The Making and Structure of the 1982 Constitution of China

AuthorZhai Zhiyong
ZHAI Zhiyong
This article aims to historically explore the political and ideological
structure of the 1982 Constitution, both of which are multiple and
can, therefore, be examined from various angles. This includes, first
of all, the historical changes of the United Front and the Political
Consultative Conference as well as the political implications and the
isolation function of their non-politicization. Second, it includes the
distinction between and the unification of the leadership principle
and the representation principle. Lastly, it includes the introduction
of a new design of constitutionalism with rule of law, private
property rights and human rights at the core, which to some extent
altered the societal and ideological basis of the original structure.
Because of these components, the 1982 Constitution was able to
respond to the complex societal changes in the last 30 years, the
secret of which lies in the multiple complex structure created by this
Whether in terms of the main text or in terms of the amendments,
the 1982 Constitution is a reflection of the layering of history. Of
course, every constitution can be considered as a product of history,
since none of them can truly be considered a ‘genesis’. However,
what sets the Chinese Constitution apart from other constitutions is
that it did not grow naturally and continuously in a coherent period
of history. Instead, its historical layers comprise numerous breaks
and contradictions which indicate that the 1982 Constitution is of a
multi-faceted complex structure.
Three decades after the proclamation of the 1982 Constitution, in
fact, it is possible to explore this constitution form a historical
perspective. The radical shifts in Chinese societal and economic
structure in the last thirty years were internally reflected by the 1982
Constitution through four amendments comprising 31 articles,
thereby creating a new design for Chinese constitutionalism. 1
However, if the historical perspective is limited only to these thirty
1 The author has already discussed how the four amendments to the 1982 Constitution created a
new design for Chinese constitutionalism as well as the increasing complexness of the Constitution ’s
internal structure accompanied therewith in a different article. Zhai Zhiyong (翟志勇), Ba’er Xianfa de
Sige Xiuzheng’an yu Xinde Xianzheng Sheji (八二宪法的四个修正案与新的宪政设计) [The Four
Amendments to the 1982 Constitution and the New Design for Constitutionalism], 3/4 ZHANLüE YU
GUANLI (战略与管理) [STRATEGY AND MANAGEMENT JOURNAL] 25, 25-27 (2012). Therefore, the
explorations of this article will concentrate mainly on the 1982 Constitution, and only marginally
mention the four amendments.
years, we will still not be able to comprehensively understand the
essence and the multiple dimensions of the 1982 Constitution.
Although the text of the 1982 Constitution was enacted after the
Third Plenary Session of the Eleventh Central Committee of the
Chinese Communist Party and the passing of the “Resolution on
Certain Questions in the History of Our Party Since the Founding of
the People’s Republic of China”, both of which provided for its
guiding ideology,2 when viewed as a whole, the 1982 Constitution is
retrospective in nature and a reiteration and reconstruction of the
history of constitutionalism since 1949. The passing of the 1982
Constitution was preceded by more than two years of discussions
(from September 1980 to December 1982),3 and the wording of each
article and paragraph was chosen deliberately, with great care, and
meticulously. Therefore, the articles and paragraphs of this
constitution would be rather difficult to understand if they are
isolated from their historical background and context. If one does not
know the intentions of the constituents, should one deeply elaborate
on the essence and the internal structure of the constitution? This is
best explained with a simple example: “The State protects sites of
scenic and historical interest, valuable cultural monuments and relics
and other significant items of China’s historical and cultural
heritage.”4 This article seems to be rather insignificant and it even
appears that there would be no need for this to be included in the
1982 Constitution. However, a review of the drafting history shows
that the constituents consciously included this article, in order to
dissolve the awareness and actions of the large-scale destructions of
historical relics during the Cultural Revolution, while at the same
time to appease some religious circles.5 Therefore, the perspective of
historical research has to be extended to the constitutions of 1978,
1975 and 1954 and even the Common Program of The Chinese
People’s Political Consultative Conference (hereinafter Common
The 1982 Constitution is often considered the continuation and
development of the 1954 Constitution. Not only does its form
generally follow the patterns of the 1954 Constitution (with the
exception of two chapters, “The Structure of the State” and “The
Fundamental Rights and Duties of Citizens” which were
interchanged) but the general principles also originated from the
1954 Constitution. According to a statistic by Han Dayuan: “From
2 Peng Zhen (彭真), Guanyu Zhonghua Renmin Gongheguo Xianfa Xiugai Caoan de Baogao (关于
中华人民共和国宪法修改草案的报告) [Report on the Draft Constitution of the People’s Republic of
China] (Nov. 26, 1982),
3 Xu Chongde (许崇德), Zhonghua Renmin Gongheguo Xianfashi (中华人民共和国宪法史) [The
Constitutional History of the People’s Republic of China] 558-59 (2003).
4 XIANFA art. 22 (1982) (China).
5 Xu, supra note 3, at 783.

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