China's Changing Constitution Jerome Alan Cohen An organization must have rules,and so must a state.A constitution is a set of general rules,it is the fundamental law...Constitution-making is a matter of science. Mao Tse-tung On 5 March 1978 the People's Republic of China promulgated its second constitution in little more than three years and the third since its establishment in 1949.?What functions does a constitution serve in the Chinese political-legal system?Is it a sham not worth the paper on which it is printed?Is it an artifice of propaganda designed to impress and mislead foreigners?Does it have legal as well as political significance? The 1954 Constitution was not revised for two decades-why then was its 1975 successor so quickly overtaken by events?What are the differences among these basic documents? Background Some preliminary observations are in order.Self-conscious constitution-making is a 20th-century phenomenon in China.To be sure, the succession of imperial dynasties that ruled the country from the third century B.C.until 1912 had gradually developed a large collection of sophisticated statutes that described the structure,principles, functioning and interrelationships of the various agencies of the empire, and these were supplemented by customs,traditions and precedents.Yet the type of single document charter of government that began to proliferate in the west after the American and French Revolutions did not appear in China until the very last years of the ailing Manchu dynasty.Then,in a desperate effort to stave off collapse,the Manchu .I am grateful to my assistants Paul Theil,Peter Chan and Jane Leifer for their valuable help in preparing this study,and to several colleagues,especially Professor Harold J.Berman of Harvard and Dr Frank Munzel of the Max Planck Institute in Hamburg,for stimulating comments on it.An earlier version was presented at the Northwestern University School of Law in Chicago on 6 April 1976,as the second of my three Julius Rosenthal Lectures. 1.Mao Tse-tung,"On the draft constitution of the People's Republic of China," 14 June 1954 in Selected Works (Peking:Foreign Languages Press,1977),Vol.V, pp.141,145-46. 2.An English translation of the new constitution can be found in Documents of the First Session of the Fifth National People's Congress of the People's Republic of China(Peking: Foreign Languages Press,1978),pp.125-72.An English translation of the 1975 version can be found in The Constitution of the People's Republic of China (Peking:Foreign Languages Press,1975).An English translation of the 1954 document can be found in Documents of the First National People's Congress of the People's Republic of China (Peking:Foreign Languages Press,1955),pp.131-63.All quotations from these constitutions are from those translations unless otherwise indicated,but the term "procuracy"has been substituted for the more awkward and less familiar “procuratorate
China's Changing Constitution Jerome Alan Cohen An organization must have rules, and so must a state. A constitution is a set of general rules, it is the fundamental law. . . . Constitution-making is a matter of science. Mao Tse-tung' On 5 March 1978 the People's Republic of China promulgated its second constitution in little more than three years and the third since its establishment in 1949. 2 What functions does a constitution serve in the Chinese political-legal system? Is it a sham not worth the paper on which it is printed? Is it an artifice of propaganda designed to impress and mislead foreigners? Does it have legal as well as political significance? The 1954 Constitution was not revised for two decades - why then was its 1975 successor so quickly overtaken by events? What are the differences among these basic documents? Background Some preliminary observations are in order. Self-conscious constitution-making is a 20th-century phenomenon in China. To be sure, the succession of imperial dynasties that ruled the country from the third century B.C. until 1912 had gradually developed a large collection of sophisticated statutes that described the structure, principles, functioning and interrelationships of the various agencies of the empire, and these were supplemented by customs, traditions and precedents. Yet the type of single document charter of government that began to proliferate in the west after the American and French Revolutions did not appear in China until the very last years of the ailing Manchu dynasty. Then, in a desperate effort to stave off collapse, the Manchu * I am grateful to my assistants Paul Theil, Peter Chan and Jane Leifer for their valuable help in preparing this study, and to several colleagues, especially Professor Harold J. Berman of Harvard and Dr Frank Munzel of the Max Planck Institute in Hamburg, for stimulating comments on it. An earlier version was presented at the Northwestern University School of Law in Chicago on 6 April 1976, as the second of my three Julius Rosenthal Lectures. 1. Mao Tse-tung, " On the draft constitution of the People's Republic of China," 14 June 1954 in Selected Works (Peking: Foreign Languages Press, 1977), Vol. V, pp. 141, 145-46. 2. An English translation of the new constitution can be found in Documents of the First Session of the Fifth National People's Congress of the People's Republic of China (Peking: Foreign Languages Press, 1978), pp. 125-72. An English translation of the 1975 version can be found in The Constitution of the People's Republic of China (Peking: Foreign Languages Press, 1975). An English translation of the 1954 document can be found in Documents of the First National People's Congress of the People's Republic of China (Peking: Foreign Languages Press, 1955), pp. 131-63. All quotations from these constitutions are from those translations unless otherwise indicated, but the term " procuracy " has been substituted for the more awkward and less familiar " procuratorate
China's Changing Constitution 795 Government,"more ancient and conservative than any other living organization,"grudgingly announced that it would introduce a western-style constitution and become a monarchy of the parliamentary type over the period of a decade. The Manchus appeared to accept the demands of reformers who wished to emulate Japan.That country had gained great strength as a result of the massive changes symbolized by the Meiji Constitution of 1889,which had borrowed from Europe the forms of a conservative constitutional monarchy.Japan had inflicted a stunning defeat in 1895 upon its traditional elder brother,China,had terminated the humiliating extraterritorial privileges of the western imperialist powers in 1899 and had defeated Imperial Russia in 1905.Some type of western constitutionalism,if only of the rather undemocratic Japanese and Prussian variety,seemed to China's reformers not only to symbolize modernity and legitimacy,but also to hold the key to wealth and power in the international society that had ended the isolation of the Central Realm.The Empress Dowager herself was compelled by circumstances to cry:"Our hope too is in a constitution."4 The process of constitution-building had indeed begun.Yet,before long,the disappointed reformers noted that"while promising lavishly the government was steadily concentrating power in the hands of the royal family.Autocracy grew while constitutionalism was held up as the prize."s Because the Manchus kept the promise to the ear but broke it to the hope,failing to move ahead with even the modest innovations that had been contemplated,unsuccessful reform turned into successful revolution,and the Republic of China was born in 1912 with the promulgation of a provisional constitution. So much early republican energy was devoted to constitution-making that in 1917 a leading western expert on constitutional development residing in Peking wrote,with classic British understatement:"One is apt to get confused with the welter of constitutions that have come and gone."7These efforts culminated in the supposedly permanent constitution of 1923,a splendid document that was wholly out of touch with Chinese realities and was promulgated by the government of 3.Wang Chung-hui,Law reform in China,"The Chinese Social and Political Science Review.Vol.II,No.2 (June 1917),p.13. 4.L.R.O.Bevan,China's constitutions,"The Chinese Social and Political Science Review,Vol.II,No.4(December 1917),pp.89,92. 5.Wang,"Law reform in China,"p.14.For English translations of the two principal documents promulgated by the Manchu government,thePrinciples of constitution "of 1908 and"The nineteen articles "of 1911,see William L.Tung.The Political Institutions of Modern China (The Hague:Nijhoff,1964),pp.318-19,320-21. 6.For an English translation of that document,see Tung,The Political Institutions of Modern China,pp.322-25.Literature on the Manchu flirtation with constitutionalism and its Republican sequel is extensive.In addition to the other sources cited in this article, Ch'ien Tuan-sheng,The Government and Politics of China(Cambridge,Mass.:Harvard University Press,1950)is an informative analysis on which I have generally relied. 7.Bevan,China's constitutions,"p.90
China's Changing Constitution 795 Government, " more ancient and conservative than any other living organization," 3grudgingly announced that it would introduce a western-style constitution and become a monarchy of the parliamentary type over the period of a decade. The Manchus appeared to accept the demands of reformers who wished to emulate Japan. That country had gained great strength as a result of the massive changes symbolized by the Meiji Constitution of 1889, which had borrowed from Europe the forms of a conservative constitutional monarchy. Japan had inflicted a stunning defeat in 1895 upon its traditional elder brother, China, had terminated the humiliating extraterritorial privileges of the western imperialist powers in 1899 and had defeated Imperial Russia in 1905. Some type of western constitutionalism, if only of the rather undemocratic Japanese and Prussian variety, seemed to China's reformers not only to symbolize modernity and legitimacy, but also to hold the key to wealth and power in the international society that had ended the isolation of the Central Realm. The Empress Dowager herself was compelled by circumstances to cry: " Our hope too is in a constitution. " 4 The process of constitution-building had indeed begun. Yet, before long, the disappointed reformers noted that " while promising lavishly the government was steadily concentrating power in the hands of the royal family. Autocracy grew while constitutionalism was held up as the prize." 5 Because the Manchus kept the promise to the ear but broke it to the hope, failing to move ahead with even the modest innovations that had been contemplated, unsuccessful reform turned into successful revolution, and the Republic of China was born in 1912 with the promulgation of a provisional constitution. 6 So much early republican energy was devoted to constitution-making that in 1917 a leading western expert on constitutional development residing in Peking wrote, with classic British understatement: " One is apt to get confused with the welter of constitutions that have come and gone. " 7 These efforts culminated in the supposedly permanent constitution of 1923, a splendid document that was wholly out of touch with Chinese realities and was promulgated by the government of 3. Wang Chung-hui, " Law reform in China," The Chinese Social and Political Science Review, Vol. II, No. 2 (June 1917), p. 13. 4. L. R. O. Bevan, " China's constitutions," The Chinese Social and Political Science Review, Vol. II, No. 4 (December 1917), pp. 89, 92. 5. Wang, " Law reform in China," p. 14. For English translations of the two principal documents promulgated by the Manchu government, the " Principles of constitution " of 1908 and " The nineteen articles " of 191 1, see William L. Tung, The Political Institutions of Modern China(TheHague: Nijhoff, 1964), pp. 318-19, 320-21. 6. For an English translation of that document, see Tung, The Political Institutions of Modern China, pp. 322-25. Literature on the Manchu flirtation with constitutionalism and its Republican sequel is extensive. In addition to the other sources cited in this article, Ch'ien Tuan-sheng, The Government and Politics of China (Cambridge, Mass.: Harvard University Press, 1950) is an informative analysis on which I have generally relied. T. Bevan, " China's constitutions," p. 90
796 The China Quarterly President Ts'ao K'un,whose writ did not run far beyond Peking.The best that could be said for this document,which called for a western-style cabinet system of parliamentary democracy,was that it established ideals towards which warlord-ridden China might one day strive.In reality it was largely intended for the edification of the imperialist powers,which had promised to surrender extraterritorial privileges once China adopted government and legal institutions familiar to the west. The rise to at least nominal national power of Chiang Kai-shek's Nationalist Party in 1928 led to further efforts to frame a constitution for the country.This resulted in the Provisional Constitution of 1931, which largely confirmed the existing arrangements according to which all government agencies were controlled by the generalissimo's authoritarian Nationalist Party.The provisional nature of this document and the domination of the Nationalist Party reflected the theory of late great republican leader Sun Yat-sen,who had prescribed that a period of"political tutelage"'should follow the Nationalists' military unification of the country and precede the true constitutional era that would unfold once the ways of democracy had been learned. Nevertheless,before long,the continuing struggle for power led various groups to demand promulgation of a permanent constitution, contrary to Sun Yat-sen's theory of the need for a period of tutelage. During the next 15 years,despite the interruptions required by the war against Japan,enormous amounts of energy were lavished upon what one close observer has called "the futilities of constitution-making.'1 We cannot consider here even a summary of those events,but several points are worth noting. One is that China's republican leaders frequently changed their attitudes towards constitutionalism,depending upon their calculation of political expediency.Thus,the successive draft constitutions often differed drastically from one another.The ruling Nationalist Party seemed especially ambivalent.It was reluctant to embrace constitutionalism for fear of restricting its powers.Yet it was determined,if there was to be a constitution,that the document should become a vehicle for enhancing its rule by creating a strong executive that would operate under firm party control.Opposition leaders,intellectuals and others generally favoured a permanent constitution in the hope of curbing the increasingly dictatorial nationalist regime. 8.For a valuable,in-depth study of the political currents that shaped this document,see Andrew J.Nathan,Peking Politics 1918-23,Factionalism and the Failure of Constitutionalism(Berkeley,Los Angeles and London:University of California Press, 1976).For an English translation of the 1923 Constitution,see Ch'ien,The Government and Politics of China,p.436. 9.For an English translation of the 1931 Provisional Constitution,see Tung.The Political Institutions of Modern China,pp.344-49. 10.Ch'ien,The Government and Politics ofChina,p.308.For an intelligent analysis of some of the Kuomintang's early post-1931 dilemmas concerning constitutionalism,see Lloyd E.Eastman,The Abortive Revolution,China under Nationalist Rule,1927-1937 (Cambridge,Mass.:Harvard University Press,1974),especially pp.159-80
796 The China Quarterly President Ts'ao K'un, whose writ did not run far beyond Peking. The best that could be said for this document, which called for a western-style cabinet system of parliamentary democracy, was that it established ideals towards which warlord-ridden China might one day strive. In reality it was largely intended for the edification of the imperialist powers, which had promised to surrender extraterritorial privileges once China adopted government and legal institutions familiar to the west. 8 The rise to at least nominal national power of Chiang Kai-shek's Nationalist Party in 1928 led to further efforts to frame a constitution for the country. This resulted in the Provisional Constitution of 1931, which largely confirmed the existing arrangements according to which all government agencies were controlled by the generalissimo's authoritarian Nationalist Party. 9 The provisional nature of this document and the domination of the Nationalist Party reflected the theory of late great republican leader Sun Yat-sen, who had prescribed that a period of " political tutelage " should follow the Nationalists' military unification of the country and precede the true constitutional era that would unfold once the ways of democracy had been learned. Nevertheless, before long, the continuing struggle for power led various groups to demand promulgation of a permanent constitution, contrary to Sun Yat-sen's theory of the need for a period of tutelage. During the next 15 years, despite the interruptions required by the war against Japan, enormous amounts of energy were lavished upon what one close observer has called " the futilities of constitution-making." 10 We cannot consider here even a summary of those events, but several . . poznts are worth notlng. One is that China's republican leaders frequently changed their attitudes towards constitutionalism, depending upon their calculation of political expediency. Thus, the successive draft constitutions often differed drastically from one another. The ruling Nationalist Party seemed especially ambivalent. It was reluctant to embrace constitutionalism for fear of restricting its powers. Yet it was determined, if there was to be a constitution, that the document should become a vehicle for enhancing its rule by creating a strong executive that would operate under firm party control. Opposition leaders, intellectuals and others generally favoured a permanent constitution in the hope of curbing the increasingly dictatorial nationalist regime. 8. For a valuable, in-depth study of the political currents that shaped this document, see Andrew J. Nathan, Peking Politics 1918-23, Factionalism and the Failure of Constitutionalism (Berkeley, Los Angeles and London: University of California Press, 1976). For an English translation of the 1923 Constitution, see Ch'ien, The Government and Politics of China, p. 436. 9. For an English translation of the 1931 Provisional Constitution, see Tung, The Political Institutions of Modern China, pp. 344-49. 10. Ch'ien, The Covernment and Politics of China, p. 308. For an intelligent analysis of some of the Kuomintang's early post-1931 dilemmas concerning constitutionalism, see Lloyd E. Eastman, The Abortive Revolution, China under Nationalist Rule, 1927-1937 (Cambridge, Mass.: Harvard University Press, 1974), especially pp. 159-80
China's Changing Constitution 797 A second point to note is that,whatever their position in the struggle to shape the constitution-whether advocates of a presidential or a cabinet system,a strong or a weak central government,unicameralism or bicameralism,direct or indirect elections,a single party or a multi-party system -all sides tended to claim the mantle of Sun Yat-sen's ideology, and his ideas,although distinctively blended,had come from the west. Indeed,the impact of the west had left most Chinese convinced of the superiority of western law and institutions and eager to apply them in China. Yet,from the earliest days of China's concern with constitutions, some western scholars had warned Chinese modernizers against importing western institutions that did not suit the country's conditions and looked forward to"the time when constitutions with a character of their own will come out of the East."And,at least occasionally,the Nationalist Party seemed to be searching for autochthonous Chinese constitutional norms and forms that would be briefly and simply described in a document intelligible to the people. The Constitution of the Republic of China promulgated in 1946, which continues to prevail on Taiwan today,displayed major western influences.Nevertheless,the presidential system that it prescribed also reflected significant Chinese characteristics.For example,it grafted onto the three branches of government familiar to the west two additional branches that have deep roots in Chinese history-the examination and control yuan.? Although the 1946 Constitution is neither brief nor simple,it is an impressive compound of East and West.Unfortunately,experience in its application both before and after the flight of the Republican Government to Taiwan in 1949 suggests that,like its predecessor,it has made little difference to the nature and character of the Nationalist Party's dictatorial rule.The organization and management of the party remain more important than the formal structure and processes of government in the Republic of China.This is especially true because the martial law that has continued to prevail on Taiwan since the communist victory on the mainland has resulted in suspension of certain constitutional provisions and in party allocation to the military and security forces of important aspects of state control. 11.Harold Scott Quigley,"The constitution of China,"The American Political Science Review,Vol.18,No.2(1924),pp.346,350. 12.For an English translation of the 1946 Constitution,see Ch'ien,The Government and Politics of China,p.447.For an interesting discussion of this document by Dean Roscoe Pound,who served as adviser to the Chinese Ministry of Justice,see"The Chinese constitution,"New York University Law Quarterly Review,Vol.23,No.3 (1948), pp.194-232.See also W.Y.Tsao,The Constitutional Structure of Modern China (Melbourne:Melbourne University Press,1947). 13.See Peng Ming-min,Political offences in Taiwan:laws and problems,"The China Quarterly (CO,No.47 (July-September 1971),p.471,for a detailed discussion of the consequences of the"state of siege"proclaimed throughout the island on 19 May 1949 that is still in effect.To be sure,only some aspects of everyday life in Taiwan are affected
China's Changing Constitution 797 A second point to note is that, whatever their position in the struggle to shape the constitution - whether advocates of a presidential or a cabinet system, a strong or a weak central government, unicameralism or bicameralism, direct or indirect elections, a single party or a multi-party system - all sides tended to claim the mantle of Sun Yat-sen's ideology, and his ideas, although distinctively blended, had come from the west. Indeed, the impact of the west had left most Chinese convinced of the superiority of western law and institutions and eager to apply them in China. Yet, from the earliest days of China's concern with constitutions, some western scholars had warned Chinese modernizers against importing western institutions that did not suit the country's conditions and looked forward to " the time when constitutions with a character of their own will come out of the East." " And, at least occasionally, the Nationalist Party seemed to be searching for autochthonous Chinese constitutional norms and forms that would be briefly and simply described in a document intelligible to the people. The Constitution of the Republic of China promulgated in 1946, which continues to prevail on Taiwan today, displayed major western inRuences. Nevertheless, the presidential system that it prescribed also reflected significant Chinese characteristics. For example, it grafted onto the three branches of government familiar to the west two additional branches that have deep roots in Chinese history - the examination and control yuan. 1 2 Although the 1946 Constitution is neither brief nor simple, it is an impressive compound of East and West. Unfortunately, experience in its application both before and after the flight of the Republican Governmento Taiwan in 1949 suggests that, like its predecessor, it has made little difference to the nature and character of the Nationalist Party's dictatorial rule. The organization and management of the party remain more important than the formal structure and processes of government in the Republic of China. This is especially true because the martial law that has continued to prevail on Taiwan since the communost victory on the mainland has resulted in suspension of certain constitutional provisions and in party allocation to the military and security forces of important aspects of state control. 13 11. Harold Scott Quigley, " The constitution of China," The American Political ScienceReview, .Vol. 18, No. 2 (1924), pp. 346, 350. 12. For an English translation of the 1946 Constitution, see Ch'ien, The Government and Politics of China, p. 447. For an interesting discussion of this document by Dean Roscoe Pound, who served as adviser to the Chinese Ministry of Justice, see " The Chinese constitution, " New York University Law Quarterly Review, Vol. 23, No . 3 ( 1948), pp. 194-232. See also W. Y. Tsao, The Constitutional Structure of Modern China (Melbourne: Melbourne University Press, 1947). 13. See Peng Ming-min, " Political offences in Taiwan: laws and problems," The China Quarterly (CQ), No. 47 (July-September 1971), p. 471, for a detailed discussion of the consequences of the " state of siege " proclaimed throughout the island on 19 May 1949 that is still in effect. To be sure, only some aspects of everyday life in Taiwan are affected
798 The China Quarterly Until its decline imperial China had tended to display a high correlation between the forms of power and the actual situation -power had been exercised by a small elite and had been rationalized and justified on that basis.The influx of western ideas during the republican era led to a yawning gap between,on the one hand,constitutional documents that called for representative democratic institutions and individual liberties and,on the other,a personalized party-military dictatorship maintained over a non-western populace that was for the most part poor,illiterate,disorganized and impotent.In these circumstances constitutionalism could not take root,and the documents that were formulated could not lead to the stability for which their advocates hoped. The 1954 Constitution This background gives us some perspective on problems of constitution-making in the People's Republic of China since 1949.As we shall see,Peking's Constitution of 1954,although the charter of a revolutionary system that was radically different from pre-1949 republican regimes,nevertheless confronted similar problems and bore certain general resemblances to its bourgeois predecessors. Like them the 1954 Constitution was essentially a foreign product. Although it was not directly influenced by either Anglo-American or Western European models,it was,nevertheless,a western product in that in large part it was borrowed from the Soviet Union and the Eastern European people's democracies.However exotic these countries may appear to Anglo-American or Western European eyes,to the Chinese the Soviet Union and its Eastern European allies,and especially their legal systems,seemed western.Indeed,many of the institutions and values enshrined in the constitutions of the Soviet-bloc states are derived from the west. The influence of the U.S.S.R.Constitution of 1936 was especially strong,even though that document had been formulated to mark the Soviet Union's entry into the socialist stage of development,while China in 1954 had not yet reached socialism but was at the earlier stage of a people's democracy en route to socialism.Despite the consequent difference in state form between the "people's democratic dictatorship"'of the People's Republic and the"dictatorship of the proletariat''that still prevailed in the U.S.S.R.in 1954,the Chinese Constitution reflected the Soviet model. Like the U.S.S.R.Supreme Soviet,the National People's Congress, although unicameral,became the highest organ of state power.Its Standing Committee,like the Presidium of the Supreme Soviet,was expected to exercise effective legislative power between the infrequent by martial law.Although political activists,intellectuals and the press are acutely aware of dictatorial restraints,the impact on most ordinary people is usually rather modest
The China Quarterly Until its decline imperial China had tended to display a high correlation between the forms of power and the actual situation - power had been exercised by a small elite and had been rationalized and justified on that basis. The influx of western ideas during the republican era led to a yawning gap between, on the one hand, constitutional documents that called for representative democratic institutions and individual liberties and, on the other, a personalized party-military dictatorship maintained over a non-western populace that was for the most part poor, illiterate, disorganized and impotent. In these circumstances constitutionalism could not take root, and the documents that were formulated could not lead to the stability for which their advocates hoped. The 1954 Constitution This background gives us some perspective on problems of constitution-making in the People's Republic of China since 1949. As we shall see, Peking's Constitution of 1954, although the charter of a revolutionary system that was radically different from pre- 1949 republican regimes, nevertheless confronted similar problems and bore certain general resemblances to its bourgeois predecessors. Like them the 1954 Constitution was essentially a foreign product. Although it was not directly influenced by either Anglo-American or Western European models, it was, nevertheless, a western product in that in large part it was borrowed from the Soviet Union and the Eastern European people's democracies. However exotic these countries may appear to Anglo-American or Western European eyes, to the Chinese the Soviet Union and its Eastern European allies, and especially their legal systems, seemed western. Indeed, many of the institutions and values enshrined in the constitutions of the Soviet-bloc states are derived from the west. The influence of the U.S.S.R. Constitution of 1936 was especially strong, even though that document had been formulated to mark the Soviet Union's entry into the socialist stage of development, while China in 1954 had not yet reached socialism but was at the earlier stage of a people's democracy en route to socialism. Despite the consequent difference in state form between the " people's democratic dictatorship " of the People's Republic and the " dictatorship of the proletariat " that still prevailed in the U.S.S.R. in 1954, the Chinese Constitution reflected the Soviet model. Like the U.S.S.R. Supreme Soviet, the National People's Congress, although unicameral, became the highest organ of state power. Its Standing Committee, like the Presidium of the Supreme Soviet, was expected to exercise effective legislative power between the infrequent by martial law. Although political activists, intellectuals and the press are acutely aware of dictatorial restraints, the impact on most ordinary people is usually rather modest