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2016 | OriginalPaper | Chapter

9. Different Patterns of Applying Transitional Constitutionalism Between the Nationalists and the Communists

Author : David K. C. Huang

Published in: Legal Thoughts between the East and the West in the Multilevel Legal Order

Publisher: Springer Singapore

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Abstract

Modernisation has become China’s manifest prospect for the past 170 years, whereby the Imperial Court stabilised its reign and both the Nationalists and the Communists engaged in revolutions. Despite that either the failure or dissatisfaction of modernisation could trigger a new revolution in the twentieth century, China’s modernisation is not completely successful even until today, and the most crucial factor lies in China’s poor social condition. Transitional constitutionalism was promoted by both the Nationalists and the Communists. Its application of transitional constitutionalism not only provides a possible method for China’s modernisation but also constitutes a breeding ground for autocracy. The Nationalist Party was the pioneer of China’s transitional constitutionalism. The Nationalist Party aimed at China’s constitutional democracy, by constructing a ‘babysitting’ autocracy within a limited period of time, training the Chinese people to get used to democracy. The Communist Party applies the transitional constitutionalism differently. Since 1949, it has given diverse reasons of applying transitional constitutionalism: the reason of application is floating, but the purpose of application is one. This chapter will analyse the different patterns of applying transitional constitutionalism between the Nationalists and the Communists via constitutional legal-political doctrinal analysis along with legal historical and social studies.

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previous chapter Constitutional Change in Hong Kong and Taiwan in the Late Twentieth Century: A Comparative Perspective

next chapter The Presumption of Innocence Principle in the People’s Republic of China and in the West

Tung (1987), p. 13.

History shows that it did not take too much time for the Chinese elites to realise that China required modernisation. Ever since the end of the Second Opium War (1857–1860), the Empire aimed at modernising China’s industrial and military systems in accordance with Western learning (Li and Li (2008), pp. 103–136). In addition to the Imperial project of modernisation, there were at least seven schemes proposed (Hsu (2009), pp. 158–159).

Constitutionalism is for certain a concept originated from the West, but it consists in the modernisation schemes proposed by the Imperial Court, the Nationalists and the Communists. Hence, it is reasonable to conclude that the aforementioned modernisation schemes were all framed in accordance with Western ideologies, including constitutional monarchism, democratism and even socialist constitutionalism.

Ironically, China is still a land of experiment on modernisation even in the twenty-first century. The Chinese Communists still insist on developing socialism with Chinese characteristics via an ambiguous method called ‘wading across the river by groping for stones’ (Chen (1986), pp. 276–282).

Dupré and Yeh (2013), pp. 52–53.

State of emergency is also called ‘the exception’ (Bevir (2010), pp. 469–470) in democracies. However, it is obvious that the Chinese state of emergency is not an exception but the normality – we do not even know the rescission.

Krüger and Ule (1956), pp. 109–226.

Gill (2013), p. 135; Wang (2003), pp. 69–89.

Even the concept of republic is characteristically Western in origin and the Republic of China rejected two attempts to restore monarchy (1915–1916; 1917) via military operations (Li and Li (2008), pp. 398–411) before the idea of republicanism being consolidated – it was just not that easy.

I am aware that it may not be significant to discuss the difference between a republic and a democracy in the West (Terchek and Conte (2001), pp. 22–26), but let us face the darkness: there are still many republics that are absolutely not democracies in the world.

Tong (1998), pp. 134–136.

Woodhead (1925), pp. 7–278.

It is reasonable to conclude that founding a republic is easier than building a democracy in China. The Chinese people had established two republics (1911 and 1949), but they have been struggling with autocracy.

Liu (2008), pp. 162–197; Ch’en (1979), pp. 121–129; and Yang (2008), pp. 3–50. Professor Tong Te-Kong (1920–2009) of the Columbia University bantered the Nationalists by commenting that ‘expelling the (Manchurian) barbarians is easy but establishing the Republic (of China) is (far more) difficult’. See Tong (1998), pp. 217–247.

The 1912 Republic is named 《中華民國》 in Chinese, and it also has two levels of meaning: either ‘the Sinic Republic’ (Han Chinese national state) and ‘the Sinic Democracy’ (Han Chinese democratic state).

Tang (1996), pp. 273–276, and Yang (2008), pp. 3–50.

Ironically my late grandmother voted only for the Nationalist Party because of this reason.

He (1990), p. 359.

It is important to know that Sun Yat-Sen was a crucial political leader in China that he was honoured as the founding father of both the Republic of China and the Nationalist Party. Despite that he never received any form of legal education throughout his life, he attempted to design a new and unexampled separation of power system (Pentipartite Constitution) for China (ROC Ministry of National Defense 1973: 1–6).

Dr Wang Chung-Hui was one of the crucial jurists who perfected (or reconstructed) the Pentipartite Constitution. Hence, there is no clear evidence showing that he disagreed with Sun Yat-Sen throughout his life. See Chinese Nationalist Party (1981), p. 683.

Chang (1960), pp. 161–162.

Pines (2012), p. 169.

Here the Chinese difficulty in modernising the country through Western learning exposes: both democratism and constitutionalism are not the ideas of Chinese origins, so that both ‘imported’ ideas require lengthy processes of learning (adaptation). See Ostrom (1997), pp. 121–132.

Just as what Justice Herbert H.P. Ma (1926–) criticised: ‘in the traditional duty-oriented Chinese society, there had never been developed the idea of rights. Such ideas as an individual’s rights and freedoms were never heard of until the importation of foreign ideology into China…it is difficult for the Chinese people to understand this new concept…without an understanding and appreciation of the rights and freedoms of the individual’ (Ma (1999), p. 55); in my opinion, I am afraid that even Sun Yat-Sen had a poor sense of democracy because he never considered that his modernisation plan might be rejected by the Chinese people.

According to Professor Nigel N.T. Li (1954–), the Chinese traditional concept regarding the relationship between the ruler and the ruled only consists of democracy of the people and for the people, but not by the people (Li (2012), pp. 50–52). When we examine the then Nationalist political leaders via Professor Li’s criticism, an ironic and paradoxical mentality of these Nationalist leaders may be found: ‘I do everything for you, but I shall be the only one who makes the call’.

Wang (1997), pp. 23–24.

Rustow (1970), pp. 337–363.

Grasso et al. (2009), pp. 65–87.

As long as the approach of taking political power is revolution, of course, it is de jure lawless. See van de Ven (2003), pp. 94–132.

Warlords attempted to construct China’s first constitutional federation in the late 1920s; however, the Nationalist Northern Expedition (1926–1928) had terminated this scheme. It is also a matter of fact that these warlords often disregarded democracy, and thereby it is uncertain whether they would be bound by the scheme or not (Ch’en (1979), pp. 67–79).

Chang (1973), p. 127.

Moore (1966), pp. 413–432.

Lipset (1959), pp. 219–232.

Woo and Gallagher (2011), p. 13.

Li and Li (2008), pp. 389–431.

Chou (1997), pp. 101–116.

Tong (2002), pp. 127–170.

Ching (1984), pp. 173–347.

Id. at pp. 351–400.

Zhang and Liu (2002), pp. 71–80, and Zhang (2004), pp. 138–147.

Zhang (2004), p. 112.

Id. at p. 126.

Id. at p. 129.

Id. at p. 130.

I distinguish this system as the ‘constitutional single-party system’ from ordinary single-party system, because it refers to a political party with special status over constitution, and thereby the party is actually governmentalised that it shall not be considered as a normal political party. According to what I have known, the Chinese Nationalist Party is the world’s first political party that had such a constitutional status.

Kuei (2008), pp. 184–212.

Id. at p. 185.

Id. at p. 185–186.

Id. at p. 186.

Chang (1960), pp. 887–888.

This English version originally translated by the China Year Book 1935 (Woodhead 1935: 63–66) is reworded by David K. C. Huang.

Taylor (2009), pp. 49–96.

Eastman (1991), pp. 1–52.

Id. at p. 19.

Ashraf (1977), pp. 1–13 and Gould (2008), pp. 71–88.

Chiang (2009), pp. 128–149.

This English version originally translated by the China Year Book 1935 (Woodhead (1935), pp. 63–66) is reworded by David K. C. Huang.

Sun (1970), pp. 165–174; Ching (1984), pp. 401–445; Pan (1945), pp. 45–63.

People’s Education Press (2000), pp. 1–7.

People’s Congress is an old translation of the Republic of China’s National Assembly. It does not refer to the National People’s Congress of the People’s Republic of China.

Pan (1945), pp. 62–63.

See, for instance, Xin (1999).

The Nationalist dictatorship in Taiwan was based upon state of emergency, and the Nationalist Party obtained a dominate position because the Party’s Chairman was also the President of the Republic of China. It was completely a different model of dictatorship in contrast to Sun Yat-Sen’s political tutelage model, whereof I defined it as a ‘constitutional single-party system’ in my LL.M. dissertation submitted to Queen Mary, University of London in 2009.

Sun (1970), p. 136.

Foreign Language Press (1962), pp. 63–64.

Foreign Language Press (1962), pp. 23–31.

Dittmer (1998), pp. 3–292.

Foreign Language Press (1975), p. 8.

There are many types of socialism, and I am using the Chinese Communist definition, namely, ‘far left’.

Because the Chinese Communists could no longer accept any form of capitalism during the period of Cultural Revolution, hence, they must claim that China was already a socialist society and the hybrid system promoted by the 1954 Constitution must be perished due to their political need. About the Cultural Revolution, please see Feng (1996), pp. 1–250.

Foreign Language Press (1975), pp. 48–54.

Foreign Language Press (1978), p. 4.

MacFarquhar (2011), pp. 293–336.

Foreign Language Press (1983), p. 4.

Id. at p. 6.

It is a matter of fact that China induces its people to think that China is in danger and thereby China needs the Communist Party – we can easily find this logic pattern throughout the whole of China, such as their constitutional documents, history and politics textbooks or even their national anthem!

Fewsmith (1994), pp. 241–252.

Official translation. Please visit the website of the National People’s Congress of the People’s Republic of China.

Uhalley (1988), pp. 216–248.

Official translation. Please visit the website of the State Council of the People’s Republic of China.

Krüger and Ule (1956), pp. 109–226.

Tung (2005), pp. 64–65; and Mo (2004), pp. 69–81.

It is like the promissory estoppel (Stone (2005), pp. 96–97) in politics that the Nationalist Party was bound by Sun Yat-Sen’s promises.

Let us ask ourselves a very fundamental question raised by Baron de la Brède et de Montesquieu (1689–1755): why we need separation of powers if a person/political party in power would abandon the power voluntarily?

It reminds me an important doctrine regarding the promissory estoppel in English law: there must be a clear and unequivocal promise (see, for instance, Hughes v. Metropolitan Railway Co., [1877] 2 App. Cas. 439), or there would be no promissory estoppel. In other words, in English law, if a promise is vague, there is no promise at all.

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Title: Different Patterns of Applying Transitional Constitutionalism Between the Nationalists and the Communists
Author: David K. C. Huang
Publisher: Springer Singapore
Book: Legal Thoughts between the East and the West in the Multilevel Legal Order
Print ISBN: 978-981-10-1994-4

Electronic ISBN: 978-981-10-1995-1

Copyright Year: 2016
DOI: https://doi.org/10.1007/978-981-10-1995-1_9