Cao Siyuan currently serves as the director of Beijing Siyuan Merger & Bankruptcy Consultancy and the president of Beijing Siyuan Research Center for the Social Sciences. Between July, 1982 and September, 1988, he was employed in the Chinese Central Party School, the General Office of the State Council, the Committee of State System Reform successively. He is the author of twelve books and over 500 articles and has delivered 350 lectures. In 1997, he was elected the standing councilor of China State-owned Assets Management Association. As a visiting scholar, Mr. Cao has given lectures at Columbia University, Harvard University, New York University, Georgetown University, California University, Chicago University, Stanford University, University of Toronto, Paris East Languages Institute, Hong Kong University, Hong Kong Chinese University, and Hong Kong City University. He can be reached via email at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

The constitution promulgated after the founding of the People's Republic of China has undergone numerous major revisions. Thefirst constitution was enacted in 1954 and lasted until the Cultural Revolution in 1966, when it came to be regarded as no better than scrap paper to be trampled underfoot. Nine years later, the first meeting of the 4th session of the National People's Congress laid down the 1975 Constitution based on the Cultural Revolution line. That constitution was laughable. In fact, its provisions were so unfitting for a constitution, Mao Zedong's name was even includedthat it should not have been considered one. After the Gang of Four was crushed, Hua Guofeng¹ took charge of revisions and promulgated the 1978 Constitution. This revision was even more ludicrousthe preamble went so far as to announce that the first proletarian phase of the victory of the Cultural Revolution was finished. The Chinese Constitution currently in force is the one set forth in 1982, which represents a significant improvement over the previous two. However, in 1982, China had just opened its door to the outside world, economic reforms had only just begun, and reforms of the administrative system were not even on the agenda. Provisions of this constitution reflected, and were adapted to, an economy and a political system that had not yet been reformed. They were not adapted to today's China.

Recently, China has already made substantial progress in the area of economic reform. From the initial stages of transformation from a planned economy into a market economy, many economic practices currently in existence have already surpassed the scope permissible under the 1982 Constitution. It is precisely for this reason that a number of people holding differing political views on economic reform have raised strident criticisms that the reforms have violated the constitution. There are only two roads open before us: one is to retreat on the road of reform. However, it would be almost impossible to reverse course and return to the old system of planned economy. Another route is to reform the constitution, adapting it to the changing circumstances. 

It is clear that if we want to maintain economic reforms, we must revise the constitution. Otherwise, economic reforms will not enjoy constitutional protection, making them inherently unstable and consequently inhibiting their progress. From a political standpoint, constitutional reform is an even more urgent priority. A constitution sets up the political framework of a nation and serves as the primary transmitter of the political system. If one wants to reform the political system, one must first begin with the constitution. Without constitutional reform, it is difficult to have reforms of the political system of any substantive significance. If political reforms are pursued without accompanying constitutional reform, you will either be merely firing blanksthat is taking measures that have no practical impact, or face censure and resistance at every turn. This is also one of the key reasons that there have been no breakthroughs in political reform, despite Deng Xiao Ping's proposal in 1986 and Fifteenth Party Congress' proposal in 1997 to reform the political system. As a result, for both political and economic reasons, China urgently needs constitutional reform. In the following discussion, the author presents five concrete proposals for how constitutional reform should be carried out.

1. The Constitution must only contain compulsory provisions.

The constitution is China's most basic law, and at the same time sets up a binding framework. It delineates the nation's basic systems, the obligations of state institutions, and the fundamental rights and responsibilities of citizens. Every institution, every citizen (including the ruling party and national leaders) must abide by the constitution and any violation of it must be punished according to the national law. Based on this principle, non-obligatory content should not be written into the constitution.

For example, questions of theory and faith are not binding in nature. Deng Liqun² claims to be a Marxist, and Yu Guangyuan³ also claims to be a Marxist. But on many issues the views of the two are quite dissimilar, even to the point of being diametrically opposed. In the final analysis, I am afraid the question of who is a real Marxist and who is a fake Marxist could be debated at length. Many political leaders have been praised as great Marxists, but if we look at the eulogy of Hu Yaobang,⁴ Hu was only termed a Marxist, notably omitting the "great." Once again, how are we to differentiate these two Marxists? It is impossible for the constitution to stipulate the answer. Similarly, views on questions of whether anlao fenpei (the system of [distribution] "to each according to his work") is an economic rule of socialism or not, what the scope of such a system should be, and whether or not deviating from this system is a crime, have been hardly uniform. Mandating a single understanding of these issues through the constitution would be impossible. Other areas are equally beyond the scope of any compulsory norm, such as understandings of individual perspective, behavior, and emotions, as well as morality, personal style, interests, and affection, and issues like the Wu jiang, si mei, san re ai⁵. Therefore, no provisions regarding these areas should be incorporated into the constitution.

In view of the above, I recommend deleting the entire preamble. All superstitions and non-binding provisions should be removed from the current constitution without exception. The constitution is not a textbook of political theories or a history book, and it is not necessary to preserve provisions of this sort for history's sake. If we look to the constitutions of other nations, we see that a vast majority of them do not contain a preamble. Even where a preamble exists, it generally states the procedures that produced the constitution. In sum, the constitution cannot become an overflowing basket. Incorporating into the constitution provisions that should not be made binding or cannot be made obligatory will impair its rationality and authority and hinders its practical implementation and execution.

2. The Constitution must contain measures to prevent violations.

Even if the text of the constitution is improved, it is no more than a piece of scrap paper unless it is upheld. During the Cultural Revolution, Mao Zedong easily rendered the Chinese Constitution a useless document. Once it was tossed aside, former State Chairman Liu Shaoqi,⁶ though not yet removed from his office, was toppled by the Party Chairman Mao. Liu lost his personal freedom and finally, like many citizens who were deprived of the protection of the constitution, was tortured to death. This tragic and profound lesson did not receive enough attention during the redrafting of the 1982 Constitution. The current constitution still contains the same grave defect as the 1954 Constitution's, namely, that it does not incorporate the principle that the constitution will be faithfully implemented. It still fails to provide the nation with a legal mechanism for preventing constitutional violations by a figure like Mao Zedong. If ever a second Mao wanted to stage a second Cultural Revolution, the current constitution would still provide no protection for the life and dignity of even the Chairman of the Republic. To rectify this problem, when contemplating constitutional reforms, one should consider establishing a system that would guard against constitutional violations. This structure should primarily consist of two components, outlined below.

Establishment of a Constitutional Committee and a Constitutional Court

Article 70 of the current constitution states in explicit terms: The National People's Congress establishes a Ethnicities Committee, a Law Committee, a Finance and Economic Committee, [and] an Overseas Chinese Committee, but the fact that no provision is made for a Constitutional Committee is a shocking omission. The present constitution only has the status of an ordinary statute. Constitutional interpretation and supervision is under the jurisdiction of the National People's Congress (NPC) and its standing committee. A unique role should be specified for the constitution. If the daily work of interpreting and overseeing the constitution is undertaken by the collective efforts of the most powerful members of the government organs, then the work of supervision will easily fall through the cracks. The NPC convenes only once a year; the annual session is brief and filled with numerous other items of business. The Standing Committee of the NPC meets bimonthly. The authority that the constitution grants this committee is broad (twenty-one provisions detail this authority in the constitution) and thus its workload is intense and heavy. Therefore, the NPC and its Standing Committee seldom have the time or energy to conduct constitutional oversight and investigations of constitutional violations. This necessitates the founding of a committee solely focused on constitutional issues and the promulgation of specialized regulations that delineate the object, content, style, and procedure, as well as the execution of constitutional oversight. These regulations should also set forth the professional duties and obligations of those executing the oversight and those subject to such oversight. Implementation of these reforms would solidify the practice of constitutional oversight in China.

The responsibilities of the Constitutional Committee should include at least three roles. First, it should research constitutional theories and practical issues and to report theoretical and practical problems in the constitution to the NPC and its Standing Committee. Second, it should carry out constitutional oversight and examine current laws, administrative regulations, and local laws. If constitutional violations are discovered, the committee should report these violations to the National People's Congress according to established procedures. The People's Congress and its Standing Committee should then decide on these violations. In such cases, a suit could also be brought in the Constitutional Court, which would render a verdict. Third, to bear responsibility for handling proposed constitutional reforms, including researching and refining such proposals, as well as presenting findings to the People's Congress and the Standing Committee.

The purpose of establishing a constitutional court is to decide cases involving violations of the constitution and to make rulings on the constitutionality of national laws, administrative regulations and local laws. Any provision that the court finds is in violation of the constitution should be pronounced null and void and execution of such laws should be stayed. The Constitutional Court could adjudicate both constitutional suits brought by state organs, political parties, organizations, and enterprises, and constitutional cases initiated by individual citizens. In the case of violations with relatively minor impact, the Constitutional Court can exercise its discretion to transfer the case to another court.

Strict Procedures for Amendment and Abrogation of the Constitution

Any person (including leaders of the nation and of the ruling party) who does not comply with such procedures will be viewed as failing to uphold the constitution and should be found, without exception, to have committed a constitutional crime. Any citizen can be brought before the Constitutional Court for such crimes.

After revision, the Chinese Constitution should clearly stipulate the following provisions:

1) If a majority of the members of the Standing Committee of the People's Congress or a majority of the Standing Committees of the People's Congresses of the provinces, special municipalities directly under the central government,⁷ or autonomous regions consider it necessary, the Standing Committee of the People's Congress must propose and make a formal public announcement of a draft revision of the constitution. Between three to six months after the formal announcement of the draft revision, opinions on all aspects of the draft should be compiled and the post-revision draft submitted to the NPC for discussion. If the revision is passed by a two-thirds majority of the NPC and, within a half year from that time, is granted approval by the majority vote of the Peoples' Congresses of the provinces, special municipalities, and autonomous regions, the constitutional amendments shall take effect.

2) In case of foreign invasion, internal upheaval or other emergency situations, national leaders can make a Public Emergency Pronouncement to impose a state of emergency and to suspend temporarily certain provisions of the constitution. This Pronouncement must receive the approval of the Standing Committee within one month of the announcement and must within the ensuing two months receive ratification of the majority from the People's Congresses of the provinces, special municipalities, and autonomous regions. If the pronouncement is approved, it will take effect within six months of the time of the announcement. If the national state of emergency has still not dissipated with six months, the Public Emergency Pronouncement must receive full approval through the process described above before it can be extended for another six months. In other words, if the measure fails to receive the approval of the Standing Committee, or does not obtain the ratification of a majority of the provinces, special municipalities, and autonomous regions, national leaders must terminate the state of emergency within ten days after the results of the vote are made public. All provisions of the constitution will once again be in force.

The rationale for requiring passage by majority vote of the People's Congresses of the provinces, key cities, and autonomous regions is to reflect fully the will of the people in questions of such importance as the revision and temporary suspension of the constitution. The significance of this regulation is that there will be a mechanism to prevent foreign leaders from relying on their influence to manipulate the NPC and to violate the will of the people. Of course, as far as ordinary legal problems are concerned, it will not be necessary to require this kind of special approval procedure in order to guarantee legislative efficiency.

3. The Constitution should clearly state: "The interest of the People above all."

Since 1949, a series of political slogans reflecting different political needs at the time have appeared. Under the special circumstances at the time, these slogans were often considered absolutely correct and quickly became the highest command of the country. However, people often did not predict the harmful consequences of these slogans. For example, the '60s and the '70s saw the rise of slogans such as "Absolutely Obey Chairman Mao! Everything for Chairman Mao!" It is inconceivable that these types of slogans, which reverse the relationships between the people and their leaders, and between the sovereign and the servants, echoed in the air of China for so many years. It is difficult to believe that quotes from an individual can become "highest commands," rising above the law and the constitution. The Republic almost became a feudal monarchy. This was certainly not accidental and was largely the result of the absence of the rule of law and of the institution of dictatorship at the time. This painful experience has prompted some thoughts. In order to prevent political slogans produced during a certain period or in a certain political environment from becoming the basic laws governing the country, and in order to reflect accurately the guiding principles of the Republic and to instill authority in them, I propose a clear statement be adopted in the constitution that "the people's interest is above all" be made the slogan of the People's Republic of China.

For the People's Republic, the people's interest obviously should occupy the highest priority, and all policies must service that interest. Of course, the people's interest includes the interest of the whole, partial interests, short-term interests, long-term interests, economic interests, political interests, and cultural interest. The questions of how to mediate and unite this complex structure of interests and of how to increase the benefits to the entire nation deserve serious continuous inquiry. We cannot let policy proposals that are of narrow scope and temporary nature stifle this inquiry. To propose the slogan "the people's interest is above all" can affirm an irreplaceable basic principle and can leave plentiful ground for inquiry in the midst of limitations imposed by policy implementation.

As the decision in the 6th Plenum of the 11th Central Committee states, in human history, the struggle of the new bourgeoisie and the laborer against the feudalist system caused the formation of concepts of democracy, freedom, equality, and fraternity. The emergence of these concepts constituted a great liberation for humankind. The French Constitution once listed "liberty, equality, and fraternity" as the founding principles of the French nation, clearly reflecting the historical progressiveness of that constitution. If China adopts the slogan of "the people's interest is above all," this slogan would be even more progressive and realistic, and people can abide by it and follow it. "The people's interest is above all" should not only be included in the constitution as a slogan, but it should also, through constitutional amendments, be reflected in the specific articles of the constitution.

For example, according to the principle of "the people's interest is above all," the constitution should clearly stipulate that private property of the citizens be protected. Article 12 of the current constitution stipulates that "socialist public properties are sacred and inviolable" and that "the country must protect socialist public property and must prohibit any organization or individual from taking over or destroying any state or collective property by any means whatsoever." From a legal standpoint, if only A is protected, that which is not A is clearly not protected. Hence, this stipulation in fact places private property outside of the jurisdiction of the "sacred and inviolable" clause of the constitution. If private properties are not "sacred and inviolable," the underlying implication is that invasion of private property is not necessarily punishable by law. Hence, in everyday life, such phenomena are quite common. For example, if the owner of a private company tries to indict the company accountant for embezzlement, the law enforcement agency can say, "we only protect public property and not private property. He did not embezzle public property, just your money, so according to law, it does not constitute embezzlement." In this situation, how can private economic interests develop normally? How can a market economy operate normally?

To take another example, according to the current constitution, profit from investments and dividend income from stocks are not considered income gained from labor and are therefore not protected by the constitution. How can this sort of constitution encourage people to invest and to develop the stock market? To meet the needs of the market economy, I propose that Article 12 of the Constitution be amended to the following: "public property and citizens' private property are both equally sacred and inviolable."

Although some newspapers and government agencies now advocate the protection of investors' interest and others demand that criminal laws be amended to protect the rights and inviolability of private enterprises and investment, these measures cannot replace constitution amendments. According to current constitutional stipulations, the state only protects public property. Hence, without constitutional amendments, not only would policies or laws that seek to protect private property lack any constitutional basis, they might in fact violate the constitution. In order to provide the protection of private investment and private entrepreneurial decisions with a reliable constitution basis, the constitution must be amended.

Moreover, from the starting point of "the people's interest is above all," I propose to add two provisions to Article 35 of the current constitution: "the citizen of the PRC has freedom to choose the news media," and "the PRC prohibits the use of state resources to subsidize any news media." In a market economy, the media functions like other competitive industries and only develops in an environment in which only the fittest survives. The media will only improve qualitatively and earn greater acceptance by society under market competition. Rather than being good medicine for market competitors, subsidies to the media would actually stifle the competitors' creativity. In the contemporary Chinese media market, some newspapers and magazines are managed poorly and are not welcomed by the masses. They survive merely by virtue of state subsidies and mandatory subscriptions, which are a waste of the taxpayers' money and violate the rights of citizens to choose their news media. These publications cannot escape further deterioration, and their management lapses into a vicious cycle. This is similar to a soccer player who fabricates past titles to play on the field despite needing a crutch. Not only would he never become a good player, he would also destroy the rules of fair competition.

4. The Constitution should establish the "Presumption of Innocence."

The adoption of a "presumed innocent" or a "presumed guilty" standard constitutes a major difference between a modern and a feudalist legal system. Many countries have already written a "presumed innocence" clause into their constitutions. However, some legal authorities in China assert that, "we will not meddle in the capitalist 'presumed innocence' nonsense. We will seek truth from facts. If there is a crime, we will convict. If there is no crime, we will not convict." While this sort of saying may seem to emphasize facts, it avoids a question of grave consequence: when the judicial agency cannot determine whether a person suspected of violating the law has in fact committed a crime, should the person be convicted or not? For example, if someone accuses Zhang San (fictitious) of corruption but does not provide evidence and the court has not convicted Zhang San of corruption, how should we treat him? If the law enforcement agency arrests him in the course of the investigation, the arrest presupposes guilt and deprives him of his personal freedom and of his basic rights as a citizen. To treat him as a criminal is in fact to presume guilt. If we adopt the widely followed principle of "presumed innocence," the authorities must presume Zhang San to be innocent and cannot deprive him of his constitutional rights and his personal freedom without a conviction. Different versions of the Chinese Constitution have all contained provisions for the protection of the basic rights of the citizen and personal freedom, but they have not mandated the presumption of innocence. As a result, for a long period of time, only a stamp and a letter of accusation were needed to deprive a citizen of his rights completely, thus creating a mass of wrongful convictions.

Some believe that the institution of the principle of presumed guilt would have minimal effects on regular law-abiding citizens. Little do they know, a "sword of Domicles" dangles over every citizen in our country. This "sword" can fall any time to "hack away the brain." The presumption of guilt was an important legal requisite condition for the death of Liu Shaoqi, He Lung, and Peng Dehuai. Regrettably, even after the ten-year devastation of the Cultural Revolution, several decades that were filled with wrongful convictions, and the execution of thousands upon thousands of people, we still want to retain the presumption of guilt. From a legal or a constitutional perspective, the fact that everyone from the state leadership to the ordinary citizenry still carries the imperial vestiges of "Wu Xuyou"an equivalent of "presumed guilty," is in fact extremely dangerous. To reject the presumption of innocence is to affirm the presumption of guilt, which enables the conviction of innocent people under "revolutionary" pretenses at any time.

Consequently, I propose an amendment to Article 37 Section 2 of the current constitution that states, "Until convicted by the People's Court, everyone is presumed innocent." In any case, the principle of presumed innocence is an important condition for the protection of the basic rights of the citizens and must be included in the constitution.

5. The Constitution should incorporate the principle of "Political Openness".

During Mao's era, China was plagued by dictatorial politics and secretive politics. Whenever he made a decision concerning the fate of the entire country, he never consulted with its highest political authorities, the National People's Congress and its Standing Committee. He used the excuse of "national interest and the needs of revolutionary work" to conceal his decisions from the Central Committee, the Politburo, and even from the majority of the Standing Committee of the Politburo. His "sacred heart" made unilateral decisions, which brought about disastrous outcomes time and again to millions of Chinese citizens.

If a key characteristic of authoritarian politics is secretive plotting, then a defining feature of a democracy is political openness. Hence, many contemporary democracies include in their constitution principles and specific measures related to political openness. Regrettably, despite painful historical lessons, the current constitution still does not include a clause on political openness. There are no provisions in the constitution that hold state agencies responsible for revealing state secrets or stipulate open sessions of the National People's Congress and its Standing Committee. On the contrary, Article 76 of the Constitution insists that NPC delegates must "protect state secrets," and that delegates have no duty to make any information available. Thus the shadow of undercover politics persists in the current constitution. This constitutes a pitfall which we must endeavor to overcome when the constitution is amended.

As such, I propose an amendment to Article 64 of the current constitution: "The NPC and its Standing Committee must convene openly. In order to hold a secret meeting, all attending delegates or over two thirds of all delegates must approve." We should institute a system in which open sessions of the NPC are regular and closed sessions are rare. Extraordinary meetings must pass a set of extraordinary procedures and not be convened simply according to the wishes of the political leaders. Concrete measures for the opening up of NPC sessions, which are to be delineated in special legislations, should include allowing live television broadcast, citizen attendance, and reporter access.

I propose to add the phrase "timely communication of information to the electorate" after the clause requiring NPC delegates to protect state secrets in Article 76 of the current constitution. Moreover, another clause should be incorporated after Article 35 to the effect that "PRC citizens have the right to demand information from national agencies." National agencies should, to the extent permitted by the law, make information available to facilitate the citizens' exercise of their right to information.

Besides the suggestions above, in conjunction with constitutional amendments, I propose that the NPC formulate public information law in accordance with the principle of openness. In contemporary society, the most effective check on corrupt behavior is openness. Corrupt officials and dirty secrets are "not afraid of internal circulars within the government but are afraid of public reporting." Openness helps to expose ugly scandals and to make the fight against such corrupt behavior easier, while enabling ordinary citizens to monitor the behavior of cadres at every level. The opening of public affairs facilitates anti-corruption measures and the reform of the political system itself demands openness in the legislative process and the decision-making process for major policies.

What sort of political activities and related information should be publicized should not be determined by the whims of political agencies or the leadership. The public information law should make a principled stipulation in this regard. In this manner, state agencies at all levels can, according to set procedures, announce what falls under the category of open information and what falls under the category of state secrets. Relevant state agencies should investigate this matter and punish those agencies and officials who violate the public information legislation, just as they punish those who violate the state secrets law. By adopting these proposals, we can hope to render provisions of openness more clear and stable. Only in this manner can we rely on the law, prosecute those who violate the law, and facilitate the democratization of this country's political life.

Admittedly, amending the current constitution and promoting the institution of a constitutional polity is an enormous project. Many questions still await answers. The above is merely a selected discussion of the most pressing matters, but if these problems can be first solved, all areas of reforms in China will have a new starting point.

Notes

1 Mao's successor as Chairman of the Party

2 A Marxist theoretician.

3 An active political dissident.

4 The former General Secretary of the Communist Party

5 The Five Stresses, Four Points of Beauty, and the Three Ardent Loves embodying the requirements for revolutionary culture. The Five Stresses are: stress on decorum, manners, hygiene, discipline and morals. The Four Points of Beauty are the beauty of the mind, language, behavior and the environment. The Three Ardent Loves are the nation, the Party, and the society.

6 State President from 1959 to 1966, Liu was at one time designated to be Mao's successor. He was denounced during the Cultural Revolution and died in 1969.

7 These special municipalities (Chin. zhixia shi) are Beijing, Shanghai, and Tianjin.