The Constitution of the People’s Republic of China promises citizens rights, representation, and even a formal route to amendment. Yet those who have asked the state to honor those promises have repeatedly found their arguments reclassified as threats to state security.
In December 2008, more than 300 Chinese intellectuals, lawyers, writers and activists published Charter 08, a document that called for an independent judiciary, genuinely elected legislatures, freedom of expression and association, and political power subject to public accountability.
Nothing in Charter 08 called for violence, armed revolt, or the destruction of the Chinese state. In fact, its premise was deceptively simple. China’s Constitution already promised that all power belonged to the people, guaranteed a range of freedoms, and proclaimed that the state respected and protected human rights. Charter 08 asked what those words would mean if citizens were allowed to rely on them.
The state’s answer was delivered before the document was formally released. On Dec. 8, 2008, police took one of its principal authors, Liu Xiaobo, from his Beijing home. He was formally arrested on June 23, 2009 and tried in December that year. The prosecution did not allege that Liu had organized violence. Instead, on Dec. 25, 2009, Liu was sentenced to 11 years imprisonment for “inciting subversion of state power,” based on Charter 08 and his writings calling for political reform.
Nobel Committee chair Thorbjørn Jagland sits beside the empty chair reserved for imprisoned Chinese writer Liu Xiaobo during the 2010 Nobel Peace Prize ceremony in Oslo. At the time, Liu was serving an 11-year prison sentence for “inciting subversion of state power.” He was also one of many Chinese dissidents charged with such a criminal offense. (Photo: Ken Opprann / The Nobel Foundation, 2010)
Liu received the 2010 Nobel Peace Prize while imprisoned, in recognition of his “long and non-violent struggle for fundamental human rights in China.” Unable to attend the ceremony, he was represented by an empty chair in Oslo. On July 13, 2017, more than eight and a half years into his sentence, Liu died in custody.
The United Nations did not treat this as an ordinary criminal case. In 2010, independent U.N. experts described Liu as a human rights defender who had “continuously and peacefully advocated for greater respect for human rights” and said that his harsh sentence for drafting and organizing signatures for Charter 08 violated international standards on freedom of expression and fair trial. They called for the release of people detained for peacefully exercising free expression. The U.N. Working Group on Arbitrary Detention would later find Liu’s detention as arbitrary and contrary to the right to political free speech.
Hong Kong activist and barrister Chow Hang-tung speaks to the media during a June Fourth commemoration in Hong Kong, with placards behind her declaring that commemorating the 1989 Tiananmen crackdown is not a crime. (Photo: Chow Hang-tung)
Charter 08 was deliberately framed as a reform document. It invoked universal human-rights principles, but it also spoke in a language familiar to Chinese constitutional discourse: rule of law, democracy, human dignity, accountability, and constitutional government. Its signatories did not reject institutions. They argued that institutions should answer to the people they claim to represent.
The indictment against Liu showed how that argument could be criminalized. His case demonstrated that circulating ideas about multi-party competition, genuine elections, and constitutional government could be presented as “incitement” to overthrow state power, even absent any allegation of violence.
Through the years, this state stance has been unchanged. Just a few months ago, the Hong Kong High Court convicted two rights advocates of inciting subversion. The court found that their repeated use of the slogan “end one-party dictatorship; build a democratic China” during the annual commemoration of the 1989 Tiananmen Square crackdown by the alliance they formerly headed sought to undermine the “fundamental system” established by the Constitution of the People’s Republic of China.
The message, then and now, is clear: China’s Constitution may promise rights, but citizens may not organize independently to make those rights meaningful. The more directly an advocate identifies the gap between constitutional language and political reality, the more likely the state is to depict that advocate as a threat to social order or national security.
A constitution that cannot be claimed
In China, the body formally empowered to interpret the Constitution is the Standing Committee of the National People’s Congress (NPC), which operates under the leadership of the Chinese Communist Party. No independent court can enforce constitutional rights against the state.
The PRC Constitution contains a formal route to amendment, and it is the NPC that is front and center in the process. Article 64 of the Charter provides that constitutional amendments may be proposed by the NPC Standing Committee or by more than one-fifth of NPC deputies, then adopted by a two-thirds majority of the full NPC. Citizens cannot initiate amendments, take constitutional claims to an independent constitutional court, or freely organize around a proposal to alter the political order. When citizens make such demands from below, their arguments are often recast as attempts to undermine the state.
This is the central distinction between constitutional law and constitutionalism. A state may possess a constitution, enumerate rights, and provide procedures on paper. Constitutional law can describe institutions and rights. But constitutionalism requires something more: government power must be legally limited, and its legitimacy must depend on observing those limits.
Writing in the Stanford Encyclopedia of Philosophy, scholars Wil Waluchow and Dimitrios Kyritsis describe constitutionalism as the idea that government “can and should be legally limited in its powers,” and that its authority depends on respecting those limitations. Legal scholar Tom Ginsburg also notes that the tradition rests on the idea of institutional constraints on authority.
Aside from institutions that are able to restrain power, constitutionalism requires as well a political space in which citizens can argue for change without being accused of attacking the state itself. It ordinarily includes enforceable rights to expression, association, equality, and due process.
Casting a wide net
The Chinese Communist Party criminalizes advocacy not through a single, explicit law banning activism, but through a systematic framework that weaponizes vaguely worded legal statutes, extrajudicial measures, financial suppression, and systemic delegitimization against legitimate dissent.
| Weaponization method | Illustrative example |
|---|---|
|
01
Broad national security and political offenses |
Use of Article 105 (Inciting subversion of state power) Frequently weaponized against activists, human rights lawyers, and dissidents who publish articles, sign petitions, or critique Party leadership. The National Security Law in Hong Kong Implemented in 2020 broadly criminalizes subversion, secession, terrorism, and collusion with foreign forces, allowing authorities to criminalize peaceful political speech, jail opposition figures, shut down independent media, and dismantle civil society organizations. The Safeguarding National Security Ordinance (commonly known as Article 23) expands the scope of the NSL as it empowers the city government to enact laws against treason, secession, subversion, and theft of state secrets. |
|
02
Utilizing non-political, “pocket” crimes |
Use of Article 293 (Picking quarrels and provoking trouble) Originally intended for street brawling, this vague offense is used to criminalize online posts, public protests, labor strikes, and petitioning local authorities. |
|
03
Neutralization of legal defense |
Lawyers taking on sensitive cases (e.g., labor disputes, religious freedom, government corruption) routinely have their law licenses revoked by local Bar Associations controlled by the Ministry of Justice. |
|
04
Regulatory and financial decapitation of NGOs |
Because of the Foreign NGO Law, accepting overseas grants or collaborating with international civil society without strict government pre-approval is criminalized under national security and financial laws. |
|
05
Extrajudicial and collective punishment |
Preventing activists, their attorneys, or family members from traveling abroad; evicting family members, barring children from schools, and pressuring employers to terminate relatives of targeted advocates. |
Sources: Chinese Human Rights Defenders, China Media Project, Human Rights Watch, The Guardian, Open Global Rights, Human Rights Foundation, Voice of America, Associated Press, BBC, Council on Foreign Relations, OHCHR
Two years after Liu became a Nobel Peace laureate, the New Citizens’ Movement surfaced in public in China. Associated with legal scholar Xu Zhiyong and a loose network of lawyers, professionals, and private citizens, it did not begin as a campaign for revolution. It advocated the disclosure of officials’ assets to curb corruption, civic rights, and equal educational access for children of migrant workers.
The movement’s methods were modest: dinners, public discussions, citizens holding signs, and calls for the government to implement commitments it had already proclaimed. These activities treated citizens not as recipients of policy, but as people entitled to ask questions, associate freely, and demand accountability.
Xu was detained in 2013 and later sentenced to four years for “gathering crowds to disrupt order.” Human Rights Watch documented how the movement’s asset-disclosure campaign was used as evidence against him, notwithstanding Article 35 of the Constitution’s protection of assembly, association, procession, and demonstration.
Xu and rights lawyer Ding Jiaxi were again targeted after an informal gathering in Xiamen in December 2019, where participants discussed civil society and current affairs. Following closed trials, Xu was sentenced to 14 years and Ding to 12 years for “subversion of state power” on April 10, 2023.
Legal scholar Xu Zhiyong, left, and human rights lawyer Ding Jiaxi appear in an undated photograph. Both were associated with the New Citizens’ Movement and were sentenced in April 2023 to 14 years and 12 years, respectively, for “subversion of state power.” (Photo: Contributed)
How advocacy becomes a crime
The U.N. High Commissioner for Human Rights, Volker Türk, said at the time that he was “very concerned” that Xu and Ding had received lengthy sentences “at variance with international human rights law standards.” The International Federation for Human Rights (FIDH) and the World Organization Against Torture reported that the men were held incommunicado under residential surveillance at a designated location, denied access to lawyers and family, and subjected to allegations of torture and ill-treatment before their closed-door trials.
The escalation in charges matters. The underlying conduct – speaking about public affairs, forming networks, and discussing constitutional rights – did not become more violent. But the system’s tolerance for autonomous civic action narrowed. A public square could become “disruption,” a private dinner “subversion,” and a constitutional appeal a security offense.
Three offense categories have repeatedly enabled this transformation.
First, “inciting subversion of state power” under Article 105 of the Criminal Law can turn political writing, speeches, and organizing into evidence of a threat against the state. The offense does not require the prosecution to prove an imminent violent act. Its elasticity allows peaceful advocacy for political change to be depicted as an attack on the constitutional order.
Second, “picking quarrels and provoking trouble” has long been used against lawyers, petitioners, journalists, and activists. Its broad language permits ordinary acts of criticism, gathering or advocacy to be re-described as disorder.
Third, public-order offenses such as “gathering crowds to disrupt order” create a path from peaceful assembly to criminal sanction. They make it possible to punish citizens not for harming others, but for acting collectively outside Party-approved channels.
The common element is not violence, but the decision to treat independent civic organization as politically intolerable. The line between legal advocacy and criminal conduct is not drawn by whether an act is peaceful, proportionate, or harmful, but by whether it challenges the Party’s monopoly on defining the public interest.
For years, this pattern was understood primarily as a mainland one. Hong Kong’s common-law system, Basic Law, and application of the International Covenant on Civil and Political Rights (ICCPR) were assumed to provide a different framework for political speech and assembly in what is one of China’s two Special Administrative Regions.
But the August 2026 conviction of two former leaders of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China shows how sharply that distinction has narrowed. The Alliance’s former chair Lee Cheuk-yan and former vice chair Chow Hang-tung, both of whom had pleaded not guilty, have since been handed prison sentences: seven years for Lee and seven years and three months for Chow. Both have been held in detention since 2021, the same year the Alliance itself had been forced to disband.
Lee and Chow’s case has the same constitutional inversion that Liu Xiaobo, Xu Zhiyong, and Ding Jiaxi confronted. A call to make political power accountable becomes an attempt to destroy the political order. A vigil becomes an instrument of subversion. A slogan about democracy becomes evidence of a crime.
The PRC Constitution speaks of popular sovereignty, human rights, electoral participation, and freedom of expression. The problem is that those promises cannot be enforced against the state, while Party leadership is treated as the fixed premise of the constitutional order.
This makes constitutional advocacy uniquely vulnerable. It exposes the contradiction between a state that claims legitimacy in the name of the people and a system that criminalizes citizens for asking what that claim requires.
Liu Xiaobo, Xu Zhiyong, Ding Jiaxi, Lee Cheuk-yan, Chow Hang-tung, and the Hong Kong Alliance did not all make the same arguments or use the same methods. But they encountered the same answer: rights may be celebrated in official texts, but they cannot be independently claimed in public life.
Chakra Ip is the executive director of the Sentinel Defenders Network.
