Part II
Historical Experiences

7. The Constitution of China  

by Qianfan Zhang


Does China have a constitution? That depends on the way in which the word ‘constitution’ is understood. It is commonly thought that China did not have a written constitution until 1908, when the last dynasty enacted the Outline of Imperial Constitution ( qinding xianfa dagang ), but this does not mean that traditional China was not governed by basic rules and norms. As I argued previously, the Confucian cultural tradition that dominated China for over 2,000 years was centred on the fundamental moral precepts of humanity ( ren ) and righteousness ( yi ), around which an elaborate body of rules on rites, ceremonies, etiquette, and other aspects of human behaviour was developed. 1 Taken together, they formed a vast normative system of ‘propriety’ ( li , sometimes translated as ‘rites’), 2 which stood for a set of customs, conventions and procedures to be practiced in daily life for the purposes of cultivating moral virtue, directing and containing human passions, and preserving a well- ordered society. Indeed, these rules were collected in a dense Book of Rites ( Li Ji ) and enforced by generations of the Confucian gentry, to various degrees of effi cacy. To that extent, the traditional China did have a constitution – even a written constitution, if ‘constitution’ is meant to be a set of fundamental rules that govern society.

On the other hand, modern China has experienced a series of written constitutions. Unfortunately, none except the Nationalist Constitution (of the Republic of China) enacted in 1946 and now enforced in Taiwan has had any binding force of law. The current constitution applicable to mainland China, enacted in 1982, emphatically states in its Preamble that the constitution ‘is the fundamental law of the state and has supreme legal authority’. In that sense China clearly has a constitution. In reality, however, the constitution cannot be applied in the courts, and cases abound where the constitutional provisions or principles are violated without effective remedy. If one takes the word ‘constitution’ seriously, a constitution should consist of binding norms that govern the state, more than mere words printed on paper. On this reading, mainland China does not seem to have a real constitution; at most, it has only a feeble constitution, one without any ‘teeth’ in the sense that its provisions for protecting individual rights and regulating public powers have failed to control the practical operation of the state. A constitution without constitutionalism is necessarily a weak, if not a downright fake, one. 3

There are roughly four scenarios under which a constitution exhibits different degrees of binding force. First , a constitution is strongest when both the people it governs and their government are motivated to enforce it – to be more precise, when the people, who are naturally motivated to enforce the constitution that protects their rights, are able to oblige the government to do the same through political and legal mechanisms, often provided in the constitution itself, e.g. periodic elections and judicial review. 4 Good examples are the Constitution of the United States, widely regarded as the fi rst written constitution in the modern world, and the constitutions of other developed democracies established thereafter. Since the modern constitution is designed to defi ne and limit the power of the government, a rationally self- interested government actor is motivated to abide by the constitution only if he is obliged to do so – failing to enforce the constitution would cost even more than the inconveniences imposed by the constitution on the free exercise of public power.

Second , a constitution is decisively weakened when the people are not empowered to enforce and defend it, but the government and social elite are somehow interested in enforcing its norms. This was the case with traditional China, an authoritarian regime that enforced a hierarchical order defi ned in its social constitution ( li ), which favoured the interest of the ruling elite. The ordinary people participated in the practice of li and obeyed social norms in an orderly state, but such practice was largely passive because these norms were not created by them and some of the norms worked plainly for the interest of the ruling elites at their expense. 5 An authoritarian constitution, buttressed by the elites without popular support, would decay when the elites became incapable of maintaining the moral norms and social order. In the case of traditional China, it was the irreplaceable status of the Confucian culture in an isolated inland civilization that was able to revitalize once again the decayed social norms ( li ) after the order was reinstalled, producing a cycle of dynasties sharing primarily the same moral constitution. The written constitutions of Saudi Arabia (1993) and the United Arab Emirates (1971) are modern examples of this category, with barely disguised authoritarian inclinations. And China’s Constitution after the 2018 amendment seems to be moving towards this direction when it eliminated the term limit of the President of the State and put the leadership of the Communist Party in the very fi rst article of the Constitution, even though the ruling party also promised ‘constitutional review’ for the fi rst time since 1949.

Third , a constitution is rendered empty words when it is fi lled with lofty declarations that exalt the nominal ‘people’ above everything else without, however, empowering any real people to defend it, as in the case of socialist republics, including the former Soviet Union and its East European satellites and contemporary China. In these totalitarian states, it does not take long for the ruling elites to fi nd constitutional enforcement plainly against their self- interest, even though it is in their personal interest to pay lip service to the constitution. In reality, they will use every means available to prevent the people from exercising their constitutional rights to limit the abuse of public powers. In the end, no one is in the position to enforce the constitution and, sure enough, the constitution will become a pure fa ç ade, a ‘noble lie’ – with only the ruling elites as a whole being shrewd enough to know that it is nothing but a lie, under which the state is used as a convenient weapon for plundering its people. Such a situation is, of course, not limited to the totalitarian constitutions; the same tendency is seen in virtually all the authoritarian states dressed in the cloak of ‘democratic republic’, but it is most accentuated in the totalitarian states, e.g. the Soviet Union and the socialist republics established after WWII, 6 where the omnipotent state power is monopolized by one ruling party, often ultimately by one man, and the constitution is but a piece of propaganda for political beautifi cation.

Last , though not the least, and certainly the most relevant here, the situation in these countries gets somewhat better when the people have realized that constitutional enforcement is after all in their own interest and some of them are courageous enough to endeavour to realize what was supposed to be purely nominal. It will be terribly diffi cult for them to achieve anything since the whole state machinery works against them. But, who knows? With some luck and perhaps benevolence on the conscientious part of the ruling elites, institutional improvements are occasionally achievable. Such is the situation with China since 1978, when it entered the era of ‘reform and opening’ ( gaige kaifang ). For example, soon after the twenty- seven- year- old Sun Zhigang was beaten to death by fellow inmates when he was illegally detained by the police in Guangzhou, the State Council abolished its notorious Detention and Repatriation Regulation under the mounting public protest on the internet. 7 Of course, achievements of this sort are purely ad hoc and reversible. In recent years, the government has signifi cantly tightened ideological control and reduced intellectual freedom on public discussion, so much so that the very term of ‘constitutionalism’ became one of the ‘sensitized words’ ( min’gan ci ), forbidden at least in formal publications. 8 It is under such background that this chapter describes the constitution of China. The chapter fi rst provides a brief constitutional history of China, centring on the cycles of order and chaos, liberty and repression, reform and revolution. Next, it discusses the conservative (orthodox) and liberal (new) principles that coexist in the same constitutional text. This is followed by a description of the state institutions defi ned in China’s constitution. It ends with a summary explanation of why China’s constitution remains unenforced and what it will take to make it enforceable.

1 Q. Zhang , ‘ Propriety, Law and Harmony: A Functional Argument for the Rule of Virtue ’,
in J. Tao et al. (eds.), Governance for Harmony in Asia and Beyond ( Routledge , 2010 ),
282 – 314 .
2 See J. Legge , The Sacred Books of China , vols. 27 & 28 ( Clarendon Press , 1885 ) .
3 Q. Zhang , ‘A Constitution without Constitutionalism? The Paths of Constitutional
Developments in China ’ ( 2010 ) 8 International Journal of Constitutional Law 950 – 976 .
4 See e.g. L.D. Kramer , The People Themselves: Popular Constitutionalism and Judicial
Review ( Oxford University Press, 2004 ), 3 – 6 , 73 – 91 .
5 It is impossible, for example, for a woman to voluntarily support the foot- binding
custom that used to bring misery to generations of Chinese women, unless she has been
brainwashed into believing that it is for some reason a ‘virtuous’ act.
6 The conception of totalitarianism was originally used for the fascist regimes and applied
to the communist regimes after the WWII. For a conceptual analysis, see C. Friedrich and
Z.K. Brzezinski , Totalitarian Dictatorship and Autocracy, 2nd ed. ( Praeger, 1967 ) .
7 See Zhang, ‘A Constitution without Constitutionalism’, 964– 967.
8 In May 2013, the CCP internal document listed ‘seven taboos’ ( qi bujiang ), including
universal values, press freedom, civil society, civil rights, historical mistakes of the CCP,
crony capitalism and judicial independence.