Chinese Constitutionalism: Five-Power Constitution

Caldwell, Ernest. 2017. "Chinese Constitutionalism: Five-Power Constitution" In Max Planck Encyclopedia of Comparative Constitutional Law, edited by Rainer Grote, Lachenmann, Franke Lachenmann and Wolfrum, Rüdiger Wolfrum. Oxford: Oxford University Press, Forthcoming

11 Pages Posted: 30 Aug 2016  

Ernest Caldwell

University of London - School of Oriental and African Studies

Date Written: July 1, 2016

Abstract

Studies of modern constitutions and constitutional structures are invariably predicated upon the common theory that governments exercise three primary forms of legitimate power: executive, legislative, and judicial. Scholars from Montesquieu to the present have argued that separating these powers into distinct branches of government and establishing various forms of procedural mechanisms to constrain the exercise of these powers best ensures that government power is exercised efficiently and without potential of infringing upon the rights and freedoms of individuals. This understanding is so common that the vast majority of the world’s written constitutions reflect this tripartite division of government power, including the majority of post-colonial and post-soviet constitutions which all take three powers to be the norm when designing a new constitutional government. There are, however, a handful of exceptions. Under the Constitution of the Bolivarian Republic of Venezuela: 20 December 1999 (Venez), for example, the national government is comprised of the standard executive, legislative, and judicial branches, but to this are added two additional branches: the Electoral Branch, responsible for overseeing elections, and the Citizens’ Branch which serves as ombudsman, public prosecutor, and comptroller. Less explicitly perhaps, the Constitution of Costa Rica: 7 November 1949 (Costa Rica) establishes the state’s three primary powers as the executive, legislative, and judiciary, yet also provides for the establishment of two additional and independent government organs: the Supreme Election Tribunal and the Comptroller General. Each represents an attempt to assimilate western constitutional design models within local socio-political contexts requiring alterations to such designs.

Five-branch governments are not unique to Latin America, and another, earlier constitution, the Constitution of the Republic of China: 25 December 1947 (Taiwan) (中華民國憲法, hereafter 1947 ROC Constitution), also established a national government comprised of five branches.

This constitution, however, stands out as an anomaly for several reasons. First, it divides the → central government into five distinct branches, or yuan (院) as opposed to the more common tripartite division. The two additional branches were explicitly drawn from China’s imperial heritage in a purposive attempt to infuse liberal western constitutional theory and design with chthonic Chinese political structures. Hence it is also commonly referred to as the Five-Power Constitution (五權憲法). Second, it is a constitution written to govern the entirety of the Chinese mainland, yet after the loss of the civil war with the Communists in 1949 (→ communism), the Nationalist government relocated to the island of Taiwan and established the Republic of China on Taiwan. Since then, the constitution has effectively governed only the inhabitants of Taiwan and a handful of offshore islands, whilst that government still maintains the claim that the document represents the legitimate constitution for all of China. Lastly, due to various international and domestic political pressures, this constitution has never been given a complete overhaul so as to better reflect the reality of Taiwan’s contemporary constitutional landscape. Instead it has been subject to several piecemeal reforms since 1990, each a response to various political crises. These reforms have transformed the original parliamentary system of the constitutional document into a frequently unstable semi-presidential system prone to political gridlock (→ semi-presidentialism). Since 1947, this constitution has survived a civil war, thirty-eight years of inertness under martial law, and has provided a foundation for political democratization in post-martial law Taiwan. This entry provides an overview of the contents of the constitution as well as a survey of its tumultuous history.

Keywords: Chinese law, Taiwanese law, separation of powers, comparative constitutional law, constitutional law

Suggested Citation

Caldwell, Ernest, Chinese Constitutionalism: Five-Power Constitution (July 1, 2016). Caldwell, Ernest. 2017. "Chinese Constitutionalism: Five-Power Constitution" In Max Planck Encyclopedia of Comparative Constitutional Law, edited by Rainer Grote, Lachenmann, Franke Lachenmann and Wolfrum, Rüdiger Wolfrum. Oxford: Oxford University Press, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2828104

Ernest Caldwell (Contact Author)

University of London - School of Oriental and African Studies ( email )

Thornhaugh Street, Russell Square
London, London WC1H 0XG
United Kingdom

HOME PAGE: http://https://www.soas.ac.uk/staff/staff78626.php

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