Constitutionalism in Present-day China and the International Situation
NAKAMURA Motoya,
Associate Professor,
Department of International and Cultural Studies,
Tsuda College
Summary:
Why has the issue of constitutional government remained important since thelate Qing Dynasty despite the fact that the history of modern and contemporary China
tends to be viewed as one of revolutions, wars, socialism and nationalism? This study
proposes to re-examine the issue of constitutional government in modern andcontemporary China from the perspective of the international situation around China.

The modern and contemporary history of China, though accentuated by revolutions,wars, socialism, and nationalism, has also been characterized by continuing efforts tosearch for a constitutional government, and constitutionality, democracy, and freedom.
In China, the history of revolutions, wars, and nationalism has certainly taken
precedence over the history of democracy and constitutional government. In fact,
modern and contemporary China’s decision to pursue socialism has had the effect ofpreventing both the modern western concept of freedom and the ostensibly universal
principle of constitutionalism from taking root in the country. Nevertheless, when wetake a fresh look at the Xinhai Revolution of 1911, exactly one century ago, we can seethat it shifted the focus of political disputes from the question of which form ofgovernment to choose to the question of which national structure to choose. Thus, wecan see that the issue of constitutional government was pivotal to the choice of a formof government. Indeed, in China in the latter half of the 1940s, when the civil war
between the Chinese Nationalist Party (or the Guomindang [GMD] of China) and theCommunist Party of China (CPC) was at its height, the question of whether or not a
constitutional form of government – as prescribed by the Constitution of the Republic ofChina, which took effect in 1947 – was appropriate and worth preserving was a majorbone of contention. Even in present-day China, the questions of what might be the ideal
form of constitutional government and how the principle of constitutionalism can be put
into effect are the subjects of animated discussion among many jurists, otherintellectuals, and politicians. The issue of constitutionalism, therefore, still carries muchhistorical significance in China today.
In the period between the Guang Xu Political Reform in the late Qing Dynasty and theestablishment of the Constitution of the Republic of China, rich discussions took placein China on the question of constitutional government. Jurists in present-day China still
frequently review these discussions, including, in particular, the theories ofconstitutionalism that were advanced by prominent scholars of the Republican period(1912-1949), such as Wang Shi Jie, Wu Jing Xiong, Zhang Zhi Ben, Xiao Gong Quan,
and Qian Duan Sheng. One salient feature of these views about constitutionalism wasthat they were very attentive to the trends in constitutional government in othercountries at the time, and were thus finely tuned to the international situation
surrounding China. This close link with the international situation seems to haveremained essentially intact in the ongoing discussions on constitutionalism in China.
This means that the issue of constitutionalism in modern and contemporary China
cannot be fully understood from the perspective of Chinese history alone, regardless ofwhether China is taken as a nation state or as a regional unit. It should also be examinedfrom a perspective that captures China as an integral part of the world.
Now how did I come to take an active interest in this research? The starting point was
the Tiananmen Square Protest (or the Democracy Movement) of June 4, 1989.
Though I was only 15 years old at the time, I could easily see that socialist regimes
were falling around the world, but I could not understand why socialist China, aneighbor of Japan, was able to resort to a violent “undemocratic political crack down”,
seemingly in opposition to the world trends of the time. Furthermore, it was apparently
managing to maintain its socialist regime. Disturbed by this, upon entering college, I
started to inquire into the Tiananmen Square Protest and the underlying democracy
movement in contemporary China.
During my inquiry, I hit upon an unexpected discovery, namely, that a wide variety of
constitutional movements and political activities that had championed the causes of
freedom and human rights took place in China during the Republican period, prior to
the establishment of the People’s Republic. These movements were carried out in close
conjunction with international developments in Britain, the United States, the Soviet
Union, Japan, and so on. I was also surprised to find out that the Guomindang under
Jiang Jieshi, which was in power in the 1930s and the 1940s, was taking steps amidst
the Japan-China War to institute a constitutional government by carefully taking stockof these developments, and it actually put a form of constitutional government into
effect immediately after the war. This discovery astonished me. I had been firmly
convinced that “modern and contemporary Chinese history must be entirely devoid ofsuch episodes,” and that “it was not until the emergence of a democracy movement inpresent-day China that the issue of constitutionalism arose.” I found it imperative toradically rethink my hitherto distorted perception of modern and contemporary Chinesehistory.
I then gradually focused my attention on the historical background that had led to theTiananmen Square Protest. More specifically, I became interested in addressing
questions such as the following. How did the Guomindang assess the domestic andinternational situation when it introduced a constitutional government? Why did its
constitutional policy fail? What were the main features of liberal thought in modernChina that informed the Guomindang’s decision to establish a constitutional
government? How did these features affect the subsequent history of China, Taiwan,and Hong Kong? Fortunately, not only have I been able to enjoy an academic
environment in Japan that is open and receptive to students like myself who have newresearch interests, but I have also been blessed with the fact that pertinent primaryhistorical materials (such as the Dang’an and other archival records) and pioneeringstudies on the subject have begun to be published in China and Taiwan. Some of myearly findings are published in the book, Sengo-Chugoku no Kensei Jisshi to Genron noJiyu, 1945-1949 (Constitutionalism and Freedom of Speech in China during the CivilWar Period, 1945-49); University of Tokyo Press, 2004.
This work was the starting point for my research career. However, a large number ofquestions remain unanswered, and I have also seen new and challenging issues pile up
with each passing year.
For example, one important question is: How should we summarize the theories ofconstitutional government that have been advanced in modern and contemporary China?
If we define constitutionalism as a universal concept with an emphasis on theimportance of “ensuring the freedom and rights of individuals, by restricting the powersof the state,” then some theories of constitutionalism in modern and contemporary
China do not perfectly match this definition. Both the Guomindang’s argument for the“separation of the five powers”, which is different from the generally accepted notion of
the separation of powers into three branches, and the CPC’s assertion about socialist
constitutionalism may be considered the prime examples of such theories. It should beremembered, however, that the concept of the separation of powers into five branches is
not necessarily incompatible with the theory of universal constitutionalism, because thegovernment made some effort to realize universal constitutionalism on the basis of theseparation of powers into five branches. Similarly, attempts were also made to reconcilesocialism and constitutionalism, and there were also attempts (and still are) to realize
universal constitutionalism on the basis of three branches. What is more, each of these
two theories of constitutionalism is far from unrelated to international developments,
and, as such, takes on many different forms that are often advocated in response both tochanging world-wide trends in constitutionalism and to changes in foreign impressionsof China. This has sometimes affected the political process.
A second important question is how to explain the relationship between the legal theory
around the freedom of expression (speech and press), which is central to any discussion
on constitutionalism or constitutional government, and the underlying domestic andinternational environment. While there is no denying that the social and culturalstructure of modern and contemporary China, which accepts the practice of categorizingthe freedom of speech and press with the issue of copyrights, which are a form ofintellectual property right, has been formed in a way that is partly influenced by theinternational situation around China, it is worth examining whether or not this same

social and cultural structure has influenced legal theory and constitutional government
in modern and contemporary China.
Thirdly, it is also important to ask how the more than one-century-long history of
constitutional government in China should be assessed in modern and contemporary
China, where the logics of nationalism and socialism tend to stand out. Before
answering this question, it is imperative to ascertain what view modern andcontemporary China has formed of what a constitution and a constitutional government
should be like under socialism, and how it has put that perception into effect inestablishing and enforcing its constitution. Chinese scholars studying the history of theChinese legal system and those studying modern and contemporary China (and its law)
have presented outstanding findings that are pertinent to these questions, but attempts toanalyze the political process, inclusive of the formative process of the constitution, in
conjunction with developments domestically and internationally have only recently
begun.
Such an inquiry is essential, because it will help to clarify not only how China accepteda socialist constitution and the logic of constitutional government, but might also
explain what it chose not to receive and why. The legal system and the theory of law atwork during the Republican period were not formally followed by the People’s
Republic which replaced the Republic, but why are they still being referred to inpresent-day China?
It is important to find out how the People’s Republic, after coming into existence while
upholding the revolutionary concept of a New Democracy, behaved with respect to theissue of constitutionalism during the period from the 1950s to the 1970s (i.e. the periodthat saw the Sino-Soviet Split). How did it assess the Soviet theory of constitutionalism,and to what extent did it follow the Republican period’s theory of constitutionalism interms of lineage and academic or institutional structures. It is also important tounderstand the Soviet view of constitutionalism in the period from the 1920s to the1940s, because this view must have served as a foundation for the socialist theory ofconstitutionalism in China in the period beginning in 1949.
The foregoing are only a few of the important research topics that remain to be tackled.
Basing myself on Ken’sei to Kin-gendai Chugoku: Kokka, Shakai, Kojin(Constitutionalism and Modern China: The State, Society, and Individuals); Gendai
Jinbunsha, 2010 and other findings from interdisciplinary and collaborative studies, I
would like to continue to tackle these important issues – see
http://www016.upp.so-net.ne.jp/dragon-china99/ for further details – with the ultimateaim of gaining a deeper understanding of the relationship between “Constitutionalism inChina and the International Situation.”