The China of Chiang K'ai-Shek: A Political Study

by Paul Myron Anthony Linebarger

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.

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.

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]

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]