China - The New Constitution

The new constitution of the Chinese republic was approved by the national assembly (Kuo Min Ta Hui) on December 25, 1946 and promulgated by the national government of Nanjing on January 1, 1947, becoming effective on December 25, 1947, pending its real existence as soon as the China’s political conditions will allow it.

According to CANCERMATTERS, the precedents of the constitution must be traced back to the period of political protection, as the period that followed the repression campaign of the War Lords of 1926-28 was designated and, more precisely, to the “Provisional Constitution of the period of political protection”, in 8 chapters and 81 articles, promulgated on 1 June 1931 in Nanjing. It was followed by the various projects for a definitive constitution: the “John Wu Project” of June 8, 1931; the “Preliminary Project of the Constitution of the Chinese Republic” of March 1, 1934, subsequently modified on July 9 and October 16 of the same year. In 1937, on October 17, during its meeting, the central executive committee of the Kuomintang recommended that the drafters of the constitution keep in mind the principles of “triple demism” by Sun Yat-sen; to avoid excessive restrictions on executive power; not to give too much detail to the relations between provincial and central governments; to keep the number of articles to a minimum. The “Second Preliminary Project” and the “Third Preliminary Project” were inspired by the aforementioned principles, published respectively on 25 October 1935 and 5 May 1936; the latter, the best known, was later called “The double five project” from the date of its publication. The political situation, however, made it impossible to approve a permanent constitution: the war with Japan prevented the convening of the national assembly which was to take place on August 19-20, 1940, and it was only between September 6 and 13, 1943 that the Kuomintang Central Executive Committee in Ch’ung-K ‘ ing passed a resolution by which the national assembly was to be convened within a year of the end of the war. After the war, Ch’ang Kai-shek invited the head of the Communist Party of China, Mao Tse-tung, to Ch’ung-K’ing to discuss topics of national interest. declarations in which there was a hint of the common intention, on the nationalist and communist sides, to bring before the People’s Political Council with the participation of the members of the various parties: a committee was appointed which began its work on February 14, 1946; but, while it was still intent on studying the various problems, during the 2nd plenary session of the central executive committee of the Kuomintang, which lasted from 1 to 17 March 1946, other principles were approved which were not accepted by the communists, because they were deemed contrary to the spirit of the previous agreements. Thus on November 15, 1946, on the occasion of the opening of the national assembly, the Communist Party and the Democratic League did not send their representatives: the assembly thus opened with a participation of 1400 members of the 2050 that should have had. The draft constitution was presented to the assembly which, through subsequent amendments, was approved on 25 December 1946 with the decision to bring it into force on 25 December 1947:

This constitution consists of a preamble and 175 articles divided into 14 chapters. The preamble states that the constitution was adopted by the national assembly “by virtue of the mandate received from the people and in accordance with the doctrine of Sun Yat-sen”. The art. 1 affirms that the Chinese republic, founded on San Min Chu I (three principles of the people) is a democratic republic of the people, for the people and governed by the people; art. 5 affirms the equality of all races in the republic. The art. 7 affirms the equality before the law of every citizen, regardless of sex, religion, race, social class or party; art. 24 establishes that the citizen has the capacity to act towards the state for the reimbursement of damages suffered as a result of the violation of his freedom and his rights.

The National Assembly (Articles 25-34) is the supreme body of the Chinese people: its members are elected on a territorial and professional basis and remain in office for a period of 6 years. The functions of the assembly are: the election and dismissal of the president and vice president; changes to the constitution; the ratification of the amendments to the constitution proposed by the legislative Yüan.

The president (articles 35-52) remains in office for 6 years, unless he is re-elected and is replaced by the vice-president in the event of a vacancy or in case of inability to fulfill his duties. In the event of vacancy of the positions of president and vice-president, the president of the executive Yüan takes over. The fifth, sixth, seventh, eighth and ninth chapters (articles 53-106) deal with the organization of the five Yüan or commissions: executive, legislative, judicial, examination and control. From the position of equality in which they had to remain, according to the program of Sun Yat-sen, they have assumed an aspect that makes them resemble, according to Western schemes, the executive to a cabinet, the legislative to a parliament, that of examinations to a standing committee for the supervision of state examinations and competitions, and that of control to something between the upper house and the court of auditors. The president of the executive Yüan has a position reminiscent of that of a Western premier; he is responsible before the legislative Yüan and must, according to art. 55, gain the trust of Yüan himself.

Chapter 10 (Articles 107-111) establishes the powers of the central government and of the various local governments; the eleventh chapter (articles 12-136) deals with the system of local governments by establishing the distinction between the province and Hsien (the smallest Chinese administrative unit), which two bodies will have an autonomous figure.

The thirteenth chapter deals with the foundations of national politics (articles 137-169): according to art. 141 Chinese foreign policy must, in a spirit of independence and initiative and on the basis of the principles of equality and reciprocity, cultivate relations of good proximity with other nations, respect the treaties and the charter of the United Nations in order to protect the rights and interests of Chinese abroad, promote international cooperation, advance international justice and ensure world peace. Articles 168-169 are dedicated to the problems of border regions for which the state must guarantee adequate protection, in order to allow the formation of self-government and promote education, culture,

China - The New Constitution