Annex IV: Constitution of China
After the Xinhai Revolution in 1911 the Nanjing Provisional Government under Sun Yat-sen drafts the Provisional Constitution of the Republic of China. This documents, which provides merely an outline and some governing principles, has been the governing document of the country since that point. Suspended temporarily by Yuan Shikai and much maligned it has, nevertheless, been accepted by everyone in China as legitimate. The warlords in the south in their rebellion against Duan Qirui nevertheless claim to be protecting the Constitution. Because of the fighting, political upheaval, and disorder, it takes until 1924 for a permanent Constitution to be drafted.
It is drafted by the National Assembly elected in 1921 with the participation of all Chinese provinces. Additionally many Chinese intellectuals participate in the discussion that takes place between 1921 and 1924 in the capital. Although Sun Yat-sen remains opposed to this democratic process and his failing health confines him to San Francisco, men such as Liang Qichao, Tang Shaoyi, and Lou Tseng-Tsiang contribute to the drafting of the Constitution, among many others.
Here we quote an assessment of the document by Harold Scott Quigley in the American Political Science Review from 1924:
The new Constitution contains thirteen chapters and one hundred and forty one articles. The chapters deal with the form of government, sovereignty, territory, citizenship and individual rights, federal and provincial powers, National Assembly, Presidency, Cabinet, courts, legislation, finance, local governments, and amendments and interpretation. The document largely conforms to the standards and conventions of modern western Constitutions and is heavily influenced by the governing documents of the United States and France.
The nature of the government is republican, with sovereignty vested in the people, who are possessed of the usual rights codified in law. The structure of the government is federal, the National Assembly is bicameral, and the Cabinet is jointly responsible to the lower house (House of Representatives) and the President. The President is elected by the upper house (Senate). He holds office for five years and may be re-elected to a second term. The same provisions apply to the Vice-President whose functions are to assist the President and to take office if needed. The Ministers in charge of the various Ministries form the Cabinet. The House of Representatives is given authority to approve a budget put forward by the Cabinet. Several sections deal with audits of the government. A chapter on the judiciary provides or Senate confirmation of Presidential appointments to top courts and a number of safeguards for judicial independence.
The formulation of the federal system of government is the most significant undertaking of the Constitution. Given the prevailing situation in China and the presence of numerous provincial assemblies the Constitution outlines broad provincial autonomy, though it denies the legitimacy of any separatist attempts. Powers of the federal government are enumerated and powers not mentioned are reserved to the provinces. The federal powers are over national defense, citizenship, currency and banking, customs, tariffs, and national taxes, post, telegraph and national communications, public lands, monopolies, national commerce, and civil and military service. The federal government and the provinces share power over agriculture, fisheries, industry, and commerce, inter-provincial roads and waterways, reclamation of lands, public sanitation, pensions and unemployment, and police. Notably most of the criminal, civil, and commercial law is left up to the provinces. Education, family law, public works, conservation, local taxes, etc. are all left up to the provinces.
The Constitution authorizes provinces to maintain provincial troops, though these are subject to the authority of the federal military structures. The language reads as if intending to create reserve forces that can be called upon by the military as necessary. The reality is, of course, that such provisions will serve as cover for existing warlord armies. In this regard, then, the Constitution does not require the dissolution of warlord troops, though at least in principle it requires their subjugation to federal authority.
Provinces may pass laws regarding their own organization and the execution of powers assigned to them. All provinces are to have a unicameral assembly and a local collective executive of five to nine persons. The senior of these is the Governor of the province. The exact nature of the relationship between provincial executive and assembly is left up to the provinces.
On the federal level the executive is significantly more powerful than the legislature. The President is elected by the Senate and has the power to appoint a Cabinet. The Cabinet has to be confirmed by the House of Representatives, though if the House rejects three different proposed Cabinets the President has the power to dissolve the House and schedule new elections. The House may express a vote of no confidence in the sitting Cabinet, though this does not necessitate the Cabinet’s resignation. Only if the vote is repeated within three months is the President obliged to dismiss the Cabinet, though again he has the choice of dismissing the House instead and scheduling new elections.
Within the National Assembly the House of Representatives holds more power than the Senate, though their roles differ significantly. The Senate is made up of two representatives per province, one being the provincial Governor and the other a representative of the provincial assembly. Although legislature may originate in either house, or with the President or Cabinet, the House of Representatives always considers it first. The Senate may amend legislation passed by the House requiring the two houses to negotiate, but in the end it is the House of Representatives that adopts the final version. On budgetary matters the role of the Senate is limited to an advisory one. The Senate does confirm Presidential appointments to various positions, including judicial ones. It is also empowered to resolve disputes between different provinces. By these provisions the Senate is a quasi-judicial body and is largely relieved of day-to-day political responsibilities.
As an instrument of government the new Constitution is far superior to the provisional Constitution. As a system of government for China it savors too much of the West, which is not strange given the recent history of China. Across the sea the Japanese hold up their “constitution” as proof of liberal ideals, though that document in fact does nothing to restrain their government. China’s draftsmen, in contrast, have set up an ideal to work towards, anticipating, no doubt, that for many years the new Constitution will be only an ideal. In time the ideal will be strengthened, in spite of the abuse it will have to endure.
HSQ, University of Minnesota.