- The Washington Times - Thursday, February 21, 2002

In recent years, the Chinese government has arrested many scholars in social sciences for "endangering state security." Last year I was secretly arrested in China and secretly tried and expelled from China. My "crime" was conducting research in China using funds from a Taiwan foundation. These arrests have brought worldwide criticism. While urging Chinese government to respect human rights, we should realize that these arrests are a logical result of China's constitution.
In China, where the constitution is not taken seriously, four constitutions had been produced in a short span of 28 years. The first one was written in 1954, paving the way for abolishing private property rights and the dictatorship of the Chinese Communist Party (CCP) after it seized power in 1949. In 1975, the second constitution was written, reflecting the extreme radical ideology of the Cultural Revolution. In 1976, Mao Zedong died. The third constitution was written two years later. In 1982, the fourth constitution was written. Frequent rewriting of the constitution does help people respect it.
China's constitution has the following characteristics. First, it is made without any opposition views and no checks and balances of power. It is more like a set of by-laws of "Chinese Socialism, Inc." Second, there is no formal ratification process for such a basic law. Third, power of the state comes from communist ideology. It proclaims that China must follow the "four cardinal principles" Marxist ideology, CCP rule, people's dictatorship, and socialist road. In sum, the constitution gives the CCP unlimited power to pursue its goal to build a socialist state.
Under such a constitution, the CCP pursues its own agenda in the name of public interests. In the economic domain, the party has been steadfastly exploiting private businesses and property. From the 1950s to the 1970s, it was an outright confiscation. In the current constitution, it states that "socialist public property is inviolable." But private properties do not enjoy such a status. Private businesses are banned from many key industries such as telecom, aviation, post, and international trade, and are restricted from many other industries. Governmental fees imposed on private businesses are so high that the latter must either evade by bribing or go bankrupt. Corruption is the incentive for party officials to carry out dual-tracked economic reform, in which market forces are introduced and party privileges are maintained. The CCP is the rule-maker, the judge, as well as the biggest player in the economy.
In the political domain, persecution of dissidents, suppression of press freedoms, and other violations of basic human rights are done under the name of state security, which is ultimately sanctioned by the "four cardinal principles" in the constitution. These "four cardinal principles" are in direct contradiction with many citizen rights given in the constitution. When they are in conflict, the cardinal principles override and the citizen rights are easily taken away. Examples of such conflicts and violations abound. For example, recently the CCP banned people from using satellite dishes to watch foreign TV programs. The ban is in direct violation of each citizen's right of free and private communication mentioned in the constitution. The CCP routinely violates each citizen's right to organize by arresting and severely punishing people who try to form any political groups. All this is done under the "four cardinal principles." "Rule of law" and the state opportunism of the CCP has become "rule by law." Laws are merely for the party to protect its monopoly.
With economic development and opening up, the Chinese people will realize the unconstitutional nature of the constitution and demand constitutional reform. Thus the economic reform should be viewed as merely a part of the constitutional transition. The delay of such a transition has enabled the CCP to maintain a temporary stability, at the cost of institutionalizing corruption and suppression of human rights. The long-term costs resulting from the lack of constitutional reform may outweigh the short-term gains in economic performance.
When the pressure for constitutional change is too strong to be suppressed, the change may not be very peaceful. This scenario is not an exaggeration given the fact that the Chinese society does not have a long and deep constitutional transition and a culture that respects law and order.
In addition to focusing on the trade and human rights issues in China, the international community, especially the U.S. government, should look at the greater picture of the constitutional transition in China and use both economic and political means to help a peaceful transition and establish the constitutional order in China.

Li Shaomin teaches global environment of business at City University of Hong Kong.

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