CHINA'S DRAFT CONSTITUTION

Created: 6/16/1944

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china's draft constttution

Oeneralisatmo Chiang Kai-shek formally inauguratedCommittee tor the Establishment q[ Constitutional Oovemment on3 Set up under the Supreme National Defense Council, the highest organ of the present Chinese Central Oovrrnment, the Committee is designed to promote "study" of the drwft crwvrmnUononduct Investigations of public opinion, and make recommend at Ions concerning the "problem of consUtuUonalanuaryampaign for nationwide consideration of the draftreat deal of comment on tha subject by prominentand discussion groups has been published, while numerous editorials and special articles have appeared In ths press, This program. Its intent, and its results bear directly on the kind ot government China will have after the war.

encouraged rtudy ol the consUtuUon accords withf Bun Tat-sen. revered Revolutionary leader, who callederiod of "political tatelagr" In preparation for democratic coofliUi-

Revoln-on behalfhe National Defense

Council, is stfll responsible to the Kuomintang Chiang K'al-shek. as leader of both party and Government, as well aa President of theime of national emergency, wields extraordinarily broadpowersystem of government that does not at present pretend to be responsible to any higher authorityingle political party.

Nevertheless, the Kuomintang maintains that its Intention is tht establishment of consUtuUonal government The National Oovemment0 promulgated the Is lost draft consUtuUon, said to be chiefly the handiwork of Sun Po. son of Suneople's Congress was scheduled lo meet in7 to consider the draft and adopt It as the permanent constitution ot China The beginning of the war In7 prevented the convrnUoneoples Ccocrras at trial time None has actually met since. although an abortive eOort was madec^TBtion of this unenactedhef the present study campaign. >nd the Kuomintang haseople's Coogreai will meet within one year of the end of the war to establish the draft8 as the fundamental law of Use land At that time the period ot political tutelage would be declared at an end

APPHOVfD fOH HlltASE HATE:?

The legal instrument upon which China's constitutional future appears to depend has as its most ostentatiously democraticection on We "Rights and Duties ofhinese BUI of Rights, It "guarantees" freedom from arbitrary arrest, freedom of speech, and religion. However, each of the seventeen articles ot this section is qualified by the phrav, "except In accordance withn other words,provisions fee the sanctity of personal liberties can be set aside by the passage of an ordinary bill.

The law-making body which can thus curtail the "guaranteed" rights is the Legislative ruoncting in conjunction with the President of the Republic. Laws can be promulgated and orders Issued by the latter with the counter-signature of the President of either the Legislative or the Executive Ytian. The President of the Republic appoints and removes the President and senior officials of th* Executive rtWs. While the constitution provides that legislative matters shall be referred by the Executive to the Legislativethere ls no explicit check by either branch on resolutions of the other.esult tbe executive power la almost entirely unhampered by the rest ot the government. Anorder could become effective solely by virtue of the signatures of the President of the Republic and his appointee, the President of theYilan. Moreover, with tbe signature of tbe President of the Legislative Ytian, the President of the Republic could set aside constitutional "guarantees."

The element or democracy tn the draft constitution clearly depends upon the democratic character of the People's Congress, to which all the governmental branches, including the Presidency of the Republic, are ultimately responsible. The People's Congress, according: to present specifications, will be an unwieldy body of0 delegates. Scheduled to meet for one month every three years, It can not possibly exercise any genuine legislative function or constant check on executive excesses.reatest power would lie In the right to elect the President and Vice-President of the Republic and all the members o! the Legislative and Control (censorial organ of government for impeachment and auditing) Elian. The real contribution which the Congress might make torule in China would be the selection of administrative officials representative of popular opinion.

However, the entire Congress itself Is not to be popularlyf tbe delegates being chosen by the present National Oovemmentdd members and reserve members of the Kuorruntang's Central Executive Committee and Central Supervisory Committee automatically becoming delegates. Of0 delegates popularlyave already been selected. These members were elected prior7eriod of extreme poUUcal reaction unfavorable to liberal or minority party activities. Some of the members have died and been replaced; some have gone over to the puppets. Critics ot tbe Kuomintang claim that none of the minority (non-Kuomlntang) parties are as yetentral Government spokesman has stated thatelegates remain to be elected after the war. At the first full meeting of the new

Commute* for the taUbUahmenl ol ConsUtutlooal Oovernment. aIn favorew election toe all members of the Cungraa aid to Care been nude but ni mnmuiiy discussed by Kuomlntangangerous to Ihe -lowMfnlT of the nation

Tbe reaction to the current program lot study ol Una proposed consOluUonal government has in general reflected Ute politicalof tbe commentators Kuomintang ofnciflla and Uic Ckivrmmcnt-con-trolled newspapers have erophaMied that therrevocably baaed on the Three People's Pnnclplea" of Bun Yat-sen. usuallyas "Nationalism, Democracy, and People'sheythat all people who do not act or hold opinion* contrary to the "Three People's Principles" will have complete freedom of repression and political organisation. They have also declared tliat Chinesemost not ba confused wtth Western democracy, and that personal freedom must inevitably be restricted even under the consUtution. Tbe China Ttmti. organ of Finance Minister H.ng. and Kuomlntang Minister of InforrraUcst Liang Uao-tsao lank this gi nwal line

Sun Fo, reported lo be spokesmaniberal element In tbe present Government, suggested In private conversation that sonar changes in the ConstltuUon would bethe holding ol People's Con-Kress sessions oftener than one month every three years, and the local election of provincial governors in place of appointment by the central authorities. However, Sun made no public statement* that did not agree with the ordinary Kuomlntangescribed by Liang, theMliusUr.

Discussion of the draft constitution from oppostilon and independent quarters ha* been frankly critical- Bound table discussion* reported In Um Boaoo iCommunistl andomment in Ta Kng Poo (Independent) noted wtth disapproval the Undefined division of powers aroong tne Freatdent of the Oovernmentm Kaaeutm Yua* and the LectHaUve Ttmn, the result of which would evidently be Um superiority ot tlx rxecutlte branch Although the crIUra did not mention it. the fact that on* man, Chiang, is now Praildant of the Republic as well a* of theUan, probably made the danger of too much power in the axacuUve seem especially real lo the liberal critics. The second major point cmphssued by Independent comment concerned the necessity for stronger safeguard* for "human liberties" than those In the consUtutlon. which permit the government lo pass lawsthe constitutional provision*.

The orlhodos view of Kuomintang leaders concerning tha program for study of toe constitution is that they are fulfilling the responxCCltyn launching UM Committer in Honoiber. Chiang K'sJ she* sucresled that it "should make known lo Um people thefVanc* of UM draft* the people are still Ignorant of the spirit andhis legitimatenction Is unquestionably on* of UM consideration* behind the groat publicity campaign.

However, nne o( tbe liberal cnUcs of the Kuomintang, Cliang Hii-JoO-(member of the faculty ofouthwestern Aaaoaatrd University ateclared that public study of the draft was instigated by UM OnwtalisBmo scCely for the propaganda purpose a' convincing the Western powers that democratic prorceaes were at work In China. Chang felt that there was no ground for optimism about the present study,previous liberal attempts to maka constructive criticisms and revisions of the constitution had met with solid rebuffs from theand the Generalissimo himself. This point of view received sometrom the fact that, alUtough Kuomintang spokesmen hadthat there were no restrictions on the expression of public opinion concerning the constitution. Ta Knng Poo's editorial commenU met with reprimands from the party Ministry of Information and Chang HsifOH* lecture condemning the present conduct of the KuomlnUwig as well as the pruriskos of the ccnsUtuUon was followeduomintang requestopy of his speech

Independent observers tn China are convinced that there are no indications of Kuomintang rcUsaUon of control over the functions of government by allowing free discussion of the form constitutionalshould take. Nor do they think that Independent or minority groups will be permitted to participatehe constitutional period of Chinese government. The Kuomintang refused minority party demands that all of their outstanding leaders be elected to the Committee for the Establishment of ConsUtuUonai Government, over which the Kuo-:'injoys complete control. The minorities doew repat the meeUrtga. but their role will obviously be restricted by their unall numbers, and their purpose Is merely to keep tha partMa Informed about the acuntles of the Committee Judging from the present preetsson* for election of the People's Congress, projected as the flnai governmental representative of the popular sovereignty of China, the Kuomintang wUl contmoe to exercise strict control over the election of drlegBtea and conaequenUycontrol over the post-war Congress Accordingly, the Committee for the Establishment ofOovemment and the campaign for study of the consUtutlon seems unlikely to affect present Kuomintang control of China

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