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Experts: Laws must outline rights
By Meng Yan (China Daily)
Updated: 2004-03-31 00:12 China's new amendment to the Constitution, which
highlights the protection of individuals' rights, needs more specific
legislation to support the concepts it outlines, legal and economic scholars
say.
Additional legislative efforts are needed to translate the Constitution from
"a law on paper'' into concrete guarantees of individuals' rights, said Hu
Jinguang, a law professor at the Renmin University of China.
The 10th National People's Congress (NPC), the country's top legislative
body, adopted the fourth amendment to the 1982 Constitution at its annual
meeting earlier this month.
The Constitution was previously amended in 1988, 1993 and 1999.
The amendment stipulated that citizens' lawful private property is
inviolable, putting private assets on an equal footing with public property.
Under the provisions of the amendment, the nation can in some circumstances,
expropriate private property in accordance with the law when the public interest
will be served. But it must compensate citizens for the expropriation, the
amendment states.
In more general terms, the amendment says the country respects and preserves
the overarching concept of human rights for the first time within the
Constitution, although Chinese law has always safeguarded the rights of
individuals.
"Individuals are the primary beneficiaries of such a stipulation since they
gain the right to oppose arbitrary interference by the government into their
private lives or property,'' said Mo Jihong, a researcher at the Institute of
Legal Studies under the Chinese Academy of Social Sciences (CASS).
"All government and judicial bodies should increase their awareness of
protecting private property now that the Constitution has been amended,'' Mo
said.
Zhou Wangsheng, a professor of law with the Centre for Legislation at Peking
University, said the constitutional amendment is major social progress.
"It not only reflects the fruits of domestic economic reform but tallies with
trends in international economic integration and global constitutional
developments,'' Zhou said.
But he said the constitutional amendment is just a prelude to further
legislation that is needed.
"More specific legislation, including a separate law on the protection of
private property, is needed to support the constitutional stipulation,'' Zhou
said.
Mo said the draft law on tangible property rights, which is expected to be
reviewed by the national lawmakers this year, will clearly define the rights
individuals hold on their belongings by types and the nature of these rights.
The draft civil code, which was preliminarily reviewed by the NPC Standing
Committee in 2002, also specifies these rights, Mo said, adding that both
legislation will offer the legal basis for individuals to exercise their rights.
Zhang Houyi, a researcher at the Institute of Social Studies under the CASS,
said more emphasis should be put on the protection of common people especially
the poor and disadvantaged, referring to the grievously postponed payments of
salaries of farmers-turned workers.
The constitutional amendment also replaces the term "martial law'' by the
term "state of emergency,'' paving the way for legislation on states of
emergency conditions.
National legislators are expected to review a draft law on states of
emergency at the end of this year.
Emergency usually refers to an unforeseen combination of circumstances or a
resulting state that calls for immediate action to maintain public order and
ensure the safety of people's lives and property.
Extraordinary measures usually involve restrictions on citizens' rights and
freedoms to varying extents.
The draft bill on states of emergency will ensure that the country is ruled
by law even under emergency circumstances, said Yu An, a professor of
administrative law with the School of Public Policy and Management of Tsinghua
University, who participated in writing the draft bill.
Yu said the proposal will set an upper limit for state power and a floor
level for the citizens' rights at the same time, forcing the government to take
rational and restricted measures in the states of emergency.
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