ON December 25, 1946, the Chinese National Assembly adopted a permanent constitution, to come into effect on Christmas Day, 1947. This new Constitution is a more democratic document than might have been expected, for the history of constitutionalism in China has been a story of frustration.

Leading figures at the court in the Manchu régime of the late nineteenth century entertained the idea that the country's lack of constitutional government accounted in part for her weakness in resisting the encroachments of the western Powers and of Japan. Talk at that time, however, failed to lead to action, and it was not until the overthrow of the dynasty in 1911 and the establishment of a republic that a Provisional Constitution was adopted. This provided for absolute ministerial responsibility in conjunction with a powerless Chief Executive modelled on the French plan of government. Its framers had disregarded China's peculiar political needs in their eagerness to import from the west; the result was confusion and the ascendency of military provincialism. During the war-lord years, successive constitutions were drafted but none of them was given effect.

With the establishment of the Nationalist Government at Nanking in 1927, however, constitutionalism began to assume a semblance of reality. The outline of governmental organization then adopted was based on the theories of Sun Yat-sen and evolved into the Provisional Constitution of 1931. The need for unity in the face of Japanese aggression gave rise to a more concrete expression of constitutional principles. These were elaborated in the Draft Constitution of 1936. This has been the document under which the national government has ostensibly operated up to the present day. Actually, however, China has not been governed under a constitutional system at all, for the Kuomintang, under the leadership of Chiang Kai-shek, has been acting as the "trustee" of the people and in practice has exercised dictatorial authority. The decision to declare the period of tutelage at an end, and at last to establish a constitutional government was, therefore, even if only in principle, an event of the greatest importance.

The Constitution is a lengthy document, containing 14 chapters and 175 articles. Chapter I starts with the declaration that, "The Republic of China founded on the Three People's Principles is a democratic republic of the people, for the people, and governed by the people." It is interesting to note that despite the passage of years and shattering events, the political doctrines of Sun Yat-sen still demand formal recognition. Chapter II is an extended Bill of Rights, following the American pattern. Infringement of civil liberties on the part of a public functionary is punishable under the Constitution, as well as under civil and criminal law.

The National Assembly, containing approximately 3,000 delegates elected on a geographical and occupational basis, is authorized to exercise political power on behalf of the whole body of citizens. Its functions include the election and recall of the President and the Vice-President, amendment of the Constitution, and ratification of amendments proposed by the Legislative Yuan. The new Constitution reduces the duties of the Assembly from those outlined by the Draft of 1936, due primarily to the body's unwieldy size and infrequent meetings. The powers of legislative initiative and review previously granted are no longer present.

The President of the Republic holds considerable power; he represents the nation in foreign relations, commands the armed forces, and promulgates laws and mandates with the countersignature of the President of the Executive Yuan. The President concludes treaties, declares war, peace and martial law, the latter with the approval of the Legislative Yuan, and appoints and removes all civil and military officers. In addition, he may issue emergency decrees, subject to confirmation within one month by the Legislative Yuan. Legislative dissent renders such decrees null and void. The term of office of the President and the Vice-President is six years, and they may be elected for a second term.

Agreements reached in January 1946 introduced a system of limited cabinet responsibility. The members of the cabinet, or Executive Yuan, consisting of a president, vice-president, heads of ministries and commissions and members without portfolio, are to be appointed by the President of the Republic. The cabinet is required to submit to the Legislative Yuan administrative reports, and Legislative Yuan members have the right of interpellation. If the Legislative Yuan dissents on any important policy, it may ask alteration or withdrawal of such policy, and may, by a two-thirds vote, carry its point or force the resignation of the premier. Cabinet responsibility is limited, however, by the requirement of a two-thirds majority in the legislature rather than the simple majority called for in the British system. Subject to the review of the Legislative Yuan, the cabinet exercises control over the budget. Expenditures listed in the executive budget may not be increased by the legislature.

The legislative power under the Constitution resides in the Legislative Yuan, Representatives have power to decide upon statutory or budgetary bills, or measures concerning martial law, declaration of war, conclusion of peace, treaties, and other important affairs of state. As has already been pointed out, however, the responsibility for initiating most of these measures remains in the hands of the President and the Executive Yuan. The legislature actually wields a power much more limited than that entrusted to the American Congress or to the British Parliament. The election of members is on the basis of population. Each province or municipality with a population of less than 3,000,000 has five representatives. In case the population exceeds 3,000,000, one additional member is elected for each additional million persons. Members of the legislature serve a three-year term and are eligible for reëlection.

The Judicial Yuan, as the highest judicial organ, is charged with disciplinary measures against holders of public office, as well as with civil, criminal and administrative suits, and interpretation of the Constitution.

The civil service, as distinct from the judiciary, is under the control of the Examination Yuan, which supervises the examination and employment of all public functionaries. As is the case in the judiciary, Examination members, appointed by the President, are to be independent of party affiliation.

The feature of the new Constitution which is most reminiscent of traditional Chinese governmental practice is the series of articles defining the duties of the Censor or Control Yuan. The powers of consent, impeachment, ratification and auditing are entrusted to a separate organ of the government rather than to the legislative representatives of the people. Provincial and municipal councils directly elect the members of the Control Yuan. With the exception of the power of impeachment of individual officials, its powers are confined to investigation and recommendation.

In the new Constitution there is a clearer differentiation than formerly existed between the authority of the central and the local governments. Residual powers are left to the Central Government rather than to the provinces. The Constitution follows no plan of division of powers such as that used in the American Constitution. The system is one of delegation of authority under the absolute supervision of the Central Government. The people of the province elect a Provincial Council to exercise the legislative powers delegated to them. The Provincial Governor is elected by the people of the province, a decided improvement over past practice which required that the governor be an appointee of the Central Government.

There is a chapter on fundamentals of national policies, which deals in some detail with questions of national defense, foreign policy and the economic system. Article 141 requires adherence to the United Nations Charter, this being the only such reference in any existing national constitution. In the economic sphere, private ownership of land is guaranteed, while public utilities and enterprises of a monopolistic nature are to be socialized. Finally, the chapter on National Policies stresses the importance of free elementary education and provides for supplementary education for those beyond school age.

Political events in China since the Constitution was promulgated on January 1, 1947, have been far from encouraging. During the spring a few municipal and provincial elections were held on the basis of a limited franchise. Reorganization of the government was promised but no important steps were taken. A few members of minority parties assumed minor cabinet posts, while preparations for the fall elections went forward amid a conspicuous absence of public enthusiasm. The state of general uncertainty was symbolized to some extent by the postponement of the date for the election of the National Assembly from October 21 to November 21. The submission to the Kuomintang of lists of minority party candidates in return for assurances as to their ultimate election strengthened suspicions that the election would not be free.

The Constitution of 1947 is evidence that China has made great progress in political theory during the past few decades. Without certain far-reaching reforms in administration, however, it will remain no more than an outline of good intentions. Implementation will mean the democratization of the Kuomintang, the end of one-party control over the military and financial power of the country, the guarantee of political equality to all loyal Chinese, and the encouragement of democracy in local government. Above all, the present Communist effort to establish an autonomous régime must be met, not only militarily, but on the political and ideological fronts as well. Whether or not the new Constitution can provide a rallying point for true democratic forces in China -- indeed, whether it can, and will, be given effect in the coming months -- nobody can now tell. It will fulfill its promise only when the government in power is willing to allow it to do so, for constitutional government in China means the end of one-party rule by the Kuomintang régime.

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  • GEORGE W. MALLORY, student of Chinese history and language; holder of one of ten Chinese Government fellowships awarded former U. S. servicemen.
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