Post-imperial public law

3.2.1 The question of state form

The term guoti was already ancient by the Qing era. However, it was not until the Qing's last years, particularly after the decision in 1902 to create a “mod­ern” public law edifice for the empire, that the term derived influences from its Japanese equivalent kokutai with the various meanings the latter was provided by Meiji jurists.^[126] Kokutai was used in Japan to refer to an essential state structure not

capable of being (legitimately) transformed despite changes to the “form of gov­ernment” (i.e.

Advocates of “state form” would agree with the public law theorist Johann Caspar Bluntschli that: “The naturally-ordered Staatsform corresponds in every age to the unique properties and stage of development of the people, that live in the [given] State.”^[129] Official efforts to reconcile Western constitutional law with notions of China's inherent Staatsform soon bore fruit in the form of China's first written constitution, the 1908 Constitutional Outline by Imperial Order.^[130] This provisional framework, promulgated in the last months of the Qing Emperor Guangxu's (nominal) reign, was a belated response to a movement aiming for the comprehensive political restructuring of the government along the lines of Japan's Meiji imperial state.^[131]

The resulting Outline embodied modest reformism, seeking to legally formal­ize government without abandoning the basic premises of imperial rule.

Following the Meiji model, the very first provision of the Constitutional Outline held that “The Great Qing Emperor rules the Great Qing Empire, for all generations, and must be eternally respected.” This assertion ofimperial auctoritas (symbolic legitimacy) did not detract from the fact that its potestas (actual ruling

“State form” in modern China 49 power) was significantly diluted.^[134] The Emperor retained “the power to compose, review and issue laws... although they are decided upon by the legislature[.]”^[135] As in the German Imperial Constitution of 1871 and the Meiji Constitution of 1889, all legislation (including constitutional amendment) under the Outline clearly required the Emperor's endorsement (albeit without an explicit veto), but was not to be initiated by him - it was reserved to the legislature, which would draft, debate, revise, and finalize all draft laws.^[136] Any future full Constitution would thus have to be the product of Imperial-Legislative compromise. At the same time, it was also clearly established in this first written constitutional text in China that the basic character of the polity as a monarchical state was beyond amendment.

The 1908 Outline was harshly criticized by supporters of republican govern­ment for its attempt to reconcile an imperial guoti with mere gestures towards separation of powers.^[137] Though it has often, not without reason, been seen as an essentially conservative attempt by the Qing court to stave off more radical change,^[138] some Chinese legal scholars have more recently come to see the Outline as a true watershed, during which “monarchical power began to yield ground.”^[139] The constitutional law scholar Gao Quanxi, in particular, has argued that events such as the Qing court's eventual buckling to social pressure in deciding to pass the Outline and other legal reforms played a role in the development of modern China's “unwritten constitution” analogous to that of the Glorious Revolution in British constitutional history.^[140] [141] This is a view with implications for present- day Chinese constitutionalism, as for Gao the debates and drafts characterizing Chinese attempts at instituting constitutional government between 1908 and 194925 were not simply superseded by the establishment of the new People's Republic of China government; rather, the functioning and development of the latter has followed an “inner logic” deriving from the discursive background and social context against which it arose.^[142]

3.2.2 Identifying the pouvoir constituant

When the Qing fell in 1912, Sun Yat-sen and his revolutionary Tongmenghui/ Guomindang organization were prepared to take up leadership of a new regime.

The judiciary under the 1912 Provisional Constitution was, like that under the 1908 Outline, subject to Executive appointment but also intended to oper­ate independently^[147] and not to be susceptible to arbitrary removal.^[148] As in the 1908 Outline, no general power of judicial review was conferred upon the judi­ciary; the issues of constitutional enforcement in case of violation, and even of who should be entrusted with constitutional interpretation, were not broached. One major change was introduced at the level of concepts, however: for the first time, sovereignty/'zhuquan in the sense derived from Western and Japanese legal texts was introduced into the constitutional framework of the state. Article 2 of the Provisional Constitution reads “The sovereignty of the Republic of China belongs to the people.”^[149]

The process for drafting and implementing a permanent Constitution, meanwhile, was now provided for in Article 54, which assigned this role to the full National Assembly. As for the Provisional Constitution itself, it could be amended based on a proposal by submitted by either two-thirds of the newly cre­ated Senate or by the Provisional President, and only approved based on a Senate session quorum of four-fifths, with at least three-fourths voting in favor of the proposed amendment.^[150] The amendment of particular features of the provisional constitutional arrangement was thus placed in a category of lesser importance, and greater flexibility, than the adoption of an entirely new constitutional system (indeed a full written constitution would not be put into legal effect until 35 years later).

The topic of amendment was also included in the constitutional drafts that were produced during the period of validity of the Provisional Constitution. One such draft, composed under the direction of the Minister of Justice Wang Chonghui, created a much more detailed separation of powers scheme modeled on that of the United States, and included an article detailing a rather different amendment process: amendments could be adopted by a two-thirds super-major­ity of a session of at least two-thirds of both legislative houses, at which point the amendment would be submitted to the Assemblies of all of China's Provinces, as well as to the as-yet-nonexistent Assemblies of the vast minority-populated frontier territories Mongolia, Tibet, and Qinghai. Only if the draft amendment received two-thirds approval from these regional legislatures (who could also comment on, but not modify, proposed amendments), would it pass into effect.^[151] Wang's proposed Constitution was never adopted, however. Conflict between Yuan Shikai and the Guomindang swiftly led to the latter's exclusion from the Beijing-based regime and Yuan's attempt to consolidate full personal control over the new government, still operating under the roughly sketched Provisional Constitution. Yuan then decided in 1915 to launch a transition back to an imperial system with himself as the new Emperor. As his regnal title, he chose Hongxian SIS, or “Great Constitution.”^[152] In the course of this attempted impe­rial restoration, Yuan drew on the Meiji example to argue that China had always had an inherently monarchical guoi and that this could not simply be discarded in order to pursue Western trends.^[153] The process of imperial restoration that Yuan undertook was associated with a state-directed public debate process, centered on the “Question of Guoti” - in this case, the notion that the institution of Emperor was an essential characteristic of Chinese society that should now be restored.^[154]

However, Yuan misjudged his own and monarchy's level of popular support.

3.3