The China of Chiang K'ai-Shek: A Political Study. Paul Myron Anthony Linebarger
through which a true republic may be formed. Hence, in order to demonstrate the structure of the National Government clearly, we must first understand the meaning of tang chih [party government].
"Party government," so-called, signifies that the whole system of government is under the control or dictatorship of one political party only. The only difference between party government and dictatorship is that the former is under the dictatorship of an entire political party, while the latter is under that of a single person. Party government is of course different from democracy, inasmuch as with democracy, all policies are to be decided by the entire body of citizens, while with party government, policies are to be decided by all the members of the particular party only. In other words, the entire party as one man can exercise political dictatorship, without taking into consideration the opinions of those who are not the members of the party. Any resolution passed by that party is considered a law not only in fact, but sometimes even in name; moreover, the party may cancel or change a law by a resolution passed in a meeting.
The above-mentioned points are phenomena common to countries under party governments.
After the Chinese Kuomintang has come into power, the system of party government is not only a fact, but even prescribed in laws. The Laws Governing the System of Organization of the National Government of the Republic of China promulgated for the first time on July 1, Year XIV (1925) were originally formulated by the Political Council of the Chinese Kuomintang. Article I in this code of laws provided: "The National Government discharges all the political affairs of the entire country, under the direction and superintendency of the Chinese Kuomintang." The said code has been constantly amended since its first promulgation, but this article has always remained unchanged. By the summer of Year XVII (1928), when the successful Northern Expedition undertaken by the National Revolutionary Army unified China under one government, the period of political tutelage of the Chinese Kuomintang began with the formulation and promulgation of the Outlines of Political Tutelage on October 3, Year XVII (1928). Article I of the said "Outlines" provided: "During the period of political tutelage of the Republic of China, the National Party Congress of the Chinese Kuomintang will take the place of the National Convention to lead the people and enforce all policies." By the beginning of June, in Year XX (1931), when the Provisional Constitution for the period of political tutelage was promulgated, the Outlines of Political Tutelage were again formed into a part of the Provisional Constitution, thereby giving party government a constitutional recognition. Besides the Outlines of Political Tutelage, Article 72 ("The National Government [Council of State] has a President and a certain number of state councillors, appointed by the Central Executive Committee of the Chinese Kuomintang."), and Article 58 ("The Central Executive Committee of the Chinese Kuomintang is vested with the power of interpreting this Provisional Constitution.") of the Provisional Constitution, and Article 10 ("The National Government has a President, twenty-four to thirty-six state councillors, a President and a Vice-President of every Yüan, appointed by the Central Executive Committee of the Chinese Kuomintang."), and Article 15 ("Before the promulgation of the Constitution, the Executive, Legislative, Judicial, Examination and Control Yüan will each be responsible to the Central Executive Committee of the Chinese Kuomintang.") of the Laws Governing the System of Organization of the National Government (December 30, Year XX [1931]) now being enforced, form the legal basis for party government.[5]
Under Kuomintang trusteeship, demands have been heard within and without the Party, for the promised abdication of the Party and for the initiation of popular government. Since the Kuomintang, unlike European one-party groups, established itself only for the formal purpose of democratic training, and was pledged to tolerate multi-party government as soon as possible, the continued monopoly of power was a frustration of the Party ideology and programs. The frustration was serious; involving much loss of popular sympathy for the government, this and appeasement rather demoralized the Party in the years preceding the invasion.
The Draft Permanent or Double Five Constitution
The Legislative Yüan brought forth on May 5, 1936 (in Chinese chronology, 5/5/XXV, or double-five twenty-five), the celebrated Hsien-fa Ts'ao-an (Draft Permanent Constitution), which was promptly dubbed the Double Five Constitution. Ever since its first promulgation, this document has formed the center of all Chinese constitutional debate, and—with very minor modifications—still stands as the official proposal for a permanent constitution, awaiting ratification by the Kuo-min Ta-hui (National [Constituent] Congress), when and if that long-postponed body ever convenes.[6] The Draft Constitution is the joint work of many outstanding legal scholars. A product of collective research and study, it thereby resembles collective private codification of municipal and international law in the West more than it does the creation of a deliberative assembly. The celebrated Chinese jurist, Dr. John C. H. Wu, prepared the first informal draft,[7] and the 5/5/XXV version represents the fourth draft of the Legislative Yüan. The preparation of the various drafts has not, from the scholastic point of view, been secretive or private; but broad popular participation has neither been offered nor solicited.
The Constitution consists of eight Chapters, comprising one hundred and forty-seven articles. Chapter I defines the Chinese state as "a San Min Chu I Republic" (Art. 1), declares sovereignty to be "vested in the whole body of its citizens" (Art. 2), defines the territories of the republic, specifies racial equality for the "races of the Republic of China," designates the national flag, and declares Nanking to be the capital. Chapter II covers, in nineteen very specific articles, the entire field of private rights and of the civic privileges of individuals. Most specifications carry the qualification, "in accordance with law" or "except in accordance with law." Since law is defined further in the Constitution as "that which has been passed by the Legislative Yüan and promulgated by the President," the qualification impresses many persons as sinister rather than encouraging. Except for this point, the specific constitutional guarantees exceed in number and specificity those of almost any other modern constitution.
The Kuo-min Ta-hui (either "National Congress" or "People's Congress") is the subject of Chapter III. This body has a function unlike that of any Western agency; the nearest equivalent is the National Assembly of the Third French Republic. This Congress is an electoral and constituent body with fundamental legislative powers. It is not intended to usurp the functions of the Legislative Yüan by fulfilling the role of a United States Congress, French Deputies and Senate, or a British Parliament. Meeting once every three years for a one-month session, it will be manifestly unable to act as a routine Western-type legislature.
The Central Government is the topic of the fourth Chapter. The first section of the Chapter describes the Presidency; the remaining five, the five Yüan. This applies the five-fold separation of powers. Sun Yat-sen held that a three-fold separation of powers, as known in the West and applied to American government, was efficacious; he also considered that the Imperial Chinese separation of powers (an implicit one only) was also desirable. The West had executive, legislative, judicial; old China combined these three into the governing power, and joined thereto the examinative power and the chien-ch'a[8] power. (The chien-ch'a power involved the functions of the traditional Chinese censorate; overt and active expressions are found in auditing and in the lodgment of impeachment charges. The term is fundamentally untranslatable, but if the tribunician connotations of Censor or the emergency meaning of Control be recalled, either of these terms will serve.) Sun Yat-sen combined the Western and the old-Chinese separations, developing a theory of the five powers. The Draft Constitution, like its two working predecessors, is a five-power constitution, with five great Yüan (Boards, Presidencies, or Courts), each headed by a Yüan-chang (Yüan President). The