In ancient texts the term "constitution" (hsien fa) only designated various laws and ordinances, most of which neither provided limitations on the exercise of governmental powers, nor were themselves superior to other rules. Both of these elements are necessary for modern constitutionalism. Although the emperor actually was under a number of restraints, such as those imposed by the censorate, the prime minister, and other well-established conventions or traditions, these all depended heavily upon the whim of the ruler.
Those types of legal documents designed principally to bind public authorities through a division of powers and to guarantee respect for human rights were totally unknown to the Chinese. As a matter of fact, law in traditional China never assumed a prominent role after Confucianism was firmly established two thousand years ago. Chinese legal theories and practices in the dynasties that followed were virtually governed by the concept of rites (li), because Confucians advocated government by the gentry and maintained that the people should be governed by a system of ethics rather than by law. China, however, has had various legal codes during her long history, but never a constitution comparable to those existing in the West.
The situation began to change in the late nineteenth century. Beginning with the Opium War in 1839, a series of humiliating military defeats forced the Chinese government, the Ching Dynasty, to recognize the superiority of the West. The principal impetus, nevertheless, came from the Russo-Japanese War of 1904-05. Japan in less than twenty years had not only freed herself from foreign-imposed extraterritoriality, but had also defeated two colossi of the East, China and Russia. The Chinese public and its government were amazed by Japan's achievements and concluded that it was due chiefly to that country's efficiency in government, which in turn was credited largely to their newly adopted constitution.
However, the hastily drafted "Principles of the Constitution" and "Nine-year Program of Constitutional Preparation" clearly demonstrated the Ching government's unwillingness to reform, and the last alternative, revolution, became inevitable.
The establishment of the Republic in 1912 unfortunately did not pave the way for the establishment of a constitutional government in China. The existing conservative politicians and military simply did not believe in constitutional rule. They fought each other in every part of the country in order to seize as much power as possible, It is said that within a short period of seventeen years, five constitutions or draft constitutions were sponsored by the government, not to mention the numerous constitutions drafted by private individuals or organizations. But constitutionalism cannot be realized merely by the promulgation of a single document. Since militarists controlled both central and local governments, they almost invariably devised constitutions that promoted their own personal interests. The real meaning of constitutionalism did not concern them at all. Thus constitution-making during this period was simply a farce.
This chaos was brought to end, at least nominally, by the Kuomintang or Nationalist Party in 1928, after the successful Northern Expedition against the warlords. According to Dr. Sun Yat-sen, the founder of the party, the first phase of national reconstruction—the period of military operations—had been completed and the stage of political tutelage was to begin. Its underlying purpose was to educate the people to exercise their political rights. During this period the party was to be entrusted with the responsibility of nursing the country until it was strong enough to look after itself. A necessary corollary to this was the supremacy of the Kuomintang.
Beginning in the village and county, the Kuomintang planned to organize local self-government and finally elect delegates to the National Assembly, whose duties were the adoption of the constitution and the establishment of a government in accordance with its provisions. All of this having been accomplished, the country would enter the last phase-constitutional government.
After World War II, the conflict between the National government and the Communists rapidly worsened. In an attempt to settle this conflict by political means, the "Political Consultation Conference" was held in Chungking from January 10 to January 30, 1946. It was composed of 29 delegates representing different political parties and groups. A draft constitution was finally agreed upon.
This latest draft served as the basis for the Constitution of 1947, and it has been and still is the fundamental law of the Republic of China since its removal to Taiwan in 1949.
The Constitution is a lengthy document containing 14 chapters and 175 articles. In addition to an extended Bill of Rights in Chapter II, the structure of government provided in the Constitution has many unique arrangements. The legacy of Dr. Sun Yat-sen, the founding father of the Republic, is clearly demonstrated. On the one hand, as a man educated almost completely in the West, who also had traveled extensively in the rest of the world, it is understandable that most of his political ideas came from the representative democracy that prevailed in the West at the time.
Dr. Sun was also impressed by the so-called "direct democracy" (practiced in Switzerland and in some states of the United States) whereby citizens may not only exercise the rights of election and recall, but may also use the mechanism of initiative and referendum to participate directly in the governing process. Because of the extensive land area and large population of China, Dr. Sun had to make concessions in this area, and created a National Assembly to represent the people in the exercise of these four rights at the central government.
On the other hand, though he favored the Western separation of powers system of Executive, Legislative, and Judiciary, he was critical of some aspects of Western government, especially the "spoils system" that prevailed in nine-teenth century America. Since tradition al China had always had a relatively independent civil service examination system, it was perfectly natural for the new government to include an independent branch responsible for civil service examinations. Another unique Chinese traditional institution, the censorate, was also incorporated into the government as an independent branch to check government functions as well as the behavior of public functionaries. Thus, under the influence of Dr. Sun's legacy, the government is composed of five branches- Executive, Legislative, Judiciary, Examination, and Control.
Though Dr. Sun's teaching is technically the basis of the current Constitution, a closer look at the actual structure of the government and the relationship between major departments under the Constitution reveals some substantial deviations.
According to Dr. Sun's theory, the National Assembly should exercise the rights of election, recall, initiative, and referendum for the people of the country as a whole. In addition, the government is divided into five Yuans (branches), as mentioned above, and all of them are responsible to the National Assembly. This is the reason why the 1936 draft constitution provided the National Assembly with the rights of election and recall of not only the President and Vice President of the Republic, but also of all the members of the Legislative Yuan and Control Yuan. In other words, it was the real power as well as the only representative body of the country. The supremacy of the National Assembly was clearly established.
Although the National Assembly enjoyed enormous power and high status, it could not actually supervise closely or control fully the activities of the government because it was only convened for a one-month session every three years. Even though a Standing Committee of the Assembly was supposed to exercise some functions of the Assembly during the period when it was not in session, such a relationship between the National Assembly and other government agencies was totally unacceptable to those who advocated a system of checks and balances.
In order to maintain the fragile alliance with other minor political parties, which were the advocates of Western representative democracy, major concessions had to be made by the Kuomintang during the drafting process. As a result, the National Assembly now resembles the American Electoral College, performing only the function of electing the President and Vice President of the country. In addition, it also has the right to recall the President and Vice President as well as to amend the Constitution, both of which are important but rarely exercised rights.
Initiative and referendum must be initiated at the hsien (county) and city level, and the National Assembly is entitled to exercise these rights only after half of the counties or cities in the country have done so. Therefore, taken as a whole, the role of the National Assembly under the current Constitution is rather limited. Its peculiar position may be attributed to the conflict between the principle of checks and balances practiced in Western democracies and the revolutionary ideology of Dr. Sun who did not embrace this principle unconditionally.
Another major feature of the governmental structure lies in the so-called system of limited cabinet responsibility. Not only is the Executive Yuan responsible to the Legislative Yuan and the appointment of the Premier conditioned on the approval of the Legislative Yuan, the Executive Yuan also submits to the Legislative Yuan a bi-annual administrative report. The Premier and Ministers are subjected to the questions and criticisms of the Legislators. The Premier is also required to countersign presidential promulgations of law or the issuance of orders.
These are all essential characteristics of the British cabinet system. However, the no-confidence vote of the legislature and the power of the executive branch to dissolve the legislature, both of which are important elements of a cabinet system government, are not part of the system in the ROC for fear of political instability. Instead, a system of presidential veto similar to that of the United States was adopted. In addition, no member of the Legislative Yuan can concurrently hold a government post—the influence of the American presidential system was clearly in the framer's mind.
There is a chapter in the Constitution on the fundamentals of national policies, ranging from national defense and foreign policy to the economic and social system. Primary concerns include maintaining the political neutrality of the armed forces and establishing a mixed system of socialism and free enterprise. Generally speaking, the government's social and economic policies were expected to respond to the six major requirements of the people—food, clothing, housing, communications, education, and recreation.
The strategy for achieving these goals was to promote the industrialization of the country, to distribute land to the tiller, to achieve an equitable distribution of wealth and income, and to have state ownership of some industries and enterprises that are public or monopolistic in nature. The importance of education is evidenced not only by the requirement of a minimum six-year compulsory primary education for children from six to twelve years old, but also by specifically providing that 15 to 35 percent of the total budget, from the central government down to the city and county government, must be spent on education.
Throughout its long history, China has always been a unitary state. The occasional division of the country under different rulers was only an exception in terms of time, and was also generally regarded as abnormal and a prelude to final unification. Thus, the power of the various local governments has always been under close supervision, as it was delegated from above. The concept of the inherent power of local government never developed.
Bearing this tradition in mind, it would be surprising to find a detailed demarcation of powers between national and local governments in the Constitution of the Republic of China. But Dr. Sun emphasized local self-government at the hsien and city level as the means to train the people to exercise their political rights. The Constitution went even further by giving provincial governments such powers of self-government in order to check the powers of the central government. As a result, intergovernmental vertical relationships moved a step closer to those of a federal structure.
However, contrary to the pattern in federal systems, which generally reserve to the states those powers not specified as belonging to the central government, there is no such residual clause provided in the ROC Constitution. Instead, a detailed list of the powers of both the central and local governments is provided. Outside this list, a system of equilibrium of powers exists between the central and local governments according to the character of the subject matter. This is also a legacy of Dr. Sun. In addition, the Legislative Yuan has the final say when a controversy arises. This is also peculiar because such controversies are commonly judicial in nature and would thus be under the exclusive jurisdiction of the courts.
Another unique provision concerning local self-government is the constitutional requirement of the enactment of the General Principles of Provincial and Hsien Self-Government. It is the basic law of the organization, function, and status of local self-government. The method of supervision from above is also included.
Since the idea of a constitution and constitutionalism were imported from abroad, a period of transition and adaption was understandably considered necessary. The exigencies created by the continuing threat from the other side of Taiwan Straits have also seriously affected the full implementation of some fundamental civil liberties guaranteed by the Constitution. However, as a result of rising standards of living, widespread educational opportunities, and local self government, more favorable conditions for establishing a constitutional government have gradually appeared. Although there are still many difficulties that need to be overcome, it may be safely concluded that the recent historic decision to lift the 38 year-long Emergency Decree that activated martial law amply provides a good indication of progressive change. — (Dr. Jyh-pin Fa is a professor of law at National Chengchi University, Taipei).