The Fight for the Republic in China

by B. L. Putnam Weale

THE PROVISIONAL CONSTITUTION OF THE REPUBLIC OF CHINA

Passed at Nanking in 1912, currently referred to as the old Constitution

CHAPTER I.—GENERAL PROVISIONS

Article 1. The Republic of China is composed of the Chinese people.

Art. 2. The sovereignty of the Chinese Republic is vested in the people.

Art. 3. The territory of the Chinese Republic consists of the 18 provinces, Inner and Outer Mongolia, Tibet and Chinghai.

Art. 4. The sovereignty of the Chinese Republic is exercised by the National Council, the Provisional President, the Cabinet and the Judiciary.

CHAPTER II.—CITIZENS

Art. 5. Citizens of the Chinese Republic are all equal, and there shall be no racial, class or religious distinctions.

Art. 6. Citizens shall enjoy the following rights:—

(a) The person of the citizens shall not be arrested, imprisoned, tried or punished except in accordance with law.

(b) The habitations of citizens shall not be entered or searched except in accordance with law.

(c) Citizens shall enjoy the right of the security of their property and the freedom of trade.

(d) Citizens shall have the freedom of speech, of composition, of publication, of assembly and of association.

(e) Citizens shall have the right of the secrecy of their letters.

(f) Citizens shall have the liberty of residence and removal.

(g) Citizens shall have the freedom of religion.

Art. 7. Citizens shall have the right to petition the Parliament.

Art. 8. Citizens shall have the right of petitioning the executive officials.

Art. 9. Citizens shall have the right to institute proceedings before the Judiciary, and to receive its trial and judgment.

Art. 10. Citizens shall have the right of suing officials in the Administrative Courts for violation of law or against their rights.

Art. 11. Citizens shall have the right of participating in civil examinations.

Art. 12. Citizens shall have the right to vote and to be voted for.

Art. 13. Citizens shall have the duty to pay taxes according to law.

Art. 14. Citizens shall have the duty to enlist as soldiers according to law.

Art. 15. The rights of citizens as provided in the present Chapter shall be limited or modified by laws, provided such limitation or modification shall be deemed necessary for the promotion of public welfare, for the maintenance of public order, or on account of extraordinary exigency.

CHAPTER III.—THE NATIONAL COUNCIL

Art. 16. The legislative power of the Chinese Republic is exercised by the National Council.

Art. 17. The Council shall be composed of members elected by the several districts as provided in Article 18.

Art. 18. The Provinces, Inner and Outer Mongolia, and Tibet shall each elect and depute five members to the Council, and Chinghai shall elect one member.

The election districts and methods of elections shall be decided by the localities concerned.

During the meeting of the Council each member shall have one vote.

Art. 19. The National Council shall have the following powers:

(a) To pass all Bills.

(b) To pass the budgets of the Provisional Government.

(c) To pass laws of taxation, of currency, and weights and measures for the whole country.

(d) To pass measures for the calling of public loans and to conclude contracts affecting the National Treasury.

(e) To give consent to matters provided in Articles 34, 35 and 40.

(f) To reply to inquiries from, the Provisional Government.

(g) To receive and consider petitions of citizens.

(h) To make suggestions to the Government on legal or other matters.

(i) To introduce interpellations to members of the Cabinet, and to insist on their being present in the Council in making replies thereto.

(j) To insist on the Government investigating into any alleged bribery and infringement of laws by officials.

(k) To impeach the Provisional President for high treason by a majority vote of three-fourths of the quorum consisting of more than four-fifths of the total number of the members.

(l) To impeach members of the Cabinet for failure to perform their official duties or for violation of the law by majority votes of two-thirds of the quorum consisting of over three-fourths of the total number of the members.

Art. 20. The National Council shall itself convoke, conduct and adjourn its own meetings.

Art. 21. The meetings of the Advisory Council shall be conducted publicly, but secret meetings may be held at the suggestion of members of the Cabinet or by the majority vote of its quorum.

Art. 22. Matters passed by the Advisory Council shall be communicated to the Provisional President for promulgation and execution.

Art. 23. If the Provisional President should veto matters passed by the National Council he shall, within ten days after he has received such resolutions, return the same with stated reasons to the Council for reconsideration. If by a two-thirds vote of the quorum of the Council, it shall be dealt with in accordance with Article 22.

Art. 24. The Chairman of the National Council shall be elected by ballots signed by the voting members and the one receiving more than one-half of the total number of the votes cast shall be elected.

Art. 25. Members of the National Council shall not, outside the Council, be responsible for their opinion expressed and votes cast in the Council.

Art. 26. Members of the Council shall not be arrested without the permission of the Chairman of the Council except for crimes pertaining to civil and international warfare.

Art. 27. Procedure of the National Council shall be decided by its own members.

Art. 28. The National Council shall be dissolved on the day of the convocation of the National Assembly, and its powers shall be exercised by the latter.

CHAPTER IV.—THE PROVISIONAL PRESIDENT AND VICE-PRESIDENT

Art. 29. The Provisional President and Vice-President shall be elected by the National Council, and he who receives two-thirds of the total number of votes cast by a sitting of the Council consisting of over three-fourths of the total number of members shall be elected.

Art. 30. The Provisional President represents the Provisional Government as the fountain of all executive powers and for promulgating all laws.

Art. 31. The Provisional President may issue or cause to be issued orders for the execution of laws and of powers delegated to him by the law.

Art. 32. The Provisional President shall be the Commander-in-Chief of the Army and Navy of the whole of China.

Art. 33. The Provisional President shall ordain and establish the administrative system and official regulations, but he must first submit them to the National Council for its approval.

Art. 34. The Provisional President shall appoint and remove civil and military officials, but in the appointment of Members of the Cabinet, Ambassadors and Ministers he must have the concurrence of the National Council.

Art. 35. The Provisional President shall have power, with the concurrence of the National Council, to declare war and conclude treaties.

Art. 36. The Provisional President may, in accordance with law, declare a state of siege.

Art. 37. The Provisional President shall, representing the whole country, receive Ambassadors and Ministers of foreign countries.

Art. 38. The Provisional President may introduce Bills into the National Council.

Art. 39. The Provisional President may confer decorations and other insignia of honour.

Art. 40. The Provisional President may declare general amnesty, grant special pardon, commute punishment, and restore rights, but in the case of a general amnesty he must have the concurrence of the National Council.

Art. 41. In case the Provisional President is impeached by the National Council he shall be tried by a special Court consisting of nine judges elected among the justices of the Supreme Court of the realm.

Art. 42. In case the Provisional President vacates his office for various reasons, or is unable to discharge the powers and duties of the said office, the Provisional Vice-President shall take his place.

CHAPTER V.—MEMBERS OF THE CABINET

Art. 43. The Premier and the Chiefs of the Government Departments shall be called Members of the Cabinet (literally, Secretaries of State Affairs).

Art. 44. Members of the Cabinet shall assist the Provisional President in assuming responsibilities.

Art. 45. Members of the Cabinet shall countersign all Bills introduced by the Provisional President, and all laws and orders issued by him.

Art. 46. Members of the Cabinet and their deputies may be present and speak in the National Council.

Art. 47. Upon members of the Cabinet having been impeached by the National Council, the Provisional President may remove them from office, but such removal shall be subject to the reconsideration of the National Council.

CHAPTER VI.—THE JUDICIARY

Art. 48. The Judiciary shall be composed of those judges appointed by the Provisional President and the Minister of Justice.

The organization of the Courts and the qualifications of judges shall be determined by law.

Art. 49. The Judiciary shall try civil and criminal cases, but cases involving administrative affairs or arising from other particular causes shall be dealt with according to special laws.

Art. 50. The trial of cases in the law Courts shall be conducted publicly, but those affecting public safety and order may be in camera.

Art. 51. Judges shall be independent, and shall not be subject to the interference of higher officials.

Art. 52. Judges during their continuance in office shall not have their emoluments decreased and shall not be transferred to other offices, nor shall they be removed from office except when they are convicted of crimes, or of offences punishable according to law by removal from office.

Regulations for the punishment of judges shall be determined by law.

CHAPTER VII.—SUPPLEMENTARY ARTICLES

Art. 53. Within ten months after the promulgation of this Provisional Constitution the Provisional President shall convene a National Assembly, the organization of which and the laws for the election of whose members shall be decided by the National Council.

Art. 54. The Constitution of the Republic of China shall be adopted by the National Assembly, but before the promulgation of the Constitution, the Provisional Constitution shall be as effective as the Constitution itself.

Art. 55. The Provisional Constitution may be amended by the assent of two-thirds of the members of the National Council or upon the application of the Provisional President and being passed by over three-fourths of the quorum of the Council consisting of over four-fifths of the total number of its members.

Art. 56. The present Provisional Constitution shall take effect on the date of its promulgation, and the fundamental articles for the organization of the Provisional Government shall cease to be effective on the same date.

Sealed by

THE NATIONAL COUNCIL.