments were proposed to change the formulation of the certain principles and laws to provide the statements correlated with the modern national tendencies influenced by global processes.

Nevertheless, the current version of the Constitution based on the socialistic ideas does not meet the requirements of the intensively developing Chinese society fully. It is necessary to provide the new version of the Constitution in order to respond to the interests of the country’s social groups and administrative territories. Thus, in spite of the fact Shaanxi Province was discussed during a long period of time as the centre of the conservative and revolutionary communistic forces in the country, today the governmental representatives of Shaanxi are oriented to reforming the Constitution to guarantee the necessary level of the social and economic development within the country.

The promotion of constitutionalism’s tendencies in China is complicated with references to the political organization of the state and developed ideology. The supporters of the political reforms are oriented to constitutionalism as the alternative to democracy because of the impossibility to change the current regime within the state (Bai and Lin 2005). That is why, the process of working out the new Constitution is significant for representatives of different social and political groups as well as administrative territories. Shaanxi Province with the centre in Yan’an is historically associated with the revolutionary forces of the Communist Party of China.

However, during the last decade, the local government of Shaanxi Province becomes to depend on the ‘younger’ politicians who are oriented to the economic and social progress of the province and state (Chan and Gao 2008). That is why, the representatives of Shaanxi are inclined to promote their interests in developing the new version of the Constitution. Furthermore, the members of the local government in Shaanxi can use their authority in order to stimulate the development of the constitutional reform (Yang 2004). The triggers for the development of the constitutional reform are changes in the business environment of the province and country which contribute to discussing the questions of property rights, human rights, corruption, and decentralization of the political power.

Today, the main political authorities in Shaanxi are the representatives of the Chinese ‘fifth generation’ of politicians whose views are characterized by the focus on reforming the current Constitution. Thus, according to Li, “the growing diversity within China’s leadership and the dynamic interdependence among competing factions are particularly evident in the fifth generation”, and moreover, the current balance of powers in many Chinese provinces such as Shaanxi can “contribute to the diversity of outlooks and stances on major issues, such as economic globalization, social justice, political democratization, and environmental protection” (Li 2008, 53). Thus, the main goals followed by the representatives of Shaanxi Province to participate in negotiations on developing the new Constitution of China are (1) to accentuate the necessity of working out the concept of human rights, (2) to state property rights and to overcome corruption with references to these rights, (3) to reform the approach to the national economy and economic market, (4) to support the idea of decentralization of powers as the first step to the democratic governance appropriate for the political situation in China (Bockenforde, Hedling, and Wahiu 2011; Deng 2008; Saich and Yang 2003).

The current Constitution has a lot of weaknesses and limitations associated with the human rights and the rule of law. The rights of many people are violated in relation to the statements presented in the Constitution because definite human rights are even not reflected in the document due to their anti-communist character. Chinese citizens are not protected in the state regarding their right for freedom (Rowen 2007; Xiao 2002). The accentuation of the rule of law can lead to the focus on the human rights. Thus, “law must be generally applicable, no matter who is the subject. Theoretically, all kinds of powers must be restricted and operate under supervision” (Chen 2012, 31).

Today, many people in Shaanxi Province suffer from discriminating because their human rights which are typical for the majority of democratic states are not set in the Constitution correctly and not followed accordingly (Guan 2003). Emphasizing the equality of citizens, the statements provided in the current version of the Constitution refer more to the duties than to rights, especially with references to human rights declared in the democratic states (Han 2005). Thus, the concept of human rights presented in the Chinese Constitution should be revised along with accentuating the idea of the rule of law.

The economic situation of Shaanxi Province changed significantly during the last decade. Today, many industries are developed in the region, and accents are made on developing the business principles according to the norms of the global market (Chan and Gao 2008). However, the private property of the business communities cannot be protected properly in relation to Article 11 and Article 13 of the Constitution and current amendments to the articles. Thus, the businessmen of the region state the necessity of developing the law in relation to protecting the private property. Moreover, the problem of corruption is observed (Wedeman 2004). There were attempts to overcome the issue, but “the rising number of corruption cases reveals that the efforts by the Chinese authorities to control corruption have not achieved noticeable results” (Chan and Gao 2008, 98). This problem should be also discussed in association with the rule of law and protecting the human rights as well as property rights of citizens.

The Chinese economy develops according to the socialist pattern. However, the requirements of the modern global markets are not correlated with the socialist principles. This situation creates difficulties for the national economic development and for building the advantageous international market relations (Ministry of Foreign Affairs of PRC 2009). In spite of the fact the amendments to Article 7 and Article 11 of the Constitution aimed to regulate the situation and provide possibilities for the development of the new market economy system, those efforts were not enough to state the reformation of the national economy, used approaches, and principles. Today, the representatives of the business and political circles of Shaanxi Province emphasize the importance to transform the current economic system into the market one at the governmental level and with references to the main law of the country because of the necessity to respond to the country’s ideology (Hand 2011; He 2010). Moreover, the business class of Shaanxi Province pays attention to the role of governance in the process.

Thus, the current controversial situation in China associated with many political scandals can be discussed as the evidence to state the necessity of the political reforms. The representatives of the political forces in Shaanxi Province are inclined to refer to the fact that the accents on centralization of powers in the country cannot contribute to the development of the effective economic system and appropriate Constitution which principles are based on the rule of law. To contribute to the statement of the rule of law in the country with references to constitutionalism, it is significant to reform the political organization of China (Kui 2003). Local authorities should receive more full powers, and the power of the central government should be restricted in relation to the questions associated with the sphere of the local authorities’ influence (Huang 2003; Killion 2005). These principles which can be discussed as the steps to decentralization of the power should be reflected in the revised version of the Constitution.

China is on the threshold of the significant changes in the political and social life of the country. The development of the new version of the Constitution is the main step in building the new society. In spite of the fact the majority of the country’s politicians follow the ideals of socialism and communism, many representatives of the ‘younger’ wave of politicians and influential figures in the business world propose their visions of the perspectives for revising the Constitution. Thus, the basic points in which the citizens of Shaanxi Province are interested are the concentration on the rule of law, human rights, property rights, and decentralization of the powers. That is why, the goals of the representative group from Shaanxi Province are formulated according to these principles.

References

Bai, Gang, and Guanghua Lin. 2005. An Introduction to Constitutionalism. China: Social Science Academic Press.

Bockenforde, Markus, Nora Hedling, and Winluck Wahiu. 2011. A Practical Guide to Constitution Building. Sweden: IDEA.

Chan, Hon, and Jie Gao. 2008. “Old Wine in New Bottles: A County-Level Case Study of Anti-Corruption Reform in the People’s Republic of China”. Crime Law and Social Change 49(10): 97-117.

Chen, Bo. 2012. “China’s Dilemma in Human Rights: Through the Perspective of Critiques Abroad and China’s Response”. Journal of Politics and Law 5(3): 29-32.

Constitution of the People’s Republic of China. 2004. Web.

Deng, Yang. 2008. China’s Struggle for Status: The realignment of international Relations. London: Cambridge University Press.

Guan, Jinhua. 2003. The Protection and Legal Practice of Fundamental Human Rights. China: Xiamen University Press.

Han, Dayuan. 2005. Foreign Constitutions. China: Renmin University of China Press.

Hand, Keith. 2011. “Resolving Constitutional Disputes in Contemporary China”. East Asia Law Review 7(8): 51-159.

He, Jian. 2010. “The Comparison of Constitutional Protection of Human Rights between China and South Africa”. Asian Social Science 6(6): 50-53.

Huang, Ping. 2003. China Reflected. Hong Kong: ARENA.

Killion, Ulric. 2005. “China’s Amended Constitution: Quest for Liberty and Independent Judicial Review”. Washington University Global Studies Law Review 4(1): 43-80.

Kui, Shen. 2003. “Is It the Beginning of the Era of the Rule of the Constitution?” Pacific Rim Law 12(1): 199-232.

Li, Cheng. 2008. “China’s Fifth Generation: Is Diversity a Source of Strength or Weakness?” Asia Policy 8(6), 53-93.

Ministry of Foreign Affairs of PRC. 2009. China Foreign Affairs. Beijing: World Affairs Press.

Rowen, Henry. 2007. “When Will the Chinese People Be Free?” Journal of Democracy 18(7): 38–52.

Saich, Tony, and Xuedong Yang. 2003. “Innovation in China’s Local Governance: ‘Open Recommendation and Selection’”. Pacific Affairs 76(2): 185-205.

Wedeman, Alan. 2004. “The Intensification of Corruption in China”. The China Quarterly 180(11): 859-921.

Xiao, Beigeng. 2002. The Thought of Constitutional Legal Order. China: Chinese People’s Public Security University.

Yang, Haikun. 2004. New Theory of Constitutional Fundamental Rights. China: Beijing University Press.

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The Constitution of China: the Shaanxi Province Position

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