— Another Construction Plan for Article 51 of the Constitution of PRC

 

DU Qiangqiang*

 

Abstract: According to constitutional jurisprudence in China, Article 51 of the Constitution is an unenumerated restrictive clause.Such theoretical construction fails to justify the differentiated restrictions established in the Constitution and makes it difficult to explain the constitutional status of human dignity. Article 51 implies the possibility of other theoretical constructions. It is not an unenumerated restriction clause but an unenumerated rights clause. It aims to provide guarantees for general freedom of action not enumerated in the Constitution rather than restricting fundamental rights. The actual benefit of this kind of theoretical construction lies in that it can establish the basis of the constitutional text for general freedom of action and promote the people’s correct understanding of the model of restriction on fundamental rights established by the Constitution of PRC.

 

Keywords: restriction on fundamental rights · legal construction · general freedom of action

 

 

Article 51 of the Constitution of PRC stipulates, “citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the state, of society or of the collective, or upon the lawful freedoms and rights of other citizens.” Literally, the wording “may not” in this article is a typical restrictive term. Systematically, this article follows the fundamental rights and precedes the basic obligations listed in Chapter II of the Constitution and is therefore clearly intended to restrict fundamental rights. Historically, this article is an addition to the 1982 Constitution of PRC, and the intention of the amenders was to establish a general principle of restrictions on the rights and freedoms of citizens.¹ Most constitutional scholars believe that this provision is a general restrictive clause — in fact, that is a general theory in constitutional jurisprudence in China.²

 

It should be pointed out that the claim that Article 51 is a general restrictive clause is not simply an interpretation of its legal nature, but a theoretical construction of the relationship between Article 51 and the provisions on fundamental rights. The task of jurisprudence is to interpret, construct and systematize legal norms.³ It is an important task of jurisprudence to sort out the relationship between laws and regulations, learn the substantive relationship in between, and construct corresponding concepts and theories according to the legal provisions, so as to effectively recognize, grasp and understand the enactment of laws.⁴ However, in theory, it is possible to make different theoretical constructions for the same legal subject. For example, with regard to Article 13 of the Japanese Constitution, which states, “Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and other governmental affairs”, there are three different theoretical constructions, including the theory of unary external restriction, the theory of intrinsic and extrinsic restrictions, and the theory of unary internal restrictions.⁵ In fact, the entire field of law, including constitutional law, teems with such competition among different theoretical constructions, for example, the dispute among the theory of intention, theory of interests, and theory of law regarding the concept of rights.⁶

 

This paper argues that a similar theoretical attempt may be made with regard to Article 51 of the Constitution. Although the theory of general restriction is highly cogent and can gain support in the history of the constitutional amendment, Article 51 does not necessarily allow only one construction scheme, and there are possible alternative theoretical constructions. This paper aims to propose such an alternative. It should be stated that Article 51 may not be a general restrictive clause, but a general rights clause. It is formulated not to restrict fundamental rights, but to guarantee general freedoms of conduct not enumerated in the Constitution.⁷ Academically speaking, faced with the reality that the constitutional text cannot be exhaustive, it is necessary to theoretically construct miscellaneous provisions with certain inclusive functions, so that when a certain behavior or phenomenon with important constitutional value cannot be included in the explicit and concrete constitutional norms, it can gain a space in the Constitution.⁸ After Article 51 was constructed as a general rights clause, the fundamental rights system in China’s Constitution has thus become a normative system without loopholes. When the act of an individual is not covered by any of the single fundamental rights provisions, he or she may resort to Article 51 for remedy.

 

In Chapter II of the Constitution, Article 51 occupies a pivotal position to some extent and can be said to exert a macroscopic influence. Constructing it as a general rights clause instead of a general restrictive clause can not only establish a constitutional textual basis for general freedom of conduct, but also affect the overall system arrangement of Chapter II, especially the understanding of the restrictive model on the fundamental rights in the Constitution. This article will argue that by constructing Article 51 as a general rights clause, the restrictions on fundamental rights in the Constitution will be better differentiated and hierarchized, and thus better serve the purpose of the Constitution to protect fundamental rights. Based on the above considerations, this article will first discuss the constitutional basis for general freedom of conduct and demonstrate in detail that the existing treatment model cannot establish an appropriate constitutional textual basis for that purpose, while Article 51 can be used as the normative basis. Next, it will discuss the specific content of the general rights clause and take this clause as a starting point to reconstruct the fundamental rights restriction system in the Constitution before reaching a brief conclusion.

 

 

 

The so-called general freedom of conduct refers to citizens’ freedom of personal autonomy, behavior and movement,⁹ for example, taking a walk in the park, doing fitness exercises, and so on.¹⁰ The Constitution provides only for personal liberty but not for general freedom of conduct, which is a general right. Therefore, elaboration on this issue must begin with general rights. The concept and theory of general rights stem from the 9th Amendment to the U.S. Constitution, which states that rights enumerated in the Constitution shall not be construed as the denial or revocation of other rights reserved for the people. Since the Constitution adopts the enumeration doctrine for fundamental rights, it has explicitly enumerated the freedoms and rights entitled to citizens in Chapter II but not “general rights”. However, after the inclusion of human rights clauses in 2004, many scholars began to raise the issue of constitutional protection of general rights, arguing that the human rights provisions are similar to the 9th Amendment to the U.S. Constitution and that they can serve as a normative basis for general rights.¹¹ For example, drawing on human rights provisions and other norms in the text of the Constitution, we can find a normative basis for rights not expressly stipulated in the Constitution, such as the right to life, the right to the environment, and freedom of movement.¹²

 

However, while it seems simple and easy to take human rights provisions as a normative basis for general rights, there are indeed theoretical difficulties constitutionally. First, from the perspective of the normative system, human rights provisions are located at the beginning of Chapter II of the Constitution and thus have an impact on all fundamental rights articles, if not the interpretation of basic obligations provisions. Using them as a normative basis for general rights seems to unduly diminish the constitutional value of human rights provisions. Perhaps that is the reason for some scholars to argue that human rights provisions themselves cannot be deemed a direct basis for discovering and refining new rights, but provide a rule or principle of interpretation.¹³ Second, more importantly, human rights provisions are not a panacea and they cannot furnish a normative basis for all general rights. Theoretically speaking, only when general rights have the basic attributes of human rights can human rights provisions be used as their normative basis.¹⁴ For example, the Constitution does not stipulate the right to housing, which, however, is a human right recognized in the International Covenant on Economic, Social and Cultural Rights, and thus can be incorporated into the constitutional protection through Article 24, paragraph 3, of the General Principles of the Constitution and human rights provisions.¹⁵ However, some acts are difficult to be incorporated into the concept of human rights and are not found in the text of any international human rights conventions. Therefore, it is difficult to incorporate them into constitutional protections through human rights provisions. Smoking is a case in point. Although smoking is a bad habit, the act itself is not illegal but a personal way of life within the realm of general freedom of conduct.¹⁶ However, this freedom can hardly be treated as a human right, and international human rights conventions do not provide for it. This example illustrates the difficulty of using human rights provisions as a basis for constitutional texts for general freedom of conduct.

 

 

Regarding the constitutional basis for general freedom of conduct, some scholars have not turned to human rights provisions, but have proposed that the personal freedom clause in Article 37 of the Constitution can serve this purpose. For example, Professor Lin Laifan advocated that personal freedom in the sense of Article 37 may also include personal autonomy, freedom of conduct and movement, and so on.¹⁷ Professor Zhang Xiang put forth a more detailed and rigorous argument, holding that under the umbrella of human rights provisions, Article 37 can be used as the basis for general freedom of conduct. Specifically, what personal freedom needs to prevent is illegal arrest and detention by the state, but from the perspective of human rights protection, the most primary meaning of personal freedom is an individual’s freedom to behave and act, that is, the freedom to use one’s body to do whatever the individual wants without interference from others, that is, the so-called freedom of person.¹⁸

 

Literally, freedom of person includes the so-called general freedom of conduct, but such an argument still seems to encounter constitutional obstacles in China. Paragraph 3, Article 37 of the Constitution prohibits unlawful detention and other unlawful deprivation or restriction of citizens’ personal liberty and illegal searches of citizens. The word “illegal” here is clearly a requirement that the state must have a legal mandate to intervene in fundamental rights and implies the basic principle of the legal reservation.¹⁹ In other words, restrictions on personal liberty must have a legal basis. That is the basic meaning of Paragraph 3 in Article 37 and is specified in Article 8 of the Legislation Law.²⁰ In this regard, it seems natural to conclude that if the general freedom of conduct belongs to the freedom of person under Article 37, the state’s restriction of general freedom of conduct must be exercised in the form of legislation. However, this conclusion can have a subversive impact on China’s legal practice. Again, let’s take smoking as an example. At least as far as tobacco control is concerned, although there is no national tobacco control legislation in China, we can see from the data of the National Health Commission that since 2008, 13 cities, including Beijing, Shanghai, Hangzhou, Guangzhou, Harbin, Tianjin, Qingdao, Lanzhou, Shenzhen, and Changchun, have successively promulgated local regulations on smoking control.²¹ In addition, many places are also exercising smoking control through local government rules. Smoking obviously belongs to general freedom of conduct, but if Article 37 is strictly observed, those local regulations or rules on tobacco control seem to be against the principle of legal reservation and may lack a reasonable explanation. Legal interpretation is also result-oriented. This interpretation makes one question the aptness of using personal freedom clauses as the basis for protecting general freedom of conduct.²²

 

To sum up, general freedom of conduct does not have the attributes of human rights in some cases, so human rights norms cannot be used as its normative basis. The clauses on freedom of person are also impeded by the principle of legal reservation and can hardly be qualified. Then, can a normative basis be found within the Constitution of PRC for general freedom of conduct?

 

 

 

The shortcoming of human rights provisions and personal freedom provisions is precisely where Article 51 of the Constitution is favorably positioned. In fact, Article 51 of the Constitution is more a general rights clause than a general restrictive clause; its function is not to restrict fundamental rights, but to provide a normative basis for general freedom of conduct. First, regarding the text in Article 51 “citizens of the People’s Republic of China in exercising their freedoms and rights”, “the freedoms and rights” here are not necessarily limited to those enumerated in Articles 33-50; they can also mean general freedom of conduct other than those. In other words, Article 51 does not go beyond the literal range of freedoms and rights.²³ The restrictions provided for in Article 51, namely the lawful freedoms and rights that do not harm the interests of the state, society, the collective, and other citizens, may also be regarded as restrictions on general freedom of conduct, not on other individual fundamental rights. Nor is the interpretation contrary to the meaning of Article 51. Second, Articles 33-50 of the Constitution clearly enumerate individual fundamental rights, whereas Article 51 follows all individual fundamental rights. Regarding it as a general rights clause is also in line with the system structure of Chapter II, that is, enumerating before generalizing, which is not logically unsound. The general freedom of conduct thus falls within the normative sphere of Article 51. In China’s Constitution, the freedom to smoke is not covered by individual basic interest provisions, nor is it protected by human rights provisions. However, smoking is at least a “freedom”, which can be guaranteed constitutionally by resorting to the general rights clause of Article 51.²⁴

 

From this point of view, the fundamental rights in the Constitution are composed of three parts: first, the single fundamental rights explicitly enumerated in Chapter II and other articles; second, general rights incorporated through human rights provisions in view of other provisions of the constitutional text; third, the general freedom of conduct incorporated through the “freedoms and rights” clause of Article 51. The enumeration in Chapter II and the general principles are specific and limited, and human rights provisions cannot provide a sufficient normative basis for all general rights. Only Article 51 serves to fill in the gaps in the provisions of general rights; it makes the Constitution a loophole-free system of fundamental rights norms.

 

Of course, constructing Article 51 as a general rights clause may obviously be inconsistent with the subjective will of the constitutional amenders, but it does not seem to be an insurmountable theoretical obstacle. First, as far as the original intention of the constitutional amenders is concerned, Article 51 is a general restrictive clause, and its introduction reflects the dominant concept of fundamental rights in that era, that is, consistency of rights and obligations, which believed that rights and freedoms ... when unristricted are bound to impede the interests and freedoms of the state, society, the collective, and others.²⁵ However, the meaning of the Constitution is no longer what it was when the Constitution was amended in 1982. We shouldn’t rigidly look for the original intention of the amenders, but should exercise a doctrinal update of its interpretation in view of the current social situation.²⁶ Theoretically, although jurisprudential construction should be based on positive law materials, theoretical construction does not have to trace its steps. In other words, the construction of Article 51 is not necessarily always subject to the will of the constitutional amenders.²⁷ Second, the current Constitution has undergone five revisions, and the incorporation of human rights provisions in 2004 has directly affected its value connotations and normative structure of fundamental rights.²⁸ Inevitably, it also has a clear impact on the meanings and function of Article 51. The value orientation of the “state respecting and protecting human rights” is obviously different from that of “consistency of rights and obligations”. “Consistency of rights and obligations” emphasizes the equal value status of rights and obligations, while human rights provisions clearly give greater prominence to rights. As a moral right, human rights are open to a considerable degree, and the incorporation of the human rights clause in the Constitution shows the basic value orientation of the constitutional amenders to further expand the scope of fundamental rights and strengthen their protection rather than enhancing their restriction. Interpreting Article 51 as a general rights clause is in line with this value orientation. Therefore, on the whole, this interpretation is consistent with the textual meaning of Article 51 and its systematic positioning in Chapter II, and can also be strongly supported by human rights provisions at the value level. In this context, it is not unreasonable to claim that Article 51 has evolved from a general restrictive clause to a general rights clause.

 

 

With regard to the manner in which Article 51 regulates general freedom of conduct, we have to specifically clarify the following points:

 

First, the broad restriction stipulated in this article, i.e., “may not infringe upon the interests of the state, of society or of the collective, or upon the lawful freedoms and rights of other citizens”, a constituent element of or an external restriction on general freedom of conduct? The constituent elements of the fundamental rights are roughly equivalent to their scope of protection, i.e., which acts, statuses or systems are protected by fundamental rights.²⁹ For example, Article 8 (1) of the Basic Law of Germany stipulates that all Germans have the right to peaceful assembly without arms. Here, “without arms” is a negative component of freedom of assembly. If a person takes part in an assembly with a weapon, he will be excluded from freedom of assembly from the outset because he does not meet the constituent elements. Since “without arms” comes from the explicit provision of the German Constitution, it is also theoretically called an “inherent restriction” on freedom of assembly.³⁰ Since this thesis constructs Article 51 of Constitution as a clause on general freedom of conduct, the restriction in it seems to be a constituent element or an “inherent restriction” of general freedom of conduct. Professor Wu Geng holds this view, arguing that walking in the park or doing fitness exercises is a “behavior of general freedom”. If a person engages in fitness activities in a permanently demarcated area of the park, such behavior is not a protected general freedom of conduct because it can obstruct the others or the order of park management, that is, the so-called exercise of rights is inconsistent with the constituent elements of similar inherent restrictions.³¹

 

In fact, if we compare Article 51 of Constitution with Paragraph 1, Article 8 of the German Basic Law, we can see clear differences. The Germans stipulate clearly that it can be applied for individual cases, and it can be justifiably used as a constituent element of or an inherent restriction on freedom of assembly. The general restrictions of Article 51 are hardly applicable on a case-by-case basis and require complex tradeoffs. The trade-off is structured in a way to ensure that the stipulations are mainly used where two fundamental rights conflict or where fundamental rights conflict with the public interest.³² In other words, this trade-off already presupposes the existence of general freedom of conduct, because a trade-off among legal interests is only possible when the existence of such interests is presupposed. That being the case, the general restriction in Article 51 cannot be regarded as a constituent element of general freedom of conduct: it is not so much a constituent element as an external restriction.³³

 

Second, the scope of protection of general freedom of conduct is very broad, and the constitutional restrictions on it are generalized. Theoretically, the broader the protection of fundamental rights is, the greater the likelihood of their restrictions will be.³⁴ General freedom of conduct is a fundamental right of a catch-all nature, and it is so all-encompassing as to virtually leave no conduct of persons uncovered.³⁵ Therefore, the constitutional restrictions on it are also general and broad. For example, the restrictions imposed by Paragraph 1, Article 2 of the German Basic Law on general freedom of conduct are as follows: not to infringe on the rights of others, and not to violate the constitutional order or moral law.³⁶ According to the interpretation of the German Federal Constitutional Court, “constitutional order” refers to a general legal order that is constitutional in both substance and form. With this interpretation, any legislation enacted in accordance with the Basic Law can restrict general freedom of conduct as long as it does conform to the principle of proportionality.³⁷ The “moral law” is a concept with elusive connotations. The same is true of China’s Constitution. Article 51 clearly stipulates that the exercise of general freedom of conduct shall not harm the interests of the state, society and the collective, or the lawful freedoms and rights of other citizens. This is also the broadest authorization, i.e., the Constitution authorizes competent authorities to restrict general freedom of conduct for public interest and the need to protect the freedoms and rights of others.

 

Third, the application of the principle of legal reservations. Precisely because general freedom of conduct has such a broad scope that the degree of protection afforded to it by the Constitution cannot be high, and it seems difficult to apply the principle of legal reservation. The German Federal Constitutional Court once held that restrictions on general freedom of conduct should also be subject to the principle of legal reservation, that is, the rights covered by Article 2 of the Basic Law should be deemed as being subject to a general legal reservation in the broad sense.³⁸ However, it does not seem necessary for China to follow the example of the German Basic Law. The main reason is that the normative structure of fundamental rights in China’s Constitution differs from that of the German Basic Law, which provides for general freedom of conduct in addition to individual fundamental rights in order to fill gaps in the coverage of specific fundamental rights. For example, the freedom of movement stipulated in the German Basic Law is restricted to the freedom to travel within German and does not include the freedom to leave the country. That stipulation was the most important reason for the decision of the German Federal Constitutional Court in the Elfes Case.³⁹ However, for the China’s Constitution, both the human rights provisions and Article 51 can remedy the incomplete enumeration in Chapter II. That is different from the German Basic Law. For example, the China’s Constitution does not provide for freedom of movement, which is one of the important human rights in international human rights law, and can be fully incorporated through human rights provisions. The human rights provisions have greatly reduced the scope of application of Article 51, whose function can be justifiably deemed as gap filling. Therefore, the importance of its field of application is greatly reduced. Seen from cases of the German Federal Constitutional Court, acts regarded as general freedom of conduct are trivial, such as feeding pigeons in parks, riding a horse in the forest⁴⁰ and soliciting donations⁴¹, etc. Categorization of those behaviors can be fairly difficult, if not utterly impossible.⁴² If we insist on applying the principle of legal reservation, the burden on the principle will probably be too heavy to bear — we can’t request compliance of local governments with the principle of legal reservation in regulating square dancing, can we? Therefore, restrictions on general freedom of conduct do not satisfy the principle of legal reservation, but they still need to comply with the principle of proportionality.

 

 

It should be pointed out here that it is in line with the textual meaning and system of the Constitution and also logically sound to construct Article 51 as a general restrictive clause or a general rights clause. However, both being logically feasible does not necessarily mean that these two theoretical constructions have equal value. When discussing the construction of legal theory, the German jurist Heck pointed out that not all logically possible theoretical constructions have equal academic significance, and some theoretical constructions are obviously superior.⁴³ Since this article advocates the general rights clause, it is necessary to demonstrate the advantages of this theoretical construction. Of course, in order to clarify the advantages of generalized rights theory, it is necessary to start with the shortcomings of generalized limitation theory.

 

Article 51 is a general restrictive clause intended to impose general restrictions on the freedoms and rights provided for in Chapter II. This theoretical construction is deficient mainly in that it is not an appropriate description of the system of fundamental rights in the Constitution: First, Article 51 does not apply to the restriction of all freedoms, thus it is not qualified for general; Second, its construction as a general restrictive clause cannot explain the high protection of human dignity in Article 38.

 

 

First, Article 51 of Constitution does not apply restrictions on all freedoms. The reason is that from the normative point of view, some of the provisions of Chapter II stipulate the restrictions on the freedoms and rights enumerated. For example, Article 36 stipulates, “No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the state. Religious bodies and religious affairs shall not be subject to any foreign domination”. This article is a direct constitutional restriction on fundamental rights. Article 41 stipulates that in complaints or charges against, or exposures, fabrication or distortion of facts for purposes of libel or false incrimination is prohibited. Of course, this direct restriction does not completely exclude the possibility of intermediaries by the legislature, since many restrictive terms in Article 36, such as “social order” and “educational system of the state”, are uncertain legal concepts that need to be concretized by the legislature. The practical benefit of direct constitutional restriction consists in limiting the legislatures’ freedom of formation in concretizing legislation, that is, the legislature can only restrict fundamental rights with specific constitutional regulations but not the general reasons in Article 51. The Constitution cannot anyway restrict the formation of the legislature before Article 36 and after Article 51. Otherwise, what is the point? From a constitutional point of view, it is also difficult to consider that freedom of religious belief is also subject to double restrictions from Article 36 and Article 51.

 

Second, aside from being inapplicable to fundamental rights directly restricted by the Constitution, Article 51 does not apply to situations that aggravate legal reservation. Aggravated legal reservation means that the legislature must conform to the conditions predetermined by the Constitution for legislation that restricts fundamental rights.⁴⁴ Article 40 of the Constitution stipulates that no organization or individual shall infringe on a citizen’s freedom and confidentiality of correspondence for any reason, except in cases necessary for national security or criminal investigation, when public security organs or procuratorial organs shall examine correspondence in accordance with procedures prescribed by law. This provision is regulated differently from Article 36 and is not a direct restriction on freedom of correspondence, but a “restrictive limitation”. In other words, the Constitution establishes two restrictive elements for the legislature to limit freedom of correspondence via legislation: first, the purpose element, that is, the need for national security or criminal investigation; second, the main element, that is, public security organs or procuratorial organs. Obviously, this aggravating legal reservation limits the freedom of formation of the legislature and, of course, excludes the application of Article 51. In other words, the legislators can only prescribe correspondence checks under the specific conditions predetermined by Article 40 of the Constitution, not under the abstract mandate of Article 51.

 

 

Moreover, the construction of Article 51 as a general restrictive clause cannot explain the high protection of human dignity in Article 38. As mentioned above, both direct constitutional restrictions and aggravated legal reservations limit the legislator’s freedom to form and thus exclude the application of Article 51. Conversely, fundamental rights without direct constitutional limitations or aggravated legal reservations do not seem to preclude the application of Article 51, which as a general restrictive clause should naturally apply to fundamental rights not specifically regulated in the Constitution. The result is that the Constitution has to restrict the freedom of formation of legislators in terms of protection for freedom of religious belief, the right to supervision, freedom of correspondence and correspondence secrets, while giving a free rein to their freedom of formation in terms of protection for human dignity. Does this mean that the constitutional hierarchy of human dignity is inferior to freedom of religious belief, and that the constitutional protection for freedom of communication and confidentiality of correspondence is higher than human dignity? Is this interpretation consistent with the Constitution’s strong emphasis on the protection of human dignity? This is precisely the problem with constructing Article 51 as a general limitation clause.

 

Even if we leave aside the protection of human dignity in the Constitution, the above-mentioned direct constitutional restriction and aggravation of legal reservations actually show that the China’s Constitution has adopted a differentiated treatment to a considerable extent in restricting fundamental rights in Chapter II, and has not left them to Article 51.⁴⁵ In order to illustrate this issue more clearly, it is necessary to compare the differences between the current Constitution and the 1946 Constitution in dealing with that issue. As far as the pattern of restriction for fundamental rights is concerned, the 1946 Constitution adopted an almost complete general pattern, except for freedom of person, which has prescribed procedural requirements in Article 8, and the restrictions on other freedoms are uniformly stipulated in Article 23, that is, the freedoms enumerated in the preceding articles shall not be restricted by law unless out of necessity to prevent obstruction of the freedom of others, to avoid imminent danger, to maintain social order, or to promote the common interest. This is a typical general restriction pattern. The current Constitution is different. Article 34 establishes the conditions for the right to vote, Article 36 and Article 41 set out specific restrictions on freedom of religion or belief and the right to supervision, Article 37 sets out the procedural requirements for arrest in Paragraph 2, and Article 40 sets out the restrictions on correspondence checks. Jhering once argued that the first rule to be followed by legal construction is to cover empirical materials.⁴⁶ Constructing Article 51 as a general restrictive clause and precluding its application on the ground that the current Constitution imposes specific restrictions on many of the freedom-right provisions seem to violate this law mentioned by Jhering, which is inconsistent with the fact that the Constitution adopts a differentiated restriction for most freedoms.

 

 

“System” in legal theory is always oriented toward the pursuit of unity and order.⁴⁷ Logically, the restrictive system on fundamental rights should also cover all fundamental rights set forth in Chapter II. However, restrictions on fundamental rights are primarily directed at the right to freedom, not social rights. For example, it is often said that there should be legal restrictions on freedom of expression under Article 35, but not the right to material assistance under Article 45. This reason is that the right to freedom does not need to be created by the state, and the degree to which it is realized depends on restrictions: the fewer the restrictions are, the greater the freedom will be. Social rights, on the other hand, owe their existence to law⁴⁸, and depends on the degree of protection for realization. Therefore, there is no such question as the restriction on social rights, but only the issue of the effectiveness of their legal guarantees. The extent of their realization is directly proportional to the degree of protection. Because of this difference in their structure, the constitutional restrictions on fundamental rights are mainly aimed at freedoms enumerated in Chapter II rather than social rights. It is for this reason that the so-called hierarchical system of fundamental rights restriction in the present article is actually aimed at the right to freedom. In addition, the right to vote in Article 34 should belong to the right for the participation in government and political affairs, which is different from the right to freedom in legal nature. However, China’s constitutional theory has always regarded the right to vote as a kind of political right and freedom. Therefore, the present article will also discuss it together with the restriction system.

 

The present thesis has shown that the current Constitution does not adopt a purely general restrictive model, which will be made more hierarchical and systematic by the construction of Article 51 as a general rights clause. Specifically, the Constitution stipulates different ways of restriction for individual fundamental rights according to their nature: some are directly restricted by the Constitution; some are restricted by authorization to the legislature; others have no stipulated restrictions, and still others have general restrictions. Those construct a hierarchical restrictive system on fundamental rights. For the convenience of discussion, let’s begin with those expressly stipulated in the Constitution.

 

1. Direct constitutional restriction. This means that the Constitution clearly defines the limits and scope of a right in the norms of fundamental rights without resorting to the legislature.⁴⁹ Judging from the text of the Constitution, this mode of restriction applies not only to freedom of religious belief, but also to the right to supervise. Article 41 of the Constitution clearly sets out the restriction for this fundamental right, namely no false accusations may be made by fabricating or distorting the facts. Since the only reasons for the restriction listed in Article 41 are false accusation and framing, the constitutional amenders also removed the use of defamation as the reason for restricting the right to supervise in amending the Constitution. Therefore, the legislature cannot restrict the right to supervise in principle on the grounds of protecting the reputation of state organ functionaries. In contrast with Article 35, there is a substantial contraction of direct constitutional restriction on the freedom of formation on the part of the legislator. Protecting the reputation of others is obviously a valid reason to restrict freedom of expression, but it cannot be a reason to restrict the right to supervise.⁵⁰

 

2. Legal Reservation. Legal reservation means that the Constitution authorizes the legislature to restrict fundamental rights. Based on the existence of prescribed conditions in authorizing legal restrictions, legal reservation can be aggravated or simple.⁵¹ Aggravated legal reservation means that legislation restricting fundamental rights by the legislature must comply with the conditions predetermined by the Constitution. This pattern of restriction is found in the clause on the right to vote in Article 34, the clause on arrest procedure in Paragraph 2, Article 37, and the clause on correspondence checks in Article 40. Article 40 presupposes specific grounds and subjects for correspondence checks, which have been discussed earlier and therefore will not be discussed here. Article 34 provides that citizens have the right to vote, except for persons deprived of their political rights according to law. “According to law” here means that the right to vote can be restricted based on law, but the legislature cannot restrict it on the grounds enumerated in the Constitution, namely ethnicity, race, gender, occupation, family origin, religious belief, education, property status, and period of residence. This is a negative condition presupposed by the Constitution for restrictive legislation, and is therefore an aggravated legal reservation.

 

Paragraph 2, Article 37 of the Constitution prescribes the procedural requirements for arrests, that is, with the approval or decision of the people’s procuratorate or the decision of the people’s court, and enforced by a public security organ. The Constitution clearly imposes additional requirements on the subject of the right to arrest. Thus, when the National People’s Congress decided in 1983 to establish a national security organ, it came up against this stipulation. The NPC Standing Committee thus explained that since the investigation shouldered by state security organs was originally undertaken by public security organs, the state security organs therefore are public security organs in nature, and can exercise the powers of investigation, detention, pre-trial and execution of arrest afforded to public security organs by the Constitution and laws.⁵² Here, the NPC Standing Committee has obviously made a teleological expansion of public security organs in Article 37 on the grounds that state security organs are of the same nature. This teleological expansion is necessary because it is the precondition for establishing the constitutionality of arrests by state security organs. This precisely shows that aggravated legal reservations are precisely a restriction on the freedom of formation for the legislature.

 

The simple legal reservation means that the Constitution authorizes the legislature to restrict fundamental rights through law, but does not prescribe additional elements of restrictive legislation. Article 37 stipulates that unlawful detention and other unlawful deprivation or restriction of citizens’ personal freedom and illegal searches of their persons are prohibited and Article 39 stipulates that illegal searches or unlawful invasion of citizens’ homes are prohibited. The prohibition of illegality here in turn means permission according to law, and therefore constitutes a legal reservation. However, the Constitution does not prescribe additional restrictive elements, so it is a simple legal reservation. Moreover, the aggravated legal reservation established in Article 40 applies only to correspondence checks, and other measures to restrict correspondence shall apply as simple legal reservations.⁵³ For example, Article 58 of the Cybersecurity Law of China stipulates, “To fulfill the need to protect national security and the social public order, and to respond to the requirements of major security incidents within the society, it is possible, as stipulated or approved by the State Council, to take temporary measures regarding network communications in a specially designated region, such as limiting such communications”. This stipulation is commonly referred to as network disconnection, which undoubtedly restricts freedom of correspondence. However, it is not a correspondence check, and is thus constitutional in accordance with the principle of simple legal reservation.

 

3. Constitutional reservation and non-legal reservation. The construction of Article 51 as a general rights clause presents the hermeneutic dilemma of whether the clause on Freedom of Expression in Clause 35, on Human Dignity in Article 38 and on Freedom of Art in Article 47 should be treated equally, since they are all without any restrictions. In a way, those clauses are similar to the no-reservation clause in German laws because the Constitution has no self-imposed restrictions on them and they are not legally reserved. However, even in German laws, the no-reservation clause is not unlimited; it is subject to the fundamental rights or other legal interests of constitutional rank entitled to third parties. Here, the principle of reservation must also be applied. Therefore, some scholars even argued that those fundamental rights should also be subject to simple legal reservations.⁵⁴ This positioning seems justified since none of them provides for legal reservations, but the problem is that this construction seems to improperly reduce the status of human dignity in the Constitution of PRC. For illustration, let’s compare Article 35 and Article 38 of the Constitution. Admittedly, neither of them imposes special restrictions, but the wording still bespeaks different attitudes. Article 35 does not emphasize that it is forbidden to violate those freedoms of citizens by any means after listing the six freedoms, including freedom of speech, while Article 38 does not end with one sentence the personal dignity of citizens is inviolable. In other words, Article 35 is much like a bland statement of fact, while Article 38 is more like an expression of value carrying strong emotions. The differences in their wording of regulations are subtle, but are of profound meanings. They show that those two fundamental rights have different attributes and different levels of protection, and therefore it is inappropriate to position them equally. Considering that Article 38 does not provide for any restrictions, especially in view of its strong tone, it is appropriate to regard it as a constitutional reservation that excludes in principle the possibility of interference by the legislature. That is to say, other fundamental rights may be restricted by law, while human dignity is not restricted in any way unless the state initiates a constitutional amendment.⁵⁵ It seems that only such an interpretation is consistent with the fundamental rights system of human dignity in China.

 

According to this definition, Article 38 is a constitutional reservation that excludes the possibility of legislative intervention; whereas Article 35 and Article 47 are non-legal reservation clauses, which, although intended to restrict the legislator’s freedom of formation, are still applicable as legal reservations, and can be said to be reservations for implicit interference with fundamental rights.⁵⁶

 

4. General restrictions. That is, the restriction of general freedom of conduct in article 51 of the Constitution. This limitation is the most general and vaguest and does not have the strict application of the principle of legal reservations, as described above.

 

The different restrictions on fundamental rights in China’s Constitution can be found in the following table:

 

The above table shows that the restrictions on fundamental rights in the Constitution are characterized by differentiation and hierarchy. Differentiation means that restrictions of different types and intensities are established by the Constitution in view of the different attributes of fundamental rights, that is, not all freedoms and rights are protected by the Constitution without distinction.⁵⁷ Hierarchy means that in terms of the restriction of fundamental rights, the Constitution comprises constitutional reservations, direct constitutional restrictions, legal reservations and general restrictions. The freedom of formation of the legislature is the most important one in the general restriction mode, while in the constitutional reservation, there is little room for legislative intervention, and its freedom of formation decreases gradually with the increasing degree of reservation, presenting a hierarchical trend.

 

The differentiated restriction model features different standards and restrictions for the freedom of formation of the legislature according to the specific nature of fundamental rights, and its main purpose is to authorize and restrict legislators in a more detailed and written way to prevent abuse of powers,⁵⁸ so as to more effectively restrain the legislature and protect fundamental rights. In contrast, the general restriction model is a package mandate for the legislature, in which the legislature is authorized to restrict fundamental rights on grounds of public interest. It does not take into account the qualitative differences between various fundamental rights, and the public interest also lacks a clear-cut standard, making it difficult to adjust the practice of specific fundamental rights sometimes, and giving rise to a violation of fundamental rights under the pretext of safeguarding the public interest.⁵⁹ That is precisely the flaw with the general restrictive mode. As far as the protection of fundamental rights is concerned, a differentiated model of restriction is naturally superior to a generalized model.⁶⁰ Generally, Article 51 is constructed as a general restrictive clause, but this construction actually gets in the way of correctly understanding the restriction mode of fundamental rights in China. When it is constructed as a general rights clause, a differentiated and hierarchical model of fundamental rights restriction becomes clearly visible. Therefore, a proper legal theory construction is of great significance for the correct understanding of the legal normative system.

 

 

The basic function of legal construction is to properly describe legal norms, so as to more effectively recognize, grasp and understand the enacted laws. The constitutional theory of China seems to be overly bound by the original position of the constitutional amenders in the theoretical construction of Article 51 without fully realizing differentiated restrictions established for many fundamental rights in Chapter II. It is true that the amenders intend to set general restrictions, but constructing Article 51 as a general restrictive clause cannot reasonably explain the many differentiated restrictions established by the constitutional text, or effectively explain the constitutional status of the human dignity clause. On the contrary, the construction of Article 51 as a general rights clause, while not supported in the history of the constitutional amendment, has a clear basis in the constitutional text, and can reasonably explain the constitutional status of the human dignity clause. Its practical benefit consists not only in establishing a textual basis for general freedom of conduct, but also in promoting a correct understanding of the pattern of restriction of fundamental rights in the Constitution of PRC.

 

(Translated by QIAN Chuijun)

 

* DU Qiangqiang ( 杜强强 ), Professor, School of Political Science and Law, Capital Normal University. Doctor of Laws. This paper is a phased achievement of Constitutional Interpretation in Line with Law and Its Practical Research, a General Project of Humanities and Social Sciences Research of the Ministry of Education for 2019 (Approval No. 19YJA820008).

 

1. According to Professor Xu Chongde, at the meeting of the Constitution Revision Committee, it was suggested that the wording based on law be added before the freedom of speech, the press, assembly, association, procession, and demonstration. However, since there is already a special provision (i.e., Article 51 — the present author) on general restriction in this chapter, there is no need. See Xu Chongde, A History of the Constitution of the People’s Republic of China (Fuzhou: Fujian People’s Publishing House, 2003), 667.

 

2. Wu Jialin, Constitutional Law (Beijing: Qunzhong Publishing House, 1992), 279; Xiao Weiyun, On the Constitution (Beijing: Peking University Press, 2004), 794.

 

3. Radebruch, An Introduction to Law, translated by Mi Jian (Beijing: Commercial Press, 2013), 232.

 

4. The German jurist Horn pointed out that in the field of law, theoretical construction is inevitable, due to the large number of norms and the complexity of their interrelations. See Horn, An Introduction to Legal Science and Philosophy of Law, translated by Luo Li (Beijing: Law Press · China, 2005), 107.

 

5. Nobuki Ashibe, The Constitution, Kazuyuki Takahashi Supplement, translated by Lin Laifan, Ling Weici and Long Xuanli (Beijing: Tsinghua University Press, 2018), 74-75.

 

6. Liang Huixing, General Introduction to Civil Law (Beijing: Law Press · China, 1996), 61-62.

 

7. Dr. Wang Liwan holds that Article 51 of the Constitution is both a general restrictive clause and a clause of general freedom of conduct. Wang Liwan, “Analysis of the Constitutionality of the Compulsory Commercial Insurance System”, The Jurist 2 (2017).

 

8. Bai Bin, Constitutional Dogmatism (Beijing: Peking University Press, 2014), 184.

 

9. Lin Laifan, From Constitutional to Normative Constitutions (Beijing: Commercial Press, 2017), 180.

 

10. Wu Geng, Interpretation and Application of the Constitution (Taipei: San Min Book Co., Ltd., 2004), 97.

 

11. Xia Zexiang, A Study of the Ninth Amendment to the US Constitution (Jinan: Shandong People’s Publishing House, 2012), 253; Li Zhongxia, “Constitutional Interpretation of the Human Rights Clause”, Human Rights, vol. 12 (Jinan: Shandong People’s Publishing House, 2013), 22.

 

12. Han Dayuan, ed., Constitutional Law (Beijing: Higher Education Press, 2008), 136 (this part written by Zhang Xiang).

 

13. Han Dayuan, Basic Theory of Constitutional Law (Beijing: China University of Political Science and Law Press · China, 2008), 218.

 

14. Xie Libin, Interpretation of the Constitution (Beijing: China University of Political Science and Law Press · China, 2014), 119.

 

15. Du Qiangqiang, “Reflections on the Beneficial Right Function of the Right to Freedom”, Northern Legal Science 4 (2013).

 

16. Lin Laifan, Lecture Notes on Constitutional Law (Beijing: Tsinghua University Press, 2018), 324. US courts also hold smoking to be a form of personal freedom, see John C. Fox, Bernadette M. Davison, “Smoking in the Workplace: Accommodating Diversity,” Cal. W. L. Rev. 25 (1989): 215 and 220.

 

17. Xu Chongde, The Constitution (Beijing: China Renmin University Press, 1999), 171; Lin Laifan, From Constitutional to Normative Constitutions, 180.

 

18. Zhang Xiang, Constitutional Hermeneutics (Beijing: Law Press · China, 2013), 158.

 

19. Zhang Xiang, “Systematic Thinking on Fundamental Rights”, Tsinghua Law Journal 4 (2012).

 

20. Article 8 of the Legislation Law: The following affairs shall only be governed by law: ... (5) mandatory measures and penalties involving deprivation of citizens of their political rights or restriction of the freedom of their person.

 

21. “Drafting Instructions for the Regulations on Smoking Control in Public Places (Draft for Review)”, published on the official website of the National Health Commission, accessed August 21, 2022.

 

22. Zippelius, Legal Methodology, translated by Jin Zhenbao (Beijing: Law Press · China, 2009), 87.

 

23. Some scholars argue that since the general rights clauses of the German and American constitutions specifically indicate other rights, while Article 51 of Constitution of PRC lacks the wording“other”, the freedom and rights here are more like a generalization of Articles 33-50. Therefore, it is difficult for the article to serve as a general rights clause. See Wang Kai, “The Development of Environmental Rights in the System of Fundamental Rights”, Politic Science and Law 10 (2019). This argument is true, but a different conclusion can be reached for a different object of comparison. For example, the general restrictive provisions in Article 23 of the 1946 Constitution of the Republic of China contains the wording “the freedoms enumerated in the preceding articles”, which apparently intends to incorporate all the rights enumerated in the preceding articles, but Article 51 of the current Constitution does not have such restrictions as the preceding articles. Therefore, the freedoms and rights stipulated in it are not necessarily limited to a summary of Articles 33-50, and it can be possibly interpreted as a general rights clause. 

 

24. Similarly, some Japanese scholars also hold that the freedom to smoke should be protected according to the general provisions of Article 13 of the Japanese Constitution. See Teruya Abe et al., Constitution (Part II), translated by Zhou Zongxian and revised by Xu Zhixiong (Beijing: China University of Political Science and Law Press, 2006), 86.

 

25. Wang Shuwen, The Constitution (Chengdu: Sichuan People’s Publishing House, 1988), 251.

 

26. Li Zhongxia, “Constitutional Construction of Privacy in the Digital Age”, Journal of the East China University of Political Science and Law 3 (2021).

 

27. Jhering also said that the legislators own construction is not binding on the formation of jurisprudence when it comes to jurisprudential construction. See Wu Congzhou, Civil Law and Jurisprudential Method: Conceptual Law, Interest Law, and Value Law (Beijing: China Legal Publishing House, 2011), 95.

 

28. Han Dayuan, ed., Constitutional Law (Beijing: Higher Education Press, 2008), 136 (this part written by Zhang Xiang).

 

29. Wang Kai, “Defining the Protection Scope of Fundamental Rights”, Chinese Journal of Law 5 (2020).

 

30. Ibid.

 

31. Wu Geng, Interpretation and Application of the Constitution, 96-97.

 

32. Wang Kai, “Defining the Protection Scope of Fundamental Rights”.

 

33. Wang Kai, “The Development of Environmental Rights in the System of Fundamental Rights”, Political Science and Law 10 (2019).

 

34. Zhang Xiang, “The Application of Constitutional Interpretation Methods: Perspectives of the German Elvers Case”, Study and Exploration 3 (2011).

 

35. Conrad Hesse, Outline of the Constitution of the Federal Republic of Germany, translated by Li Hui (Beijing: Commercial Press, 2007), 332.

 

36. Zhang Xiang, “The Application of Constitutional Interpretation Methods: Perspectives of the German Elvers Case”.

 

37. Sabine Michalowski and Loma Woods, German Constitutional Law: The Protection of Civil Liberties (Aldershot: Ashgate Publishing Ltd., 1999), 111.

 

38. Zhang Xiang, “The Application of Constitutional Interpretation Methods: Perspectives of the German Elvers Case”.

 

39. Ibid.

 

40. Zhang Xiang, ed., Selected Cases of the German Constitution (Beijing: Law Press · China, 2012), 18.

 

41. Robert Alexy, A Theory of Constitutional Rights, translated by J. Rivers (Oxford: Oxford University Press, 2002), 239.

 

42. Professor Lin Laifan pointed out that such general freedoms of conduct are not stereotyped like those special freedoms. Lin Laifan, Lecture Notes on Constitutional Law, 324.

 

43. Wu Congzhou, Civil Law and Jurisprudential Method: Conceptual Law, Interest Law, and Value Law, 339.

 

44. Chen Xinmin, Basic Theory of German Public Law (Jinan: Shandong People’s Publishing House, 2001), 350.

 

45. Wang Kai, “On the Relationship between Legal Reservations and Restrictions on Fundamental Rights: Taking for Example the Deprivation of Political Rights in Article 54 of the Criminal Law”, in ECNU Law Review 2 (2017) Zhang Zhiming, ed., (Beijing: Law Press · China, 2018), 85; Zhang Xiang and Tian Wei, “Review Framework for Fundamental Rights Cases (II): Scope of Protection”, Yenching Legal Studies 5 (2022). 

 

46. Wu Congzhou, Civil Law and Jurisprudential Method: Conceptual Law, Interest Law, and Value Law, 95.

 

47. Zhang Xiang, “Systematic Thinking on Fundamental Rights”, Tsinghua Law Journal 4 (2012).

 

48. Chen Xinmin, Basic Theory of German Public Law, 695. 

 

49. Board of Editors of Constitutional Law, Constitutional Law (Beijing: Higher Education Press and the People’s Publishing House, 2020), 198.

 

50. Du Qiangqiang, “The Normative Field and Protection Degree of Fundamental Rights”, Chinese Journal of Law 1 (2011).

 

51. Chen Xinmin, Basic Theory of German Public Law, 351.

 

52. “The Decision of the NPC Standing Committee on the State Security Organs Exercise of the Public Security Organs Powers of Investigation, Detention, Pretrial and Execution of Arrest” was adopted at the Second Meeting of the Standing Committee of the Sixth National People’s Congress on September 2, 1983.

 

53. Du Wuqing, “On the Constitutional Protection of Correspondence Secrets: Taking Electronic Communication Metadata as the Entry Point”, Journal of the Gansu University of Political Science and Law 6 (2021). 

 

54. Chen Chufeng, “Formal Requirements for Restrictions on Fundamental Rights in the Constitution of China”, Chinese Journal of Law 5 (2021).

 

55. Zhang Xiang, Legal Construction of Fundamental Rights Norms (Beijing: Law Press · China, 2017), 129.

 

56. Tsai Zongzhen, “An Exploration of the Institutional Correlation Elements of Legal Retention Thought and Its Development”, NTU Journal, vol. 39, no. 3 (2010): 44.

 

57. Wu Geng, Administrative Law: Theory and Practice (Beijing: China Renmin University Press, 2005), 53.

 

58. Chen Xinmin, Basic Theory of German Public Law, 354.

 

59. Hu Jinuang and Han Dayuan, The Constitution of PRC (Beijing: Law Press · China, 2004), 207.

 

60. Aharon Barak, Proportionality: Constitutional Rights and Their Limitations, translated by Doron Kalir (Cambridge: Cambridge University Press, 2012), 145.