When the Qing Dynasty was overthrown in 1911 and the Republic of China (ROC) was proclaimed, the revolutionaries led by Sun Yat-sen embarked on an ambitious experiment to modernise the country according to liberal Western ideals of democracy, human rights and division of powers. The new Republican government issued a Provisional Constitution which guaranteed progressive democratic rights, including judicial independence. However, after the first elections held in 1913, general Yuan Shikai unlawfully seized power and suppressed the elected parliamentary majority. Sun Yat-sen and his party, the Guomindang, were forced into underground opposition. When Yuan died in 1916, the central government fell apart, and regional warlords created personal fiefdoms in which they ruled like monarchs.
The 1912 Constitution was inspired by the ideals of the American and French revolutions. But the failure of democracy, the repression suffered at the hands of Yuan Shikai and the warlords, and the threat of foreign imperialism convinced Sun Yat-sen that democracy in China was unattainable as a short-term goal. He observed with keen interest the events of the Russian revolution, and the triumph of the Communists led by Lenin seemed to him an example of a revolutionary party that had succeeded where the Guomindang had failed. Sun asked for Soviet help, and Russian advisers were sent to China to reorganise the Guomindang on the basis of Leninist principles.
A key element of the Communists’ victory and their consolidation of power was the Red Army. In 1923 Sun Yat-sen sent Chiang Kai-shek and other two envoys to Russia to study the Communist Party‘s organisation and the Red Army. One year later, Sun inaugurated the Whampoa Military Academy, headed by Chiang Kai-shek (see R K Sahay: History of China’s Military, 2016, Chapter 7).
In this period Sun formulated the theory of the “three revolutionary stages”: first, military rule; second, political tutelage; third, constitutional government. The concept of a period of political tutelage opened the prospect of dictatorial rule which, after Sun’s death in 1925, was fully utilised by Chiang Kai-shek in order to establish a one-party state. In 1927 Chiang led the Northern Expedition and unified most of China under a central Guomindang government, which in 1931 promulgated a new Provisional Constitution for the period of political tutelage (see Jianfu Chen: Chinese Law: Towards an Understanding of Chinese Law, Its Nature and Developments, 1999, pp. 62-63).
The ROC Constitution of 1912 had broken with the legal traditions and values of the defunct Chinese Empire, because it focused on democracy, human rights and the division of powers. Consequently, it did not include legal instruments which created an autocratic, centralised state. But after 1927, under the influence of Leninism and militarism, the ROC Constitution was turned into a tool of Guomindang one-party rule. We have already demonstrated that Leninist principles seamlessly fitted into the Legalist principles of pre-1911 Chinese law. Since the Guomindang and the Chinese Communist Party (CCP) were organised according to Leninist methods and structures, both of them viewed the law as a weapon in the hands of a party to establish a dictatorship. But because this was also the main goal of Legalism, this old school of thought could be easily incorporated into post-imperial constitution-making and legislation.
The Provisional Constitution of 1931 preserved the main elements of the 1912 Constitution, but it completely altered its original democratic spirit by adding the principle of political tutelage. Chapter III, entitled “Essentials of Political Tutelage” stated:
ART. 31. The National Government shall train and guide (the citizens) in the exercise of the four political rights of election, initiative, recall and referendum.
ART. 32. The National Government shall exercise the five governing powers, namely, executive, legislative, judicial, examination and supervisory.
The fact that the Guomindang authorities exercised all five powers and were at the same time supposed to “train” and educate the people in understanding democracy was a contradiction which was not resolved until the Party allowed the formation of opposition parties and free elections in Taiwan during the 1980s and 1990s. From 1927 until the last two decades of the 20th century, the Guomindang was a repressive one-party dictatorship which de facto only paid lip service to democracy.
Nevertheless, one should not underestimate the importance of democracy in the Guomindang state. It is true that democracy was not practiced or allowed. However, it is also true that democracy was never repudiated and it remained a long-term goal of the Party. As a result, the 1931 ROC Constitution, although it established a Party-state, did not aim to use the law as an instrument of perpetuation of Party rule. In spite of the obvious disparity between theory and practice, it may reasonably be argued that the ROC Constitution was more progressive than the Constitutions promulgated later by the Communist government in China. While the Guomindang enshrined democracy as a long-term goal, the current Constitution of the People’s Republic of China (PRC) completely denies or downplays human rights, civil liberties and democratic, peaceful change of government.
This interpretation is confirmed by the new constitutions promulgated by the Guomindang government in 1936 and later in 1946, in which the dictatorial elements of the 1931 Constitution were removed. The 1946 Constitution remains in effect to this day, and it has proved to be suitable for the establishment of a democratic and free society. However, in 1946 there was still a difference between the theory of progressive law and democracy and the practice of authoritarian power. As a matter of fact, the Chiang Kai-shek government devised a new “legal” instrument to circumvent the Constitution. On May 1948, the Guomindang government enacted the “Temporary Provisions Effective during the Period of the Communist Rebellion“, which provided the government with dictatorial powers during the civil war between the Guomindang and the Communists. Yet the Provisions were in effect for four decades and were abolished only in 1991. The fact that the Guomindang felt compelled to issue such laws shows that the 1946 Constitution was too progressive and democratic to provide a legal basis for one-party dictatorial rule.
The Constitution of the People’s Republic of China, by contrast, contains a far stronger synthesis of Legalism, Leninism and imperial legal traditions. For the purpose of the present article we shall understand Leninism as the organisational principles of a Party which by force establishes a dictatorship and becomes identical with the state.
Read: Law In Post-Mao China: Confucianism, Legalism, Imperial Traditions
Let us now examine some articles of the PRC Constitution:
Article 1 The People’s Republic of China is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants. The socialist system is the basic system of the People’s Republic of China. Disruption of the socialist system by any organization or individual is prohibited.
Article 22 The State promotes the development of art and literature, the press, radio and television broadcasting, publishing and distribution services, libraries, museums, cultural centres and other cultural undertakings that serve the people and socialism, and it sponsors mass cultural activities.
Article 23 The State trains specialized personnel in all fields who serve socialism, expands the ranks of intellectuals and creates conditions to give full scope to their role in socialist modernization.
Article 24 The State strengthens the building of a socialist society with an advanced culture and ideology by promoting education in high ideals, ethics, general knowledge, discipline and the legal system, and by promoting the formulation and observance of rules of conduct and common pledges by various sections of the people in urban and rural areas.
The State advocates the civic virtues of love of the motherland, of the people, of labour, of science and of socialism. It conducts education among the people inpatriotism and collectivism, in internationalism and communism and in dialectical and historical materialism, to combat capitalist, feudal and other decadent ideas.
Article 28 The State maintains public order and suppresses treasonable and other criminal activities that endanger State security; it penalizes criminal activities that endanger public security and disrupt the socialist economy as well as other criminal activities; and it punishes and reforms criminals.
Article 51 Citizens of the People’s Republic of China, in exercising their freedoms and rights, may not infringe upon the interests of the State, of society or of the collective, or upon the lawful freedoms and rights of other citizens.
Article 52 It is the duty of citizens of the People’s Republic of China to safeguard the unification of the country and the unity of all its nationalities.
Article 53 Citizens of the People’s Republic of China must abide by the Constitution and other laws, keep State secrets, protect public property, observe labour discipline and public order and respect social ethics.
Article 54 It is the duty of citizens of the People’s Republic of China to safeguard the security, honour and interests of the motherland; they must not commit acts detrimental to the security, honour and interests of the motherland.
Article 55 It is the sacred duty of every citizen of the People’s Republic of China to defend the motherland and resist aggression.
It is the honourable duty of citizens of the People’s Republic of China to perform military service and join the militia in accordance with law (my emphasis).
A brief analysis of the above-quoted articles shows that the PRC Constitution is entirely consistent with basic tenets of Legalism and Leninism. This confirms the conclusions of our previous article in which we have examined the criminal codes of the ROC and of the PRC.
Summing up the findings of the present article, we may conclude that the ROC Constitution clearly departs from Legalism and imperial law, except for the period in which the Guomindang re-introduced elements of autocracy to consolidate its one-party rule. The PRC Constitution, on the contrary, is inherently dictatorial and combines the compatible elements of Legalism and Leninism in order to create a one-party state in which the law serves to prevent and punish every attempt, both by peaceful and violent means, to change the government.