CHAPTER I

THE CONSTITUTION

The constitutional system, basic in most Western states, plays a peculiar, subordinate role in China. Consideration of the issue of constitutionalism high-lights the most practical aspects of the issues of full democracy. Although the purely legal aspects of constitutional development are still unimportant in the internal power politics of China, further constitutional development involves a very real shift in the domestic balance of power. The fullness of national unity, and therefore the effectiveness of resistance against Japan, depend in part on the successful solution or compromise of the problems of constitutionalism.

Ever since the beginnings of political modernization in China, demands for constitutional government have included a written constitution as an imperative prerequisite. The formidable Empress Dowager was troubled in her last days by the Imperial constitution, a rather unimaginative plagiarism of the Japanese Constitution of 1889. Since the Republic began in 1912, China has continued constitutional drafting, amendment, replacement, and suppression; many of these constitutions have gone into legal effect. Law being what it was, practical politics flowed on untroubled.[1] Only with the establishment of the National Government at Nanking did constitutional structure and actual government develop similarities.

[Footnote 1: On the Manchu constitutional programs, see _Columbia University Studies in Political Science_, Vol. XL, No. 1: Yen, Hawkling L., "A Survey of Constitutional Development in China"; Vinacke, Harold Monk, _Modern Constitutional Development in China_, Princeton, 1920; Cameron, Meribeth, _The Reform Movement in China, 1898-1912_, Stanford University, 1931; and Hsieh, Pao Chao, _The Government of China (1644-1911)_, Baltimore, 1925. The earlier constitutional developments under the Republic are summarized in Escarra, Jean, _Le Droit Chinois_, Paris and Peiping, 1936, which includes excellent bibliographies; Tsêng Yu-hao, _Modern Chinese Legal and Political Philosophy_, Shanghai, 1934, Ch. VI, "The Law of Modern Chinese Constitutions"; a characteristic proposal for a pre-Kuomintang constitution is Bau, Mingchien Joshua, _Modern Democracy in China_, Shanghai, 1927; and the works of Lum, Wu, and Linebarger, cited above.]

THE _Yüeh Fa_ OF 1931

In 1931, after three years' operation under an Organic Law, the National Government adopted the _Yüeh Fa_ (Provisional Constitution),[2] designed to cover the period between the first stage of the revolution, _military conquest_, and the final one of _constitutional government_. This intermediate period was formally labelled the stage of _political tutelage_, although in fact the military unification of the country continued. The Provisional Constitution, designed for five years' use, has continued in force to the present (March 1941). It possesses the merit of attempting to make actual practice and constitutional form correspond. Grandiloquent, unenforceable provisions concerning elections are omitted, and full exercise of the powers of sovereignty are frankly entrusted to the tutelary Party, the Kuomintang. Such a constitution, formally making the Kuomintang different from and higher than any other party in China--and, for all that, in the world, since the Fascist, National Socialist, and Communist parties are not formally the constitutional superiors of their respective governments--and giving the Party unrestricted authority, has provided China with government realistic if not libertarian.

[Footnote 2: The text of the _Yüeh Fa_ is to be found in _The China Year Book, 1932_, Shanghai, 1932, and in Lum, work cited, p. 161 _ff._, and Wu Chih-fang, work cited, p. 410 _ff._ The Chinese texts of all outstanding Chinese constitutions, from the Imperial programs down to the Double Five Draft of the _Hsien Fa_ are to be found in Wang Shih-chieh, _Pi-chiao Hsien-fa_, Shanghai, 1937, p. 699-796.]

The constitutional basis of the present Party-dictatorship in China is well summarized by the distinguished constitutional commentator, Dr. Wang Shih-chieh:

According to Sun Chung-shan's[3] _Chien-kuo Ta-kang_ [Outlines of National Reconstruction], China should pass through a period of political tutelage under the Chinese Kuomintang,[4] before the stage of constitutional government be reached. The National Government is merely an organization through which a true republic may be formed. Hence, in order to demonstrate the structure of the National Government clearly, we must first understand the meaning of _tang chih_ [party government].

"Party government," so-called, signifies that the whole system of government is under the control or dictatorship of one political party only. The only difference between party government and dictatorship is that the former is under the dictatorship of an entire political party, while the latter is under that of a single person. Party government is of course different from democracy, inasmuch as with democracy, all policies are to be decided by the entire body of citizens, while with party government, policies are to be decided by all the members of the particular party only. In other words, the entire party as one man can exercise political dictatorship, without taking into consideration the opinions of those who are not the members of the party. Any resolution passed by that party is considered a law not only in fact, but sometimes even in name; moreover, the party may cancel or change a law by a resolution passed in a meeting.

The above-mentioned points are phenomena common to countries under party governments.

After the Chinese Kuomintang has come into power, the system of party government is not only a fact, but even prescribed in laws. The _Laws Governing the System of Organization of the National Government of the Republic of China_ promulgated for the first time on July 1, Year XIV (1925) were originally formulated by the Political Council of the Chinese Kuomintang. Article I in this code of laws provided: "The National Government discharges all the political affairs of the entire country, under the direction and superintendency of the Chinese Kuomintang." The said code has been constantly amended since its first promulgation, but this article has always remained unchanged. By the summer of Year XVII (1928), when the successful Northern Expedition undertaken by the National Revolutionary Army unified China under one government, the period of political tutelage of the Chinese Kuomintang began with the formulation and promulgation of the _Outlines of Political Tutelage_ on October 3, Year XVII (1928). Article I of the said "Outlines" provided: "During the period of political tutelage of the Republic of China, the National Party Congress of the Chinese Kuomintang will take the place of the National Convention to lead the people and enforce all policies." By the beginning of June, in Year XX (1931), when the _Provisional Constitution_ for the period of political tutelage was promulgated, the _Outlines of Political Tutelage_ were again formed into a part of the _Provisional Constitution_, thereby giving party government a constitutional recognition. Besides the _Outlines of Political Tutelage_, Article 72 ("The National Government [Council of State] has a President and a certain number of state councillors, appointed by the Central Executive Committee of the Chinese Kuomintang."), and Article 58 ("The Central Executive Committee of the Chinese Kuomintang is vested with the power of interpreting this Provisional Constitution.") of the _Provisional Constitution_, and Article 10 ("The National Government has a President, twenty-four to thirty-six state councillors, a President and a Vice-President of every _Yüan_, appointed by the Central Executive Committee of the Chinese Kuomintang."), and Article 15 ("Before the promulgation of the Constitution, the Executive, Legislative, Judicial, Examination and Control _Yüan_ will each be responsible to the Central Executive Committee of the Chinese Kuomintang.") of the _Laws Governing the System of Organization of the National Government_ (December 30, Year XX [1931]) now being enforced, form the legal basis for party government.[5]

[Footnote 3: I.e., Sun Yat-sen; Chung-shan was a revolutionary alias, which became a ceremonial posthumous name.]

[Footnote 4: The term "Chinese Kuomintang" is not a redundancy; the original is _Chung-kuo Kuo-min-tang_, "Central-Realm Realm-people-association," and could be translated as the Chinese Nationalist Populist Party, National Democratic Party, the Nation's People's Party, etc. Several Japanese organizations have had exceedingly similar names; hence the formal style for the Kuomintang is always prefaced by _China_.]

[Footnote 5: Wang Shih-chieh, work cited, p. 649-50.]

Under Kuomintang trusteeship, demands have been heard within and without the Party, for the promised abdication of the Party and for the initiation of popular government. Since the Kuomintang, unlike European one-party groups, established itself only for the formal purpose of democratic training, and was pledged to tolerate multi-party government as soon as possible, the continued monopoly of power was a frustration of the Party ideology and programs. The frustration was serious; involving much loss of popular sympathy for the government, this and appeasement rather demoralized the Party in the years preceding the invasion.

THE DRAFT PERMANENT OR DOUBLE FIVE CONSTITUTION

The Legislative _Yüan_ brought forth on May 5, 1936 (in Chinese chronology, 5/5/XXV, or double-five twenty-five), the celebrated _Hsien-fa Ts'ao-an_ (Draft Permanent Constitution), which was promptly dubbed the Double Five Constitution. Ever since its first promulgation, this document has formed the center of all Chinese constitutional debate, and--with very minor modifications--still stands as the official proposal for a permanent constitution, awaiting ratification by the _Kuo-min Ta-hui_ (National [Constituent] Congress), when and if that long-postponed body ever convenes.[6] The Draft Constitution is the joint work of many outstanding legal scholars. A product of collective research and study, it thereby resembles collective private codification of municipal and international law in the West more than it does the creation of a deliberative assembly. The celebrated Chinese jurist, Dr. John C. H. Wu, prepared the first informal draft,[7] and the 5/5/XXV version represents the fourth draft of the Legislative _Yüan_. The preparation of the various drafts has not, from the scholastic point of view, been secretive or private; but broad popular participation has neither been offered nor solicited.

[Footnote 6: The Double Five Draft Constitution is to be found in Chinese in Wang Shih-chieh, work cited, and in English in Council of International Affairs, _Information Bulletin_, Vol. III, No. 10 (April 11, 1937), Nanking; Hsia, C. L., "Background and Features of the Draft Constitution of China"; in Legislative _Yüan_, "Draft of the Constitution of the Republic of China," Nanking, 1937; in _The China Year Book_, Shanghai, and _The Chinese Year Book_, Shanghai and Hong Kong, _v.i._ and _v.d._ The latest version of the Draft Constitution is reprinted below. Appendix I (A), p. 283; the latest Chinese annotated version of this is the Legislative _Yüan_, _Chung-hua Min-kuo Hsien-fa Ts'ao-an Shuo-ming-shu_ (An Elucidation of the Draft Permanent Constitution of the Chinese Republic), [Chungking], XXIX (1940).]

[Footnote 7: For a critique and appreciation of the final Draft Constitution, see Wu, John C. H., "Notes on the Final Draft Constitution" in _Tien Hsia Monthly_, Vol. X, No. 5 (May 1940), p. 409-26. (Dr. Wu is one of the most extraordinary personages of the modern world; he has taken all knowledge--East Asiatic and Western--for his province. He writes a spirited, graceful English and is capable of discussing anything from modern politics or abstruse points of Anglo-American law to ancient Chinese hedonism or the philosophical implications of the _Autobiography_ of St. Thérèse of Lisieux. Dr. Wu, in a bomb-shelter, possesses much of the moral poise and profound personal assurance for which such Westerners as T. S. Eliot seek in vain.) See also Hsia, C. L., "A Comparative Study of China's Draft Constitution with That of Other Modern States," in _The China Quarterly_, Vol. 2, 1936-7, No. 1 (Summer), p. 89-101 and Hoh Chih-hsiang, "A History of Constitution Making in China," the same, Vol. 1, 1935-6, No. 4 (Summer), p. 105-117.]

The Constitution consists of eight Chapters, comprising one hundred and forty-seven articles. Chapter I defines the Chinese state as "a San Min Chu I Republic" (_Art._ 1), declares sovereignty to be "vested in the whole body of its citizens" (_Art._ 2), defines the territories of the republic, specifies racial equality for the "races of the Republic of China," designates the national flag, and declares Nanking to be the capital. Chapter II covers, in nineteen very specific articles, the entire field of private rights and of the civic privileges of individuals. Most specifications carry the qualification, "in accordance with law" or "except in accordance with law." Since law is defined further in the Constitution as "that which has been passed by the Legislative _Yüan_ and promulgated by the President," the qualification impresses many persons as sinister rather than encouraging. Except for this point, the specific constitutional guarantees exceed in number and specificity those of almost any other modern constitution.

The _Kuo-min Ta-hui_ (either "National Congress" or "People's Congress") is the subject of Chapter III. This body has a function unlike that of any Western agency; the nearest equivalent is the National Assembly of the Third French Republic. This Congress is an electoral and constituent body with fundamental legislative powers. It is not intended to usurp the functions of the Legislative _Yüan_ by fulfilling the role of a United States Congress, French Deputies and Senate, or a British Parliament. Meeting once every three years for a one-month session, it will be manifestly unable to act as a routine Western-type legislature.

The Central Government is the topic of the fourth Chapter. The first section of the Chapter describes the Presidency; the remaining five, the five _Yüan_. This applies the five-fold separation of powers. Sun Yat-sen held that a three-fold separation of powers, as known in the West and applied to American government, was efficacious; he also considered that the Imperial Chinese separation of powers (an implicit one only) was also desirable. The West had executive, legislative, judicial; old China combined these three into the governing power, and joined thereto the examinative power and the _chien-ch'a_[8] power. (The _chien-ch'a_ power involved the functions of the traditional Chinese censorate; overt and active expressions are found in auditing and in the lodgment of impeachment charges. The term is fundamentally untranslatable, but if the tribunician connotations of _Censor_ or the emergency meaning of _Control_ be recalled, either of these terms will serve.) Sun Yat-sen combined the Western and the old-Chinese separations, developing a theory of the five powers. The Draft Constitution, like its two working predecessors, is a five-power constitution, with five great _Yüan_ (Boards, Presidencies, or Courts), each headed by a _Yüan-chang_ (_Yüan_ President). The fourth Chapter, by including the President and all five _Yüan_, almost covers the full reach of Chinese government.

[Footnote 8: For a more extended discussion of this point, see the author's _The Political Doctrines of Sun Yat-sen: An Exposition of the San Min Chu I_, Baltimore, 1937, p. 218 _ff._, and also p. 96 _ff._]

This Chapter contemplates the creation of a strong President. In the Organic Law of 1928, the five Presidents of the _Yüan_ were relatively less strong, and the Chairman of the _Kuo-min Chêng-fu Wei-yüan-hui_ (National Government Council; or, Council of State) was the key figure in the government. Most of this time, Chiang himself was Chairman. In the 1931 Provisional Constitution, now in force, the Chairman of the National Government--termed President by courtesy--is an officer comparable to the President of the Third French Republic; the President of the Executive _Yüan_ is a more active officer: Chiang K'ai-shek is President of the Executive _Yüan_. The new President, under the Draft Constitution, is one of the world's most powerful officers. Holding office for six years, eligible for re-election, commander of all armed forces, declarer of war, negotiator of peace, treaty-maker, chief appointing and removing officer of the state, holder of an emergency power greater than that conveyed by Article 48 of the German Weimar Constitution, and superior to the executive, legislative, judicial, examinative and control branches of the government--such a President is fully responsible to the triennial People's Congress, and to that only! Since the proposed President may be recalled at any time by the People's Congress, he is in that respect similar to parliamentary chiefs of state.[9]

[Footnote 9: See Sun Fo [President of the Legislative _Yüan_, and son of Sun Yat-sen], "The Spirit of the Draft Permanent Constitution," in _The China Quarterly_, Vol. V, No. 3 (April 1940), Shanghai, p. 377-84.]

The President of the Executive _Yüan_, together with his subordinates, is to be appointed and removed by the President of the Republic. The _Yüan_ includes Cabinet Ministers--appointed to their posts from among a special group of Executive Members of the _Yüan_, thereby providing a simple, rational equivalent of Cabinet and Privy Council, as in Japan or (less similarly) in Great Britain.

The Legislative _Yüan_ is an interesting semi-cameral legislative body, which seeks to embody the better features of legislative research organs and of representative bodies. The Judicial _Yüan_ rationalizes the structure and administration of courts and of judicial process.

The Control [or Censor] _Yüan_ is, like the Legislative _Yüan_, a quasi-cameral body, with indirect election of members by the People's Congress from territorial electorates. Its functions are audit, inquiry, and impeachment, with such ancillary powers as practice to date has already indicated.[10]

[Footnote 10: See Appendix I (F), p. 318-24, below.]