The China of Chiang K'ai-Shek: A Political Study. Paul Myron Anthony Linebarger
government intended, would be to rubber-stamp the Double Five Draft. In his opinion, this Draft had many defects—chief of which was unresponsiveness of the central government to popular control. The proposed Congress could not do much with a mere triennial check; the five-power system as projected was unsatisfactory. Democratic rights were insufficiently assured. He added that the Communist Party of China was for a democracy, but that the Double Five Draft was not "the constitution of a democracy."[20]
Furthermore, the representativeness of the proposed constitution-adopting Kuo-min Ta-hui is called into question. The present plan calls for 665 delegates from geographical constituencies, 380 from occupational, 155 "by special methods," 240 by government appointment, and a large number of Kuomintang Party-officers ex officio (241 by a recent count).[21] The present administration would obviously have a whip hand over all proceedings. The division into groups has been criticized. A demand, for example, for 120 women members has been made. Under the circumstances, with 1681 members already scheduled, mere additional size could be no handicap.
The question of qualifications has also been raised. About 900 of the representatives had been elected when war broke out. These include men who have since died, or have changed their opinions, or are reported missing, and even a few traitors. Are all the available elected representatives to be gathered together, years later? or is a new election to be held? Whatever occurs, the supreme agency on qualifications is the Election Committee for Representatives to the People's [Constituent] Congress, attached directly to the Council of State.
The constitutional issue in China is no simple problem of reaction versus progressivism. The vast majority of the population is not literate, and is unprepared to deal with a complicated machinery of opinion and election. Wire-pulling, corruption, adherence to form instead of deed—these are all widespread in China. Democracy abruptly established might frustrate further improvement, since sham-democracy would have established itself. The opponents of sudden action also press the telling point that the common people do not know they want immediate democracy, although believing in the term as a symbol and approving its trial application. The Generalissimo remains clearly mistrustful about creating new organs of opinion, or using new political processes; he would prefer to wait until the nation is unified, better administered, and more literate. Hence his and the Kuomintang's insistence on indirect elections, remoteness of policy-making authorities from the electorate, and self-sufficient government.
China did have, it is argued, an excellent democratic constitution in 1912, many more in the warlord years. All had admirable balances of power, guarantees to the individual, libertarian and progressive provisions. Like Chinese social legislation, they lifted China to the level of the rest of the modern world—de jure, and that only! These elevated documents remained elevated; life went on beneath them, and the tragic gap between law and life was so enormous that no one thought of bridging it. The nation would have been humiliated by legislation which limited the working day to fourteen hours, prohibited the mutilation or slavery of children, or required that torture be administered in the presence of a physician. Hence it had eight, ten, or twelve-hour laws, good child legislation, and absolute prohibition of torture for any purpose; these were unenforceable.
To counsels of caution, advocates of immediately responsive institutions reply that the Chinese common people are better democrats than their rulers, citing concrete cases in proof. They mention the general strikes, strong peasant cooperation, the startling phenomena of coordinate mass action—tens and hundreds of thousands strong—in political protest, boycotts, or civic immobility. (In past years many a warlord has been stopped by empty streets and closed houses: no business, no traffic, no talking, no meetings—only the silence, and somewhere, conspicuously inconspicuous, a committee of plenipotentiaries!) They refer to the Frontier Area, the Border Region, the New Fourth Zone, the guerrillas, the industrial cooperatives, and the wealth of leadership called up from the millions by the war. They quote to the Kuomintang its own professions of democracy, and the words of its late Leader. Told that the masses do not understand modern administration, modern economics, modern war, and that the peasantry and workers would proceed to arbitrary class legislation, economic levelling, and social revolution, they reply, "What do you want—democracy?" It is most unlikely that the Communists would sweep the country under free elections, but they and other dissidents, as the political Outs, would be free to criticize the incumbents in a way sure to bring support and involve new alignments of power. Some Kuomintang leaders wish to shut out any group with foreign connections; the Chinese face—despite their definite movement toward constitutionalism—the question of the limits of democratic toleration
FOOTNOTES:
[1] On the Manchu constitutional programs, see Columbia University Studies in Political Science, Vol. XL, No. 1: Yen, Hawkling L., "A Survey of Constitutional Development in China"; Vinacke, Harold Monk, Modern Constitutional Development in China, Princeton, 1920; Cameron, Meribeth, The Reform Movement in China, 1898–1912, Stanford University, 1931; and Hsieh, Pao Chao, The Government of China (1644–1911), Baltimore, 1925. The earlier constitutional developments under the Republic are summarized in Escarra, Jean, Le Droit Chinois, Paris and Peiping, 1936, which includes excellent bibliographies; Tsêng Yu-hao, Modern Chinese Legal and Political Philosophy, Shanghai, 1934, Ch. VI, "The Law of Modern Chinese Constitutions"; a characteristic proposal for a pre-Kuomintang constitution is Bau, Mingchien Joshua, Modern Democracy in China, Shanghai, 1927; and the works of Lum, Wu, and Linebarger, cited above.
[2] The text of the Yüeh Fa is to be found in The China Year Book, 1932, Shanghai, 1932, and in Lum, work cited, p. 161 ff., and Wu Chih-fang, work cited, p. 410 ff. The Chinese texts of all outstanding Chinese constitutions, from the Imperial programs down to the Double Five Draft of the Hsien Fa are to be found in Wang Shih-chieh, Pi-chiao Hsien-fa, Shanghai, 1937, p. 699–796.
[3] I.e., Sun Yat-sen; Chung-shan was a revolutionary alias, which became a ceremonial posthumous name.
[4] The term "Chinese Kuomintang" is not a redundancy; the original is Chung-kuo Kuo-min-tang, "Central-Realm Realm-people-association," and could be translated as the Chinese Nationalist Populist Party, National Democratic Party, the Nation's People's Party, etc. Several Japanese organizations have had exceedingly similar names; hence the formal style for the Kuomintang is always prefaced by China.
[5] Wang Shih-chieh, work cited, p. 649–50.
[6] The Double Five Draft Constitution is to be found in Chinese in Wang Shih-chieh, work cited, and in English in Council of International Affairs, Information Bulletin, Vol. III, No. 10 (April 11, 1937), Nanking; Hsia, C. L., "Background and Features of the Draft Constitution of China"; in Legislative Yüan, "Draft of the Constitution of the Republic of China," Nanking, 1937; in The China Year Book, Shanghai, and The Chinese Year Book, Shanghai and Hong Kong, v.i. and v.d. The latest version of the Draft Constitution is reprinted below. Appendix I (A), p. 283; the latest Chinese annotated version of this is the Legislative Yüan, Chung-hua Min-kuo Hsien-fa Ts'ao-an Shuo-ming-shu (An Elucidation of the Draft Permanent Constitution of the Chinese Republic), [Chungking], XXIX (1940).
[7] For