A Forgotten Experiment: ­­­Constitutional Democratisation in Early Twentieth Century China (1909–14)

YAN Quan 嚴泉 Ernest Ming-tak LEUNG 梁明德

Picture of Opening of the first parliamentary session, Peking, April 8, 1913

Opening of the first parliamentary session, Peking, April 8, 1913

In 1909–14, China attempted a transition to democratic representative government. During the last years of the Qing Empire, the Manchu imperial government partially satisfied demands for a constitutional monarchy, as opposed to outright revolution, by setting up a provisional parliament in the form of an Advisory Council (zizhengyuan 資政院) together with Provincial Consultative Assemblies (sheng xunyiju省諮議局). This was the first test bed for Chinese parliamentarianism. It was this that opened the floodgates of revolutionary change to the political system and accelerated the transformation of traditional socio-political modes of behaviour. When the Republican Revolution happened in October 1911, it was partially helped by constitutionalist members of the Advisory Council who were disgruntled by official apathy and sluggish progress towards establishing a formal parliamentary form of government. With the establishment, on January 1, 1912, of the Republic of China, the difficult process of drafting and promulgating a constitution for the Republic that was agreeable to all parties began. By 1913 constitution-makers were trapped between opposite ends of the political spectrum. These were, firstly, the uncompromising radical wing of the Kuomintang (KMT, or “Nationalist Party”), and, secondly, the “Beiyang” (北洋 “North Sea”)[1] military-bureaucratic bloc, which, rather than being a force of pure reaction, were in fact leaders of the late Qing modernisation effort and had played an important role in fostering a smooth transition to the Republic. Both increasingly harboured a winner-take-all mentality, favouring autocracy and eliminating the other party as soon as an accommodation could not be reached. It was however precisely during these tumultuous years, known as the “Beiyang period” of the Republic, that the pace of change was quickest in terms of political authority, legitimacy, participation, and journalistic freedom, with the commencement of competitive parliamentary elections and universal acknowledgment of the need for and the legitimacy of a constitution. As Joseph Levenson said, “The monarchical symbols were just as thoroughly drained, and this in itself reminds us that the new form of republican China was not only form but content” (Levenson, 1964: 124).

China’s constitutional democratisation was simultaneous to those which were under way in the Ottoman Empire, Persia, Portugal, Mexico, and Japan, and was one case in a global trend of political reform that began before the First World War. Democratic transitions require constitution-making, where elites decide the limits and powers of the new regime and the citizens (Bonime-Blanc, 1987: 13). This is followed by measures to prevent the new democratic order from being usurped by elements of the ancien régime or by radicals seeking extraordinary powers to cleanse the former. As such the political transition is inherently fragile, being “a period of great political uncertainty … subject to unforeseen contingencies, unfolding processes and unintended outcomes [where] actors are often forced into making hurried and confused choices; and the alliances they enter are usually fleeting and opportunistic. The result of these interactions is often not what any one group preferred initially” (Karl and Schmitter, 1991: 270).

For years, research on constitutionalism and democratisation in early twentieth-century China has focused either on the 1912 “Provisional Constitution” (Yang, 1998) or on inter-party bickering (Chang, 2004). Most over-emphasise the macro-narrative (e.g. Xiao, 1999) at the cost of micro-analysis, such as elite political choices, comparative analysis of constitutional systems, and institutional structures. From the methodological perspective, the representative works have mostly been historical (Liu, 1996; Hou, 2011; etc.) and ignore the social scientific possibilities of using comparative and multi-disciplinary methods.

Facile narratives on Chinese democratisation and methodological parochialism are obstacles to deepening our comprehension of the real causes of the failure of the democratic experiment. Was it really, as many Chinese scholars have claimed, that Chinese conditions were inherently incompatible with Western democracy? Or was it, as some Western scholars have claimed, that the Chinese were unused to life without political authority, thus descending easily into selfish factional bickering (Nathan, 1976). We think the more important question is whether a democratic transition under constitutional republicanism ever stood a chance in China, and how one should act should the chance ever come again. From our past experience, can useful lessons be learnt in the choice of constitutional systems and the arrangement of the transition itself, particularly where it concerns a mode of political behaviour most suited to the fickle political realities of a future Chinese political transition? All of these suggest that a re-examination of the constitutional democratic transition in early twentieth-century China is necessary and long overdue.

This paper will show that the extent and depth of change during China’s 1909–14 constitutional democratic transition surpassed widely-held assumptions, encompassing changes in institutions, social norms, and modes of thinking. It will also show that the early Republic’s quick pace of democratisation was thanks in part to the preparation begun during the late Qing parliamentary experiment. This paper is also an attempt at multi-disciplinary analysis, involving history and political science, of the factors that led to the breakdown of China’s 1909–14 democratic transition, and to point out what lessons can be learnt from it.

Previous research has been constrained by structuralist presumptions particularly with regard to the so-called “conservative” actors, who were assumed to be acting on the basis of factors such as traditional culture. This paper makes use instead of “neo-institutionalist” analytical methods and assumes the outcome to be the result of rational choices on the part of all historical actors involved. By that we mean the following: “Different subjects of action (individuals, organisations, or the government) may have different motives, modes of behaviour, and results in promoting institutional change, but they must obey the general principles and processes of institutional change. The balance between the costs and benefits of institution change is critical to the promotion of or delay to institutional change. Only when the expected benefits are higher than the expected costs would the subject of action promote institutional change until it is eventually materialised; the contrary is also true. This is the guiding principle behind institutional change” (Chen, 1994: 7).

In comparing the changes in the balance of political cost and benefit before and after choices were made in constitutional systems, this paper can shed light on the correlation between constitutional design and the expectations by political actors on their future political outlook. Neo-institutionalist analysis is beneficial to understanding how constitutional design is related to political stability. This paper will demonstrate that the transition broke down due not to any significant suppressive behaviour on the part of “traditionalist reaction”, but due to the inability of parliamentary radicals to come to terms with the legitimacy of these institutional forces and vested interests. Such radicalism had in fact been begun by the “moderates” in the Advisory Council. This paper concludes by suggesting that in a political transition for an autocracy such as imperial China, if social revolution was not on the agenda, then respect should be given to the rightful place of vested interests in any future political arrangement. Political realism and a spirit of compromise, lacking in China’s 1909–14 episode, should be central to any successful democratic transition. These are essential to consolidating a constitutional order agreeable to all parties; all adjustments and fine-tuning can come afterwards, instead of endangering the transition itself.

In section one we explain the origins of the political transition in the activities of the late Qing Advisory Council, where popularly elected MPs fought to expand parliamentary rights and tried to promote the consolidation of a constitutional monarchy. Their failure contributed to the 1911 Republican Revolution, after which the democratic transition began in earnest, as outlined in section two. In the year 1913, known as the “sacred era” for parliament, Chinese political behaviour was reinvented, and this is explained in section three. In section four we deal with how radicalism in constitution-drafting destroyed the possibilities of a consensus between the KMT and the bureaucratic establishment, resulting in Yuan Shikai’s clampdown and the failure of the democratic transition. We finish by inspecting this outcome in an international comparative context in section five.

Parliamentary Politics in the Late Qing Empire

 

Picture of The Advisory Council, Peking, 1910

The Advisory Council, Peking, 1910.

Parliamentary politics in China made its debut under the auspices of the Qing Empire. The Advisory Council (often mistranslated as “National Assembly”) was established on September 23, 1910 and served as the laboratory of a new mode of political behaviour. The September 1909 Advisory Council Charter (zizhengyuan yuanzhang資政院院章) set forth a mission to “make decisions according to the public will, and to provide the basis for the future establishment of a bicameral parliament” (“Memorial on the Draft Charter Submitted by the Advisory Council”; in Lai, 2004: 82). Its members had three-year terms and numbered 200, half of them chosen by the imperial court consisting of elite bureaucrats and aristocrats, and the other half chosen by the democratically but indirectly elected Provincial Consultative Assemblies, which had also been established in September 1909.[2] Council members drew lots to decide which subcommittee they joined. Members enjoyed the usual parliamentary privileges of being exempt from arrest, subject to conditions, and freedom of speech during council sessions.

The activities of the Advisory Council soon grew out of the “advisory” role to which it was initially assigned and assumed the guise of a de facto parliament. In the first normal session from September 1910 to January 1911, it was dominated by the elected half of the councillors, who mediated on conflicts between provincial authorities and assemblies, and sent dozens of questionnaires to government departments concerning the 1911 budget. They impeached the grand councillor (junji dachen軍機大臣), and a proposed amnesty for political prisoners. During the second normal session started October 23, 1911, the council’s most prominent achievements were preparatory discussions on the drafting of the constitution, which culminated in the promulgation of the “Nineteen Supreme Principles of the Constitution” (xianfa zhongda xintiao shijiutiao憲法重大信條十九條), the Parliament Organisation Act, and election laws. Legislation passed by the Advisory Council also included the Local Education Charter, the New Penal Code, the Copyright Act, the Press Act, and the Societies and Assemblies Act. Six reformists executed after the failure of the 1898 Reforms were rehabilitated, and a general amnesty was offered to political fugitives.[3]

The Advisory Council fought and won budgetary powers. The imperial court was forced by the council to submit the proposed budget for debate, a totally unprecedented event in Chinese history. The councillors carefully scrutinised every detail in the budget, which they slashed from 376.35 million silver taels to 77.9 million, producing even a slight margin of profit for the state. The council also went beyond the powers stipulated in its charter and impeached the grand councillor.

The Advisory Council Charter originally stated that if the grand councillor or any minister of state were to breach the law or infringe upon the rights of the council, the council could report the facts to the imperial court and request an imperial verdict (Lai, 2017: 313). In 1910 the Advisory Council submitted a petition to the imperial court regarding the sale of government bonds in Hunan province, judging that since Governor Yang Wending 楊文鼎 had not sought permission from the Hunan Provincial Consultative Assembly, this amounted to an illegal act. The council decreed that the matter be re-submitted for approval by the Hunan Assembly, and that the relevant bureaucrats be sanctioned. The grand councillor, however, co-signed an edict which defended Governor Yang. Some councillors deemed that, since the Provincial Consultative Assembly Charter was national law, the grand councillor’s co-signature was also an illegal imposition of an executive decree, and were worried that this would have grave consequences for China’s constitutionalism (see the minutes of the Advisory Council in Li, 2001: 141). To make things worse, the grand councillor sent the Advisory Council a muddled response,[4] and co-signed the prince regent’s edicts delegating other matters submitted by the council to the decision of relevant government departments. This infuriated the councillors, who claimed that the grand councillor had infringed upon the rights of the council and was “unsuited to assist His Majesty the Emperor” (Li, 2001: 242, 253). The motion to impeach the grand councillor was passed, in an unprecedented show of check-and-balancing power.

The Advisory Council’s bitter experience with balancing the imperial executive and lack of progress in promoting a transition of power paved the way for their participation in the Republican Revolution. On January 1, 1912, the Provisional Government of the Republic of China was established, and Dr Sun Yat-sen assumed its presidency in Nanking. Shortly afterwards a consensus between the warring northern and southern parties was reached. At this critical juncture the Beiyang military-bureaucratic establishment threw its weight behind the revolutionary cause and a joint petition of 47 leading generals requesting the emperor’s abdication, forced the imperial court to submit to their pressure. The new prime minister elected by the Advisory Council, Beiyang military strongman Yuan Shikai, forced the young and hapless Emperor Puyi to abdicate and to transfer his powers to the new republic. Many councillors chosen by the Provincial Consultative Assemblies had submitted in 1910 four petitions to the imperial court asking for a formal parliament to be convened, but all were rejected, leaving many councillors distraught and sympathetic to the revolutionary cause. They left Peking to join the Provisional Republican Senate in Nanking, thus signifying strong continuity between the legislatures of the Qing Empire and the revolutionary republic. A quorum could no longer be maintained. In early February 1912, the new council president, Xu Dinglin 許鼎霖, having understood that the emperor’s abdication was unavoidable, requested the imperial court to dissolve the Advisory Council.

What is clear from the experience of the Advisory Council is that the uncompromising mentality typical of the republican parliament had begun to surface in the last years of the Qing Empire, especially when the councillors deemed that their powers had been quietly usurped. In turn the resistance put up by these comparatively moderate politicians vastly exceeded the provisions of the council charter. The dissolution of the empire became a joint effort between the rebelling revolutionaries and the northern military-bureaucratic bloc, and even the parliamentary establishment, which saw greater political prospects for itself by kick-starting a proper democratic transition. As we shall see, the establishment would later come to be disillusioned with democratisation, but not with the republican form of government itself; nor did most of the establishment regret the earlier decision to overthrow the empire. Democratisation would be strangled it in its cradle, and an authoritarian republic would emerge in its place.

The Democratic Transition in the Early Chinese Republic

During the process of the democratic transition, the most apparent changes were in the disintegration of monolithic executive power, followed by the emergence of a power structure based on the three branches of government – legislature, executive, and judiciary. In 1911–12, the Provisional Senate was established first in Nanking, and later in Peking, signifying the appearance in a China of a legislature in the full sense of the word. The Provisional Senate in Nanking opened on February 28, 1912 and had 42 senators representing 17 provinces and regions. They were appointed by the provincial governors who had declared independence from the Qing Empire during the revolution of 1911. The Nanking Provisional Senate proclaimed itself as the central legislative organ, and announced that “before parliament is convened, this senate would serve as the sole legislature” (“Bill of the Organisation Law of the Provisional Government of the Republic of China, February 1, 1912”; in Li, 2011: 529).

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The Provisional Senate at the inauguration of the Republic of China, January 1, 1912

The Provisional Senate at the inauguration of the Republic of China, January 1, 1912

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The most important product of the Nanking Provisional Senate was the drafting of the “Provisional Constitution of the Republic of China” which was promulgated on March 12, 1912, “distinguishing and defining the legislative, judiciary and executive powers”. Ironically the senate’s newly born independence was defined against the will of the executive branch of the revolutionary regime. Despite revolutionary leader Huang Xing’s threat to send troops to pressure the senate into not changing the capital (from Nanking, favoured by revolutionary leaders such as himself and Sun Yat-sen, to Peking, favoured by Yuan Shikai and other revolutionaries such as Song Jiaoren; see Bergère, 1998: 221–222), the Senate ultimately ignored opposition from the Provisional Republican Government and exercised its independent legislative powers on matters regarding the choice of national capital city and the power to draft and implement the constitution.

The Provisional Senate existed only for a little more than two months, and its government-appointed nature meant a weak popular mandate. Upon protest by Provincial Assemblies such as that of Hubei, fresh elections were held for the Provisional Senate once a settlement had been reached by the warring northern and southern parties. On April 29, 1912, a new Provisional Senate was established in Peking, with 122 senators representing the nation. This body was active for almost a year. The president of the Provisional Senate, Wu Jinglian 吳景濂, said at the closing ceremony that “given some 220 meetings were held and some 230 motions voted on, these have laid the first foundations [of constitutional democracy]” (Sun, 1929: 114).

Preparatory work for electing the first parliament of the new republic began during the second half of 1912. On August 21 Yuan Shikai decreed for the first parliamentary elections to be held, announcing that “This formal parliament serves as the basis for the construction of the republic, and the sooner parliament is established, the sooner will our national foundations be settled. Since these elections are an urgent matter, work must proceed at an accelerated pace” (“Decree from Provisional President Yuan Shikai Regarding the Holding of Parliamentary Elections”; in SHAC, 2010: 120) On September 5 the dates of the elections to the House of Representatives were announced by the Peking Republican Government. The first round would be held on December 10, 1912 and the second round on January 10, 1913. On December 8 the dates of the elections to the senate were announced. Provincial Assemblies, the Central Academy, and the Overseas Chinese Electoral College would hold their elections on February 10, 1913, and Electoral Colleges representing Outer Mongolia, Tibet, and Qinghai would hold their elections on January 20, 1913 (Xie, 1948: 77–78). The elections were completed by March 1913. Under the coordination of the Peking government, intense preparatory work was carried out for the upcoming elections. The quality of the electoral contestation however left much to be desired, with “empty and shallow” manifestoes and ad hominem attacks. The intensity of the contestation was also uneven, with those in coastal regions being much more passionate than those in inland provinces (Zhang, P., 1986b: 10). There were however many positive points regarding this first election. The extent of activism and organisation was unprecedented:

Candidates set up night schools to teach voters how to write the candidates’ name, and they printed name cards which would be carried into the voting booths by the voters to allow the name to be copied onto the ballot. The candidates printed posters and banners to attract the attention of voters, or published their political views and the qualifications of their parties’ candidates on journals. The candidates travelled everywhere to make speeches. They offered privileges (such as exemption from party fees) to attract first round election candidates to join their own parties (Xu, 1977: 88–104).

There was a massive expansion of political participation. Firstly, more social strata were allowed to participate in the political process. Judging from the stipulations of the electoral laws and the social composition of elected MPs, the electorate consisted mainly of the gentry, industrial and financial capitalists, educators, journalists, small property owners, mid-to-lower-ranking bureaucrats, rural landowners, and rich peasants. The most active participants were the newly emerged stratum of city dwellers, or, we might say, a new social elite consisting of the urban middle class. The circumstances in China were akin to elections in the United States before 1820, where electoral rights belonged to only one section of the populace, or the owners of real estate (Bryce, 1921: 47).

Secondly, the intensity of political participation deepened. There was a steep increase in the electorate during the early years of the Republic compared to the late Qing elections. Due to relaxed restrictions on voting qualifications, an average of 1.5 million people per province, or 34 million people nationwide, were allowed to vote. This amounted to 10 percent of the Chinese population at the time (Zhang, P., 1986b: 10). This was in no way inferior to the depth of political participation in Europe or the United States during the early years of democratisation. Even after the 1832 electoral reforms which doubled the British electorate, it comprised of a mere 8 percent of the adult male population (Li, 2001: 173). Voting rights in Britain were still denied to more than half of the adult male population, and all women after the 1867 parliamentary reforms (Yan, 1999: 340). The electorate in the United States in 1840 consisted of only 16 percent of the total population (Huntington, 1996a: 94). The colonial Indian electorate, only one million in 1921, would not reach 1912 Chinese levels until 1935 (Fincher, 1981: 270–271). Voters in some areas of China were very active; 60 percent of them voted in Mukden (now Shenyang) – a railway junction and a major industrial centre in southern Manchuria – and 70 percent voted Jiangning prefecture in Jiangsu province, close to Nanking (Zhang, P., 1986a). NGOs and volunteers also helped with administering voting stations. Some voters came to vote only after finishing voter registration which involved examining their annual tax returns, and yet administrators at the voting stations patiently awaited their arrival despite these lengthy procedures (Fincher, 1981: 225).

Furthermore, there was a marked change in the quality of political participation. The American scholar Ernest P. Young observed that, compared to other periods in Chinese history, representative politics and competitive elections between individual political parties gained paramount status during the first two years of the Republic (1912–13) (Young, 1977: 76). Many commentators on early Chinese democracy have focused on negative phenomenon associated with the 1912–13 and 1918 elections, such as bribery, voting under someone else’s name, administrative interference, and even violence. “From its beginning, Chinese democracy … received negative press coverage. Chinese journalists and commentators lambasted the kind of corruption that would easily arise in the process of learning from western democracy” (Young, 1977: 224). The government frankly admitted to the existence of irregularities in the parliamentary elections. The home minister described that “in some provinces, illegal activities and cases of corruption were reported by telegraph to the authorities several times a day. In summary these consisted of cases of single individuals casting ballots repeatedly, or ballots being taken out with the candidates’ names written on them in advance, or masquerading as another individual, or failure to report an illegal act, or even openly buying and selling votes or engaging in acts of coercion” (“Telegram from the Home Minister to Provincial Governors and Civil Governors,” Government Gazette, January 21, 1913). Yet these drawbacks were hardly unique to China.[5] The opinion of the British-and-US-educated interwar democrat Luo Longji 羅隆基 was representative of views which favoured constitutional democracy despite its obvious faults:

Until the seventeenth and eighteenth centuries, seats in the British parliament could be bought and sold. How is this any different from the “swine MPs” in China? British elections were just as dark and sinister as, if not more, than early republican elections in China. These were all unavoidable in the process of constitutional evolution (Luo, 1940: 93).

Party politics achieved unprecedented growth during the early republican years. “After the establishment of the Republic, popular sentiment was in a state of excitement, and political parties reached far and wide” (Yang, Y., 1937: 4–5). There was high participation in parties. In May 1912, less than half a year after the establishment of the centre-right Republican Party, “its party membership cards have been distributed by all branches in south-central China”, and the party headquarters alone processed some sixty thousand membership cards. Yet membership requests were overwhelming, such that the printers produced thousands of cards every day “and yet hardly satisfied the needs” of the party; thousands more had to be printed every day (Zhang, J., 1981: 1009). Each day thousands of people requested to join the centre-left Chinese Revolutionary League, led by Dr Sun Yat-sen, after the Nanking Provisional Government had been set up (Tang 1979: 371). Amongst the 35 political parties which had clear manifestoes, most advocated industrialisation, popular education, administrative centralisation, ethnic assimilation, party cabinets, and the two-party system.

The Functioning of Parliament and Political Reform

According to the Provisional Constitution and the Parliament Organisation Law, the main powers of parliament were to legislate and to monitor the executive. During its brief first session, which lasted for only half a year, the MPs showed themselves to be eager participants in the political process. Expanding on what had been achieved during the Advisory Council years, the MPs held agitated debates on matters mostly associated to Yuan Shikai, who had become provisional president. These included the assassination of KMT leader Song Jiaoren 宋教仁, the conclusion of a large foreign loan with the “five-nation banking consortium” (consisting of Britain, France, Germany, Russia, and Japan), the treaty with Russia over Outer Mongolia, and the state budget. The quality of the legislation was generally high for a new democracy and this peaked with the 1913 draft constitution. MPs concerned themselves in a manner never witnessed in prior or subsequent Chinese history with the protection of constitutional human rights,[7] and Provincial Councils were extraordinarily active. Progress on achieving judicial independence was also made with the establishment of a modern court system.

On April 8, 1913, the first parliamentary session of the Republic of China was convened in Peking. Parliament was bicameral, consisting of the Senate and the House of Representatives. There was a total of 892 MPs; 266 senators had been chosen by electoral colleges representing Outer Mongolia, Tibet, Qinghai, and the Overseas Chinese, as well as the Provincial Assemblies. The House of Representatives had 596 members, each representing 800,000 people (Zhang, Y., 1984: 113). Although this first parliament would be twice dissolved during its existence, it would manage to hold three sessions and continued to exist until 1924.

The first two months of the first parliament were known as its “sacred era” (Zhang, Y., 1983: 124). The state budget was vetoed for the first time in Chinese history.[8] In the spirit of the Advisory Council, impeachments and questioning sessions were held one after another. The House raised 9 impeachments, 19 motions to advise the executive or to sanction certain members of the bureaucracy, and some 173 questionnaires. These touched upon all aspects of government administration and forced the resignation of Premier Zhao Bingjun 趙秉均 and Finance Minister Zhou Xuexi 周學熙. Under the Parliament Act, if MPs decided to raise an extraordinary motion, parliament could vote to request a Minister of State to send written evidence or attend a questioning session (“The Parliament Act” Yiyuanfa, clauses 40–43, law no. 7, Zhengfu gongbao 政府公報 [Government Gazette], September 28, 1913). Acting Premier Duan Qirui 段祺瑞 (Tuan Ch’i-jui) was questioned by parliament on the government’s decision to borrow a 25 million pound “reorganisation loan”, carrying harsh conditions, from the five-nation banking consortium.[9] Duan performed miserably and the MPs mocked the session as having “only questions but no answers” (“Stenographic Record No. 8 of the First Normal Session of the House of Representatives,” May 5, 1913; in HRPRS, 1913: 19).

Parliament also produced a draft constitution, and some 42 other bills, in a show of its legislative vitality (Zhang, Y., 1984: 140, 158). Laws passed included the Charter of the House of Representatives, the Charter of the Constituent Committee, the Charter of the Constituent Conference, the Public Observation of the Senate Ordinance and the Parliament Act. The Presidential Election Act, passed on October 5, 1913, was a piece of constitutional legislation, whilst the Arrest of Members of Parliament During Internal and External Emergencies Act was a part of the Penal Code. A number of bills were voted down.[10]

Local assemblies were also especially active during this period. During the revolution various Provincial Consultative Assemblies had declared their independence from the Empire and announced their conversion into Provisional Provincial Assemblies of the Republic. In early 1913, the first Provincial Assemblies were elected, and some such as Henan (Honan) also elected Prefectural Councils.[11] Provincial Assemblies became very active and serious in their legislative work,[12] and the Sichuan Assembly even vetoed the provincial government’s budget (Lü, 1987: 259). The Jiangxi Assembly decided upon reducing the size of government (jianzheng 減政) and abolished certain departments (Lü, 1989: 231).[13] Unfortunately these Provincial Assemblies enjoyed only a short respite and were dissolved on February 28, 1914, following the dissolution of parliament.

Reforms to the judiciary were also underway. The Provisional Constitution stated that “Judges are to conduct trials independently and not be susceptible to interference from higher judicial or executive bodies”. The Legal Code was based on the continental system, with separate courts for administrative, civil, and penal cases. Judicial independence was particularly prominent under the early Republic. During the Nanking Provisional Government, the justice minister and British barrister Wu Tingfang 伍廷芳 insisted on the rule of law, and largely managed to resist attempts at interfering the judiciary by the Shanghai military governor, Chen Qimei 陳其美 (Li, X., 2001). During the trial surrounding Song Jiaoren’s assassination in 1913, the Shanghai local prosecutor summoned Premier Zhao Bingjun, who declined to appear in court due to health reasons: “Yet it was an unprecedented event, not to be repeated in twentieth-century Chinese judicial history, for a local magistracy to summon the premier and for local officials to publish evidence of frequent contact between high-ranking officials and the murder suspect” (Yuan, 2000). Progress in judicial reform did not cease afterwards. Much was achieved in the training of new judicial staff and in institutional reform. Unfortunately, the Provisional Constitution did not provide the courts with vital constitutional review powers; the judiciary therefore never achieved its full independence.

Institutional Choice and Political Stability

Picture of The Constituent Committee at their meeting place: Temple of Heaven, Peking

The Constituent Committee at their meeting place: Temple of Heaven, Peking

During the 1912–3 transition, the main question was that of the choice between the presidential and parliamentary systems. To most of the constitution-drafters, participating in the Constituent Committee meant only preparing more lecture notes on constitutional theory, making poignant speeches at the meetings to argue for the supremacy of legislative power, and making sure that this power was to be secured by the provisions of the new constitution. Their failure shows that constitutional matters were not simply a question of academic principle, but one of suitability to the de facto distribution of political power. “For that political form is best that applies best” (Sartori 1994: 135).

In the early years of the Republic, the Beiyang establishment was the strongest political group, and Yuan Shikai received support from the military, the civil service, late-imperial constitutionalists, and the bourgeoisie. Given such political realities, it would have been impractical to force Yuan to give up his real political power and to assume a ceremonial presidential role. Yuan himself declared that he had a popular mandate and could not stand aside when the nation’s fate was at stake (Zhu, 1983: 56). He was interested in a presidential system, or should we say, something akin to the semi-presidential system of the French Fifth Republic; yet the KMT insisted upon a parliamentary system in defiance of political reality, and even proposed a constitutional arrangement where parliament was supreme.

Matters came to a head between the Beiyang establishment led by Yuan Shikai and the KMT-dominated parliament with the 1913 draft constitution, known as the “Temple of Heaven Draft” (Tiantan xiancao天壇憲草) after the location where the Constituent Committee’s meetings were held. The newly born parliament guarded its rights jealously, excluding requests from Yuan Shikai, local gentry and military elites to participate in constitution-making, and embarked alone on this task. This, and the resultant document, sparked strong opposition from the pro-Yuan establishment. To stop the draft from being passed in parliament, Yuan Shikai ordered all 438 KMT MPs be stripped of their seats on November 4, 1913. A quorum could no longer be maintained, and the parliamentary secretariat stopped issuing daily agendas from November 14 onwards. The first session was effectively closed. On January 10, 1914, the remaining MPs were also stripped of their offices, and parliament was dissolved to force the termination of the drafting process. China’s first attempt at a democratic transition utterly failed.

Although many historians have accused Yuan Shikai of sabotaging the drafting process, and hinted at a hostile environment for the drafters, this was not exactly the case. Yuan and the Beiyang establishment, even after having announced their opposition to the draft constitution, did not violate the broad principles of reasonable constitutional government; Yuan did not even request the constitutional power to dissolve parliament. One must not judge these events with the hindsight of Yuan’s later illegal decision to dissolve parliament and install a Latin American-style “super presidential” system, a very common mistake committed by many analyses of Yuan. In July 1913, sections of the KMT under Sun Yat-sen, using Song Jiaoren’s assassination as a casus belli, started the “Second Revolution” against Yuan Shikai and rebelled militarily. To suppress these rebels Yuan ordered the arrest of five members of the Constituent Committee. Yuan’s actions received support from leaders of the Progressive Party, which represented the erstwhile constitutionalists. Liang Qichao “justified Yuan’s suppression and fully supported his decision to wipe out the ‘mobs’” which he saw as being “more disastrous than deluge and wild animals” (Su & He, 2013: 320; as cited in Shan, 2018: 177); this was whilst Tang Hualong, another Progressive Party leader, called for the “immediate extermination” of the “treasonous” rebels (Zhang, 2008: 273; as cited in Shan, 2018: 177).

Yet whatever Yuan did at this stage was very different from the wholesale and illegal dismissal of KMT MPs and the dissolution of the KMT in November, which was aimed at preventing parliament from continuing to meet and to also create an excuse for its eventual dissolution. Between these two events, Yuan still hoped to influence legally the drafting process, and held back from the final decision to illegally terminate it altogether. The Constituent Committee did not stop meeting due to Yuan’s opposition even after the Second Revolution had begun. The fact that it produced the “Temple of Heaven Draft” clearly shows that they were still able to function independently. Nor did the military attempt to intervene throughout the three and a half months when the document was being drafted. Their protests only began after the draft was nearing completion on October 25. The funds required by the committee were provided by the Ministry of Finance. The atmosphere in which the drafting was done was largely peaceful and stable.

Regrettably, the “Temple of Heaven Draft” would only come to signify the failure of the democratic transition in early Republican China. On October 25, 1913, when the second reading was close to completion, President Yuan sent a circular telegram to all provincial military leaders, voicing his opposition to the draft and accusing it of being worse than the Provisional Constitution (Li, 1914: 34–35). The leaders of the Beiyang military-bureaucratic establishment and the provincial military leaders followed suit and sent many telegrams attacking the draft. On November 4, Yuan sent a second circular telegram to the provinces stating his refusal to accept the draft constitution and announced the dissolution of the KMT, stripping its MPs of their seats. Without a quorum, the drafting could no longer carry on.

Yuan’s politics were in fact originally more flexible than most would imagine. During the North–South Peace Negotiations at the end of 1912, Yuan suggested “convening parliament and submitting the question of the choice between monarchy or democracy to their decision as a way of salvaging the situation” (“Telegram from the Northern Minister Plenipotentiary Tang Shaoyi at the Peace Conference,” December 27, 1911; in Luo and Liu, 2013: 225). Soon afterwards, Yuan announced to the foreign media that he hoped to stay in office as prime minister until a general election was held and parliament was established (“Statement Authorised for Release by Associated Press”; January 23, 1912; in Luo and Liu, 2013: 274). Upon assumption of office as provisional president, Yuan had once advocated that China’s republican system should be based on that of France, but that the American method of electing the president (i.e. universal male suffrage) should be adopted (“Discussion on Important Political Matters between Special Envoy Cai and President Yuan”; in Luo and Liu, 2013: 619). It is worth noting that, by proposing this, Yuan’s stance was even more democratic than the KMT parliamentary majority, which was content with the French system, with the president being elected by parliament.

More importantly, “the choice of constitutional model does relate to the long-term stability or instability of a democracy” (You, 1997: 51). Writing in the 1920s, Tang Yi 湯漪, the US-educated former chairman of the Constituent Committee, wrote that “the source of internal strife in the Republic is in its institutions, and not in its politics. Bad politics is without exception the result of institutions” (Tang, 1921, 28). Modern constitutional theorists such as Juan José Linz have written on the relation between choice of constitutional system and success in democratisation. Presidential systems are widely seen to have undue effects on the stability of transitional politics. These include the possible political deadlock between the executive and the legislature, and the fact that “first past the post” presidential election winners inherently lack the spirit of power sharing and political compromise as found in cabinet systems, which may lead to autocratic tendencies. These are particularly damaging for newly formed democracies, which may have a highly varied ethnic, religious or linguistic composition (Chen, 2000: 217–18). The example of Woodrow Wilson’s bill to enter the League of Nations being vetoed by the US Congress was used by republican Chinese scholars to explain that political deadlock could happen in a presidential system (Zhu, 1922: 2). A parliamentary system has several main advantages (Stepan & Skach, 1994), but also prominent drawbacks, the most damning of which being the frequent change of government when the inter-party balance shifts. Frequent cabinet dissolution in the Third and Fourth French Republics is a case in point (Xu, 2002: 22, 27).

Similar to the French case was the early Republic of China, which was modelled on the French Third Republic, and had four cabinets in the first two years of its existence; Premier Lu Zhengxiang 陸徵祥 had a term of only three months in the face of formidable opposition in the Senate. As Ceaser puts it, a parliamentary system “may produce an executive force that is stalemated on the level of the primary executive power and weaker as a policymaking instrument than the American presidency” (Ceaser, 1992: 182–183). Besides, the efficacy of a parliamentary system of government is highly correlated to the extent of development of the political parties, and whether the governing party can normally achieve a majority.[14] Evidently, the fragile party politics of the early Republic were unable to satisfy the institutional needs of a parliamentary system. By contrast, the strength of a presidential system was its practicality. Such a system did not pose extraordinary requirements for the depth of political party development or the quality of the voters and could produce a strong and stable government (Yang, 1998). Most democracies that have collapsed in twentieth-century Africa, Asia, and southern Europe were parliamentary systems (Shugart & Carey, 2000: 27–8).

The failure of the Chinese democratic transition shows that the chosen constitutional model must reflect on the multi-focal nature of political interest. With hindsight, given China’s tradition of executive centralisation, the real power of the Beiyang establishment, and the highly fragmented political will of the many parliamentary parties, the appropriate constitutional model for 1913 might have been something akin to the “semi-presidential system” chosen by Charles de Gaulle in 1958 after taking into account the lessons of the French Third and Fourth Republics. This system bears both the merits of the presidential and parliamentary systems. The president holds vast real political authority, and the premier reports to him – an arrangement that could satisfy the needs of strongmen like Yuan Shikai. Meanwhile, disputes between the executive and the legislature can be resolved with relative ease. The president can dissolve parliament after having consulted the premier and the speakers of both houses of parliament. The success of the French Fifth Republic shows that a strong president can co-exist with a stable, effective cabinet (Zhang, Q., 2000: 27–28). The experiences of the “third wave of democratisation” shows that, for countries engaging in democratic transition, a semi-presidential system is more attractive than a pure parliamentary system (Lin, 2000: 168).

The End Result: The Breakdown of the Democratic Transition

“Not revolution but rather the search for a constitutional order to replace the dynasties has been the most important theme in twentieth-century China’s history, and it remains so today” (Waldron, 1995: 26). Examining the democratic transition in early Republican China, the failures worldwide in democratisation tells us that, even had Chinese democracy managed to soldier on somehow, there would not be an easy course for its future development. Given the low levels of modernisation, democratic tradition, and civil society – the structural elements of a functioning democracy that China lacked – the country almost stood no chance of consolidating successful democratic government in the early twentieth century. Wellington Koo, a Columbia University-educated Chinese diplomat who served several times as prime minister during the last years of the Beiyang regime in the 1920s, remarked in his memoirs that “Democracy cannot be born overnight and I do not think that the experience China had during the last fifty years in facing the problems of democratic government is unique to China” (Koo, 1976: 240). No country then, and very few now, have achieved democracy in one go.

A democratic transition is considered failed when democracy degenerates into autocracy or even totalitarianism. After the dissolution of the first parliament, China became the first country in the twentieth century to transition from democracy back into autocracy. After another failed stint in 1916–1927 with representative politics, single-party rule under the KMT began in 1927 and lasted for another twenty years. Experience worldwide has shown that democratisation, far from being a linear process, is one long zig-zag where an autocracy repeatedly attempts a transition. A smooth transition is hardly possible. In this sense, the collapse of democracy is in fact a common and not entirely unreasonable political phenomenon. As Samuel Huntington observed, very few countries in the twentieth century could set up a democratic political system at the first attempt (Huntington, 1996a: 270–9). European authoritarian regimes such as Salazar’s Portugal and Francoist Spain, and radical totalitarian regimes such as fascist Italy and Nazi Germany, were all reactions to failures in democratisation (Fewsmith, 1985: 172).

What can be seen from various failures at democratisation in history, including the Chinese case, is that rather than such failure being purely the result of reaction from vested interests, it is also correlated to the degree of radicalism in the promotion of democratisation. The Spanish democratic transition had been a possibility in 1931: even the military approved of the peaceful transition of power to the democrats, yet the left wing, which was in the majority and in charge of drafting the constitution, ignored major socio-economic and local interests, and added many radical provisions to the constitution, such as the imprudent decision to separate the widely-supported church from the state, and to reduce the power of the military, which not long ago had been key to the transition (Bonime-Blanc, 1987: 120–121). These radical measures constituted the sentimental reasons which brought the downfall of the Spanish Second Republic five years later and the subsequent civil war (Bonime-Blanc, 1987: 115). It has been said that constitution-making in Spain during the 1930s was “dissensual”: “a process in which not all political actors participate, dogmatic solutions prevail and problems are often unresolved or resolved irresponsibly. Agreements are difficult to reach, and if reached frequently exclude the views of one or more major political parties. The resulting constitutional text is one that poses a potential threat to the stability of the new political system” (Bonime-Blanc, 1987: 13–4). In a political environment that was simultaneously highly promising and challenging, the parliamentary elite and holders of real power made a series of decisions which contravened the principles of democratic politics. Not only did these men have to pay a huge political price, the democratic transition in Spain, as in China two decades earlier, was brought to a total halt at huge cost to generations of Spanish people.

In the Chinese case, radicalism and an uncompromising winner-take-all attitude germinated during the Advisory Council years and blossomed during the first republican parliament, which was dominated by radicals during 1912–3. On the choice of political system, the KMT parliamentary majority opposed the presidential system and hoped to expand the powers of the legislature at the expense of the executive. They believed that the most important principle in making the constitution was to “radically extend popular rights and prevent the revival of autocracy, and to stem any betrayal by the President” against the democratic system (“Weeping at the death of Mr. Song Dunchu [Jiaoren] and an announcement to our party,” Minli bao, March 28, 1913). The KMT was so confident of their control of the direction of constitution-making that one member of the Constituent Committee boasted: “I believe it is unanimously agreed here that the cabinet system be adopted and that absolutely nobody is advocating for a presidential system and opposes a cabinet system” (“Minutes of the Sixth Meeting of the Constituent Committee”; quoted in Li, 2007: 117)

The moderates had only a fraction of the political might of the Kuomintang radicals and failed to muster any meaningful resistance, and it must be remembered that it was these moderates who had opened the “Pandora’s box” of political radicalism during the Advisory Council years. By 1913, even when the Beiyang establishment demonstrated the willingness to negotiate, the moderates were no longer in a position to collaborate with the establishment to control the constitution-making process. This was why the political choices made by the radicals mattered most. The fate that subsequently befell many of these men is not a reason for us to forget about the glamour that they briefly enjoyed and the arrogance that they once possessed. Their mistaken choices during the drafting of the constitution sealed the fate of the democratic transition. Just like the French Jacobins, the Chinese radicals were unwilling and unable to distribute political power fairly and to pick an appropriate constitutional model through political consensus. It has been argued that “Chinese expectations for the probity of politicians in a constitutional order were probably unrealistically high. Normal political compromises was seen as betrayals, tactical shifts as evidence of lack of principle” (Nathan, 1983: 278).

For the Beiyang men, who had hoped to profit from the new institutional set-up – namely the republican form of government – their hopes were quashed by the radicals’ draft constitution. Hence they seethed with anger; democratisation lost its last appeal to the Beiyang establishment and could no longer call on their support. Experience with Third Wave democratisation during the late twentieth century has shown that the first objective of the transition should be to bring forth an institutional compromise, in order to guarantee the survival of the constitutional arrangement. Even if setbacks were encountered, and military coups did happen to force democratic institutions into co-existing with some degree of authoritarianism, as long as there is no regression into outright totalitarianism, political liberalisation could still carry on, albeit with some difficulty. Any fault or immaturity could be tolerated in a pluralistic political model. Only when this is the case would a second or third attempt at democratisation stand a greater chance of success.[15]

Picture of Postcard celebrating Yuan Shikai’s election as the first president of the Chinese Republic

Postcard celebrating Yuan Shikai’s election as the first president of the Chinese Republic

The worst consequence of a failed experiment with democratisation is the loss of faith in the objective of democratisation itself, as was the case with the Chinese political elite. Yan Huiqing 顏惠慶 (W. W. Yen), a US-educated diplomat who was premier on five occasions during the 1920s, wrote that “in the precipitous haste and intense blind enthusiasm to adopt a republican form of government it was not generally understood that a republic could not be successfully created in a day or a year, but would require decades of education and preparation, for all progress, including political, is accomplished not by leaps and bounds but by slow and laborious steps” (Yen, 1974: 294). Having encountered defeat, people lost their confidence in democracy and turned to alternative solutions, including totalitarian ones. Political liberalisation in China was brought to an end in 1927 with the KMT’s single-party state, and democracy remained henceforth illusory.

What deserves to be noted is that, in the 1990s, the KMT achieved the first successful democratic transition in Chinese history through a consensus-based constitution revision with the elected representatives of its challenger, the Taiwanese Democratic Progressive Party (DPP). Peaceful transfers of power between the two parties have subsequently happened three times; three decades later, the DPP has still not achieved its initial electoral promise of changing the name of the state from the Republic of China – established in Nanking in 1912 – to the Republic of Taiwan. This is a clear indication of the extent of this grand compromise.

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Notes