Although there are numerous rights enumerated in China’s Constitution, all of those rights are negated by Article 51, which states: “When exercising their freedoms and rights, citizens of the People’s Republic of China (PRC) shall not undermine the interests of the state.” Those “interests” are all encompassing, but the most important is maintaining the Chinese Communist Party’s (CCP’s) monopoly on power. Consequently, China’s constitutional rights are merely “paper rights,” and a grand illusion.

Under paramount leader Xi Jinping, who took over in 2012 as general secretary of the CCP and as president in 2013, the Chinese state’s dominance has been increasing. Article 1 of the PRC’s Constitution, as amended in 2018, explicitly recognizes the dominant role of the CCP: “Leadership by the Communist Party of China is the defining feature of socialism with Chinese characteristics.” As President Xi declared, echoing Mao Zedong, “Party, government, military, civilian, and academic, north, south, east, west, and center, the Party leads everything.”

A Litany of Paper Rights

The crushing of all human rights under Chairman Mao led to a yearning for liberalization. Two years after his death, the National People’s Congress (NPC) promulgated the 1978 Constitution, which included the “four big rights”: “the right to speak out freely, air … views fully, hold great debates, and write big-character posters” (Article 45). However, after protesters began to openly criticize the CCP, those “rights” were quickly revoked in 1980 by the National People’s Congress, and the Democracy Wall movement ended.

When Deng Xiaoping took over as China’s paramount leader, in December 1978, economic liberalization greatly increased living standards. Yet personal freedoms and human rights remained subservient to state control, as clearly seen in the 1989 crackdown in Tiananmen Square.

The most recent version of the PRC Constitution, promulgated by the NPC on March 11, 2018, continues to pay lip service to human rights, while the CCP under Xi Jinping suppresses the free market for ideas.

The litany of constitutional rights and freedoms in the 2018 Constitution include:

  • “Citizens’ lawful private property is inviolable” (Article 13). 
  • “The state shall respect and protect human rights” (Article 33).
  • “Citizens of the People’s Republic of China shall enjoy freedom of speech, the press, assembly, association, procession and demonstration” (Article 35).
  • “Citizens of the People’s Republic of China shall have the right to criticize and make suggestions regarding any state organ or state employee.… No one shall suppress such complaints, charges or reports or take retaliatory action” (Article 41).

While the rhetoric is noteworthy, none of those rights or freedoms is guaranteed by law. They can be revoked at any time, just as the CCP abolished the “four great rights” in the 1978 Constitution. Article 51 of the 2018 Constitution provides a general defeasance clause that ensures that the CCP maintains its monopoly on power. As Roger Pilon has argued, given the fact that the interests of the state are “boundless in principle, and vague besides, any claims that individuals might have against the state can always be trumped as a matter of constitutional law.”

The Influence of Soviet Dogma

China’s constitutional architecture has been influenced heavily by the Soviet model. A close look at the 1977 Soviet Constitution, also known as the Brezhnev Constitution, illustrates the impact of Soviet dogma on the treatment of human rights in the PRC.

  • Article 39 stated: “Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interests of society or the state.” That general defeasance clause matches up with Article 51 of China’s 2018 Constitution
  • Article 49 gave citizens “the right to submit proposals to state bodies … and to criticize shortcomings in their work.… Persecution for criticism [was] prohibited.” That article’s language can be found in Article 41 of China’s 2018 Constitution.
  • Finally, Article 50 “guaranteed freedom of speech, of the press, and of assembly, meetings, street processions, and demonstrations.” That clause is nearly identical to Article 35 of China’s 2018 Constitution.

Like the Soviet Union, China’s constitution places the state before the individual and raises the communist party to a pinnacle of power. In both the Soviet and Chinese models, constitutional rights and freedoms are a grand delusion. The general defeasance clause in both constitutions makes a mockery of justice and the law. As Pilon points out with regard to the Soviet defeasance clause, it “renders meaningless every right [the constitution] purports to guarantee.” That is equally true for China.

The Quest for Harmony and Prosperity

The lack of a constitutional order of freedom makes China’s quest for a harmonious society problematic. The Chinese have long searched for a harmonious social and economic order that would create prosperity.

Lessons from the Past

Lao Tzu (6th century, B.C.) recognized the importance of the principle of noninterference (wu wei) and the idea of spontaneous order. In his classic Tao Te Ching (chap. 57), the sage-ruler says: “Through my non-action, people are spontaneously transformed.… Through my non-interfering, people spontaneously increase their wealth.”

Han Fei Tzu (3rd century, B.C.) accepted the Taoist notion of spontaneous order but emphasized that, given the nature of man, rules are necessary to make sure freedom leads to socially beneficial results by limiting the power of the state and ensuring equality under the law. He understood that without a genuine rule of law, China would lose the Mandate of Heaven and be unable to achieve a harmonious society.

Market Taoism

The integration of Taoism and liberal legalism opens the door for what I have called “market Taoism,” a system in which people are free to trade and pursue happiness under the guidance of constitutional principles that safeguard persons and property against overzealous government.

At a press conference following the Third Session of the 12th National People’s Congress in 2015, Premier Li Keqiang appeared to understand the case for limiting the power of the state and allowing markets the freedom to coordinate economic activity: “We need to ensure that we run the country according to the law—everyone is equal before the law, and no one is above the law.” Li proclaimed, “There must be no irresponsible actions or inaction on the part of government officials.” He argued that the function of good government is to “eliminate roadblocks and pave the way for people to tap their entrepreneurship,” so they can “achieve full potential in their life.”

Likewise, President Xi told the Wall Street Journal in 2015 that:

An important goal for China’s current economic reform is to enable the market to play the decisive role in resource allocation and make the government better play its role. That means we need to make good use of both the invisible hand and the visible hand.

The problem is that the invisible hand doesn’t work well without the freedom that stems from widespread private property and limited government.

To achieve a harmonious society, China needs a free market for ideas. People must be able to criticize existing institutions to improve them without fear of retribution. Criticism and competition go hand in hand with open markets and civil society. Although Xi Jinping, in his October 2017 report at the 19th National Congress of the Chinese Communist Party (CCP), said: “We should follow the principle of letting a hundred flowers bloom and a hundred schools of thought contend,” he has since taken a great leap backward from a more humane society. The reality is that China continues to protect its state-run monopolies, restricts entry to financial and other markets, violates intellectual property rights, and severely restricts free speech.

The Case of Jack Ma

The recent government attack on entrepreneur Jack Ma (Yun) is a case in point. He cofounded Alibaba, China’s giant e‑commerce enterprise; raised $25 billion for Alibaba Group on the New York Stock Exchange; created Alipay in 2004, China’s largest mobile payments platform with more than a billion users; launched Taobao, an online shopping platform; and is the majority owner of Ant Group, a former affiliate of Alibaba and a major fintech conglomerate.

In October 2020, Ma angered Xi Jinping when he openly criticized financial regulators and state-owned banks for interfering with market innovation. President Xi’s turn from liberalization after 2013, and his strong support for state-owned enterprises (SOEs) and state-owned banks, clashed with Ma’s free-market vision. It is well known that nonstate firms find it difficult to obtain credit from state-owned banks.

Ma believed there was an opportunity to solve that problem, stating: “If the banks don’t change, we’ll change the banks.” That attitude was a direct threat to entrenched interests who benefit from financial repression. Government officials and regulators have an incentive to favor SOEs and state-owned banks: providing SOEs with cheap credit and holding deposit rates at state-owned banks at artificially low levels.

Regulators were concerned about the impact on financial stability and monetary policy posed by Ma’s fintech empire; they had much less enthusiasm for, or trust in, the spontaneous order that was emerging from Ma’s market experiments. Consequently, with Xi’s blessing, they blocked Ant Group’s planned IPO, which was expected to raise more than $34 billion.

The case of Jack Ma shows that state interests continue to dominate China’s economic and political system. In such an environment, private enterprise faces an uncertain future. The CCP has moved away from Deng Xiaoping’s pragmatism—“It doesn’t matter whether a cat is black or white, as long as it catches mice”—and become more dogmatic, embracing Xi Jinping Thought, which is now embedded in the PRC Constitution. Although Xi continues to promise reform, his adherence to Marxist-Leninist ideology leaves little room for a free market for ideas or a genuine rule of law that safeguards persons and property.

Conclusion

In December 2003, Premier Wen Jiabao gave an important speech at Harvard. He expressed optimism regarding China’s future and remarked that the Middle Kingdom had “found the right path of development.” The essential nature of that path, he said, “is to mobilize all positive factors, emancipate and develop the productive forces, and respect and protect the freedom of the Chinese people to pursue happiness.”

That is wise advice because, as Zhang Weiying, a professor of economics at the National School of Development at Peking University, has argued: “If the government cannot protect people’s basic human rights, including the freedom of speech, press, and religion, its legitimacy will be seriously challenged.”

The current rulers have already lost the Mandate of Heaven. Whether future leaders can regain it will depend on whether they can gain the trust of the Chinese people with respect to their lives, liberties, and estates. Adopting a genuine rule of law based on constitutional principles that place individual rights above state interests would be a step in the right direction.