893.00/15301
The Ambassador in China (Gauss) to the Secretary of State
[Received March 15.]
Sir: Referring to the Embassy’s despatch no. 2181 of February 17, 1944,84 in regard to the movement for the study of the draft constitution, I have the honor to enclose a translation of a statement85 recently issued by Dr. Sun Fo, President of the Legislative Yuan, as published in the Ta Kung Pao, in regard to the draft constitution, and to report further on this subject.
Summary. Considerable publicity has been given to the movement for the study of the draft constitution launched on a nation-wide scale by the Committee for the Promotion of Constitutional Government on January 1, 1944. Published comment on the draft constitution has been made by prominent Kuomintang and Government leaders and round-table discussion groups and numerous editorials and special articles on the subject have appeared in the Chinese press. Comment has generally followed the line of the political views of the individuals or of the newspapers concerned. Kuomintang official and press comment has emphasized that the constitution is irrevocably based on Sun Yat Sen’s Three People’s Principles, that Chinese democracy must not be confused with western democracy and that freedom under constitutional government cannot be unrestricted freedom. Independent and leftist comment has usually demanded freedom of speech, of the press and of assembly as prerequisite to any real discussion of the constitution. Criticism has included the lack of independence of the Legislative Yuan, the weakness of local government, the need for judicial reform, the removal of the army from politics by nationalization of the armed forces and the necessity of clarification of the Three People’s Principles. The Kuomintang is apparently sponsoring full nation-wide discussion of the constitution but there seems little reason to believe that the draft constitution will [Page 358] undergo any considerable changes or that criticism now being made of the constitution will be effective. End of Summary.
Dr. Sun Fo’s Comment on the Constitution.
Of particular interest are the comments in regard to the draft constitution made by Dr. Sun Fo who, (as the son of Sun Yat-sen, President of the Legislative Yuan, one of the chief architects of the draft constitution under consideration and one of the liberal elements in the Kuomintang) might be expected to have views indicative of the progressive elements in the Party. The views of Dr. Sun, as reported in the local press, are not, however, distinguished in any way from the general views expressed by the Party-controlled organs or by prominent Party officials. Referring to a suggestion which has been given some currency that, in view of its importance in the constitution, the Three People’s Principles should be given a clear definition therein, Dr. Sun points out that these Principles are the basis of the Chinese revolution and that the Kuomintang as the leader of the revolution and national reconstruction will naturally have a “consistent and definite explanation of the Three People’s Principles”. Dr. Sun repeats the Party line when he says that “the liberty of the people is protected by the constitution but whether in peace or in war freedom is not unrestricted” and that democracy is the objective of the Chinese reconstruction. He also attempts to answer an oft-repeated charge against the Kuomintang that the Chinese armed forces are the Kuomintang’s rather than the Central Government’s army by stating that the education (meaning, of course, political education) of the armed forces must be based on the Three People’s Principles.
Dr. Sun Fo is reliably said to have stated in an off-the-record conversation that there would be some changes in the draft constitution prior to its adoption. He described the most important of these changes as being: (1) the holding of the regular sessions of the National Congress more often than the monthly sessions “once every three years” provided for in the draft constitution and (2) chairmen of the provincial governments to be elected by the people rather than appointed by the Central Government.
Statements Made by Mr. Liang Han-tsao, (Party) Minister of Information, in Regard to Movement.
At the Government press conference on February 9, Mr. Liang Hantsao informed the newspaper correspondents that there were no restrictions whatsoever on the expression of opinion in China in regard to the draft constitution. Mr. Liang would not reveal the nature of the criticism and comment regarding the constitution but said that a compilation thereof would be submitted to the National Congress and [Page 359] would be made public in due course. The Minister admitted that any persons who might oppose the Three People’s Principles would not be entitled to freedom of speech and pointed out that after the promulgation of the constitution there would be opportunity for the organization of political parties other than the Kuomintang. He explained, however, that the activities of these parties must not be contrary to the Three People’s Principles.
Mr. Liang issued a prepared statement at this conference containing the following five points, said by him to be of importance in connection with the movement for the study of the draft constitution: (1) the draft constitution provides for a democratic China which must be based on the Three People’s Principles; (2) the Five Power Constitution follows Sun Yat-sen’s theory of the division between Sovereignty and Ability or between fundamental political power and administrative power; (3) all Chinese citizens, including members of all parties, are absolutely free to discuss and express their opinions on the various problems connected with the constitution, but these opinions must not be contrary to the fundamental doctrine of the Three People’s Principles on which the nation is based; (4) the movement for the promotion of constitutional government has been launched in accordance with the revolutionary policy of the Kuomintang and not in answer to an appeal from the people for a constitution which has been denied them; and (5) the power of government will be given to the people when the constitution goes into effect, and all citizens who do not act against the Three People’s Principles will have the right to organize, according to law, political parties which are to have equal status with all other parties, including the Kuomintang.
Round-Table Discussion regarding the Movement.
The Chinese press has during January and February reported several round-table discussions held for the purpose of discussing the draft constitution. The discussions have apparently been held both under Kuomintang and under minority party auspices as the accounts of these discussions have been published in the Kuomintang-controlled press in the first case and in the Communist-controlled newspaper in the second.
At one round-table discussion reported in the Sao Tang Pao (Kuomintang-Army), it was stated that all leading countries have constitutions but that certain differences exist between these nations and the constitutions; a comparison was drawn between Great Britain and France on the one hand and China on the other: in the former the people and the government, national and local governments, and legislative and executive departments struggle for power while in China the people and the government are in harmony, the national and local governments are in harmony and legislative and executive power is [Page 360] equally divided. In view of the foregoing, it was suggested that the draft constitution is a perfect one appropriate as a model for use by European and American governments.
Less favorable is the comment made at other round-table discussions reported in the Hsin Hua-jih Pao (Communist). The chief points brought out in these discussions were as follows:
The draft constitution must safeguard human rights.
Many constitutions have been proclaimed in the past but none of them has been enforced.
The draft constitution of May 5, 1936, is far from democracy.
Without democracy there can be no discussion of the constitution.
If the discussion is restricted to the draft constitution, the discussion must be very limited and narrow.
If no safeguards are given for the basic rights of the people, such as freedom of the press and of speech, enforcement of constitutional government need not be discussed; if there is no freedom of assembly and of organization, constitutional government will not be enforced.
Attention must be given to both constitutional government and to democracy; that is, constitutional government under democracy.
The draft constitution is far from being democratic in regard to economic questions.
Learning comes from practice, and it is false to say that Chinese standards are not yet sufficiently high for the application of democracy.
Under constitutional government no person is vested with special rights by law, but in China many people enjoy such special rights.
In order to further the development of constitutional government, the government must not be permitted to change the law by the mere issuance of orders.
Local self-government must become a reality as the basis for constitutional government.
The judicial system must be improved in order to safeguard the rights of the people, and special laws should be abrogated and special rights canceled.
China is now operating under a provisional constitution which provides for the rights and obligations of the people; the people have the right to demand that the Government carry out the provisional constitution and safeguard the basic rights of the people without waiting for the adoption of the draft constitution.
The prerequisites for the enforcement of constitutional government are: (1) the Government should respect the law; (2) the Government should respect public opinion; (3) the people should be willing to express their opinions; and (4) the people should be willing to take action.
Round-table discussions of the question reported in the Ta Kung Pao included the following points:
The development of constitutional government is an obligation and responsibility of the people.
Local government should be improved as the new hsien system (including the pao chia system) is imperfect and the regulations governing this system are empty.
[Page 361]The judicial system should be improved; otherwise the rights and freedom of the people are without protection. The judicial solution needed is not merely administrative.
The special rights of the military courts should be abolished and special rights given privileged classes should be withdrawn.
If there is to be freedom of discussion, secret punishment must be done away with and illegal detention must cease.
In the past there was consular jurisdiction; now there are military judicial rights, and opium and narcotics suppression is under special courts—the draft constitution should provide for these things.
Chinese Editorial Comment.
Chinese editorial comment on the draft constitution has generally followed the political position of the newspaper concerned. Comment by some of the leading Chinese newspapers at Chungking is as follows:
Ta Kung Pao (independent): The independence of the Legislative Yuan should be clearly defined. Although Article 64 of the draft constitution provides that the Legislative Yuan has the right to decide on laws, budgets, martial law, amnesty, declaration of war, making of peace, treaties and other important international matters, at the same time Article 61 lists similar matters to be decided by the Executive Yuan for submission to the Legislative Yuan. It can, therefore, be said that the Legislative Yuan has only passive legislative rights and not active ones, which are left to the Executive Yuan, the President and members of which are elected by and responsible only to the President of the Government. Article 44 of the draft constitution provides that in an emergency the President of the Government may with the approval of the Executive Yuan issue orders of emergency and take whatever other steps necessary to cope with the situation, provided that he shall within three months after the issuance of the orders submit the matter to the Legislative Yuan for ratification. The three months period should be changed to ten days as the Legislative Yuan, unlike an ordinary parliament, is always in session.
Every article of the first chapter of the draft constitution regarding the rights and obligations of the people is followed by a clause “shall not be restricted unless in accordance with law”. If the government can enact laws to overrule the constitution, the constitution is then ineffective.
The President of the Government and the President of the Four Yuan (Legislative, Judicial, Censor and Examination) are all responsible to the National Congress and thus possess equal legal status, while the President of the Executive Yuan is responsible only to the President of the Government. Thus the President of the Government actually has the executive power. If, however, inter-Yuan disputes arise between the other Yuan and the Executive Yuan, it is inevitable [Page 362] that the President of the Government will be involved. It thus seems desirable to give consideration to the powers and responsibilities between the President of the Government and the President of the Executive Yuan.
As it is desired that the entire nation, not just the minority in power, study the draft constitution, freedom must be afforded to all people if effective study is to follow. Only a constitution genuinely supported and discussed by the great majority of the people is a truly democratic constitution. The most basic and the preliminary requisite for study by the entire people is the protection of the freedom of the people—freedom of speech, press and assembly.
The position of the army in the nation must be clarified. China’s chaotic state since the revolution has been due in part to the fact that the army does not belong to the nation. Since national economy and education are special items in the draft constitution, the question of the army should be another item. In a democratic country, there are three special characteristics of the army: (1) nationalization, (2) nonpolitical status and (3) specialization. In the first case, the army is for national defense and controlled by the nation. In the second, the army must be above politics and parties. No political party should have its own army nor should party elements be permitted to carry on secret activities inside the army organization. In the third case, with the introduction of specialization, no non-military elements should interfere with military questions or vice versa. These three points have a definite connection with constitutional government and may determine whether we shall be able to enjoy peace in the nation.
According to the first three articles of the draft constitution “The Republic of China is a San Min Chu I Republic”, “The sovereignty of the Republic of China is vested in the whole body of its citizens” and “Persons having acquired the nationality of the Republic of China are citizens of the Republic of China”. According to the Law for the Election of Representatives to the National Congress and Article 29 of the draft constitution representatives must swear allegiance to San Min Chu I and evidently a person must bear allegiance to these principles before he can be a citizen of the nation and enjoy the privileges and rights of a citizen. In this case there should be a clear explanation of the meaning of the oath of allegiance (i. e. the meaning of San Min Chu I).
China Times (controlled by Dr. H. H. Kung, Minister of Finance): The draft constitution must be based on the Three People’s Principles. If the people of the country criticize the constitution in the light of the spirit of constitutional government in Europe and the United States, there will be disputes and controversies. The people must not give too much heed to the success of constitutional government in Europe [Page 363] and the United States and should not blindly believe in the omnipotence of democratic government; each country has its principles on which the nation is based—Sun Yat-sen’s Three People’s Principles is China’s spirit.
Central Daily News (Kuomintang): The failure to proclaim a constitution has been due to a desire to follow Sun Yat-sen’s instructions and to prepare a solid foundation for constitutional government before convening a national congress for adoption of a constitution. Following Dr. Sun’s instructions, we are eliminating the reactionary elements in the nation and are exerting every effort for popular government; therefore, China is already a nation ruled by the people. Now that the period of political tutelage is about to end, there must be a period of constitutional government education. The Government is asking all citizens to study the draft constitution in order that they may have a full understanding of the nature of the constitution. The constitution must be practical and must conform to existing conditions. During the war we need a military government and for purposes of national reconstruction we need a period of political tutelage. A constitutional government demands of the people the spirit of observance of law. National defense must be strengthened before constitutional government can be realized and individual freedom must, therefore, be subject to slight restraint in order that national strength may be developed and the independence and freedom of the nation safeguarded.
I Shih Pao (Catholic): The study of the draft constitution is a psychological problem in that we should arouse the political interest of the people. In the past many politicians took advantage of the ignorance of the people and of the indifference of the press. The draft constitution must now be openly discussed in order to arouse interest in politics and knowledge of the government.
Independent Comment.
Liberal comment on the draft constitution has been critical, such Chinese observers feeling that the constitution is not based upon democratic principles and that the Kuomintang is assuming the attitude that the granting of “constitutional government” is a kindness and special favor to the people from the Party. They point to the various statements made by Party leaders and in the Kuomintang-controlled press as an indication that the Kuomintang is fundamentally opposed to democracy and that its reservation to the Party of the right to interpret the San Min Chu I leaves in its hands the power to eliminate any opposition to continued Kuomintang rule. One Chinese observer points to the circumstance that those Chinese who may be socialists, fascists, communists or of no political beliefs are required by the constitution to be believers in the “San Min Chu I of the [Page 364] Kuomintang” if they are to be given the full rights and privileges of a citizen.
Conclusion.
There seem to be ample grounds for believing that the movement for the study of the draft constitution is carefully controlled by the Kuomintang and that it has no intention of allowing completely free discussion of the question of constitutional government. As a result there has apparently been little real constructive and definitive criticism made of the constitution itself in the Chinese press, most of the comment being directed along general lines. The Ta Kung Pao (influential independent Chinese daily) found that its attempt to suggest editorially several concrete needs in the new constitution (as outlined in the section of press comment) met with severe reprimands from the (Party) Ministry of Information and the displeasure of General Chiang Kai-shek. Although the (Party) Minister of Information blandly stated that there were no restrictions on the expression of public opinion in regard to the draft constitution, the experience of the Ta Kung Pao and the known deletions by the censors of items in the Communist-controlled daily regarding the constitution show the inaccuracy of the Minister’s statement. (To prevent readers from knowing when items in the press have been eliminated by the censors, omissions formerly indicated by a series of X’s or the insertion of the word “censored”, Chinese newspapers are now required to fill in the spaces left vacant by the censor’s deletions.)
In view of the expected complete Kuomintang control of the National Congress which will be charged with the approval and promulgation of the constitution, it is not believed that the draft constitution will undergo any marked changes and the movement for the study of the draft appears to be intended largely for publicity purposes both at home and abroad.
Respectfully yours,