In Defence of a Five-Power Constitution

Above all, a unified strong sovereign state has been the major goal of constitution­making in China, as was testified by the nationalism movements of all sorts, starting from the self-strengthening reform efforts within the governments and the wide array of rebellious movements spreading across the whole society during the late Qing dynasty.

Second, since the 1946 Constitution was the conclusion of a long process, the framers of the Constitution were already well acquainted with the genius and grace of different models of constitutions worldwide. They were however more sensitive to the potential risks of wholesale borrowing of the foreign constitutional terminologies, structures, and principles. As a matter of fact, what was most chal­lenging for the constitutional framers in 1946 was not about model selecting but rather about the way in which the Chinese practical visions and policy innovations could be constitutionalised. Therefore, the substantive content of the Constitution was about the way Sun Yat-sen's Three Principles of the People and five-power constitution were best phrased and framed into the forthcoming permanent Constitution. A major problem for the Constitution to address was optimising the power structure a five-power constitutional text could provide, while at the same time it did not set aside the benefit of borrowing the foreign constitutional wisdoms.

Third, it is about the post-world-war and ongoing civil war tensions that created the sense of real politics among the constitutional framers of varied ideo­logical bents, forcing each side to think outside their own ideals. At this point, the formal conversation between the Kuomintang and the Communist Party in late 1945 and the Political Consultative Conference constitution-making princi­ples set out early in 1946 were most typical of this genre of political compromise. The former made it heard by the whole society in its joint declaration for peaceful national reconstruction, political democratisation, convocation of national assem­bly, guarantee of bill of rights, equality and legality of political parties, and the constitutionally insured local autonomy or self-government. The latter conference, adding a powerful third-party voice into constitution-making, took up the agenda left by the Kuomintang-Communist conversation and made resolutions on such general principles for constitution-making like the supremacy of Sun Yat-sen's Three Principles of the People, constitutional nationalism, democratisation, bill of rights, and peaceful reconstruction of the national Government.^[172] In a nutshell, the 1946 Constitution incorporated the results of the peaceful inter-party conser­vations into its texts and principles.

As one leading constitutional scholar of that time observed:

In the light of the above definition of democracy, the Chinese Constitution adopted by the National Assembly, so far as its texts are concerned, maybe regarded as one of the most progressive constitutions of the living age. Though it may be said that the document is an outcome of interparty compromise and, to a certain extent, a political expedient, yet generally speaking, it covers every progressive and democratic aspect that a modern constitution should reasonably embody.^[173]

His proving examples were shortlisted in the 1946 Constitution as the freedom of person was elaborately stipulated (article 8) and all other freedoms and rights of the citizen were also safeguarded by law.

Generally speaking, the textualisation of the ‘permanent’ 1946 Constitution was to address the problems generated by different constitutional paradigms/ models and the most imminent issues spawned by the political tensions/conver- sations about the reconstruction of a national constitutional government. To be specific, these problems and issues include:

1. structuring Sun Yat-sen’s five-power constitution;

2. embedding nationalism into the text;

3. restraining the Presidential power;

4. parliamentary power establishment;

5. balanced central and local relationship; and

6. bill of rights.

There were three constitutional texts that were interconnected and combined to finalise a ‘permanent’ five-power constitution: the May-fifth constitutional draft of 1936, which was widely regarded as an ideal typical five-power constitution; the 1946 Political Consultative Conference Constitutional Draft, which could rightly be deemed as the counter model to the five-power constitutional draft to restrain the Kuomintang’s unipolar power in the possible post-WWII joint govern­ment; and the 1946 Constitution that was passed by the National Assembly as a mixed product featuring the model of five-power constitutional government but with significant constraints on the power that Kuomingtang had to dominate and manipulate in the mid-twentieth century. In essence, the 1946 Constitution was ‘a mixture of the Founding Father’s five-power constitution and western model of parliamentary government’.^[174]

As the later President of Judicial Yuan, Xie Guansheng observed, ‘the task of preparing a constitution for China was stupendous.

The Political Consultative Conference overhauled the Kuomintang’s 1936 constitutional draft in a wholesale way while retaining the five-power governmen­tal structure and the constitutional nationalism principles. The conference laid

The Longest Process: Making the 1946 Constitution of the Republic of China 69 down 12 principles to amend the May-fifth constitutional draft.^[177] In brief, these constitution-making principles aimed for the following:

1. the organisation of the National Assembly based on universal suffrage to elect the President and Vice-President of the ROC, to pass the Constitution;

2. the Legislative Yuan to be the highest national legislative organ;

3. the Control Yuan to be the highest supervisory organ, executing part of the parliamentary powers;

4. the Judicial Yuan to be the national supreme court; judges of all ranks staying above the partisan politics;

5. the Examination Yuan to have the power to oversee the whole bureaucracy;

6. the Executive Yuan to be the highest administrative organ responsible to the Legislative Yuan;

7. the President of ROC to have the power to issue emergency orders constrained by the Legislative Yuan's endorsement;

8. province as the highest unit for local autonomy, setting aside the potential interference from the central government;

9. all freedoms and rights normally enjoyed by the people of a democratic nation shall be protected by the Constitution;

10. ensure the election system has constitutional safeguards;

11. establishing nationalism by incorporating national policies of all sorts into the constitutional texts;

12. ensure the Legislative Yuan, the Control Yuan and the National Assembly have shared power to revise the Constitution.

Generally speaking, the Political Consultative Conference draft was more a French model of constitutional government, with the emphasis on popular constitutional­ism, at the centre of which was situated the Legislative Yuan.

In February 1946, a Draft Constitution Examination Committee was founded and started to work on the final text of the Constitution. In March, the Kuomintang made resolutions in response to the Political Consultative Conference's consti­tutional principles by reasserting the supremacy of Sun Yat-sen's constitutional theories including the institutionalisation of the National Assembly, the enhanced Presidential Power, the co-equal status of the Legislative Yuan and the Executive Yuan, and disempowering the provincial government in enacting provincial constitutions.^[178]

Despite the clear divisive partisan opinions, the National Assembly on 25 November unanimously passed and adopted the draft constitution into a formal constitution, the result of the reconciled version for both Kuomingtang's 1936 May-fifth draft constitution and the Political Consultative Conference's 1946

draft constitution. For a quick overview of the Constitution, the following table sets out its structure:

Table 4 The Structure of the Constitution

In a sense, the final constitutional text of 1946 was more a triumph of the Political Consultative Conference. The Chairman of the National Assembly meetings in 1946, Wang Yunwu, concluded that ‘it is correct to say that the revised ROC draft constitution was based on the Political Consultative Conference draft constitution’.^[179]

According to the observations of the leading constitutional scholar of that time, the main features of the 1946 Constitution as compared with the May-fifth draft were as follows:

1, the curtailment of the powers of the National Assembly (narrowing down to a constitution-making convention, Arts. 25, 27).

2, the relation between the Legislative Yuan and the Executive Yuan (allocation of an enormous power to the Legislative Yuan, Art. 57.)

3, limitation of the powers of the president: the presidential power of appointment (Art. 55), emergency power. (Art. 43),

4, the neutrality of the judiciary, the examination yuan and the armed forces. (Arts. 80, 88, 138, 139, and 140)

5, the judicial yuan (without the judicial administration power, Art. 77).

6, the progressive characteristics of democracy (The Chinese Constitution adopted by the National Assembly, so far as its texts are concerned, may be regarded as one of the most progressive constitutions of the living age. Arts. 8, 134; Sections 3,4,5 6, Chap 8.).^[180]

Fast forward to May 1960, overwhelmed by the sense of constitutional victory in the wake of the presidential election in Taiwan, Chiang Kai-shek marked in diaries his self-evaluation of the 1946 constitution-making:

back to the time of the constitution-making in the Political Consultative Conference, there existed too many flaws not rectifiable one by one but I insisted to make no concession on the following several points: First, president should not be elected by the popular direct votes but elected by the National Assembly. Second, each presi­dential term must be six years. Because I believe a term of four years is too short to tell the success or failure of the incumbent president. I have insisted for a term of total six years - five years should be a good standard to measure the result of the job done, plus an additional year for the President to study and formulate the national construc­tion plan. Third, the President has power to directly appoint all the personnel in the Executive Yuan except for the appointment of President of Executive Yuan which is subject to the confirmation of the Legislative Yuan. I believe these three points in our constitution are much better than the constitutions of all other countries.^[181]

On a later occasion, Chiang Kai-shek remembered to ridicule Carsun Chang, the main author of the 1946 Political Consultative Conference constitutional draft, in terms of presidential terms issues. Chiang Kai-shek wrote:

a group of frivolous politicians with self-claimed authority such as Carsun Chang and others are again thinking to manipulate the politics by reliance on the foreign powers. They thought decisions as to the renewed Presidential term must made in consulta­tion with them. How stupidly shameful they are to copy their past way in which they depended on the communists to organize the Political Consultative Conference to pres­sure on me. The knowledge of all such manipulators, the hard-core partisan members or academic authority politicians alike, is all partial and shallow, ignorant of what the real politics is. All they have done is to benefit themselves only, having no ideas about state-building and citizen's national attachment. With them, how could I save the state from the danger and prevent the revolution from failing! For the two decades from the start of military war in 1926 to my resignation in the wake of defeat in the civil war in 1949, my biggest fault was nothing but the political nonindependence, unconditional submission to the manipulations by those ignorant Philistines, politicians and warlords. This has been my lifelong unforgivable mistake.^[182]

Ironically, Chiang’s chagrined words in his later life provided validation for the 1946 constitution-making.

Up to the year 1954, the Vice President of the Judicial Yuan in Taipei, Xie Guansheng, became the spokesperson when Kuomintang tried to find someone to introduce the five-power constitution to the world. In his book A Brief Survey of Chinese Constitution,^[183] he wrote

all civil and international wars confronting China were, in a sense, constitutional wars - wars carried on in defense of five-power constitution, or in other words, for the materialization of the Three Principles of the People through a five-power govern­ment. The five-power constitution is not a departure from, but an improvement on Montesquieu’s doctrine of separation of powers. Therefore, it accords with the main currents of political thought underlying any democratic form of government... It is, in fact, a combination of the old and the new and will turn out a more rational framework - a new pattern in constitutionalism.^[184]

Besides Sun Yat-sen, Xie literally rehearsed the words of his personal adviser on post-WWII judicial reconstruction, the former Dean of Harvard Law School, Roscoe Pound, to declare the victory of the revolutionary Chinese Constitution:

Since the Revolution of 1911, the Chinese people have been endeavoring to recon­struct the country along modern democratic lines. The adoption of the Constitution has laid the foundation for consolidating China into a democratic nation. it is an adaptation of both with the addition of something uniquely Chinese. It is, in a word, a five-power government, so designed as to serve the practical purpose of meeting China’s particular needs. It is, moreover, an innovation, the expediency of which will be proven, no doubt, by time, if full opportunity is given it to work out... We shall not boast that our Constitution is perfect. In many places it falls short of Dr. Sun Yat-sen’s constitutional theory as well as the established patterns in constitutional government. But for the present, it is good enough to serve a practical purpose. In short, with the introduction of the present Constitution, China will be placed on the right track toward the rule of law.^[185]

IV.