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1. INTRODUCTION
Which constitutional institution shall exercise the power of military command? Or in American terms, who shall be the Commander in Chief of the military?
The military command power (militäriche Kommandogewalt), a legal term especially prevalent in German academia, is an indispensable component of supreme command power (Oberbefehl). The supreme command power refers to “the sum all the disposal and command power (Verfügungs- und Befehlsgewalt) over the military”, 1 including military command and administration. Compared to the American counterpart, the supreme command power approximates a broader understanding of Commander in Chief power, while the military command power is the narrowest understanding.2 This article uses a broader understanding of American Commander in Chief power and deem it as a synonym for the supreme command power. When it comes to direction and deployment of armed forces, I will use the military command power.
Constitutions in major democracies mostly deposit the armed forces under the control of the executive branch. For example, the Constitution of the United States and France designates the President as the commander in chief, while the German Basic Law vests the power of command in the Minister of Defence.3
The power of military command, in China, falls out of the jurisdiction of the executive. The Constitution of the People’s Republic of China of 1982 adopts
1 Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland (Band II), 1980, S. 870. Maunz/Dürig/Epping, 81.
EL September 2017, GG Art. 65a, Rn. 20.
2 See, David Luban, On the Commander in Chief Power, 81 S. CAL. L. REV. 477 (2008) (“One way of posing the question is to ask whether the commander in chief power includes the entire realm of national security
decisions—that would, perhaps, be the broadest definition of the power—or nothing more than a narrow power of military command.”)
3 U.S. Constitution, Article 2, Section 2, Clause 1. Constitution of France (1958), Article 15. Basic Law for the Federal Republic of Germany, Article 65a.
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a unique framework of control over the military. The Executive, namely the State Council, has the authority “to direct and administer the building of national defence” (Article 89 (10)). On the other hand, Article 93 reads that “the Central Military Commission (CMC) of the People’s Republic of China directs the armed forces of the country.” Both the CMC and the executive are paralleled constitutional branches. Then comes one interpretative question: whether the government can command the military? If the answer is no, then legislative questions arise: Whether it is reasonable to set up a branch external to the executive to direct the military? Which branch shall exercise military command power from the point of view of constitutionalism?
1.1 Why a Research on Chinese Military Command Power?
Before answer those questions mentioned above, we have to know why to study Chinese constitution, which is regarded as “a constitution without constitutionalism”4 or a “sham constitution”5 in an authoritarian state.
Although China has no substantial constitutional review by the judiciary as in western countries, evidences vindicate Chinese constitutional enforcement mainly through the process of legislation, no matter on issues of the protection of fundamental rights or separation of powers.6Furthermore, notwithstanding the distinction of democratic and authoritarian regimes, all the constitutions share some common functions. The fundamental one is the coordination between different institutions (or branches), which is a basic question in all the countries. Constitutions arrange the powers that different branches exercise, which decreases the cost of renegotiation and conflicts between institutions, as well as guides the actions of political elites.7This can naturally be applied to
4 Zhang Qianfan, A Constitution without Constitutionalism? The Paths of Constitutional Development in China, 8 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 950 (2010).
5 David S. Law & Mila Versteeg, Sham Constitutions, 101 CALIF. L. REV. 863, 866 n.4 (2013).
6 Yan Lin and Tom Ginsburg, Constitutional Interpretation in Lawmaking: China's Invisible Constitutional Enforcement Mechanism, 63 AM. J. COMP. L. 467, 472 (2015).
7 Tom Ginsburg and Alberto Simpser, Introduction: Constitutions in Authoritarian Regimes, in CONSTITUTIONS IN AUTHORITARIAN REGIMES 1, 3 (Tom Ginsburg and Alberto Simpser eds., 2014).
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China, since Chinese regime also has to response to the question of how to allocate diverse tasks to various institutions. As a result, the inquiries over constitutional structures in the Chinese context, especially the assignment of military command power in this article, is not untenable.
Although China today doesn’t face a threat of war, diverse tasks require the support of the People’s Liberation Army (PLA), such as domestic disaster relief, overseas escort, and so on. Especially, as the increases of the deployment of the PLA in recent years, laws governing military turns back to the sight of the public.
A practical question asked by Xue Gangling, a legal scholar, can the government command the military when soldiers engage in non-war operations?8
This question actually arose in Wenchuan Earthquake (2008) relief. The Premier asked the military to move into the epicenter quickly and carry out a range of relief action, but it was delayed by the military several times, until Chairman of the CMC Hu Jintao replaced Wen as the leader of rescue operation.9 A question arises, whether the Premier has the authority to order the military?10
1.2 Literature Review
The division of powers between the State Council and the CMC has drawn the attention of legal scholars recently. Although foreign observers pointed out the importance of the office of Chairman of the CMC,11 they are confused by the ambiguous constitutional design of the chain of command.12A contribution made by them is to point out the paucity of institutional civilian control of the
8 沈亮，魏頔，兵馬未動 軍法先行——中國軍隊也需法律“掩護”，南方週末 2009 年 4 月 2 日。
http://www.infzm.com/content/26444 (last visited, July 10, 2018).
9 Nan Li, Chinese Civil-Military Relations in the Post-Deng Era, 4 CHINA MARITIME STUDIES 1, 27-28 (2010).
10 Tai Ming Cheung, The Riddle in the Middle : China's Central Military Commission in the 21st Century, in PLA INFLUENCE ON CHINA'S NATIONAL SECURITY POLICY-MAKING 84, 107 (Phillip C. Saunders and Andrew Scobell eds., 2015).
11 Chenglin Liu, The Development of Chinese Constitutionalism, 48 ST. MARY’S L.J. 199, 248 (2016)
12 Jeremy T. Paltiel, Civil-Military Relations in China: An Obstacle to Constitutionalism?, 9 J. CHINESE L. 35, 49-51 (1995).
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Chinese military,13 but the normative question of whether the government can command the military, as well as how to allocate the military command power, remains untouched nonetheless.
On the other hand, Chinese scholars predominantly focus on the interpretation of the Constitution. Although, in traditional textbooks in Chinese constitutional law, the narratives are almost repetitions of current legal norms over the military powers of the State Council and CMC,14 some started to reflect the tension between the Ministry of National Defence and the CMC.15 One issue in current debate is whether the State Council can command the military.
Traditional understanding, based on the plain constitutional text, claims that the CMC exercises the power of military command, while the State Council has the power of military administration.16However, this argument is challenged by younger generations. Some alleges that the phrase “national defence” in Art. 89 (10) empowers the State Council with full authority over military affairs, including the deployment of armed forces.17 To the contrary, the other regards the “national defence” in that clause as a much limited power over national defence administration.18 However, because of a lack of the application of legal methodology, the Chinese scholars haven’t got a persuasive answer.
Furthermore, the Chinese allocation of military command power has not been examined in a comparative context, which makes it impossible to reflect our constitutional design systematically. Accordingly, by virtue of a paucity of systematical comparison, current plans for constitutional reform cannot solve
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Chinese problems.
1.3 Main Thesis
This article tries to answer following questions. Firstly, does the Constitution vest the State Council with the power of military command?
Secondly, is the Chinese constitutional design a unique one, or just a successor of a certain archetype? Thirdly, what are the institutional problems of current system? Fourthly, how can we solve those institutional problems on military command system?
Initially, this article tries to interpret the constitutional power of the State Council in Art. 89 (10). Textual, structural and historical readings of that clause suggest that the State Council has no military command power.
Next, a comparative perspective reveals three models on the constitutional assignment of military command power: the executive control model, the independence of military command model, as well as the middle model. The Chinese system segregates the military command from the executive, which matches the features of the independence model.
The third thesis is that the Chinese design over military command fails on both institutional performance and original legislative promises. A constitutional evaluation of the three models suggests that the independence model performs worst in democratic legitimacy, effectiveness and protection of liberty, while the executive control model works best. The institutional flaws of the independence model also reflected in the Chinese practice: (1) as for effectiveness, current system hinders the cooperation between the military and civilian government, as well as weakens the function of Department of National Defence; (2) in the view of democratic accountability, it undermines parliamentary oversight and civilian control over military. Furthermore, Chinese constitutional practice cannot live up to the framer’s promises because of the evolution of society, political circumstances, as well as constitutional theory.
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Finally, to solve current problems, it’s necessary to adopt the executive model instead. The military command power should be allocated to the State Council as the executive, with the chain of command running from the Premier through the Minister of National Defence to the Chief of Joint Staff. In order to prevent the executive from abuse of military power, accountability of the State Council to the parliament should be enhanced, by means of setting up the following mechanisms: (1) a Defence Committee in the legislature for inquiring military affairs, and (2) parliamentary ex ante consent over deployment of military overseas.
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2. MILITARY COMMAND POWER IN THE CONSTITUTION OF 1982