The Making and Structure of the 1982 Constitution of China

• Author: Zhai Zhiyong
• Pages: 142-169

142 TSINGHUA CHINA LAW REVIEW [Vol. 8:141

THE MAKING AND STRUCTURE OF THE 1982

CONSTITUTION OF CHINA

ZHAI Zhiyong

Abstract

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

history.

I. INTRODUCTION

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.

2016] THE 1982 CONSTITUTION OF CHINA 143

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

Program).

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), http://www.npc.gov.cn/wxzl/gongbao/1982-11/26/content_1478478.htm.

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.