Taiwan Today

The world has little knowledge of the actual workings of the fundamental law of the Chinese Republic. Far less does it realize the strong trend of the Chinese people toward democratic constitutionalism during the past 22 years. In this article, Professor Tsao of the National Taiwan University has brought to light the main features of the Chinese Constitution now in practice. This Constitution was adopted by the National Assembly on December 25. 1946 and promulgated by the National Government on January 1, 1947. A. The Curtailment of the Powers of the National Assembly The most significant feature of the perma­nent Constitution is the curtailment of the political powers of the National Assembly, as provided in Article 32 of the May 5th (1936) Draft, thus limiting the Assembly to the following functions only: (1) To elect the President and Vice-President; (2) To recall the President and Vice-President; (3) To amend the Constitution; (4) To hold referenda on constitutional amendments proposed by the Legislative Yuan. With respect to the powers of initiative and referendum, besides constitutional amendments afore-mentioned, the National Assembly shall make regulations pertaining thereto and enforce them after the said two powers have been exercised by half of the Hsien and municipalities of the country. This would be a matter of the distant future. In performing its function of electing the President and Vice-President of the state, the Assembly resembles the American Presidential Electoral College, but its continual existence during a period of six years and its power of recall have its peculiar merits. The May 5th Draft gives the Assembly much greater power, including the election and recall of the members of the Legislative Yuan and Control Yuan, and such constitution­al power, should it be allowed to remain, will make the Assembly the supreme organ to manifest the will of the people. The supremacy of the National Assembly was abandoned for it was objected to by other political parties attending the Political Consultative Conference in January 1946. That the National Assembly should be made a supreme organ in the Chinese constitutional structure, as has been: sponsored by many Chinese constitutional writers, is well founded on theoretical basis. The curtailment of its power is the result of inter-party compromise and merely a political expedient. Instead of the supremacy of the National Assembly, there has evolved the supremacy of the Legislative Yuan. B. The Relation between the Legislative Yuan and the Executive Yuan. The allocation of an enormous power to the Legislative Yuan has overshadowed the Nation­al Assembly. Members of the Legislative Yuan, instead of being elected by the National Assem­bly as envisaged in Article 67 of the May 5th Draft, shall be elected from various provinces and various municipalities under the direct jurisdiction of the National Government; from various Mongolian Leagues and Banners; from Tibet; from various people in frontier regions; from Chinese nationals residing abroad; and from occupational (or professional) groups. As they are to be elected by the people direct, it can be assumed that they are expected to reflect, general opinions of, the great mass of the nation and exercise adequate power to enforce them. Besides legislation, which is the legitimate power of any legislative, the Legislative Yuan shall have a great influence over the Executive Yuan in connection with important policies and measures. Article 57 of the permanent Constitution provides that the President of the Executive Yuan shall be responsible to the Legislative Yuan in accordance with the fol­lowing provisions: (1) The Executive Yuan shall have the duty to present to the Legislative Yuan its administrative reports. Members of the Legislative Yuan, during the sessions of the Yuan shall have the right to interpolate the President of the Executive Yuan and the heads of the various ministries and commissions of the Executive Yuan. (2) When the Legislative Yuan disapproves an important policy of the Executive Yuan, it may pass a resolution requesting the Executive Yuan alter such a policy. The Executive Yuan, with respect to the resolution of the Legislative Yuan, may, with the approval of the President of the state; request the Legislative Yuan to reconsider it. If, at the time of reconsideration, two-thirds of the members of the Legislative Yuan present at the meet­ing uphold the original resolution, the President of the Executive Yuan shall accept the said resolution or resign from his office. (3) If the Executive Yuan, with respect to a resolution passed by the Legislative Yuan on a law bill, a budget estimate bill, or a treaty deems the said resolution difficult of execution, it may, with the approval of the President of the state, within ten days after the delivery of the said, bill to the Executive Yuan, request the Legislative Yuan to reconsider it. If, at the time of reconsideration, two-thirds of the members of the Legislative Yuan present at the meeting uphold the original resolution, the President of the Executive Yuan shall accept the said resolution or resign from his office. In the light of the above provisions, the relation between the executive and the legislature is very much similar to the cabinet system as practised in Great Britain, the difference being that the President of the Executive Yuan, as well as all high officers of the administration, is not a member of the Legislative Yuan; he is not the leader of the party which enjoys majority in the legislature. Article 75 of the Constitution virtually prohibits members of the Legislative Yuan from holding concurrently official posts. This relation between the executive and the legislature also resembles the American presidential system, for the President of the Executive Yuan, though appointed with the consent of the legislature, shall be chosen and nominated by the head of the state. However, between these two systems there is a distinct difference. The American President has the power to select and nominate all cabinet ministers, who though different in seniority, stand equal in official status. Whereas the Chinese President, according to the permanent Constitution is only concerned with the candidacy of the President of the Executive Yuan, who on receiving appointment shall from his own cabinet by nominating the Vice-President of the Yuan, the heads of various ministries and commissions and the executive members without portfolio to be appointed by the President. In regard to important policies and measures, the American cabinet ministers in their relation with the President are, especially in the case of a strong President, merely the latter's political advisers; the ultimate decision, with respect to such policies and measures, in most cases, rests with the President. Unlike the American system, important policies and measures shall be brought to the Yuan meeting for deliberation and decision, at which meeting the President of the Yuan is the chairman. In any dispute or conflict in regard to such policies and measures arising between the execu­tive and the legislature, it is the Yuan Presi­dent, not the President of the state, who shall bear the brunt, for the former is, as has been seen, responsible to the Legislative Yuan. When the Revised Draft Constitution was submitted to the National Assembly for deli­beration, many delegates pointed out that the supremacy of the Legislative Yuan would re­sult in the destruction of the Quintuple-Power System and, subsequently, the instability of the administration, as seen in the Third French Republic. They argued that the power of the Legislative Yuan should he whittled down and the doctrine of the five-power Constitutional System should be scrupulously followed. According to the May 5th Draft, the Legislative Yuan, being a neutral and functional body limiting its power to one branch of the government, namely, legislation, would not be made an arena of political maneuvers, but since it is expected to become a representative body reflecting party, racial, regional, local and professional interests, it will necessarily become a centre of political storms. Politics, instead of law, will be its main concern. C. The Limitation of the Powers of the Pre­sident (1) The Limitation of the Presidential Power of appointment One of the improvements in the making of the Constitution is the limitation of the power of appointment exercised by the President. Article 56 of the May 5th Draft provides that the President, the Vice-President and all executive members of the Executive Yuan shall be appointed and removed by the head of the state, to whom they are res­ponsible. In addition, the President of the Judicial Yuan, the President and the Vice-President of the Examination Yuan, according to Article 77 and Article 84 respectively of the May 5th Draft, shall be appointed by the head of the state but responsible to the National Assembly. Whereas, according to Article 55 of the permanent Constitution, the President of the Executive Yuan shall be nominated by the head of the state and appointed with the con­sent of the Legislative Yuan, to which the former is responsible. As to the Vice-President of the Executive Yuan, the heads of the vari­ous ministries and commissions and the executive members without portfolio, as we have seen, shall be appointed by the President of the state upon the nomination by the Yuan President. It is obvious that the Yuan Presi­dent shall be fully authorized to decide the personnel of his cabinet. Further, according to the permanent Constitution, the President, Vice-President and a number of Grand Justices of the Judicial Yuan, as well as the President, Vice-President and a number of examination members of the examination Yuan, shall be nominated by the President of the state, but can only be appointed with the consent of the Control Yuan. This power of consent on the part of the Legislative Yuan and the Control Yuan, is similar to that exercised the American Senate, and, if it be adequately exer­cised, will curtail, to a great extent, the presidential power of appointment. The President must he on his guard not to abuse his power. He must select nominees discreetly. Indeed, no undesirable, unpopular and incompetent elements shall be invited into the government. (2) The Limitation on Emergency Power In regard to the emergency power of the President of the state as envisaged in Article 44 of the May 5th Draft, it is required that the President must submit his action pertaining to a state of emergency to the ratification of the Legislative Yuan within a period of three months after the issuing of orders. The writer has long been of the opinion that three months is too long a period for the exercise of the discretionary power of the President and suggested a shortening of the period. Ar­ticle 43 of the permanent Constitution stipu­lates that the President of the state can only issue emergency orders on the following conditions: (a) During the recess of the Legislative Yuan. It is provided in Article 68 of the permanent Constitution that the Legislative Yuan shall hold two sessions every year. The first session shall last from February to the end of May, and the second session from September to the end of December. It can be interpreted that only when the Yuan docs nut sit, the President of the state may exercise his emergency power. During session, it is within the legitimate orbit of the Yuan to decide on emergency measures. (b) The head of the state shall not exercise this discretionary power as a dictator in a totalitarian state. He can only exercise this power following the adoption of the emergency measures at the Executive Yuan Meeting presided over by the Yuan President. (c) In accordance with the Emergency Orders Law. Emergency actions shall be taken in accordance with law. They are not subject to the whim of the head of the state. 'The rule of law' must be observed. (d) Emergency Orders, within one month after issue, must be submitted to the Legislative Yuan for ratification. The time limit is shortened. In addition, it is further provided in the same Article that if the Legislative Yuan re­fuses to consent, emergency orders shall immediately become invalidated. The word ' immediately' is worth noticing. This Article, it must be admitted, is a safeguard against tyranny and big stride towards democratization. D. The Neutrality of the Judiciary, the Examination Yuan and the Armed Forces One distinct improvement made the permanent Constitution is the neutrality of the judiciary, the Examination Yuan and the armed forces. The writer strongly advocates in his book* that the legislature and public func­tionaries should be made neutral. Further, he firmly believes that in a true democratic coun­try all issues of national importance should be decided by ballots, not by bullets. Articles found in the permanent Constitution bearing this truth are as follows: (l) Article 80. Judicial officials shall place themselves outside and above political parties or factions and shall conduct trials independent in accordance with law, without being subject to any interference. (2) Article 88. Examination Yuan members shall place themselves outside and above political parties or factions and shall exercise their powers independently in accordance with law. (3) Article 138. The land, sea and air forces of the whole country shall be above and outside personal, regional or party affiliation, shall be loyal to the State, and shall support and protect the people. (4) Article 139. No party or individual may utilize armed strength as an instrument in the struggle for political power. (5) Article 140. No military man on active service shall hold concurrently civil of­fices. It is rarely seen in modern constitutions any mention openly of the place of political parties in the governmental structure. While political parties are the very propeller of internal politics, it is equally advisable and desirable to do away with them in those spheres as envisaged in the above quoted articles. It is necessary for administrative efficiency, stability in the civil service and propriety of the judicial officials that the public functionaries should be kept aloof from party politics. It is also necessary for the cause of peace and unity of our country, which has long been a victim of internal strife in the form of armed struggle, inevitably bringing catastrophe and suffering to the people generally, that the land, sea and air forces should be above and outside party affiliation. Their absolute allegiance to the State should be stipulated in the Constitutional, a breach of which is tantamount to treason and in serious cases will carry a capital punish­ment. E. The Judicial Yuan and the Judicial Admi­nistration The Ministry of Justice (also translated as the Ministry of Judicial Administration) was originally a component part of the Judicial Yuan (Article 33, the Organic Law of the National Government, promulgated on 3 October 1928). As a result of revision of the said Organic Law, promulgated on 30 December 1931, the Ministry of Judicial Administration was placed under the jurisdiction of the Executive Yuan in January 1932. Another revision of the Organic Law was promulgated on 17 October 1934, and the ministry reverted to the Judicial Yuan. A further revision of the Organ­ic Law, promulgated on 12 December 1942, caused the ministry to be again within the orbit of the Executive Yuan. While the May 5th Draft Constitution was being molded, it was generally agreed that the Ministry of Justice should be under the jurisdiction of the Judicial Yuan. Accordingly, it was so provided in Article 76 of the Draft. At the Political Consultative Conference, however, it was resolved that 'the Judicial Yuan shall be the Supreme Court of the country' and that 'it shall not deal with judicial admin­istration.' Guided by the resolutions of the Conference, the constitution-making National Assembly did not include judicial administration among the powers of the Judicial Yuan (Article 77 of the permanent Constitution). Consequently, the Revised Organic Law of the Executive Yuan, passed by the Legislative Yuan on 30 March 1947, placed the ministry under the Executive Yuan. The judicial system and organization now in practice are allowed to remain. As the present position stands, the President of the Judicial Yuan is empowered only to supervise the Supreme Court, whereas the Minister of Judicial Administration has the power to supervise the Procurator-General's Office of the Supreme Court as well as all grades of courts and their branches from high Courts downwards. The appointment of judges and judicial officials (except judges of the Supreme Court) is within the legitimate au­thority of the Minister. Many prominent judges and jurists, notably the late Mr. Shia Chinn, former President of the Supreme Court, and Mr. Chang Chi­-peng, have publicly expressed their views that the judicial administration should be subject to the jurisdiction of the Judicial Yuan. Such views may be related briefly as follows: In the first place, the Judicial Yuan without the power of judicial administration would be devoid of its essential substance. It would not correspond with the spirit of Article 77 of permanent Connstitution, which stipulates that the Judicial Yuan is the highest ju­dicial organ of the state. Secondly, the uniformity of judicial administration will break down as a result of the split of judicial powers between two separate governmental authorities. Lastly, the power of appointment of all judges and judicial officials (except judges of the Supreme Court) being in the hands of the Minister of Judicial administration, if it be allowed to remain under the Executive Yuan, which is subject to frequent political changes, such appointment may be affected by political influence and party politics. As a natural co­rollary, the neutrality and stability of judicial officials as stipulated in Article 80 and Article 81 respectively will prove abortive. The above argument is well founded. Constitutional amendment in this regard should be made accordingly. F. The Progressive Characteristics of Demo­cracy The Chinese Constitution, as far as its texts are concerned, may be regarded as one of the most progressive constitutions of the living age. The freedom of person is elaborately stipulated (Article 8) and all other freedoms and rights of the citizen are also safeguarded by law. Racial minorities are given adequate protection (especially Section 6, Chapter XIII). . The woman's position in politics is recognized by the Constitution ( Article 134). Equalization and sufficiency shall be the fundamental principles in the development of national economy (Section 3, Chapter, XIII). Social security shall be given to the average worker (Section 4, Chapter XIII). The elevation of the education­al standard of the people generally, and the cultural and scientific developments of the whole nation shall be one of the basic national policies (Section 5, Chapter XIII). If true democracy cannot be found in the texts of its constitution alone the Chinese have at least provided an ideal object to which their efforts should be directed for its achievement. III. Conclusion The adoption of a permanent Constitution by the National Assembly is, in the words of President Chiang, an epoch-making event in the nation's history, since the founding of the Republic. 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. However, we must realize that the law cannot enforce itself, it is up to the man to enforce it. In this regard it must be admitted that the Chinese people themselves shall be blamed for lagging behind in constitutionalism. In the first place, 'the rule of law' which constitutes the basis of the English constitution has not been closely followed by the Chinese people generally. Though the freedom of person (the Habeas Corpus Act) was long stipulated in Article 8 of the Provisional Constitution of the Political Tutelage Period, promulgated at Nanking on 1 June 1931, it has been often violated by governmental authorities. On the other hand, the majority of the people are not sufficiently legal-minded. In their daily conduct, there is a distinct disregard of law. If constitutional government is our object, both the government and the people must be law­-abiding. In the second place, the educational standard of the Chinese people is generally low and illiteracy remains a serious problem. Without universal education of the great mass of the people, constitutional government wouId be devoid of its indispensable substance, and, if ignorance dominates politics, democracy would become demagoguism! The awakening of the people both intellectually and politically is most essential to constitutionalism. Last, but not least, a living constitution should be molded and shaped, through a leng­thy process of trial and error, enriched by experiences and experiments, to conform to the actual need of the nation. No constitution can be made to provide for all time; its growth depends upon the ingenuity and efforts of the Chinese themselves. * Author of the Constitutional Structure of Modern China, published by the Melbourne University Press, 1947. * The Constitutional Structurc of Modern China