Chapter VIII deals with the interpretation and enforcement of the

Constitution. It was a labor of love by shrewd legal theorists, and defines terms with great clarity. Interpretive power is vested in the Judicial _Yüan_.

THE ISSUE OF CONSTITUTIONAL CHANGE

Nowhere in China is there outright denial of a need for constitutional change. The need exists; the Double Five Draft is the government's answer. Yet there are few patent demerits in the existing constitutional system; the present political structure is more realistic, more broadly national, more expressive of effective opinion than any other in modern China. The question arises from commitments (dating back to the Empire) promising to create actual constitutional government. The National Government was established on the basis of this pledge. The democratic ideology, whatever sects it may include, has a clean sweep of the field of doctrine in China. No one seriously advocates monarchy, separatism, or permanent dictatorship. The only question is: how and when?

At the close of the third session of the advisory People's Political Council, Chiang K'ai-shek replied to demands for immediate broadening of popular control over the government by reaffirmation of his adherence to the democratic dogma of Sun Yat-sen, together with the following warnings:

The democracy which _Tsung-Li_ [The Leader, i.e., Sun Yat-sen] wished to establish was of the purest kind without the slightest vestige of make-believe or artificiality. Unfortunately, the Chinese people, having inherited all the evil practices handed down throughout the numerous dynasties of autocratic rule, were then at a low ebb both in intelligence and in vitality. The people were used to disorganization and selfishness....

We have to wait until our lost territories have been recovered and domestic disorders liquidated before we can have political tutelage and prepare ourselves for constitutionalism....

People at that time [the inauguration of the Republic in 1912] made the mistake of neglecting the necessary procedures and instead they rivalled each other in talking about democracy.... As a result, democracy has remained an ideal....

We must make it clear to our people that democracy is not a synonym for lack of law and order, or for anarchy.

The public opinion on which democracy is based must be sound, collective, and representative of the majority of the people's wills. The freedom which democracy endows on people should not conflict with public welfare, nor should it go beyond the sphere as marked by laws of the State. With our nation facing the worst invasion in history, we must teach the people to respect the absolute authority of laws of the State.[13]

[Footnote 13: China Information Committee, Chungking, _News Release_, No. 351 (February 25, 1939), p. 2269-71.]

The clamor for a constitution continued. The difficulties of introducing mass suffrage to Western China were apparent to everyone, but many leaders felt that the advantages of constitutionalism would outweigh the inescapable loss of efficiency, and would mobilize public opinion behind the war and further democratic progress. The Generalissimo found this view hard to reconcile with his military, direct notions of doing first things first, as he saw them, but he yielded in the fourth session of the People's Political Council and accepted the demand. He stated:

In China ... [democratization] is a tremendously heavy task which cannot be completed within a few days. I think that the Constitution and laws may as well be promulgated at an earlier date. But, gentlemen, please do not forget the _Tsung-li's_ painful consideration ... [of the necessity of an intermediate stage of real democratic training]. Political tutelage does not end with the training of the citizens by the government. It requires training of the citizens by themselves.

Today we should understand our object: to start the building of a constitutional government. This means laying a permanently sound basis for the nation. We are not concerned with the time of starting constitutional government. Whether to start it early or later does not matter much. What we are really concerned with is, do we have a real intention of forming a constitutional government? If we are truly so minded, we might as well promulgate the Constitution before the labor of political tutelage is completed.[14]

[Footnote 14: [Chiang K'ai-shek], _Tsung-ts'ai Chien-kuo Yen-lun Hsüan-chi_ (The Party Chief's Utterances on Reconstruction), Chungking, 1940, p. 237-43. The Generalissimo concluded his speech with a homiletic touch which is so characteristic that it may be included here; it also explains his relative lack of interest in the Constitution: "Lastly, I have another point to tell you gentlemen. I have already repeated this, again and again, many times. Desiring to complete our revolutionary work and national reconstruction, and to have a constitutional government as seen in many modern states as soon as possible, I often study the causes of the weakness and disorder which exist in our country.... [He cites the traditional political vigor and excellence of the centuries before the time of Christ, with the "degeneration" and "departure from order" of the following centuries.] The departure is not simply due to the failures in politics and education and to the deprivation of the popular rights by a few tyrannical kings and lords since the Ch'in and Han periods. It is due to the fact that before the Chou, we had government by law [_fa chih_] as a mere supplement to government by social standards [_li chih_, also translatable as ideological control, or control through moral indoctrination]. We had social organization as the foundation of political organization. Everything was then well-organized and well-trained. Everywhere, in schools, in armies, in families, in society, order and the forms of propriety [i.e., social standards] were regarded as most important. No citizen could evade his duty and obligation."]

Chiang thus reconciled the beginning of constitutionalism and the continuance of political tutelage, although implying acquiescence, not recommendation. A theorist holding all men to be driven by "a perpetuall and restlesse desire of Power after power, that ceaseth only in Death,"[15] might consistently suppose that Chiang merely dissimulated an inward lust for authority; more plausible is the postulation that a man who has for years lived with and for a doctrine, giving his life and future reputation to the fulfilment of a program, would incline to prudence and realism in climaxing that doctrine and program. In Chiang's case this is Sun Yat-sen's _San Min Chu I_. Chiang's reluctance to apply democracy then and there is understandable whatever the inmost motive; so, too, is his yielding to a widespread demand.

[Footnote 15: Thomas Hobbes, _Leviathan_, New York and London, 1934 (Everyman's Edition), p. 49.]

The convening of a special _Kuo-min Ta-hui_ as a national constituent assembly was set for November 12, 1940; this day was chosen because it was traditionally the seventy-fourth birthday of Sun Yat-sen. Administrative machinery for preparation of a hall, secretariat, publications, and other necessities was established and set in motion. Following the severe fires of August 19-20, and the subsequent large-scale demolition of above-ground downtown Chungking by raids, indefinite postponement of the Congress was announced on September 25--on the grounds that military hazard prevented adequate assembly of delegates, and no reasonably safe place for such a meeting could be found.

Meanwhile, recent years have seen an uproar of constitutional debate. This may be summarized briefly, with the case against the Constitution stated first:

Constitutionalization would lead to the legalization of other parties, instead of a mere condition of non-prosecution; this would disrupt the orderliness required of a people at war. Why add discord in war time? _Reply_: legitimization of other parties is not a struggle for power but an act of union. It would widen the periphery of cooperation.[16]

[Footnote 16: The writer is indebted for much of the material in this chapter to Dr. Djang Chu, of the New Life Movement Headquarters, Chungking, who supplied it to him in the form of a lecture and other memoranda. Dr. Djang is, of course, not responsible for any reinterpretations here made.]

Sun Yat-sen required three stages of the revolution: conquest, tutelage, constitution. China is not ready for mass suffrage. The majority of the people are not yet literate. Public opinion is just developing. The nation is, in fact, still in the period of military recapture of national territories. _Reply_: Sun Yat-sen must not be interpreted mechanically. If this is done, tutelage will never end, and Sun's cherished democracy will remain forever in the future. Furthermore, the guerrillas, the Border Region, and other instances have shown that the Chinese masses can and will practice democracy right now. Again, the issue has already been decided; the government has been committed to the immediate inauguration of the Constitution. First it was to be 1939; the elections were held in part, until the war finally stopped them on August 13, 1937. It is too late to raise the issue: is China ready? Everyone--government, Kuomintang, independent groups--has decided that China is.

Why change constitutions? The present one is satisfactory. If a war-time amplification of the _Yüeh Fa_ is needed, it can be found in the _Program of Resistance and Reconstruction_.[17] If a convocation of the talents is needed, the People's Political Council is already there. What is the use of a constitutional change in war time? _Reply_: the constitutionalist movement is no new development. The _Program_ was a democratic advance. "Besides, formation of the People's Political Council was a step toward democracy. The constitutional movement was not forced on the government, but was an outgrowth of the war; it has not appeared overnight, but has a clear historical background. As soon as the Sino-Japanese hostilities broke out, it was evident that more democratic rule was necessary. As the war became prolonged, the preliminary steps proved inadequate. A more perfect constitution, whereby the whole people can be mobilized, is imminent. This fact was duly recognized by the people and is the motive power of the present constitutional movement." (This is the comment of an independent writer.)[18]

[Footnote 17: See Appendix I (D), p. 309.]

[Footnote 18: Liu Shih, "Chung-kuo Hsien-chêng Yün-tung-ti Chi-ko Chieh-tuan" (Stages of the Chinese Constitutional Movement) in _Li-lun yü Hsien-shih_ (Theory and Reality), Vol. 1, No. 3, November 15, 1939, p. 13 _ff._]

A pointed question is raised and answered by Tso Tao-fen, one of the Seven Gentlemen (_Ch'i Chüntzu_) who led the National Salvationists:

Some say that as a matter of fact, the people themselves do not want a constitution. And--to put it more bluntly--that the people do not know what a constitution is. Therefore, the constitutional movement represents the desires of only a minority of the people, not the majority. You have a certain element of truth if you say that most of the people do not know what a constitution is, but it is not true that they do not want a constitution. In the present war period, the burden on the people is enormous. They should not be denied any privileges to which they are entitled. All the proposed constitutional stipulations concerning the duties, rights, economic status, and education of the people have an immediate effect on and relation to the people. Why do they not want a constitution? If you proceed to ask one of the common people, say a peasant, and you talk with him, professorially as though you were in a classroom, about the constitutional movement, he may be at a loss. But if you bother to ask him about his daily life--the work he is doing, his hopes, his bitterness, the cruelties inflicted on him by unscrupulous officials and landlords and gentry--and if he enjoys the freedom of speech, he will give you a good talk!... If you say that the people do not know what a constitution is, you should enlighten them about the close relationship between themselves and the constitution, not discontinue the constitutional movement.[19]

[Footnote 19: From Tso Tao-fen, "A Few Questions Regarding the Constitution" in Ch'üan-min K'ang-chan Shê [The United Front Club], _Hsien-chêng Yün-tung Lun-wên Hsüan-chi_ (A Symposium on the Constitutional Movement), Chungking, 1940, p. 1 _ff._]

Other questions relate to specific points in the Draft Constitution. In the opinion of some, the phrase "according to law" which follows every guarantee of popular rights is a dangerous phrase, particularly in view of the neat but arbitrary definition of "law" (_Art._ 139). Others, remembering the Weimar Article 48, mistrust the emergency power of the President. The President's sharing of the budgetary, pardoning, and war powers with the Legislative _Yüan_ seems illogical to some critics, who feel that these powers should be within reach of a more popular body, not a technically legislative organ.

Further discussion deals with the competence of the _Kuo-min Ta-hui_. Many of the critics, particularly those of the Communist and independent Left group, believe the long-heralded epoch of democracy would open badly if it began with mechanical ratification of a dictated constitution. A Communist leader said, "We want a Constitution, a democratic Constitution--a _real_ democratic Constitution!" and pointed out that the first Congress was too large, not truly representative of the common people, and not given enough time to work out a constitution by its own action; its task, as he supposed the government intended, would be to rubber-stamp the Double Five Draft. In his opinion, this Draft had many defects--chief of which was unresponsiveness of the central government to popular control. The proposed Congress could not do much with a mere triennial check; the five-power system as projected was unsatisfactory. Democratic rights were insufficiently assured. He added that the Communist Party of China was for a democracy, but that the Double Five Draft was not "the constitution of a democracy."[20]

[Footnote 20: Statement of Col. Ch'in Po-k'u at the Chungking office of the 18th [Communist] Army Corps Headquarters, on July 29, 1940, to the author.]

Furthermore, the representativeness of the proposed constitution-adopting _Kuo-min Ta-hui_ is called into question. The present plan calls for 665 delegates from geographical constituencies, 380 from occupational, 155 "by special methods," 240 by government appointment, and a large number of Kuomintang Party-officers _ex officio_ (241 by a recent count).[21] The present administration would obviously have a whip hand over all proceedings. The division into groups has been criticized. A demand, for example, for 120 women members has been made. Under the circumstances, with 1681 members already scheduled, mere additional size could be no handicap.

[Footnote 21: _China at War_, Vol. IV, No. 5 (June 1940), p. 79 _ff._]

The question of qualifications has also been raised. About 900 of the representatives had been elected when war broke out. These include men who have since died, or have changed their opinions, or are reported missing, and even a few traitors. Are all the available elected representatives to be gathered together, years later? or is a new election to be held? Whatever occurs, the supreme agency on qualifications is the Election Committee for Representatives to the People's [Constituent] Congress, attached directly to the Council of State.

The constitutional issue in China is no simple problem of reaction versus progressivism. The vast majority of the population is not literate, and is unprepared to deal with a complicated machinery of opinion and election. Wire-pulling, corruption, adherence to form instead of deed--these are all widespread in China. Democracy abruptly established might frustrate further improvement, since sham-democracy would have established itself. The opponents of sudden action also press the telling point that the common people do not know they want immediate democracy, although believing in the term as a symbol and approving its trial application. The Generalissimo remains clearly mistrustful about creating new organs of opinion, or using new political processes; he would prefer to wait until the nation is unified, better administered, and more literate. Hence his and the Kuomintang's insistence on indirect elections, remoteness of policy-making authorities from the electorate, and self-sufficient government.

China did have, it is argued, an excellent democratic constitution in 1912, many more in the warlord years. All had admirable balances of power, guarantees to the individual, libertarian and progressive provisions. Like Chinese social legislation, they lifted China to the level of the rest of the modern world--_de jure_, and that only! These elevated documents remained elevated; life went on beneath them, and the tragic gap between law and life was so enormous that no one thought of bridging it. The nation would have been humiliated by legislation which limited the working day to fourteen hours, prohibited the mutilation or slavery of children, or required that torture be administered in the presence of a physician. Hence it had eight, ten, or twelve-hour laws, good child legislation, and absolute prohibition of torture for any purpose; these were unenforceable.

To counsels of caution, advocates of immediately responsive institutions reply that the Chinese common people are better democrats than their rulers, citing concrete cases in proof. They mention the general strikes, strong peasant cooperation, the startling phenomena of coordinate mass action--tens and hundreds of thousands strong--in political protest, boycotts, or civic immobility. (In past years many a warlord has been stopped by empty streets and closed houses: no business, no traffic, no talking, no meetings--only the silence, and somewhere, conspicuously inconspicuous, a committee of plenipotentiaries!) They refer to the Frontier Area, the Border Region, the New Fourth Zone, the guerrillas, the industrial cooperatives, and the wealth of leadership called up from the millions by the war. They quote to the Kuomintang its own professions of democracy, and the words of its late Leader. Told that the masses do not understand modern administration, modern economics, modern war, and that the peasantry and workers would proceed to arbitrary class legislation, economic levelling, and social revolution, they reply, "What do you want--democracy?" It is most unlikely that the Communists would sweep the country under free elections, but they and other dissidents, as the political Outs, would be free to criticize the incumbents in a way sure to bring support and involve new alignments of power. Some Kuomintang leaders wish to shut out any group with foreign connections; the Chinese face--despite their definite movement toward constitutionalism--the question of the limits of democratic toleration.