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n a Hong Kong courtroom this year, a political slogan popularized in the 1980s was effectively put on trial. Prosecutors argued that calling for an “end to one-party rule” did not merely criticize the Chinese Communist Party or a particular policy. In their view, it directly challenged the “fundamental system” established by the Constitution of the People’s Republic of China, and therefore amounted to inciting subversion of state power under the National Security Law (NSL).
The judges agreed that to understand what “subversion” means in Hong Kong today, they had to look to the PRC Constitution: treating it not as a distant, symbolic document operating somewhere in Beijing, but as an immediate source of criminal liability in a common-law court. A text that begins by proclaiming that “all power in the People’s Republic of China belongs to the people” became the lens through which peaceful advocacy, candlelight vigils, and a simple political slogan were redefined as threats to state security.
At first glance, the PRC Constitution reads like many modern charters: it affirms popular sovereignty; lists freedoms of speech, press, assembly, association, procession, and demonstration; and commits the state to “respecting and protecting human rights.”
Article 1 describes the People’s Republic of China as “a socialist state under the people’s democratic dictatorship led by the working class.” Article 2 then sets out what appears to be a classical statement of popular sovereignty: “All power in the People’s Republic of China belongs to the people.” The people exercise state power through the National People’s Congress (NPC), which Article 57 later declares as “the highest organ” of this power.
Demonstrators call for freedom of speech using blank white sheets during the 2022 White Paper protests in China. Specifically, they assert their right to freedom of speech under Article 35 of China’s Constitution – a provision that critics say is undermined by the other provisions in Beijing’s charter granting sweeping powers to the Communist Party. Photo upload date, Feb. 18, 2026 (Photo: Shutterstock AI Generator)
Article 35 enumerates that citizens “enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration” – a formulation that echoes Articles 19 and 21 of the International Covenant on Civil and Political Rights (ICCPR) and many democratic constitutions. In 2004, an amendment to Article 33 added that “the state respects and protects human rights,” the first time human rights protection was enshrined as a constitutional principle.
Read against the standard of ICCPR Article 25 – which guarantees every citizen the right “to vote and to be elected at genuine periodic elections” and to take part in public affairs without unreasonable restriction — these provisions describe a polity in which people hold ultimate power, exercise it through elected bodies, and enjoy a catalogue of basic freedoms. From the perspective of international human rights law, the text is formally promising.
The problem is not that the Constitution lacks the right words. The difficulty lies in how its provisions are structured — and what that structure makes impossible.
The architecture of hollowing out
Three features are decisive. First, CCP leadership is not merely a political fact; it is entrenched as a constitutional principle. The 2018 amendment to Article 1 — passed by the NPC with 2,958 votes in favor, two against and three abstentions — added the phrase “the leadership of the Communist Party of China is the defining feature of socialism with Chinese characteristics.” The Article warns that the “sabotage of the socialist system by any organization or individual is prohibited.”
What might sound like abstract ideology elsewhere is framed here as a binding constitutional command. Challenging the Party’s monopoly on power is not merely a political question but a constitutionally prohibited act. A call to “end one-party rule” is, on this reading, not advocacy for reform but an attack on the constitutional order itself.
Second, popular sovereignty is defined as operating only through institutions the Party controls. Article 2 guarantees that the people exercise power through people’s congresses — yet congress candidates who stand without Party approval are harassed, detained, and blocked before they reach voters. The constitutional channel exists, but the content it is permitted to carry is tightly managed.
Sources: Decoding China, CCP, China Law Translate, IED, Journal of Democracy, The Diplomat (2021 and 2026), East Asia Forum
Third, and most consequentially crucial for anyone seeking to invoke constitutional rights against the state: the PRC has no system of constitutional adjudication. Unlike constitutional orders in which courts review state conduct against fundamental rights and strike down incompatible laws, the PRC Constitution vests interpretive authority exclusively in the NPC Standing Committee, which operates under Party leadership.
In December 2012, then incoming Party leader Xi Jinping declared: “No organization or individual has the privilege to overstep the Constitution and the law.” Yet the constitutional structure he has since presided over ensures that the only institution authorized to determine whether anyone had done so would be the Party.
Absent an independent judicial review, the Constitution’s rights provisions — including the freedoms set out in Articles 35 to 41 and Article 33’s human-rights clause — only shape official rhetoric, but cannot be mobilized reliably by citizens against the state.
From promises to repression
The distance between constitutional text and lived reality is starkest when one examines what happens to those who try to exercise the rights Article 35 enumerates.
The “709 crackdown” that began on July 9, 2015 saw more than 300 lawyers, legal assistants, and activists detained or questioned within weeks across 25 provinces. Many were subjected to “residential surveillance at a designated location,” a form of incommunicado detention lasting up to six months.
The Constitution’s Article 37 prohibits “unlawful” deprivation of citizens’ liberty. The same legal system that invokes Article 37, however, created residential surveillance as a “lawful” tool, formally bringing what amounts to enforced disappearance within the bounds of legality while retaining its most coercive features.
The use of psychiatric detention against rights defenders offers an equally stark illustration. Safeguard Defenders and Human Rights Watch have documented cases in which petitioners and activists were committed to ankang facilities (police-run psychiatric hospitals) without any genuine clinical assessment.
Article 38’s guarantee that “the personal dignity of citizens of the People’s Republic of China is inviolable” would appear to preclude such treatment. But because there is no constitutional court, and because the lawyers most likely to take such cases are themselves state targets, the text provides no practical protection.
Amnesty International’s 2025 analysis of more than 100 official judicial documents from 68 cases involving 64 human-rights defenders confirms that the closer a lawyer or activist came to using legal and constitutional language to hold the state accountable, the more likely they were to be treated as a threat rather than as a citizen exercising a protected right.
The most important question in a Chinese rights case is rarely “what does the Constitution say?” but rather “who has the power to decide what it means, and what are the consequences of asking?”
Police march through the streets of Hong Kong amid widespread protests against the then-proposed National Security Law, which was applied to the special administrative region in June 2020 without local legislative deliberation. (Photo: Shutterstock / Paul Wong)
A group of more than 300 Chinese intellectuals, lawyers, and activists found this out in December 2008, when it published a measured manifesto calling for an independent judiciary, separation of powers, genuine legislative elections, and freedom of assembly, grounded throughout in the CCP’s own constitutional language.
Charter 08 did not call for revolution. It called for the Constitution to be taken seriously. But two days before Charter 08’s planned release on the 60th anniversary of the Universal Declaration of Human Rights, police arrived at the home of one of its principal authors, Liu Xiaobo. They searched his house, confiscated his computers, and took him away.
On June 23, 2009, Liu was formally arrested on charges of “inciting subversion of state power” under Article 105 of the Criminal Law. His trial lasted less than three hours. He was sentenced to 11 years.
In December 2010, Liu was awarded the Nobel Peace Prize; the chair in Oslo was left empty. He died on July 13, 2017, the first Nobel Peace laureate to die in state custody since 1938. The charges against Liu did not allege violence or insurrection. They alleged that he had written a document calling for political reform — and that this constituted “incitement.”
If Charter 08 was a manifesto addressed to the state, the New Citizens’ Movement represented an attempt to practice constitutionalism in everyday public life. Legal scholar Xu Zhiyong organized citizens to hold up signs in public squares calling for officials to disclose personal assets and for equal education access for migrant children — demands grounded in existing constitutional commitments and policies the Party had itself discussed.
Arrested in August 2013, Xu was later sentenced to four years in prison for “gathering crowds to disrupt order.” He continued his activist work following his release. In December 2019 Xu was detained again, this time for attending a private dinner. He is now serving a 14-year jail sentence on charges of subversion.
A charter crosses the border
Put plainly, the state’s response across these cases is structurally identical: what you call constitutional advocacy, we call subversion.
For decades, this pattern — constitutional promises made, constitutional advocacy criminalized — was understood as a phenomenon in China. But the assumption widely held among lawyers and civil society was that the constitutional logic of the mainland would not directly govern Hong Kong’s legal life. One of China’s two Special Administrative Regions, the city operated under the Basic Law, which guaranteed the continuation of its common law system, its independent judiciary, and the ICCPR’s rights protections.
On June 30, 2020, however, the National Security Law was applied to Hong Kong without local legislative deliberation. NSL’s Article 22 criminalizes acts aimed at “overthrowing or undermining the basic system of the People’s Republic of China established by the Constitution.” The “basic system established by the Constitution” is one in which CCP leadership is a constitutionalized principle that cannot be lawfully challenged, modified or “ended” from below.
When the subversion trial of the Hong Kong Alliance opened in January 2026, prosecutors argued that three decades of candlelight vigils and a simple slogan — “end one-party rule” — fell squarely within that prohibition. In March 2026, three High Court judges ruled there was a case to answer.
The PRC Charter is, in the formal sense, a constitution. It speaks the language of popular sovereignty, enumerates fundamental rights, and commits the state to respecting human dignity. What it is not is a constitutionalist document: one that genuinely constrains state power, empowers citizens to hold their government to account, and provides independent institutions capable of enforcing its promises.
The distance between having a constitution and practicing constitutionalism is the distance between Liu Xiaobo writing a reform manifesto and dying in custody. It is the distance between a citizen handing out leaflets to stand as an independent candidate and being escorted away by police before the polls open. It is the distance between Article 35’s guarantee of freedom of assembly and the prosecution of lawyers who turned up to represent clients at a courthouse door.
This is not a failure of legal drafting or of legal reasoning. It is a structural feature of a system in which Party leadership is a constitutional premise, popular sovereignty is defined as operating through institutions that confirm rather than contest that premise, and rights are recognized without enforcement mechanisms that would make them meaningful against the state.
As legal expert Tom Ginsburg and political scientist Alberto Simpser have observed, such a document often functions not as a constraint on power but as an operating manual for it — providing a vocabulary of legitimacy that the state deploys selectively, and withdrawing that vocabulary the moment citizens attempt to use it on their own terms.
A flame does not need to be violent to be treated as subversive. It needs only to illuminate something the state would prefer to keep in the dark. ◉
