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years ; or those who have been principals or teachers
in a Government university for more than three
years ; or those who have contributed to learning by
publication or by some invention which has been
certificated by a Government department concerned.

(2) Retired presidents, vice-presidents, cabinet ministers

those who have been Government officials of the
first grade for more than one year, or those who have
received the Order of Merit of the third class.

(3) Those who pay an annual direct tax of more than one

thousand dollars, or possess property of more than



94 Constitution-making

one million dollars in agricultural, industrial, or com-
mercial concerns, that have been examined and certi-
fied by the Government departments concerned.

(4) Subjects abroad possessing property of more than one

million dollars which has been examined by Consular
officials.

(5) Manchurian or Mongolian Princes and Dukes possess-

ing administrative experience.

Voters of each group elect Senators ; the first group elects
ten Senators, the second eight, the third five, the fourth and
the fifth three each. The disqualifications mentioned above
are equally applicable in the case of the Central College.

Under this scheme, not only the number of Senators
elected (168) will be much reduced compared with that
elected under the old law (264), but the qualifications
required of voters are so high that, for many years to come,
there will be in the whole of China not more than a few thou-
sand voters to constitute the local and the central colleges.
The object is to make the Senate represent those and those
only who have received a modern education of a high stan-
dard (which is difficult for the Chinese to get), or who have
accumulated wealth or served the Government in responsible
positions. The federal character of the Senate is eliminated
and it is now made very bureaucratic and aristocratic.

It is true that the Senate should not be elected on
a popular franchise, as it is always intended to be a check
and balance to the House of Representatives, and that, at
this infant stage of parliamentary government in China,
there is special need of a Senate that represents only intel-
lectual and experience'd persons. But the qualifications
enumerated above are decidedly too restrictive. Officials
of low rank or graduates of low grades may be equally careful



Legislature 95

and intellectual in exercising their right to vote, and may
sometimes even possess political intelligence and powers of
discretion which are denied to persons more imbued with
book knowledge or more immersed in officialism. Moreover,
political wisdom and sagacity are not always acquired in
schools or in Government departments. Shrewdness in
observation and promptitude in decision, which are useful
qualities for politicians, may be acquired in commercial life
or by private study without going through a school.

In fact, though I believe in giving plural representation
to those who have distinguished themselves in learning and
in administration, and recognize the advisability of securing
their services in representative institutions, I do not think
that an assembly consisting of them exclusively will be ideal
as a legislative chamber. People drawn from the same strata
of society and brought up in the same atmosphere are often
narrow in their outlook and unable to understand the needs
of those who are differently situated and brought up under
different circumstances. A heterogeneous assembly is, in fact,
more likely to promote the welfare of the different classes
of the community, provided the heterogeneous elements
co-operate.

Let us consider some other methods by which a Senate
may be constituted. If the precedents in other countries
are followed, there are three ways opened to China. Firstly,
she may entrust the election of Senators to the members
of the lower House. This system is recommended by Lord
Bryce^for the reform of the British House of Lords and will
be suitable for China because the House of Representatives
consists, or should consist, of persons of intellect and
experience, which are believed by the Chinese to be the

^ Cd. 9038. Conference on the Reform of the Second Chamber.



96 Constitution-making

necessary qualifications for voters at senatorial elections.
But objection is made on the ground that it would increase
the influence and functions of the lower House — an increase
that is undesirable at this experimental stage of parliamentary
government.

Secondly, the Senate may be elected by colleges consisting
of members of the lower House, of provincial assemblies,
and of district councils. Such is the system in France.
There are practical difficulties in introducing it into China,
because the district councils in many parts of the country
are not yet organized. Moreover, the participation by the
lower House and the provincial assemblies in the election
enables them to exercise control over the Executive in Peking
through their senators, and this control may compromise
the independence and stability of the Executive and the
Central Government.

The third alternative is nomination, as practised in Italy.
This is in fact the best system for China, taking all things
into account. In the first place, it will avoid all the trouble
of election as required by the law of 191 8, and yet produce
practically the same results. The reason is that, under the
provisions of that law, the electorate will be so small that
the nominating authorities will be in a position to chooce
exactly those who are likely to represent its interests — men
of intellect, wealth, and administrative experience. Nomina-
tion will bring persons possessing these qualifications into
office, but need not be restricted to these persons, as is
the case under the present law. It will be influenced by
considerations of the achievements of the nominee, and yet
it v.dll not negessarily produce a Senate wholly consisting
of privileged classes.

In the second place, a nominated Senate will be more



Legislature 97

amenable to executive control and, in times of conflict
between the Cabinet and the lower House, will be very
likely to support the Government. It will then strengthen
its position and exercise a moderating influence over the
passions and tumults of the Chamber popularly elected. At
the present time, when Parliament in China is not always
representative, and when the Government should be made
as stable as possible, it is indeed desirable that the Cabinet
should be provided with an instrument by which it can
control the representatives. So much for the Senate.

Let us now see how the lower House is constituted. The
law of 191 2 provided that the members of the lower House
should be elected by the people by an indirect election at
the ratio of one representative for 800,000 inhabitants. This
ratio has been changed by the law of 1918 to ' one for
1,000,000 '. By the law of 191 2 any male citizen of China
over twenty-one years of age, or over twenty-five under the
law of 1918, is eligible as a voter at the first stage provided
that he has been resident in the electoral area for more
than two years at the time of the compilation of the register
of voters, and possesses any one of the following qualifica-
tions :

(i) Payment of an annual direct tax of $2 or upwards
under the law of 191 2 ; or of $4 or upwards under
the law of 1918.

(2) Possession of immovable property of I500 or upwards

under the law of 1912 ; or of $1,000 or upwards
under the law of 191 8.

(3) Graduation at an elementary school.

(4) Possession of an education equivalent to that of

Clause 3.
The disqualifications from voting or being elected that

1832.13 ,T



gS 'Constitution-making

have been enumerated above in connexion with the election
of senators are equally valid in the case of the election of
the members of the lower House. Under the law of 191 2,
opium-smoking is a disqualification for both voting and
being elected, but the law of 191 8 omits it.-*-

All Chinese male citizens over twenty-hvc years of age
under the law of 1912, or over thirty under the law of 1918,
are eligible as members of the lower House, provided they
are not subject to any of the disqualifications enumerated
above.

The elections both in the first and in the second stage
are effected neither by the single-member-constituency
system nor by that of proportional representation. The
total number of electors for the first stage election in
a district should be divided by the number of members
to be elected by it, which is fifty times the number of the
representatives to be returned by the second stage electorate,^
of which this first stage electoral district forms a part. The
quotient obtained by the division will give the number of
electors to each member in the first stage election, -and
the number of electors in each first stage electoral district
divided by this figure gives the number of members to be
elected by that district.

For the second stage election, it is provided that the
election oflficer should divide the total number of second-
Stage electors in a province by the total number of repre-
sentatives allotted by law to that province. This will give
the proportion of second-stage electors to each representative.

^ Perhaps because in 191 8 the habit of opium-smoking has ahiiost
disappeared.

' The number of representatives to be returned by a second stage
electoral district is fixed by the Election Officer.



Legislature 99

The total number of electors in each second-stage electoral
district should then be divided by this (proportion) number
and the quotient will give the number of representatives
to be returned by that second-stage electoral district.

Candidates at the first-stage election are elected if they
have got one-third of the total number of votes obtained
by dividing the total number of voters in the district by
the number of candidates to be returned ; and candidates
at the second-stage election are returned if they have got
a number of votes more than one-half of the number pro-
duced by dividing the total number of voters in that district
by the number of candidates to be returned by it.

It should be noted that of the 800,000 or 1,000,000
inhabitants represented by one member in the lower House
less than 10 per cent, have votes ; and that the voters
themselves practically exercise no influence in the choice of
representatives, as the latter are chosen by the members
of an electoral college in the second stage who can elect
anybody they like without consulting the wishes of the voters
in the first stage. Election by two stages is, of course, no
invention of the Chinese. It is expounded and criticized
by J. S. Mill in his work on Representative Government,
and it is practised in the Presidential Election of the United
States. But the difference between the American Presi-
dential and the Chinese parliamentary election is that, in
the case of the former, voters in the second stage are pledged
to vote for a candidate, while, in the case of the latter, voters
have their own choice of candidates. Ko doubt, in China,
as in America, political parties exercise influence on their
choice, but the difference again is that in America voters
are pledged to vote for a Republican or Democratic candi-
date, before they are nominated ; while in China party

II 2



100 Constitution-making

influence only comes in when the list of voters in the second
stage has already been announced.

A constituency of 800,000 or 1,000,000 inhabitants is in
fact too vast for one representative, and the election by two
stages, as Mill contends, deprives the voters of one of the
principal uses of giving them a vote, namely, ' the political
function to which they are called fails of developing public
spirit and political intelligence, of making public affairs an
object of interest to their feelings and of exercise to their
faculties \^ The undesirability of indirect election is also
pointed out by Mr, Montague in his report on Indian
Reforms of 1918.^

The essence of representative government is that it is
subject to control by public opinion. For the growth of
public opinion several conditions are requisite. Homogeneity
of population is one of them, according to Mr. A, L.
Lowell.^ By homogeneity one does not mean that all think
alike, act alike, or believe in the same thing, but that they
do so with regard to fundamental measures affecting the
welfare or interest of the community. In this respect
China finds no difficulty in. her path. Within her boundary,
though there are populations of different races, all are
moulded in character and in belief by the same Confucian
civilization ; and on vital questions like the industrial
development of the country and the reorganization of
national defence, the Manchus, the Mongols, the Tartars,
and the Chinese of the North and the South are essentially
at one.

The real difficulty in the growth of public opinion in

^ J. S. Mill, Representative Government, p. 294 (Everyman Edition).
- Report on East Indian Constitutional Reforms.
^ Public Opinion and Popular Government, p. 34.



Legislature loi

China is that the people at large are not always interested
in politics. The average Chinese is industrious, honest,
and virtuous, but to use an Aristotelian phrase, a good man
is not necessarily a good citizen.^ In a country where
representative institutions exist, every citizen has rights as
well as duties. He should exercise and defend his rights,
as well as fulfil and perform his duties. But in China,
government of the country has always been considered
the business of a few persons superior in character and in
intellect, and not the concern of ordinary citizens. Govern-
ment by intellect may have its advantages, and the so-called
government of the people, by the people, and for the people
in America and in Europe may not in practice amount to
more than a government by a few active members of the
community ; but China differs from America and Europe in
this respect. In America or Europe the public may be
unable to form a judgement of their own on a complex
and composite question, but they take an interest in the
opinion of those who are better informed and thus become
leaders of public opinion. In China the vision of the
average peasant or workman does not go beyond his village
or workshop, and his interests are confined to his family.
He obeys the ordinance of the Government, if it does not
interfere with his occupation. He exercises his right to
revolt, if it is obnoxious. He has no notion that he, together
with his fellow countrymen, has the power to determine
what kind of laws and administration he should get ; and
he has no idea that, If he possesses a vote, he should have
a representative in Parliament who should truly represent
his interest.

So far I have indicated the difficulties of China in working
^ Politics, iii. 4, § 5.

LIBRARY
UNIVERSITY OF CALIFORNIA



102 Constitution-making

her representative government, but difficulties are no
deterrent. In fact, it is only through a realization of these
difficulties and an attempt to solve them that we may hope
to establish representative institutions on a solid foundation.
Moreover, these difficulties are not peculiar to the Chinese.
They have been experienced by European countries which
adopt this system of government. After the passing of the
first Reform Act of 1832 in England which enfranchised
the middle class, the outstanding cry was ' Democracy
without education is a great danger '. The ingenious and
constructive statesman, Mr. Robert Lowe, summarized the
situation after the second Reform Act in 1867 by saying
that ' we must now at least educate our new masters '.
China is now more or less in the same position as England
before 1832, and it is only by educational efforts that the
people can be brought up to the standard required by
representative government.

But, as Mr. Curtis points out in his ' Letters to the people
of India on Responsible Government ', people will never
get the political education required of them if they are to
wait till the opening of schools in which to train themselves.
The opening of schools throughout a vast country is a
laborious process and the training takes time. Moreover,
schools are not the place to train citizens for political
purposes, though they may give them information and
knowledge which will enable them to understand politics.
Actual participation in politics is always the best and the
easiest means of getting political education, and leaders of
public opinion often arise from the school of practical
politics. The enfranchisement of an ignorant mass may
temporarily produce unwholesome results, but it is the
only way to arouse its interest in politics. It is the only



Legislature 103

way by which the people can be compelled to discuss
political problems and think of the meaning of the franchise.
In fact, it may be said with truth that although the
dissolved Chinese Parliament did not work well, it has
already made a large number of Chinese think more of
politics.

The proportion of 1,000,000 inhabitants to every repre-
sentative is, as already stated, too large, but it is difficult
to diminish it, as the number of representatives must be
limited so as to reduce the lower House to a workable
size. The present assembly of five to six hundred persons
is too large to deliberate on serious problems, and the size
of the dissolved House of Representatives of China is
perhaps accountable for its excesses. A further reduction
of its size would, on the other hand, only increase the
inadequacy of representation of the electorate, and a small
assembly pretending to represent a large number of electors
and numerous interests would tend to become autocratic.

But the complicated character of indirect election and
its hindrance to the education of the electorate, as stated
above, are not necessary evils. I see no insurmountable
difficulty in holding direct parliamentary elections even in
large single-member constituencies, and, on the other hand,
the process of election detailed above is much too com-
plicated for the average Chinese to understand, apart from
objections to it on theoretical grounds. It is easy and
expedient to declare the candidate elected who has got
a larger number of votes than any of his rivals. The fear
is that, at present, when political parties in China are not
well organized, there may be many candidates in one
constituency and that the candidate who gets more votes
than any of the others may only get a small fraction of the



104 Constitution-making

total number of votes cast. But this fear may be equally
justified in the case of an indirect election, as voters in the
second stage may also distribute their votes among numerous
candidates. Proportional representation or any other
similar device will be difficult to work in China, as it will
require some political intelligence for the electors to grasp
such a scheme. But a direct election with all its defects
will be simpler than the indirect, as it can be effected in
one stage.

There is at present no difference in the functions and
powers of the two Houses. These functions and powers
are :

(i) To pass all laws.

(2) To pass the budgets of the (Provisional) Government,

(3) To pass measures of taxation, of currency, and of

weights and measures for the whole country.

(4) To pass measures for the incurring of public loans and

to conclude agreements affecting the National
Treasury.

(5) To give consent to appointments of Ambassadors,

Ministers, and Cabinet Ministers ; to declaration of
war and conclusion of peace ; and to general
amnesty.

(6) To reply to inquiries from the Government.

(7) To receive and consider petitions from citizens.

(8) To make suggestions to the Government on laws or

other matters.

(9) To introduce interpellations to the members of

Cabinet and to insist on their being present in
Parliament to make replies thereto.

(10) To insist on Government investigation into any
alleged bribery and infringement of laws by officials.



Legislature 105

(11) To impeach the President, if he be held to have
acted as a traitor by a majority vote of three-fourths
of the members present with a quorum of more than
four-fifths of the total number of members.

(12) To impeach any member of the Cabinet, if he be
held to have failed to perform his official duties or
to have violated the \^-w by a majority vote of.tvvo-
thirds of the members present with a quorum of
over three-fourths of the total number of members.

Both the law of 191 2 and that of 1918 provide that each
Chamber can conduct the following business independently :
(i) Institute a debate ; (2) Decide on interpellations ;
(3) Demand an investigation of charges of bribery or viola-
tion of the law against officials ; (4) Reply to inquiries from
the Government ; (5) Receive petitions from the people ;
(6) Permit the arrest of its members ; (7) Adopt regulations
and rules of procedure. Estimates and accounts of the
Government should, however, be first discussed in the
lower House.

It is on the model of Italy and France that the two
Houses of Parliament should possess the same functions
and powers, but in practice the Italian and the French
Cabinets are only responsible to the Chamber popularly
elected ; and they rarely resign on an adverse vote of the
upper House.

In the United States, the Senate exercises administrative
and judicial functions in addition to its legislative duties,
while the House of Representatives is confined to legis-
lation.

In China the powers of the two Houses should not be
co-equal. The Senate, which, according to my plan, is
nominative, and is therefore very likely to uphold the



10 6 Constitution-making

Government point of view, should be granted some powers
which are denied to the other House, Of these powers, the
most important will be those relating to foreign affairs.
Diplomatic questions may not be discussed in public and
should be free from the scrutiny of the lower House. But
to prevent the Government from acquiring too much
independence in its conduct of external relations which
often affect the vital interests of the State, it will be
reasonable to lay down the rule that sanction by the
Senate is necessary for the ratification of treaties, including
treaties of peace, and for the declaration of war. The
provision that sanction of the Senate is required for official
appointments of certain kinds will also put some restriction
on the power of appointment enjoyed by the Executive
and be a precaution against its indulgence in personal
favours.

The question will then arise whether the Cabinet should
be made equally responsible to both Houses, because the
second Chamber exercises some functions denied to the
first. It seems certain, however, that so long as the first
Chamber retains the power of financial control and that of
impeachment of the President and Cabinet Ministers, it
can always keep a hold over the Ministry. Foreign policy
of any importance must affect the national finance, and an
official appointment unacceptable to the lower House can
always be brought up for criticism when the budget of the
department responsible for it is introduced into the House
for discussion. It can therefore be said that the principle
of Executive responsibility to the lower House alone need
not be impaired, even though powers and functions are
divided between the two Chambers. In that case, it is not
necessary for the Government to resign on an adverse vote



Legislature 107

of the Senate, so long as it is supported by the House of
Representatives.

The power of impeachment is possessed both in America
and in France by the lower House, and there is hardly any
reason that China should grant it to both Houses alike.
It should be reserved to the lower House. It has been
suggested that as the Censorate worked well during the
Manchu reign, it should be revived to exercise the power
of impeachment instead of Parliament, but a Censorate
will necessarily be appointed by the President on the
recommendation of Cabinet Ministers, and it will be
difficult to expect justice from censors in cases involving
the honour of those who appoint them.

According to the Provisional Constitution, the impeach-
ment of Cabinet Ministers involves their removal from
office by the President and, if necessary, a trial by ordinary
courts. But the impeachment of the President would
involve a trial by a special court. The suggestion made



Online LibrarySih-Gung ChengModern China, a political study → online text (page 8 of 28)