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Opinion: Inclusion of human rights an important milestone
Updated: 2004-03-14 18:47

by Dong Yunhu

Vice-president and secretary-general of the China Human Rights Research Society

On March 14, 2004, a proposed amendment to the Constitution was adopted by the Second Session of the Tenth National People's Congress (NPC), which stipulates clearly that "the state respects and safeguards human rights." This is the first time that the concept of "human rights" has been included in the Constitution -- a major event in the development of China's democratic constitutionalism and political civilization, and an important milestone in human rights progress in China.

I. A Major Breakthrough in Socialist Human Rights Development

For a fairly long period after the founding of the People's Republic of China (PRC), China never included the human rights concept in the Constitution and law, human rights being considered taboo in ideological and theoretical research. Especially during the "cultural revolution" (1966-1976), when the ultra-left trend of thought prevailed, human rights were criticized as being a bourgeois concept, and were ignored and trespassed upon in practice. Even at the beginning stage of the reform and opening-up, which started in late 1978, a rash of articles with such titles as "What School of Thought Do Human Rights Belong To?" "Human Rights Are the Catchword of the Bourgeoisie," "Human Rights Are by No Means a Proletarian Slogan," and "The Human Rights Slogan Is Hypocritical" were published in some major newspapers and magazines, deeming human rights as being the "patent" of the bourgeoisie, and stressing that "the proletariat has always been critical of the human rights slogan."

In the late 1980s and early 1990s, when drastic changes occurred in the former Soviet Union and Eastern Europe, international hostile forces stepped up their anti-China campaign on the pretext of human rights. The Central Committee of the Communist Party of China (CPC), with Jiang Zemin at the core, began to reconsider the human rights issue by summarizing the practice of the human rights development in contemporary China and the rest of the world. From the international struggle perspective, the CPC Central Committee made it clear, for the first time ever, that socialist China should grasp the banner of human rights in her hands.

On November 1, 1991, a White Paper titled "Human Rights in China" was issued by the Information Office of the State Council. This was the first official document on the human rights issue promulgated by the Chinese government to the world. The White Paper broke through the conventional "left" ideology and taboo, referring to human rights as a "great term." It stressed that the complete realization of human rights "has been a long-cherished ideal of mankind," "a noble goal as required by China's socialism, " and "a long-term historical task for the Chinese people and government." This was the first time that the status of the human rights concept in China's socialist political development had been positively confirmed in the form of an official document. The banner of human rights was thus held aloft confidently and firmly, and China gained the initiative in the international struggle for human rights. Since then, human rights have become an important theme in China's international publicity work. China's basic standpoint on the human rights issue is clearly expounded in the annual government-work report of the Premier of the State Council when stating China's foreign policies.

When the 15th National Congress of the CPC was convened in September 1997, the human rights concept was for the first time included in the major report to the Congress, promoting human rights from a major theme in international publicity work to a major subject in domestic construction under the leadership of the Party. Jiang Zemin pointed out unequivocally in the sixth part -- "Reforming the Political Structure and Strengthening Democracy and the Legal System" -- of the theme report to the 15th National Congress of the CPC, that "As a ruling party the Communist Party leads and supports the people in exercising the power of running the state, holding democratic elections, making policy decisions in a democratic manner, instituting democratic management and supervision, ensuring that the people enjoy extensive rights and freedom endowed by law, and respecting and guaranteeing human rights." Thus, human rights were written for the first time into the formal document of the Party's national congress. Respecting and safeguarding human rights were introduced, in clear-cut terms, into the Party's action program as a basic goal of the ruling party. They have also been integrated into the cross-century development strategy for China's reform and opening-up and modernization drive, as an important part of the reform of the political system and the improvement of democracy and the legal system.

By adding "the state respects and safeguards human rights" to the Constitution, the present amendment has promoted "human rights " from a political concept to a legal one for the first time, and the main body in respecting and safeguarding human rights has been upgraded from the Party and government to the state. Therefore, respecting and safeguarding human rights have been raised from the will of the Party and government to that of the people and state, from the political concept and value of the Party and government in assuming power and running administration to the political concept and value of the state in construction and development efforts, and from a provision of the Party and government's policy to a principle of the state's fundamental law.

Viewed from the history of the international communist movement, China has made a great innovation in the theory and practice of socialist construction and contributed to enriching and developing Marxism by enshrining respecting and safeguarding human rights in the Constitution as a principle for running state affairs. It accords with the reality of contemporary China and the worldwide trend, and reflects the Party's new understanding of the rules of Party governance, of socialist construction and of the development of human society. This is a significant manifestation that the Party's political concepts follow the tempo of the times, that the Party can grasp the law of historical development and is full of creativity.

II. Significant Development in People's Democratic Constitutionalism and the Legal Guarantee of Human Rights

Ever since the end of the Qing Dynasty a century ago, the Chinese people have been struggling to build up a truly democratic constitutional government. But in the old semi-colonial and semi- feudal China, they never achieved, nor could they possibly achieve, democratic constitutionalism in the true sense of the term.

The founding of the PRC in 1949 opened up a new epoch for the people to become masters of the country and to have people's democratic constitutionalism. The Common Program of the Chinese People's Political Consultative Conference (CPPCC), promulgated and put into effect in 1949, functioned as a temporary Constitution and guidelines for building the country. It established the political and legal system of the PRC, and the guiding principles and major policies for national construction, as well as the principle of guaranteeing the rights of the people. In 1954 the first Constitution of the PRC was adopted after being discussed by the whole people. It prescribed the nature of a people's democratic state, the political system, and the functions of the state organs. The Constitution also stipulated, in a special chapter titled "The Fundamental Rights and Duties of Citizens," the political, economic, social, cultural and personal rights of citizens, laying the foundation for the development of people's democratic constitutionalism.

The development of people's democratic constitutionalism since the founding of the PRC has been a tortuous experience. The situation was especially dire during the decade of the "cultural revolution," when the country was thrown into chaos, the Constitution and rule of law was discarded, human rights were trampled upon, and the development of democratic constitutionalism suffered serious setbacks for a time.

The current Constitution was passed on December 4, 1982, after being amended on the basis of summing up historical experiences. It made improvements in people's democratic constitutionalism in two aspects -- democracy and the legal system. First, the stipulations on citizens' fundamental rights became more extensive, practical and specific. It also prescribed the policies and measures the state should take to guarantee the realization and gradual extension of citizens' rights. Secondly, it adamantinely stressed the authority of the Constitution and the importance of the rule of law. In 1999, when further amendment was made to the Constitution, it was made more clear in the Constitution that the rule of law is the basic program for the governance and the goal of construction of the state.

Adding to the contents of the Constitution the principle that " the state respects and safeguards human rights" in the amendment to the Constitution is the first such step China has taken since it began the pursuit of constitutionalism, and is the latest development in contemporary China's endeavor for democratic constitutionalism.

First, setting up the principle of human rights has further improved the country's democratic constitutionalism. Constitutionalism refers to politics that ensures the establishment of a democratic system and the protection of people' s rights by formulating a constitution with the highest authority. Constitutionalism contains three principles: The first principle is the rule of law. The term "constitutionalism" means politics that holds a constitution and the law above all else, taking the constitution and the law instead of any individual person as the highest political authority. The second principle is democracy. Constitutionalism means democratic politics, which in its essence means establishing a democratic system by means of a constitution, so as to ensure the democratized application of people's sovereign rights and state power. The third principle is human rights. Respecting and safeguarding human rights are the fundamental aim and the highest principle of constitutional government. They are also the precondition for, and the basis and ultimate goal of, the existence and development of a constitution and constitutionalism, as well as the basic standard for judging whether constitutionalism has been really practiced. The concept of " citizens' fundamental rights" instead of "human rights" was used in the Common Program of the CPPCC and the four Constitutions promulgated and put into effect after the founding of the PRC. This lack of the constitutional principle of human rights thus made the people's democratic constitutionalism incomplete. But the present amendment to the Constitution, which adopts the principle that "the state respects and safeguards human rights" to generalize, upgrade and govern the stipulations about "citizens' fundamental rights" in the Constitution, establishes the principle of human rights and combines it in practice with the principles of democracy and the rule of law. In this way, the connotation of people's democratic constitutionalism has been further improved.

Second, stressing the value and concept of human rights has given new definition to the Constitution's stipulations concerning citizens' rights. The term human rights is rather general and vague and not as definite as the concept of "citizens' fundamental rights" in the aspects of both the subject and content. But viewed from the political ideal and value embodied in the terms, citizens ' rights are not as general, distinct and influential as human rights. In the present amendment to the Constitution, by adding the concept of human rights, the sentence "the state respects and safeguards human rights" has been made one of the articles indicating the principle of citizens' rights. This has given specific content to the human rights concept, meanwhile upgrading in principle the essential meaning and value of the concept of citizens' rights, thus combining the two concepts in one organic whole.

Third, the improved prescriptions of the principle of citizens' rights guarantee have reinforced the human rights essence of the Constitution. Article 33 of the Constitution is Article 1 in Chapter II -- "The Fundamental Rights and Duties of Citizens" -- the principle provision permeating all the articles in the chapter. The present amendment regards human rights as a principle, and adds it as Section 3 to the article, making the Constitution's overall stipulation of citizens' fundamental rights more complete. After modification, Article 33 now has four sections: Section 1 stipulates the subject of citizens' rights -- "all persons holding the nationality of the People's Republic of China"; Section 2 prescribes the principle of the equality of citizens' rights, stressing that "all citizens are equal before the law"; Section 4 states the principle of the unity of rights and duties, stressing that "every citizen is entitled to the rights and at the same time must perform the duties prescribed by the Constitution and the law "; the third section added in the present amendment contains provisions concerning the nature and aim of the articles in Chapter II of the Constitution. It sets out clearly that the stipulations concerning citizens' fundamental rights in this chapter embody the aim and principle that "the state respects and safeguards human rights," stressing that to safeguard citizens' rights is, in essence, to respect and safeguard human rights. It may well be said that, with the inclusion of human rights as a principle in the Constitution, the prescription of the citizens' rights principle in Article 33 has been made more complete and accurate. It adds the finishing touch to the stipulations on " citizens' fundamental rights and duties" in Chapter II, and functions as the heading of all the contents about human rights in the Constitution as a whole, and will thus produce a directional impact on the essential spirit and future development of the Constitution.

III. Implementing the Human Rights Principle of the Constitution and Promoting the All-round Development of Human Rights

The inclusion of human rights in the Constitution has ushered in a new era of using the Constitution to safeguard human rights, and opened up broad vistas for the all-round development of the human rights cause in China.

Since the introduction of the reform and opening-up some two decades ago, China has devoted great efforts to developing the socialist market economy, democratic politics and advanced culture, and promoting the coordinated development of material, political and spiritual civilizations. These efforts have not only enabled the Chinese nation at large to achieve the historic leap from having enough food and clothing to enjoying a well-off life, but also ensured rapid progress in guaranteeing people's democratic rights. The Chinese people are enjoying increasingly extensive and complete human rights.

However, it should also be realized that the lack of clear provisions about respecting and safeguarding human rights in the Constitution for a long time had entailed comparatively severe limitations for the legal guarantee of human rights and the progress of the human rights cause in China. Because there was no provision on the principle of the state's respecting and safeguarding human rights in the Constitution, the stipulations on citizens' rights in the Constitution and those about safeguarding human rights manifested in general laws and regulations failed to produce proper effects. Chinese society on the whole, especially Party and government officials, paid little attention to human rights, and had a poor understanding of the content and standards of human rights and a weak awareness of the importance of respecting and safeguarding human rights. As a result, cases of ignoring and violating human rights happened from time to time, causing serious harm to the nation's image.

As the saying goes: "If the name is correct, speech will be heeded; if the speech is heeded, something will come of it." At present, the whole nation is devoted to building a well-off society in an all-round way, and therefore it is more than timely and appropriate to add "the state respects and safeguards human rights" to the Constitution, and establish the status appropriate for the human rights principle in the nation's political life. The Constitution is the basic law of the nation, the general regulations for the Party and government's ruling and strengthening the nation, administering state affairs and ensuring national security, the cornerstone of people's democracy and the highest code of conduct of the whole society. To add the provision on respecting and safeguarding human rights to the Constitution establishes the supreme position of human rights in the Chinese legal system, and highlights the strategic position of human rights development in the course of national construction and social development. It not only gives the correct name to human rights and to socialism with Chinese characteristics, but also reflects the urgent needs of the present national construction, social civilization and national progress, as well as the people's aspirations to further improve the material, cultural and political well-beings. It shows that the coalescence of the Party' s stand, the nation's will and the people's wishes will vigorously promote the progress of society and the human rights cause. It can be said that the inclusion of human rights in the Constitution is a blessing for the people and the nation.

However, it is just the first step in respecting and safeguarding human rights to declare and confirm human rights in the Constitution. It is more important to put constitutional principles into practice, and to respect and safeguard human rights effectively in reality.

To carry out the Constitution's human rights principle, it is first necessary to enforce the Constitution and safeguard its dignity and authority. The Constitution is the declaration and guarantee of the people's rights and the highest criterion for safeguarding human rights. A good constitution together with its various provisions must be implemented conscientiously, otherwise, it will be a mere scrap of paper, no matter how good its provisions. The first and basic thing in running the state according to law and setting up a democratic constitutional government is to enforce the constitution in its entirety and run the state and government in accordance with the constitution, taking the constitution as the core and base. In 2002, Hu Jintao said emphatically at a rally marking the 20th anniversary of the Chinese Constitution, "We must further foster constitutional awareness in the whole of society, safeguard the authority of the Constitution and make it observed by the whole of society." He added, "We must improve the safeguard regime of the Constitution, ensure implementation of the Constitution, perfect its supervision mechanism, further clarify its supervision procedures and promptly correct all violations of the Constitution." That a constitution can play its proper role and the citizens' rights stipulated in it can be guaranteed effectively are the basic mark of a country under the rule of law and of a democratic constitutional government, and also the foundation for ensuring the enforcement of the human rights principle.

To adhere to the human rights principle in the Constitution, it is necessary to implement the provision on respecting and guaranteeing human rights in all the links of legislation, law enforcement, judicature, and state and government affairs administration. In the process of legislation the NPC and its Standing Committee should further stress the theme of human rights and the basic spirit of respecting and safeguarding human rights, embody the human rights principle and all citizens' rights provided for by the Constitution in relevant laws and regulations, establish or improve the effective legal safeguard regime for human rights with the Constitution as the basis, so as to make citizens' human rights guarantee law-based. At the same time, it is necessary to earnestly shoulder the responsibility of supervising the implementation of the Constitution, resolutely correct all violations of the Constitution, fully protect all the freedoms and rights of citizens provided for by the Constitution from being violated, and ensure all infringements on human rights that go against the Constitution or laws are held to account according to law. Party and government organizations, judicial organs and procuratorial organs at all levels should each perform its functions properly, and adhere to the Constitution's principle of respecting and safeguarding human rights in an exemplary and resolute manner while carrying out their official duties. They should govern and administer according to law, enforce legal and judicial procedures with impartiality, properly use the power given to them by the people, crack down on all crimes infringing on citizens' rights according to law, keep developing all social undertakings, and do a good job of safeguarding and amplifying the rights and interests of the people.

To put the Constitution's human rights principle into practice, it is also necessary to crystallize respecting and safeguarding human rights in all aspects of social life, as well as in people's daily life. In economic construction, it is necessary to persist in the developmental view with people as the focus, cherish people 's all-round development, fully respect people's active position in development, and guarantee people's comprehensive participation in development and their equal sharing of the fruits of development. In political construction, it is necessary to put more stress on the theme of rights, improve the democratic system, institutionally guarantee the democratization of the Party and state's political life and the people's status as masters of the country, expand citizens' orderly political participation, and conscientiously safeguard their political rights. In spiritual civilization construction, it is necessary to pay more attention to respect for people, and, based on socialist humanitarianism, implant the basic concept of respecting and safeguarding human rights firmly in the minds of the general public, so as to build up the good social ethics of respecting, caring for, cherishing, helping and developing people.

It is everyone's responsibility to respect and safeguard human rights, and this calls for the common efforts of the whole of society. With the inclusion of human rights in the Constitution as a pivot, with the stipulations on human rights and citizens' rights provided for by the Constitution and other laws and those in the UN's International Charter on Human Rights as the basic contents, and with contemporary China's actual conditions in mind, we should carry out extensive education to publicize the socialist human rights outlook and the basic knowledge of human rights through the mass media and schools of all levels, so as to make the concept and value of respecting and safeguarding human rights take deep roots in everyone's mind and become every member of society's conscious action. Only when every citizen fully recognizes the importance and connotation of human rights, has a strong awareness of the importance of rights, respects others' human rights according to law in practice, and safeguards his or her own human rights can the illegal expansion and abuse of state power be mitigated and the constitutional principle of respecting and safeguarding human rights be abided by throughout society.

Party and government leaders and public servants have a special responsibility for respecting and safeguarding human rights. Party and government leaders and public servants are the executors of public power. Public power is endowed by the people. Therefore, it should be used for the people. Human rights can be effectively promoted and safeguarded only when Party and government leaders and public servants correctly exercise public power, whereas abuse of public power will seriously infringe or trample upon human rights. Therefore, it is of paramount importance to educate Party and government leaders and public servants in the need of " governing for the people," and of respecting and safeguarding human rights. Only if Party and government leaders and public servants at all levels solidly establish a correct outlook on power and human rights, earnestly utilize their power for the people, work for the interests of the people, win the good graces of the people, and fully respect and safeguard human rights in the course of exercising their power, can the human rights cause be promoted fundamentally, people's human rights be secured from infringement and the level of people's enjoyment of human rights enhanced continuously.

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