Sih-Gung Cheng.

Modern China, a political study online

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The Law of October 5, 191 3, fixes the term of the
President at five years, and permits re-election for a second
term only. It can easily be seen that this term is a medium
between those of the American and the French Presidents,
the former holding office for four and the latter for seven
years. The authors of the Law were afraid that a long
term and an unrestricted re-eligibility would afford ample
time and chance to ambitious soldier-politicians to create
a dictatorship and to destroy parliamentary rule. Five
years is certainly a short period in a country where history
is recorded in millenniums. For its economic development
and administrative reform, no man, however active and
patriotic, is capable of doing much in that time in the face
of strong social and historical antagonism. Frequent change
of policy is not desirable.

Neither in the French (of 1873) nor in the American
Constitution is there any restriction as to the number of



President 53

times a President may be elected, though convention does
not encourage re-election for a third time. Lincoln and
Grant could have served their country for a third term,
had circumstances permitted ; and possibly Mr. Wilson will
break the convention by being re-elected for the third time.
If in America, where the intelligence of the average citizen
is higher than in any other country (according to Tocque-
ville), there is no restriction on the re-eligibility of the
President, it is almost absurd to restrict it to one term in
a country which is sadly in need of leaders and whose people
look upon the President as the visible sign of national unity
and the father of the ' nation-family '.

It would, be best to provide in the Constitution that the
President is re-eligible without any limit to the number of
terms. The term should be not less than seven and not
more than ten years, which would be long enough for the
President to prove his administrative powers, and yet not
so long as to give him time to develop despotic authority.

Among the powers or duties of the President, those
relating to foreign affairs are the most important. The
Provisional Constitution authorizes the President to receive
ambassadors, ministers, and envoys from foreign countries.
This is in conformity with the usage of all civilized states
and finds a counterpart both in the French and in the
American Constitutions.

Diplomacy requires consistency, secrecy, and promptitude,
and these are qualities more likely to be possessed by a single
person than by an assembly, the primary function of which
is to debate, or by a cabinet subject to tumultuous inter-
ference and violent attacks from an ill-advised Parliament.
The personal character of the head of the State and his
personal connexion with foreign chanceries often contribute



5 4 Constitution-making

to the success of the diplomacy of the country over which
he presides. The cordial relations between England and
many continental states during the greater part of the
nineteenth century were largely due to the personal influence
and force of Queen Victoria ; and the formation of the
Russo-French Alliance was, to a large extent, the result of
the personal efforts of President Carnot. In time of crisis,
the President of the United States always exercises his
emergency powers to deal with foreign states. The President
of China should, indeed, be entrusted with sufficient power
to direct her foreign affairs ; and the need of such power is
all the more urgent, if China is to possess a recognized and
responsible head in the eyes of foreign nations.

' The President of China may with the consent of Parlia-
ment declare war, make peace, and conclude treaties.'

The President of the French Republic is required by the
Constitution ' not to declare war without the previous con-
sent of the two Chambers ' and ' not to ratify treaties of
peace and of commerce, and those involving the finances of
the state or relating to the person or property of French
citizens in foreign countries, until they have been voted by
the two Chambers '. The Constitution of the United States
reserves the power to declare war to Congress and authorizes
the President to make treaties by and with the advice and
consent of the Senate.

According to the spirit of the Chinese Provisional Con-
stitution, the President of the Chinese Republic is more
restricted in his treaty-making power than the President of
the United States because he requires the consent of the
two Houses of Parliament, while the latter only requires
that of the Senate. He is even more restricted than the
French President, as the latter only requires the consent of



President 55

the two chambers for certain specified kinds of treaties,
while the former requires it for treaties of all kinds. The
over-rigidity of the Constitution is the cause of its break-
down ; it is impossible to enforce it in a country where
respect for law is not an acquired habit. The excessive
restriction on the President only results in his disregard of
the law.

One of the two important treaties that have been con-
cluded since the foundation of the Republic is that with
Japan relating t\o her economic concessions in Manchuria
and Mongolia and to her interests in Shantung ; and the
other is that with Russia binding China to recognize the
internal autonomy of Outer Mongolia. Both treaties were
concluded without the knowledge of Parliament, which had
been dissolved. On its restoration, doubts were expressed
as to the validity of these new obligations imposed on the
nation, but it is a rule of International Law that treaties
must be observed irrespective of changes in the composition
or form of the Government. It was, however, suggested
that a formal and retrospective sanction should be given to
these two treaties by Parliament without discussion, so as
to make them valid according to the letter and the spirit
of the Constitution, but time was too short to adopt this
' face-saving ' suggestion before the second dissolution of
Parliament.

The war against Germany and Austria-Hungary was
declared by the President when the old Parliament had
been dissolved for the second time and the new one had
not yet been summoned. Parliament did not recognize its
own extinction, and many of its members assembled in
Canton and issued a separate manifesto to the Diplomatic
Corps in Peking, approving the Government policy but



56 Constitution-making

protesting against its declaration without parliamentary
consent. There are, of course, many elements of humour
in China's struggle for constitutional freedom.

Serious controversies have arisen as to the Presidential
power of dissolving Parliament. The Provisional Constitu-
tion is silent on this point ; it is simply enacted that Parlia-
ment may itself convoke, conduct, and adjourn its own
meetings. President Yiian Shih-k'ai, at first, paralysed the
parliamentary machinery by depriving all the members of
the Democratic Party (Kuo-ming-tang) of their seats under
the pretext that they had associated themselves with a plot
against the Government. The deprivation made the two
houses unable to form the quorum required by law for their
meetings, and this inability was made an excuse for their
dissolution.

On the death of President Yiian, the same Parliament
was restored, but, a few months afterwards, the governors of
nine or ten provinces revolted and demanded its dissolution
as a condition of their allegiance to the Central Government.
President Li Yiian-hung was faithful to the Constitution
and endeavoured to preserve Parliament, but, overwhelmed
by the pressure of the military governors, he resorted to
the unconstitutional act of dissolving it, under the same
excuse as that of his predecessor, that it was no longer possible
to get a quorum, in consequence of the flight of many
members from Peking in the fear of an invasion by pro-
vincial troops. The dilemma in which the President was
placed may be shown by his own statement :

* It is said that although our own Constitution contains
no express stipulation as to the power of dissolution, the
practice of other constitutional states of dissolving their
Parliaments may be taken as our precedent. But I adhered



President 57

strictly and cautiously to our own Constitution and swore
by the spirits of Mountains and Streams to obey it. How-
ever, as I dreaded premature dissolution of the Republic
by the dissension between governors and parliament,
I finally acted against my will and ordered a new election.
Impotent as stagnant waters and dead straw, I am unable
to achieve what I humbly desired. My lack of virtue and
weakness of influence have compelled me to spoil my once
bright conduct.'

' The power of dissolving Parliament is one which I think
it desirable he (the head of Executive) should possess.' ^
The President of the French Republic ' may with the advice
and consent of the Senate dissolve the Chamber of Deputies
before the expiration of its legal term '. It is true that the
President of the United States has no power to dissolve
Congress, but the President and Congress being independent
of each other, there is hardly any occasion on which this
power could be exercised even if it existed. They both
derive their authority from the electorate and, in case of
conflict, both appeal to the nation. Neither is responsible
to the other, but both are responsible to the same masters.

The President of the Chinese Republic has been made
responsible to the two Houses of Parliament through the
Cabinet Ministers. A denial to him of the power to dissolve
Parliament would make it a necessary condition that he
should surrender his independence of thought and bow to
the emotions and sentiments of the assembly, which may
be against the interest of the nation. To fulfil this con-
dition, the President will necessarily be a man of ' unem-
phatic character and insensible temperament '.

Among the characteristics of the Chinese Parliament,
self-restraint has, so far, not been prominent. Mutual trust

^ J. S. Mill, Representative Government, p. 133 (Everyman Edition).



58 Constitution- making

and respect between Legislature and Executive are not often
found in any Parliament in the world, and it would be
unreasonable to expect them from the insecurely based
Parliament of a newly established Republic. Skill in Parlia-
mentary business has, again, not yet been acquired by the
Chinese. Under such circumstances, the impossibility of
dissolving a Parliament before its time was expired would
promote a deadlock between it and the President, unless,
during the interval of its existence, he attempted a coup
d'etat. Even in a country which has become accustomed
to representative institutions, dissolution on necessary
occasions would prevent the tyranny of Parliament and
ensure respect for public opinion. Frequent and un-
reasonable dissolution by the Executive would, of course,
shake the foundation of Parliament and produce auto-
cratic government, but the liability to being dissolved
would often act as an effective reminder to legislators
not to indulge their own wishes against the interest of the
nation.

The administrative powers of the Chinese President in
the domain of domestic affairs include the authority to
promulgate all laws ; and the power to issue or cause to be
issued orders for the execution of laws, to exercise rights
delegated to him by law, to grant a general amnesty (with
consent of Parliament) and reductions of penalty, and to
confer decorations and other insignia of distinction. But
by far the most important power is that of appointing and
dismissing all military and civil officials, subject, in the case
of Cabinet Ministers and Ambassadors, to the concurrence
of the two Houses of Parliament. The short existence of
Parliament and its incessant interruptions have not yet given
time to its members and electioneering officers to develop



President 59

a system of spoils, by which, as practised in the United
States, appointments are given as rewards to the supporters
of the President and Senators at elections. But unlike the
President of the United States, the President of China is
not confined in his appointments to federal posts. Both the
central and the provincial officials, except inferior clerks, are
appointed by him ; so are the military and naval officers of
practically all ranks.

The possession of this tremendous power is likely to tend
to its abuse, but it would certainly be no guarantee against
such abuse if the power were transferred from the President
to the Parliament or the provincial governors. In fact, it
would be easier for ofhce-seekers to approach numerous
parliamentarians and governors than tD approach one Presi-
dent. Legislators and governors are no more to be trusted
than the President to overcome the favouritism which has
long characterized Chinese politics.

The Presidential power of appointment is, as already
noted, restricted by the provision that Cabinet Ministers
and Ambassadors to foreign States must have obtained parlia-
mentary sanction before their appointment. In the last
five or six years, several Cabinet posts were kept vacant
during the sitting of Parliament, owing to the impossibility
of securing a majority vote for any one recommended by
the President. On one occasion the proposed minister
obtained half the number of votes in the lower House, and
the casting vote of the Speaker would have entitled him to
the appointment, if he was accepted by the Senate, but
as one of the voting papers was slightly damaged by ink, it
was considered to be annulled, and the casting vote did not
produce the desired effect.

In no other country is there such an anomalous provision.



6o Constitution-making

It is neither logical nor practical to pass a vote of confidence
on a prospective minister before he receives office. The
record of his previous career may be no clue to his fitness
for the\30st for which he is now proposed. The convention
has been in vogue in England and in France that only those
will be appointed who are supported by a majority in
Parliament, but as party machinery in China is not run on
intelligible lines, it would be difficult for the President to
know who are so supported, even if he had no preference
for his own men. Diplomatic courtesy and nicety require
that an informal inquiry should be made of the receiving
State as to the acceptability of a proposed ambassador.
This acceptability is not always coincident with his accep-
tance by Parliament. Secret agents are sometimes sent on
diplomatic missions, and it would be absurd to let Parliament
intervene. The Chinese Government once proposed to send
a special envoy to Japan to confer a decoration on the
Japanese Emperor. The Government contended that the
restriction of the Constitution only covered regular ambas-
sadors but not envoys on special missions. Parliament did
not accept this contention, and a long conflict ensued.

It will be interesting to examine at this juncture the
relation of the President to the Cabinet, but, to avoid over-
lapping, I defer it to the next chapter. Here I only make
a few remarks and observations on the Presidency of China.

' The President is replaced by the Vice-President in case
he is unable to attend to his duty during his term of office.'
This clause of the Provisional Constitution has proved
a means of saving the country from much trouble and
bloodshed, as both the first and the second President have
been obliged to quit office before the end of their terms.
Successors to them were immediately found in the Vice-



President 6i

Presidents without any elections, but the Vice-President
only acts as President for the remaining period of the term,
and a new election is necessary at its expiry. The Vice-
President is elected in the same manner and at the same
time as the President, and he is usually a governor in some
important province.

As Commander-in-Chief of the army and navy, the
President has the power to fix the strength of regulars
and reserves, and to direct the movements of troops.
In virtue of this high office, he has developed the
power of establishing in his ' palace ' General Head-
quarters, to which all military governors return when
relieved of provincial duties. Under an energetic President,
the War Office, the Admiralty, and the General Staff would
all be made subordinate to this supreme military institution ;
and in times of emergency, orders issued from it take pre-
cedence over all other departmental instructions. As the
head of this institution, the late President, Yiian Shih-k'ai,
assumed for a -time the title of ' Spiritual and Martial
Generalissimo '.

The old belief of China is that a classical scholar is capable
of everything, including the direction of operations in the
field. But the recent tendency seems to favour the opinion
that a commander must receive military training. This
accounts for the fact that three successive Presidents have
been military mqn — ^President Yiian Shih-k'ai, though not
an officer, was virtually the creator of China's new army.
Moreover, the supreme task of the President is to command
obedience from provincial military governors who, it is
thought, would despise the Central Government if the
Chief Magistrate were not a member of their profession.

China, unlike other oriental States, is nominally a country



62 Constitution-making

of social equality, but the tradition of the official hiera'rchy
has been too strong. It is true that the hierarchy is open
to all men of talent irrespective of their family or wealth,
but a man, once he becomes an official, is looked upon as
above the people. The gorgeous robe (now frock-coat and
top hat) and the pomp of official processions give him an
air of dignity which is envied by those not holding any
office. This tradition has now become much less strong,
but it has not yet died. The President is, in fact, looked
upon as the first man in the land. Europeans visiting China
may see no sign of his social importance, as his head appears
neither on coins nor on stamps, but in the East sovereigns
have never been so highly exalted, or insulted according
to the notion of the Japanese, who dread the idea of beating
their Sovereign's head so many times a day.

Unlike the Emperor, the President claims no divine com-
mission, but President Yiian Shih-k'ai performed the sacri-
ficial ceremony at the Temple of Heaven just as an Emperor
would. He was less secluded than the Emperor, but in fear
of being assassinated he never left his palace gate except on
two State occasions during his office. His successors, how-
ever, adopt the European fashion and drive about Peking
in an open car, but it would probably be regarded as
a momentous departure from convention if the President
travelled in a train without an armed bodyguard. He is
not popularly elected, so he has no need of making himself
popular. He receives and entertains senators and members
of the lower House just as he would officials of high rank.

His wife, if he had one, would probably be the centre of
Peking society, so far as there is a society in the capital of
China. She would probably be elected honorary President
of many women's clubs and social organizations ; and the



President 63

late wife of the present President, General Feng Kuo-chang,
took much interest in girls' education. She would have no
influence on women's fashions, which are not originated in
Peking. Moreover, sages of the past have taught that wives
of high officials should practise frugality so as to encourage
economy in every household throughout the country.

§ 2. Cabinet

The institution of the Cabinet is not an import from
Europe. It has a history of its own. Curiously enough,
its development bears striking resemblances to that of the
British Cabinet. From time immemorial the Emperor of
China had been assisted by a Council, which, though it was
differently named by various dynasties, corresponded in
power and in function to the British Privy Council from
which the British Cabinet was evolved. It differed from
it, however, by the salient fact that in Great Britain land-
owners were, for the most part, summoned to the Council,
while in China literary distinction was the sole qualification
for membership. In the early years of the Manchu dynasty,
the convention had been established that only members of
the Imperial Academy (Han-lin) were eligible? The three
Manchu Emperors who ruled China from 1662 to 1796
were, however, warriors and conquerors. Military expe-
ditions were often dispatched to Kokonor, to Turkistan,
and also against the various tribes of Central Asia, and
it was soon found that a Council of literary men was not
adequate to deal with current problems of strategy and
tactics. A separate Military Council was therefore estab-
lished consisting of Imperial Princes and noblemen, who
understood the military art or had been fighting in the field.



64 Constitution-making

This Council, though at first intended to be temporary,
survived the purposes for which it was created. It became,
till almost the end of the Manchu dynasty, the Supreme
Council responsible to the Emperor for the direction of
all State affairs, civil as well as military. European authors
on China described it as a ' Grand Council ', but in Chinese,
it retained its original name of ' Council of Military
Secrets '. The old Privy Council, which was still in existence
side by side with the Supreme Council, had become merely
ornamental.

In 191 1, the last year of the Manchu rule, the Govern-
ment abolished the Military Council and substituted for it
a Cabinet. It was presided over by one minister and two
deputy ministers ; all heads of Government departments
were made members of it. The title adopted was, however,
the same as that of the old Privy Council. Republicans
were reluctant to accept an institution which bore a
monarchical name. They altered the name to ' Council
of State Affairs ', and the Prime Minister became 'Chief
Manager of State Affairs '. In the rest of this chapter I
shall, however, for the sake of simplicity, use the terms
' Cabinet ' and ' Prime Minister '.

China, according to the Provisional Constitution, is a
parliamentary Republic, the essence of which, it is believed,
is a responsible Cabinet. It is provided that ' cabinet
ministers shall assist the President in assuming responsi-
bilities ' to Parliament, and that ' they shall countersign all
bills introduced by the President and laws and orders
issued by him '. In the Constitution of France, it is also
provided that ' ministers shall be collectively responsible to
the chambers for the general policy of the Government '.
Both the French and the Chinese rules are based on the



Cabinet 65

British doctrine that ' the King can do no A\rong ' and that
liis Ministers are responsible for his acts.

This conception of Cabinet Government is entirely new
to the Chinese. President Yuan Shih-k'ai, with his power
and intellect, was unwilling to play the role of a figure-head.
During his first two years of office, he made it a rule that
no Cabinet decision could be carried out until it had been
approved by him, either personally or at a conference.
He attended no Cabinet meetings ; his presence was neither
required nor prohibited by the Constitution. The usual
course adopted was that, after a Cabinet meeting, ministers
all went to his ' palace ' to report what had been discussed
or decided, and the President had a final voice in accepting or
rejecting their counsel. When occasion arose, he also initiated
projects and gave instructions to ministers. He even drafted
orders and decrees, when he thought that ministers were not
sufficiently equipped with classical and literary knowledge
to couch documents in impressive and persuasive language.

By administrative regulations he was given no department
with an organized staff, but he had at his command the
intellect of the country and foreign advisers of high standing.
Soldiers, lawyers, financiers, diplomats, interpreters, and
draftsmen were all at his service. In short, he had a staff
better equipped than the Cabinet or any Government
department. Moreover, his impressive personality and
successful career had won for him the trust and respect of
foreign diplomats and bankers in Peking. Through his
lieutenants he could reinforce the national treasury by
loans, when the Ministry of Finance failed to find means to
cover administrative expenses, and he had a way of solving
difficulties beyond the power of Cabinet ministers.

The first Prime Minister of the Republic (Mr. Tang



Online LibrarySih-Gung ChengModern China, a political study → online text (page 5 of 28)