The Fight for the Republic in China

by B. L. Putnam Weale

DRAFT OF THE NATIONAL CONSTITUTION OF CHINA

(As it stood on May 28th, 1917, in its second reading at the Constitutional Conference.)

The Constitutional Conference of the Republic of China, in order to enhance the national dignity, to unite the national dominion, to advance the interest of society and to uphold the sacredness of humanity, hereby adopt the following constitution which shall be promulgated to the whole country, to be universally observed, and handed down unto the end of time.

CHAPTER I. THE FORM OF GOVERNMENT

Article 1. The Republic of China shall for ever be a consolidated Republic.

CHAPTER II. NATIONAL TERRITORY

Art. 2. The National Territory of the Republic of China shall be in accordance with the dominion hithertofore existing.

No change in National Territory and its divisions can be made save in accordance with the law.

CHAPTER ... GOVERNING AUTHORITY

Art ... The power of Government of the Republic of China shall be derived from the entire body of citizens.

CHAPTER III. THE CITIZENS

Art. 3. Those who are of Chinese nationality according to law shall be called the citizens of the Republic of China.

Art. 4. Among the citizens of the Republic of China, there shall be, in the eyes of the law, no racial, class, or religious distinctions, but all shall be equal.

Art. 5. No citizens of the Republic of China shall be arrested, detained, tried, or punished save in accordance with the law. Whoever happens to be detained in custody shall be entitled, on application therefore, to the immediate benefit of the writ of habeas corpus, bringing him before a judicial court of competent jurisdiction for an investigation of the case and appropriate action according to law.

Art. 6. The private habitations of the citizens of the Republic of China shall not be entered or searched except in accordance with the law.

Art. 7. The citizens of the Republic of China shall have the right of secrecy of correspondence, which may not be violated except as provided by law.

Art. 8. The citizens of the Republic of China shall have liberty of choice of residence and of profession which shall be unrestricted except in accordance with law.

Art. 9. The citizens of the Republic of China shall have liberty to call meetings or to organize societies which shall be unrestricted except in accordance with the law.

Art. 10. The citizens of the Republic of China shall have freedom of speech, writing and publication which shall be unrestricted except in accordance with the law.

Art. 11. The citizens of the Republic of China shall be entitled to honour Confucius and shall enjoy freedom of religious belief which shall be unrestricted except in accordance with the law.

Art. 12. The citizens of the Republic of China shall enjoy the inviolable right to the security of their property and any measure to the contrary necessitated by public interest shall be determined by law.

Art. ... The citizens of the Republic of China shall enjoy all other forms of freedom aside from those hithertofore mentioned, provided they are not contrary to the spirit of the Constitution.

Art. 13. The citizens of the Republic of China shall have the right to appeal to the Judicial Courts according to law.

Art. 14. The citizens of the Republic of China shall have the right to submit petitions or make complaints according to law.

Art. 15. The citizens of the Republic of China shall have the right to vote and to be voted for according to law.

Art. 16. The citizens of the Republic of China shall have the right to hold official posts according to law.

Art. 17. The citizens of the Republic of China shall perform the obligation of paying taxes according to law.

Art. 18. The citizens of the Republic of China shall perform the obligation of military service according to law.

Art. 19. The citizens of the Republic of China shall be under the obligation to receive primary education according to law.

CHAPTER IV. THE NATIONAL ASSEMBLY

Art. 20. The legislative power of the Republic of China shall be exercised by the National Assembly exclusively.

Art. 21. The National Assembly shall consist of a Senate and House of Representatives.

Art. 22. The Senate shall be composed of the Senators elected by the highest local legislative assemblies and other electoral bodies.

Art. 23. The House of Representatives shall be composed of the representatives elected by the various electoral districts in proportion to the population.

Art. 24. The members of both Houses shall be elected according to law.

Art. 25. In no case shall one person be a member of both Houses simultaneously.

Art. 26. No member of either House shall hold any official post, civil or military during his term.

Art. 27. The qualifications of the members of either House shall be determined by the respective Houses.

Art. 28. The term of office for a member of the Senate shall be six years. One-third of the members shall retire and new ones be elected every two years.

Art. 29. The term of office for a member of the House of Representatives shall be three years.

Art. 30. Each House shall have a President and a Vice-President who shall be elected from among its members.

Art. 31. The National Assembly shall itself convene, open and close its sessions, but as to extraordinary sessions, they shall be called under one of the following circumstances:

(1) A signed request of more than one-third of the members of each House.

(2) A mandate of the President.

Art. 32. The ordinary sessions of the National Assembly shall begin on the first day of the eighth month in each year.

Art. 33. The period for the ordinary session of the National Assembly shall be four months which may be prolonged, but the prolonged period shall not exceed the length of the ordinary session.

Art. 34. (Eliminated.)

Art. 35. Both Houses shall meet in joint session at the opening and closing of the National Assembly.

If one House suspends its session, the other House shall do likewise during the same period.

When the House of Representatives is dissolved, the Senate shall adjourn during the same period.

Art. 36. The work of the National Assembly shall be conducted in the Houses separately. No bill shall be introduced in both Houses simultaneously.

Art. 37. Unless there be an attendance of over half of the total number of members of either House, no sitting shall be held.

Art. 38. Any subject discussed in either House shall be decided by the votes of the majority of members attending the sitting. The President of each House shall have a deciding vote in case of a tie.

Art. 39. A decision of the National Assembly shall require the decision of both Houses.

Art. 40. The sessions of both Houses shall be held in public, except on request of the government, or decision of the Houses when secret sessions may be held.

Art. 41. Should the House of Representatives consider either the President or the Vice-President of the Republic of China has committed treason, he may be impeached by the decision of a majority of over two-thirds of the members present, there being a quorum of over two-thirds of the total membership of the House.

Art. 42. Should the House of Representatives consider that the Cabinet Ministers have violated the law, an impeachment may be instituted with the approval of over two-thirds of the members present.

Art. 43. The House of Representatives may pass a vote of want of Confidence in the Cabinet Ministers.

Art. 44. The Senate shall try the impeached President, Vice-President and Cabinet Ministers.

With regard to the above-mentioned trial, no judgment of guilt or violation of the law shall be passed without the approval of over two-thirds of the members present.

When a verdict of "Guilty" is pronounced on the President or Vice-President, he shall be deprived of his post, but the infliction of punishment shall be determined by the Supreme Court of Justice.

When the verdict of "Guilty" is pronounced upon a Cabinet Minister, he shall be deprived of his office and may forfeit his public rights. Should the above penalty be insufficient for his offence, he shall be tried by the Judicial Court.

Art. ... Either of the two Houses shall have power to request the government to inquire into any case of delinquency or unlawful act on the part of any official and to punish him accordingly.

Art. 45. Both Houses shall have the right to offer suggestions to the Government.

Art. 46. Both Houses shall receive and consider the petitions of the citizens.

Art. 47. Members of either House may introduce interpellations to the members of the Cabinet and demand their attendance in the House to reply thereto.

Art. 48. Members of either House shall not be responsible to those outside the House for opinions expressed and votes cast in the House.

Art. 49. No member of either House during session shall be arrested or detained in custody without the permission of his respective House, unless he be arrested in the commission of the offence or act.

When any member of either House has been so arrested, the government should report the cause to his respective House. Such member's House, during session, may with the approval of its members demand for the release of the arrested member and for temporary suspension of the legal proceedings.

Art. 50. The annual allowance and other expenses of the members of both Houses shall be fixed by law.

(CHAPTER V. on Resident Committee of the National Assembly with 4 articles has been eliminated.)

CHAPTER VI. THE PRESIDENT

Art. 55. The administrative power of the Republic of China shall be vested in the President with the assistance of the Cabinet Ministers.

*Art. 56. A person of the Republic of China in the full enjoyment of public rights, of the age of forty years or more, and resident in China for at least ten years, is eligible for election as President.

*Art. 57. The President shall be elected by a Presidential Election Convention, composed of the members of the National Assembly.

For the above election, an attendance of at least two-thirds of the number of electors shall be required, and the voting shall be performed by secret ballot. The person obtaining three-fourths of the total votes cast shall be elected; but should no definite result be obtained after the second ballot, the two candidates obtaining the most votes in the second ballot shall be voted for and the candidate receiving the majority vote shall be elected.

*Art. 58. The period of office of the President shall be five years, and if re-elected, he may hold office for another term.

Three months previous to the expiration of the term, the members of the National Assembly of the Republic shall themselves convene and organize the President Election Convention to elect a President for the next term.

*Art. 59. When the President is being inaugurated, he shall make an oath as follows: "I hereby solemnly swear that I will most faithfully obey the Constitution and discharge the duties of the President."

*Art. 60. Should the post of the President become vacant, the Vice-President shall succeed him until the expiration of the term of office of the President. Should the President be unable to discharge his duties for any cause, the Vice-President shall act for him.

Should the Vice-President vacate his post at the same time, the Cabinet shall officiate for the President, but at the same time, the members of the National Assembly shall within three months convene themselves and organize the Presidential Election Convention to elect a new President.

*Art. 61. The President shall be relieved of his office at the expiration of his term of his office. If, at the end of the period, the new President has not been elected, or, having been elected, be unable to assume office and when the Vice-President is also unable to act as President, the Cabinet shall officiate for the President.

*Art. 62. The election of the Vice-President shall be in accordance with the regulations fixed for the election of the President; and the election of the Vice-President shall take place simultaneously with the election of the President. Should the post of the Vice-President become vacant, a new Vice-President shall be elected.

Art. 63. The President shall promulgate all laws and supervise and secure their enforcement.

Art. 64. The President may issue and publish mandates for the execution of laws in accordance with the powers delegated to him by the law.

Art. 65. (Eliminated.)

Art. 66. The President shall appoint and remove all civil and military officials, with the exception of those specially provided for by the Constitution or laws.

Art. 67. The President shall be the Commander-in-Chief of the Army and Navy of the Republic.

The organization of the Army and Navy shall be fixed by law.

Art. 68. In intercourse with foreign countries, the President shall be the representative of the Republic.

Art. 69. The President may, with the concurrence of the National Assembly, declare war, but, in case of defence against foreign invasion, he may request recognition of the National Assembly after the declaration of the war.

Art. 70. The President may conclude treaties; but with regard to treaties of peace, and those affecting legislation, they shall not be valid, if the consent of the National Assembly is not obtained.

Art. 71. The President may proclaim martial law according to law; but if the National Assembly should consider that there is no such necessity, he should declare the withdrawal of the martial law.

Art. 72. (Eliminated.)

Art. 73. The President may, with the concurrence of the Supreme Court of Justice, grant pardons, commute punishment, and restore rights; but with regard to a verdict of impeachment, unless with the concurrence of the National Assembly, he shall not make any announcement of the restoration of rights.

Art. 74. The President may suspend the session of either the Senate or the House of Representatives for a period not exceeding ten days, but during any one session, he may not exercise this right more than once.

Art. 75. With the concurrence of two-thirds or more of the members of the Senate present, the President may dissolve the House of Representatives, but there must not be a second dissolution during the period of the same session.

When the House of Representatives is dissolved by the President, another election shall take place immediately, and the convocation of the House at a fixed date within five months should be effected to continue the session.

Art. 76. With the exception of high treason, no criminal charges shall be brought against the President before he has vacated his office.

Art. 77. The salaries of the President and Vice-President shall be fixed by law.

CHAPTER VII. THE CABINET

Art. 78. The Cabinet shall be composed of the Cabinet Ministers.

Art. 79. The Premier and the Ministers of the various ministries shall be called the Cabinet Ministers.

Art. 80. The appointment of the Premier shall be approved by the House of Representatives.

Should a vacancy in the Premiership occur during the time of adjournment of the National Assembly, the President may appoint an Acting-Premier, but it shall be required that the appointment must be submitted to the House of Representatives for approval within seven days after the convening of the next session.

Art. 81. Cabinet Ministers shall assist the President and shall be responsible to the House of Representatives.

Without the counter-signature of the Cabinet Minister to whose Ministry the Mandate or dispatch applies, the mandate or dispatch of the President in connection with State affairs shall not be valid; but this shall not apply to the appointment or dismissal of the Premier.

Art. 82. When a vote of want of confidence in the Cabinet Ministers is passed, if the President does not dissolve the House of Representatives according to the provisions made in Art. 75, he should remove the Cabinet Ministers.

Art. 83. The Cabinet Ministers shall be allowed to attend both Houses and make speeches, but in case of introducing bills for the Executive Department, their delegates may act for them.

CHAPTER VIII. COURTS OF JUSTICE

Art. 84. The Judicial authority of the Republic of China shall be exercised by the Courts of Justice exclusively.

Art. 85. The organization of the Courts of Justice and the qualifications of the Judges shall be fixed by law.

The appointment of the Chief-Justice of the Supreme Court should have the approval of the Senate.

Art. 86. The Judiciary shall attend to and settle all civil, criminal, administrative and other cases, but this does not include those cases which have been specially provided for by the Constitution or law.

Art. 87. The trial of cases in the law courts shall be conducted publicly, but those affecting public peace and order or propriety may be held in camera.

Art. 88. The Judges shall be independent in the conducting of trials and none shall be allowed to interfere.

Art. 89. Except in accordance with law, judges, during their continuation of office shall not have their emoluments decreased, nor be transferred to other offices, nor shall they be removed from office.

During his tenure of office, no judge shall be deprived of his office unless he is convicted of crime, or for offences punishable by law. But the above does not include cases of reorganization of Judicial Courts and when the qualification of the Judges are modified. The punishments and fines of the Judicial Officials shall be fixed by law.

CHAPTER IX. LEGISLATION

Art. 90. The members of both Houses and the Executive Department may introduce bills of law, but if any bill of law is rejected by the House it shall not be re-introduced during the same session.

Art. 91. Any bill of law which has been passed by the National Assembly shall be promulgated by the President within 15 days after receipt of the same.

Art. 92. Should the President disapprove of any bill of law passed by the National Assembly, he shall within the period allowed for promulgation, state the reason of his disapproval and request the reconsideration of the same by the National Assembly.

If a bill of law has not yet been submitted with a request for consideration and the period for promulgation has passed; it shall become law. But the above shall not apply to the case when the session of the National Assembly is adjourned, or, the House of Representatives dissolved before the period for the promulgation is ended.

Art. 93. The law shall not be altered or repealed except in accordance with the law.

Art. 94. Any law that is in conflict with the Constitution shall not be valid.

CHAPTER X. NATIONAL FINANCE

Art. 95. The introduction of new taxes and alterations in the rate of taxation shall be fixed by law.

Art. 96. (Eliminated.)

Art. 97. The approval of the National Assembly must be obtained for National loans, or the conclusion of agreements which tend to increase the burden of the National Treasury.

Art. ... Financial bills involving direct obligation on the part of the citizens shall first be submitted to the House of Representatives.

Art. 98. The Executive Department of the Government shall prepare a budget setting forth expenditures and receipts of the Nation for the fiscal year which shall be submitted to the House of Representatives within 15 days after the opening of the session of the National Assembly.

Should the Senate amend or reject the budget passed by the House of Representatives, it shall request the concurrence of the House of Representatives in its amendment or rejection, and, if such concurrence is not obtained, the budget shall be considered as passed.

Art. 99. In case of special provisions, the Executive Department may fix in advance in the budget the period over which the appropriations are to be spread and may provide for the successive appropriations continuing over this period.

Art. 100. In order to provide for a safe margin for under-estimates or for items left out of the budget, the Executive Department may include contingent items in the budget under the heading of Reserve Fund. The sum expended under the above provision shall be submitted to the House of Representatives at the next session for recognition.

Art. 101. Unless approved by the Executive Department, the National Assembly shall have no right to abolish or curtail any of the following items:

(1) Items in connection with obligations of the Government according to law.

(2) Items necessitated by the observance of treaties.

(3) Items legally fixed.

(4) Successive appropriations continuing over a period.

Art. 102. The National Assembly shall not increase the annual expenditures as set down in the budget.

Art. 103. In case the budget is not yet passed, when the fiscal year begins, the Executive Department may, during this period, follow the budget for the preceding year by limiting its expenditures and receipts by one-twelfth of the total amount for each month.

Art. 104. Should there be a defensive war against foreign invasion, or should there be a suppression of internal rebellion, or to provide against extraordinary calamity, when it is impossible to issue writs for summoning the National Assembly, the Executive Department may adopt financial measures for the emergency, but it should request the recognition thereof by the House of Representatives within seven days after the convening of the next session of the National Assembly.

Art. 105. Orders on the Treasury for payments on account of the annual expenditures of the Government shall first be passed by the Auditing Department.

Art. 106. Accounts of the annual expenditures and annual receipts for each year should first be referred to the Auditing Department for investigation and then the Executive Department shall report the same to the National Assembly.

If the account be rejected by the House of Representatives, the Cabinet shall be held responsible.

Art. 107. The method of organization of the Auditing Department and the qualification of the Auditors shall be fixed by law.

During his tenure of office, the auditor shall not be dismissed or transferred to any other duty or his salary be reduced except in accordance with the law.

The manner of punishment of Auditors shall be fixed by law.

Art. 108. The Chief of the Auditing Department shall be elected by the Senate. The Chief of the Auditing Department may attend sittings of both Houses and report on the Audit with explanatory statements.

CHAPTER XI. AMENDMENTS, INTERPRETATION AND INVIOLABILITY OF THE CONSTITUTION

Art. 109. The National Assembly may bring up bills for the amendment of the National Constitution.

Bills of this nature shall not take effect unless approved by two-thirds of the members of each House present.

No bill for the amendment of the Constitution shall be introduced unless signed by one-fourth of the members of each House.

Art. 110. The amendment of the National Constitution shall be discussed and decided by the National Constitutional Conference.

Art. 111. No proposal for a change of the form of Government shall be allowed as a subject for amendment.

Art. 112. Should there be any doubt as to the meaning of the text of the Constitution, it shall be interpreted by the National Constitutional Conference.

Art. 113. The National Constitutional Conference shall be composed of the members of the National Assembly.

Unless there be a quorum of two-thirds of the total number of the members of the National Assembly, no Constitutional Conference shall be held, and unless three-fourths of the members present vote in favour, no amendment shall be passed. But with regard to the interpretation of the Constitution, only two-thirds of the members present is required to decide an issue.

Art. ... The National Constitution shall be the Supreme Law of the Land and shall be inviolable under any circumstances unless duly amended in accordance with the procedure specified in this Constitution.

✓ A Chapter on Provincial or local organization is to be inserted under Chapter ..., providing for certain powers and rights to be given to local governments with the residual power left in the hands of the central government. The exact text is not yet settled.

Note: The Mark (*) indicates that the article has already been formally adopted as a part of the finished Constitution.

The Mark (✓) indicates that the article has not yet passed through the second reading.

Those without marks have passed through the second reading on May 28th, 1917. Articles bearing no number are additions to the original draft as presented to the Conference by the Drafting Committee.