Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 8, 1914
File No. 893.03/9.
Minister Reinsch to the Secretary of State.
Peking , January 16, 1914 .
Sir: I have the honor to enclose herewith for your information a clipping2 from the Peking Daily News of the 12th instant giving a translation of the mandate issued on January 10 by which the President ordered the temporary suspension of the National Assembly, together with the proclamation simultaneously issued on the same subject.
I also enclose a clipping2 from the Peking Daily News of January 13 giving a translation of the mandate of the 11th instant by which the President instructed the Administrative Conference to consider and decide upon the mode of organization of a constituent assembly to amend or replace the provisional constitution.
The dissolution of the Parliament does not come as a surprise. The remnant of the National Assembly which was left after the dissolution of the Kuo Min Tang [National Party] in November3 was not sufficient for a quorum, and the regular business could not, therefore, be conducted. The reconstitution of the National Assembly [Page 43] through new elections for the places vacated would not at all, it is believed, have brought a satisfactory result, on account of the fact that there would still be a lack of cooperation among the old members, the new members, and the Government. The dissolution of the Parliament was accompanied with declarations strongly favoring representative institutions and promising that steps for the reconstitution of a parliament upon a more adequate and sufficient basis would be taken.
While the Government is not very clear and definite in its purposes and policies connected with this matter, it seems that the present plan is to have the Administrative Conference work out a proposal for a constituent assembly in which the provinces as well as the Central Government are to be represented. This constituent assembly is to work out a project for a permanent constitution. It has not yet been announced whether this project is to be considered as adopted ipso facto by the action of the constituent assembly, or whether it is to be submitted for ratification to some other body or to a plebiscite. No matter what formal arrangements may be made, under the present conditions the judgment of the Government itself as to the form which the permanent constitution is to take would be decisive.
Among the various proposals for a permanent constitution, that prepared by Professor Goodnow, a copy of which is enclosed, has received a good deal of favorable attention. It is undoubtedly true that the presidential form of government is more adapted to political conditions in China than the cabinet form would be. A strong presidential power with a parliament of not much more than advisory functions would, however, undoubtedly be most in accord with the desires of the Chinese Government at the present time.
His Excellency President Yuan and the members of the Chinese Government continue to assert their firm belief that representative institutions are essential for China; yet many observers are impressed by signs of reaction towards a very authoritative form of government. Among those suggested, the worship of Heaven by the President is the principal one. I enclose an account from the Peking Gazette of January 134 of the proposals submitted by the Government with respect to the worship of Heaven and Confucius; also an account from the Peking Daily News of today’s date4 of a debate on this matter in the Administrative Conference. I would call especial attention to the remarks of Chairman Li, who underlines the specifically political character of the proposed sacrifices. That so much attention should be given to these matters of ceremony at a critical time like the present shows the importance which the President and his advisers attribute to these elements of belief among the masses of the people. In a conversation which I had with the Minister of the Interior on this matter he stated that should a failure of crops or some other great disaster occur in China the officials would surely be blamed by the people for having omitted the accustomed sacrifices to Heaven. He also stated that these ceremonials should be given such a form as not to imply a conflict with religious beliefs of any kind. But it is my opinion that while the worship of Heaven might be regarded as a ceremony of respect consistent with a common belief in an overruling divinity, the public worship of Confucius, especially if required of local officials, [Page 44] would certainly be regarded as incompatible with complete religious freedom.
I have [etc.]
Doctor Goodnow’s Draft of a Constitution for China, reprinted from the Peking Gazette.
The following is a draft constitution prepared by Dr. F. J. Goodnow, the President’s Legal Adviser. It is accompanied by explanatory notes, and is of special interest as showing the views of an experienced constitutional expert upon the form of constitution best suited to China’s present needs.
We the people of the Republic of China do ordain and establish this Constitution for the Republic of China.
Section 1. The legislative powers of the Republic of China are vested in a Parliament, which shall consist of a Senate and a House of Representatives.
The Parliament may, by law, delegate either to the President, to the Courts or to the Provinces the exercise of any of its powers; but any action taken by the President, the Courts or the Provinces as a result of the exercise of a power delegated by the Parliament, may be repealed by the Parliament.
Note.—This constitution has been drafted with the idea that the government of the Republic of China will not be a federal government like that of the United States but a centralized government like that of France. All the legislative powers of the Republic have therefore been granted to the Parliament of the Republic.
The section must, however, be read in connection with Article IV. Reference to this article will show that the intention of the draft is to grant all legislative powers to the National Parliament but at the same time to recognize that the Provinces possess, until Parliament shall fix the powers they are to exercise, the same powers of legislation as those of Parliament. The exercise of these powers of legislation by the Provinces is subjected, however, to the necessity of obtaining the approval of the President of the Republic. It is believed that, if the plan proposed is followed, each one of the Provinces will have powers of local government sufficient to permit it to attend efficiently to local matters, but that the central government will have a control over the actions of the Provinces strong enough to protect the unity of the Republic.
Provision has been made for the delegation of its powers by Parliament to the President of the Republic, to the Courts and to the Provinces in order to make it certain that Parliament possesses this power of delegation. Uncertainty in this respect has caused some confusion and trouble in the United States. The existence of such a power of delegation would seem, if we may judge by the experience of most European countries, to be an absolute necessity.
Section 2. The Senate shall be composed of such membership, with such qualifications and elected in such a manner, as shall be determined by law, and, until Parliament shall legislate thereon, all existing regulations for its organization and all existing laws governing the election of its members not inconsistent with this Constitution shall continue to be operative.
Note.—This and the following section have been drawn with the idea of continuing in force the present law as to the composition of the houses of the legislature until that law is changed by the ordinary method of legislation.
Section 3. The House of Representatives shall be composed of such membership, with such qualifications, and elected in such manner, as shall be determined by law; and until Parliament shall legislate thereon, all existing regulations for its organization, and all existing laws governing the election of its members not inconsistent with this Constitution shall continue to be operative.
Section 4. The time, place and manner of holding elections for Senators and Representatives, and the qualifications to all voters shall be prescribed by law and until Parliament shall legislate thereon, all existing laws and regulations not inconsistent with this Constitution shall continue to be operative.
The Parliament shall assemble at least once every year, and such meeting shall be on the — day of —, unless they shall by law appoint a different day. But the President may, at any time, call a special session of the Parliament, and it shall be his duty to call a special session if he is requested so to do by a majority of the members of each house. Failure upon the part of the President [Page 45] to call such special session when so requested shall be ground for impeachment.
Note.—This section has been framed on the theory, that special sessions may be called by both the President of the Republic, and by a majority of the members of each house of the legislature. It is based on the French Constitution. The clause making the President’s failure to call a special session, a ground of impeachment would seem to be necessary in view of the wide power of ordinance and regulation given to him by article II, section 7. For if the President is to have such powers, it would seem to be necessary, in order to prevent their exercise against the will of Parliament, when that body is not in session, to give to Parliament the power to reassemble at any time in order to repeal some presidential regulation of which it does not approve.
Section 5. The Senate shall have the sole power to try all impeachments, and the House of Representatives shall have the sole power of impeachment.
The President and all other civil officers of the Republic may be impeached for any cause provided for in this Constitution or by law. An impeachment may be brought against the President only upon a two-thirds vote of all the members of the House of Representatives.
No person shall be convicted on impeachment without the concurrence of two-thirds of all the members of the Senate.
Judgment in cases of conviction on impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic, but the party convicted shall nevertheless be liable to trial and punishment in accordance with the provisions of the criminal law.
Note.—This section is a based upon a section in the Constitution of the United States. It has however been provided that the causes for impeachment are to be stated in the Constitution, or to be fixed by law. Causes, in the Constitution, for impeachment, are stated in Article I section 4, Article II section 11 and section 13.
It has seemed desirable to provide a method by which the causes for impeachment may be fixed with reasonable definiteness, in order to avoid the uncertainties in the law of impeachment, which have arisen in the United States.
The section has also adopted the provisions of the present Provisional Constitution of China, which makes necessary a two-thirds vote by the House of Representatives in order that impeachment proceedings may be brought.
Section 6. Each House shall be the judge of the election, returns, and qualifications of its members. A majority of the members of each house shall constitute a quorum to do business, unless otherwise provided by law.
Each House may determine the rules of its proceedings, punish its members for disorderly behaviour, and with the concurrence of two-thirds of the members expel a member.
Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy, and the yeas and nays shall, at the desire of one fifth of those present be entered on the journal.
Neither House, during the session of Parliament, shall without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.
Note.—This section is found in substance in almost all written constitutions. Great Britain is almost the only important country, which does not give to its Houses of Parliament the right to judge of the elections and qualifications of its members. In that country controversies with regard to parliamentary elections are tried by the ordinary courts. Such a solution of the question would seem to be unwise since it subjects the courts to political influences from which they should be as free as possible if the administration of justice is to be good.
Section 7. The Senators and Representatives shall receive a compensation for their services to be determined by law, and paid out of the National Treasury.
They shall in all cases except treason be privileged from arrest during their attendance at the session of their respective houses, and in going to, and returning from, the same: and for any speech or debate in either house they shall not be responsible in any other place.
Note.—The clause in this section with regard to the privilege of members of Parliament from arrest is modeled upon that in the Constitution of the United States. The privilege granted, however, is much wider. The existence of such a privilege seems necessary in order to preserve the independence of members, and protect them from threats of prosecution by the government.
Section 8. Every bill which shall have passed the Senate and the House of Representatives, shall before it becomes a law be presented to the President of the Republic; if he approve he shall sign it, but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the members of that house shall agree to pass the bill, it shall be sent together with the objections to the [Page 46] other house by which it shall likewise be reconsidered and if approved by two-thirds of all the members of that house it shall become a law. But in all such cases the votes of both houses shall be determined by the yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President within ten days after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it unless the Parliament by their adjournment prevent its return, in which case it shall not be a law.
Every order, resolution, or vote, which has received the concurrence of the Senate and House of Representatives (except on a question of adjournment, and except as otherwise provided in this Constitution) shall be presented to the President of the Republic, and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives according to the rules and limitations prescribed in the case of a bill. But resolutions proposing to amend the Constitution, must receive the approval of the President of the Republic.
Note.—It may be stated here that the office of President that is provided for in this draft, is modelled upon both that of the President of the French Republic and upon that of the President of the United States. It is modelled on the office of the French President in that it provides that the President of the Republic of China shall be elected for a reasonably long term by the National Assembly, consisting of a joint session of both houses of Parliament (see Article I Section 11). The draft resembles the French Constitution further in that it accords to the President of the Republic of China, the right to initiate legislation and to designate in writing persons to express the views of the government with regard to bills or projects of law which have been introduced and are being discussed in Parliament.
The draft however proposes the adoption of the American idea as to an independent President with a reasonably permanent term. The reason for the adoption of this idea, is that the experience of the one hundred and twenty years during which the Constitution of the United States has been in force shows that greater stability in the government and a more permanent and continuous policy, are to be expected under this general plan than under the plan adopted in Great Britain and France. While it may be true that the British and French systems are more quickly responsive to public opinion, experience has shown that they are accompanied by so many Cabinet changes that stability in government and permanence in policy are difficult to secure.
In order that the office of President may have the requisite strength and independence, it is necessary that the President have a power of veto similar to that possessed by the President of the United States. It is only in so far as he has such a power that he is able to protect his office against the hostile legislation of an unfriendly parliament.
It would seem that what China needs most of all, at the present time, is a stable and permanent government. For the next few years must, if the Republic is to secure the greatest possible measure of success, see a complete reorganization of the finances, as well as a great amount of constructive legislation, both with regard to the administrative organization and many of the branches of law governing the private relations of individuals. Work along these lines can be effective only upon the condition that the policy to be pursued is reasonably permanent.
After this work has been done it may be that China can with advantage adopt more fully the French system of government. If this should be desirable the change may be made by amendment of the Constitution. It has been with this idea in mind that a process of amendment has been proposed which may be both quick in its action and easy of application. Reference to Article V of the draft will show that amendment to the Constitution may be made by a two-thirds vote of both Houses of Parliament with the approval of the President. The necessity of obtaining the approval of the President will naturally make it impossible formally to amend the constitution during the first term of the first Permanent President without his consent. This will however merely make possible the postponement of the change for six years, the term of office provided for the President by the draft. But if there is a strong demand for a change, this change may be made one of the conditions of the re-election of the first Permanent President at the expiration of his first term of office, or of the election of his successor.
Further attention should be called to the fact that, the adoption of the draft would not make impossible the gradual development of the French system through, the united action of the President and the Parliament, without any amendment of the Constitution. The draft provides that the President may introduce bills into Parliament, and may designate in writing persons in the government to discuss proposed legislation in the Parliament, and makes it possible for members of parliament to hold positions in the President’s Cabinet and in the government generally. The Parliament is, on the other hand, recognized as possessing wide powers of control over the President. Certain provisions of the draft oblige the President of the Republic, under danger of impeachment, to call special sessions of Parliament on the demand of a majority of the members of each house (Article I Section 4), and to render to Parliament a statement of the receipts and expenditures of each fiscal year (Article II Section 10). Others oblige each head of department under like penalty to appear before either House of Parliament at its request, and to answer questions put to him with regard to the conduct of his department (Article II Section 8); another provision permits Parliament to add by law to the causes of impeachment set forth in the constitution (Article I Section 5).
Under these conditions it is by no means improbable that a strong Parliament would make it impossible for the President to carry on the government effectively except his Cabinet had the confidence of parliament.
If the draft is approved the attempt will not thus be made to adopt either the American, or the French idea, as a whole. A compromise of the two principles will have been made which will permit China within the next ten or fifteen years guided by her own experience to work out the type of government which seems most nearly suited to her needs.
Section 9. It shall not be lawful for the Senate or the House of Representatives to adopt or pass any vote, resolution or bill, for the appropriation of any part of the public revenue, or of any tax, to any purpose that has not been first recommended to that house by message of the President in the session in which such vote, resolution or bill is proposed; nor shall it be lawful for either the Senate or the House of Representatives to increase the amount recommended to that house by the President to be appropriated for any purpose.
Note.—This provision is modelled upon a provision to be found in the Constitution of the Dominion of Canada and is in accord with British practice. It is recommended also in view of the experience of the United States. In the United States the power which each member of either house has to propose an appropriation not recommended by the President has been the cause of great extravagance. The United States has been able to permit such a power to be exercised by Congress only because its annual financial operations have usually resulted in a surplus rather than a deficit.
At the present time the conditions of China’s finances are such that the strictest possible economy is absolutely necessary. It is therefore imperative that resort should be had to all the devices which experience has shown tend to secure economy.
Section 10. No money shall be drawn from the Treasury nor shall any loan be made, nor any tax be levied, except in consequence of law.
Note.—The application of the principles set forth in this section would seem to be necessary in every system of constitutional government. The section therefore needs no comment.
Section 11. One month at least before the expiration of the term of office of the President of the Republic the Senate and the House of Representatives shall meet in joint assembly for the purpose of electing a new President.
In case the office of President becomes vacant for any cause other than the expiration of the term of office of the President, the Senate and the House of Representatives shall in like manner meet at once in joint assembly.
Such joint assembly shall be known as the National Assembly. The President of the Senate shall preside over the meetings of the National Assembly; the National Assembly may determine the rules of its proceedings.
The person who shall receive the votes of a majority of all the members of the National Assembly, shall at once be declared, by the President of the National Assembly, to be the President of the Republic. The President of the Republic shall be eligible for reelection.
The term of any President thus elected shall be for six years unless such President shall sooner be removed from office as the result of conviction on impeachment proceedings.
In case the office of President becomes vacant for any cause, the executive power shall be exercised by the heads of executive departments, acting as a council of ministers, until a new President shall be elected.
Note.—This provision is based upon the French constitution. Under the conditions which now exist in China, the French method of electing the President would seem to be the only one available. The only other methods of election possible of adoption are popular election, and election by some third body. Election by a third body, the members of which were to be elected directly or indirectly by the people, was the method adopted by the framers of the Constitution of the United States. The method thus originally provided, has, however, been so modified in practice, that the actual method of electing the President in the United States is quite different from the method set forth in the Constitution. It may not be said that the actual method of electing the President in the United States, is a successful one, for it has brought the United States on one or two occasions to the verge of civil war which was prevented only because of the good sense and long political experience of the people.
Direct popular election of the executive has been adopted only in the separate states of the American Union, and in some of the South and Central American Republics, Apart from Brazil it is not the method employed in republics of great size such as China.
The French method is not only the most suitable to present conditions in China, it also has the great advantage of subjecting the President to a reasonably effective parliamentary control. The existence of such a control is desirable in view of the large powers which are given to the President in this draft.
Section 1. The executive power shall be vested in the President of the Republic. He shall be elected by the National Assembly, in such manner, and for such period as are provided in Article I Section 11.
Section 2. No person except a native born citizen, or a citizen of the Republic of China at the time of the adoption of this Constitution shall be eligible to the office of the President of the Republic. Nor shall any person be eligible to the office of President of the Republic, who shall not at the time of his election, have attained the age of 35 years, and who shall not have been 10 years a resident within the Republic of China.[Page 48]
Section 3. The President of the Republic shall at stated times receive for his services, a compensation to be fixed by law, which shall neither be increased nor diminished during the term for which he shall have been elected, and he shall not receive within that period any other emolument.
Section 4. The President of the Republic shall during his term of office be exempted from the process of all courts except the court of impeachment. After the expiration of his term of office, he shall be subject to the process of the courts for any illegal acts which he may have committed while President in such manner and to such extent as may be provided by law.
Note.—While the Constitution of the United States does not expressly provide that the President shall be free from judicial control, the courts of the United States have announced this to be the rule of law. They have reached this decision both because the principle of the separation of powers seemed to make it necessary, and because they believed that freedom from all suits before the courts was a condition of effective work by the President.
Section 5. The President shall be the Commander in Chief of the Army and Navy of the Republic of China: he shall have power to appoint all officers of the Republic including the Governors of Provinces, but Parliament may by law vest the appointment of inferior officers in the heads of executive departments, in the Governors of Provinces, and in the courts of law, and may by law prescribe the qualifications which officers, not heads of executive departments, must possess in order to be eligible to appointment. The President may remove or suspend all officers not judges, whom he has appointed, but judges may be removed from office only by impeachment or in the manner hereinafter provided, and the Parliament may by law prescribe that all officers of the Republic except the heads of executive departments, shall, before they may be removed from office, be given a copy of any charges which may be made against them, and be given an opportunity to be heard in their own defence.
The President shall have the power to grant reprieves and pardons for offences against the Republic, except in cases of impeachment; and to make treaties with foreign nations, but all treaties of peace, of commerce, and those which impose a charge upon the treasury of the Republic, or of any one of the provinces, shall to be valid, be approved by both houses of Parliament.
Note.—Little comment upon this section is necessary. It is based upon a section of the Constitution of the United States. That portion with regard to the making of treaties has however been modelled upon the French Constitution. Special mention has been made of the power of Parliament to prescribe by law the qualifications of officers, and of the power of the President to remove all officers whom he appoints, not judges, in order to remove doubts which have arisen in connection with the exercise of similar powers in the United States. It should be noted that the grant in this section to the President, of the power to appoint and remove Governors of provinces, is in application of the idea to which attention has already been directed, that the government of the Republic of China will be a centralized and not a federal government. The mention of the office of Governor of a province, finally, is an exception to the general plan which has been followed in this draft, of leaving the organization of the provincial system to be prescribed by the ordinary process of legislation. Every province, if this draft is adopted, must however have a Governor who must be appointed, and may be removed, by the President of the Republic.
It would seem to be necessary in order to obtain a well qualified and permanent civil service, to give to the Parliament the right, in case the requisite action is not taken by the President of the Republic, to prescribe qualifications for office, and a method of removal from office which will prevent purely arbitrary removals for merely political reasons.
Section 6. It shall be the duty of the President to see that the Constitution and laws are faithfully executed. To this end he may prescribe ordinances and regulations not inconsistent with law, which shall have the force of law. All such ordinances and regulations must be laid before Parliament within ten days after their issue in case Parliament is in session: in case Parliament is not in session when such ordinances or regulations are issued, such ordinances and regulations must be laid before Parliament within ten days after Parliament next assembles. Parliament may at any time repeal such ordinances and regulations by a majority vote of each house, and such repeal shall be valid without the approval of the President.
Failure on the part of the President to lay before Parliament, in accordance with the provisions of this section, any ordinance or regulation which he may prescribe by authority of this section, shall be ground for impeachment.
Note.—One of the characteristics of almost all modern nations, is the increase in the power of ordinance or regulation possessed by the executive. Many of the important parts of the law are regulated in Great Britain by Orders in Council issued by the Crown, or by Provisional or Statutory Orders made by some executive department and submitted to Parliament for its approval. The same may be said of France where it is now recognized that the President has the constitutional right to issue decrees not inconsistent [Page 49] with law, while in both Germany and the United States various laws passed by the legislature have delegated to the executive the right to issue ordinances and regulations not inconsistent with law.
The suggestion has therefore been made in this draft that similar powers be granted in the constitution to the President. The grant of such power would seem to be particularly necessary in the conditions now existing in China. As has already been pointed out, the adoption of the permanent Constitution will unquestionably be followed by the necessity for the passage of a vast amount of constructive legislation. It is doubtful whether any Parliament which can be expected to assemble in the immediate future will, with all the other duties which will devolve upon it, be equal to this task. It is therefore desirable, on the one hand, to call the Executive to the aid of Parliament, by recognizing in the Constitution that he possesses a wide power of ordinance and regulation, and on the other hand, to provide some safeguard, which will leave the absolute and effective control of the exercise of that power, in Parliament itself.
It is believed that such a safeguard has been provided in this draft in the requirements that a special session of Parliament must be called by the executive on request by a majority of both houses, and that the executive must speedily lay before Parliament any regulation or ordinance issued by him; both the duty to call such special session, and the duty to lay the ordinance before Parliament, being enforceable by Parliament through impeachment proceedings. These provisions, it is believed, amply assure that Parliament will have almost immediately after their issue, the opportunity to repeal, by a mere majority vote, any ordinance or regulation in the issue of which the Parliament may believe that the President has acted unwisely.
Section 7. The President of the Republic may, by proclamation, declare any province, or part of a province, to be in a state of siege. In case of the issue of such a proclamation, the district to which such proclamation applies, shall be under martial law until such time as the President by proclamation shall declare such district to be no longer in a state of siege.
Note.—The power to declare a part of the country in a state of siege, is recognized by French and German rather than by English and American law. Provision has been made for it in this draft mainly because such a power is mentioned in the provisional Constitution. However the great size of the Chinese Empire will necessarily leave many isolated groups of people separated by great distances from the seat of government control; should this distance and isolation tend to make seditious practices, or rebellion against the government more easy, the right to declare martial law will also render more easy and speedy their suppression. Furthermore the physical position of China as a nation surrounded by other Powers differentiates her position from that of America and England and likens it to that of Germany and France which are also in proximity to other great Powers: martial law might prove to be an effective weapon in the protection of China’s borders from outside disturbances and influences. The actual effects of the declaration of a state of siege would have to be determined as a result of a consideration of the general law upon the subject which Parliament would be authorized to adopt as a result of the exercise of its general legislative powers.
Section 8. The President shall from time to time, give to the Parliament information of the state of the Republic, and shall recommend to their consideration such measures, in the form of bills or otherwise, as he shall deem expedient.
Such officers of the government as may be designated in writing by the President for the purpose, shall have the right to introduce bills into either house of Parliament, and to participate in the debates thereon, but it shall not be lawful for them to vote thereon, unless they are members of such house.
Either house of Parliament may by resolution request the presence of any of the heads of executive departments, and may question them with regard to any matters within their competence. Failure on the part of such heads of departments to appear when so requested, or to answer questions put to them with regard to their departments shall be cause for impeachment.
Note.—This section has been drafted with the purpose of removing one of the most serious objections to the form of government which accords to the President great independence of the legislature. Where the President, and his appointees the heads of executive departments, must deal with Parliament indirectly, misunderstandings are liable to arise which unnecessarily increase the difficulty of conducting the government. It is therefore desirable to make it possible for the President to submit to Parliament for its consideration well considered measures in the form of projects of law or bills, and to express to Parliament the views of the administration thereupon through the medium of persons, either the heads of departments or persons in the department specially qualified, designated for the purpose by the President. On the other hand it is desirable that Parliament shall have the power to oblige the heads of departments whose conduct of their departments is the subject of criticism to come before it and answer questions which may be put to them.
Section 9. The President of the Republic shall each year, not later than … submit to the Parliament estimates of the expenses necessary for carrying on the government of the Republic for the ensuing fiscal year, classified in such manner as may be provided by law, and hereafter called the budget. But in case of emergency the President of the Republic may thereafter present to the Parliament supplementary estimates for its action.
In case the Parliament, before the expiration of the current fiscal year, votes the budget as submitted by the President of the Republic, the said President is [Page 50] authorized, during the ensuing fiscal year, to draw money from the Treasury for the purposes and in the amounts provided for in said budget. In case the Parliament fails to vote, before the expiration of the current fiscal year, the budget as submitted by the President of the Republic, the appropriations for the current fiscal year as last voted by the Parliament at a preceding session, shall thereupon be the appropriations for the ensuing fiscal year; or in case the Parliament fails to vote any item in the budget as submitted by the President of the Republic, or makes a reduction in any such item which is not accepted and approved by the President of the Republic before the expiration of the current fiscal year, the provision for such item in the appropriations of the current fiscal year as last voted by the Parliament at a preceding session, shall be the provision for such item in the appropriations for the ensuing fiscal year, and in either case the President is authorized, during the ensuing fiscal year to draw money from the Treasury of the Republic, for the purposes and in the amounts provided for in the said appropriations for the current fiscal year as last voted by Parliament at a preceding session.
The drawing of money from the Treasury by the President of the Republic when not authorized by law or by this Constitution shall be ground for impeachment.
Note.—The control of the government of a country, is centered in the control of the appropriation of its moneys. Any plan of government which is based upon the theory of a reasonably permanent and independent executive, must bear this fact in mind. Therefore such a plan of government should not permit the Parliament to make use of its powers over the appropriations, in order to overthrow a government by refusing to grant money for the current work. It is for this reason that provision has been made, in accordance with which the government’s actual necessities, as determined by the appropriations of the preceding year, will be provided for, even if Parliament shall fail to vote the budget, or particular items therein. On the other hand the Parliament should, in the interest of popular government, have the power to refuse to permit any further extension of the activities of the Government. Its refusal to entrust the Government with the power to expend larger sums of money than were provided for the current year, will not, however, have the effect of bringing the current operations of the Government to an end, and will not therefore subject the Government to a greater parliamentary control than is provided for in this Constitution.
Section 10. The President of the Republic shall annually within days after the opening of the annual session of the Parliament, submit to the Parliament a detailed statement, of the receipts and expenditures of the last completed fiscal year. Such statement shall be classified in such manner as may be provided by law.
The failure of the President of the Republic to submit such statement, at the time provided herein, and in the manner provided by law, shall be ground for impeachment.
Note.—One of the most important, if not an absolutely essential means of securing economy in government expenditure, and the exercise of an effective legislative control over executive action, is knowledge in a comprehensive and intelligible form, of the way in which government moneys have been expended. In other words, a detailed statement of receipts and expenditures is a necessary condition of good government. What the character of that statement should be, must be determined by the character of receipts and expenditures. The detailed form of such a statement cannot therefore be provided in a constitution, but must be prescribed by law.
So important is the making of such a statement at the time, and in the form, provided by law, that it is proposed that failure on the part of the President to comply with the law in this respect shall be ground for impeachment.
Section 1. The judicial power of the Republic shall be vested in such courts as Parliament may from time to time ordain and establish.
Note.—The attempt has not been made in the draft, in the article devoted to the judicial power, to prescribe the system of courts to be established, but it is recognized that this system should be regulated by legislation. If for example it may seem desirable to establish administrative courts after the French model, this plan may be carried out under this section.
Section 2. The judges both of the supreme and inferior courts shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation which shall be prescribed by law, and which shall not be diminished during their continuance in office.
The Parliament may provide for the removal of judges in the case of misbehaviour, and may define misbehaviour on the part of judges, and may provide a method by which it may be determined whether a judge has been guilty of misbehaviour, but such method shall among other things provide, that every judge against whom removal proceedings are instituted, shall be [Page 51] given a copy of any charges made against him, and an opportunity to be heard in his defence.
Note.—The only details with regard to the judicial system which are covered by this draft, are those with regard to the tenure and independence of the judges. There would appear to be at the present time, an almost universal recognition of the necessity of judicial independence during good behaviour. But it would seem to be necessary that some method of determining the presence of misbehaviour should be provided which is more easy of application than impeachment. It has therefore been proposed to give to Parliament the right to prescribe a method by which judges may be removed for misbehaviour, the sole limitation upon its discretion being, that a judge shall not be removed except after a hearing in the nature of a trial.
Section 3. The jurisdiction of the courts of the Republic, whether original or appellate, shall be determined by law.
Section 1. Parliament shall have power to fix by law the number and boundaries of the Provinces of the Republic, but until such laws shall be passed, the number and boundaries of said provinces shall remain as they are at the time of the adoption of this constitution.
Section 2. Parliament may, by law, fix the powers and duties of the Provinces, and determine their organization.
Section 3. Until Parliament shall have prescribed by law the powers of Provinces, each Province shall have powers of legislation concurrent with those of the Parliament, to pass laws which shall be operative within such province; but all laws adopted by a Province in the exercise of such concurrent powers of legislation shall before they are operative receive the approval of the President of the Republic, and may at any time be repealed by the Parliament.
Section 4. Until Parliament shall have passed laws fixing the organization and duties of the Provinces, the organization in force and the duties owed by the Provinces at the time of the adoption of this Constitution shall continue in force. But until its organization shall be fixed by act of Parliament, each Province may, subject to the approval of the President of the Republic, change its organization as it deems expedient.
This Constitution may be amended by a resolution adopted by a two-thirds vote of both Houses of Parliament, and approved by the President.
All laws and regulations in force at the time of the adoption of this Constitution shall continue in force until amended or repealed by authority of law.