The Three Models

B. Current Taiwanese Chain of Command

4. AN ASSESSMENT OF THREE MODELS AND CHINESE DESIGN

4.1 The Three Models

國

立政治大學

‧

N a tio na

l C h engchi U ni ve rs it y

4. AN ASSESSMENT OF THREE MODELS AND CHINESE DESIGN Now the question is how to evaluate the three models. Since the

allocation of military command power is a question of separation of powers, it’s rational to know why the whole power of state (or in American doctrine, the “government”) should be separated. The constitutional interests

underlying separation of powers are at least threefold: democratic legitimacy, effectiveness of state action, and protection of liberty or human rights.¹⁰⁹ Notwithstanding their western origin, these three constitutional interests are also generally accepted in Chinese context.¹¹⁰

4.1 The Three Models A. Democratic Legitimacy

Democratic legitimacy of a constitutional institution embodies the value of self-government.¹¹¹ As a result, constitutional institutions should get their legitimacy directly from the people by elections, or indirectly from another elected branches. As for the allocation of military command power, firstly, democratic legitimacy means not only the commander in chief is elected (directly or by the legislature, etc.), but also its political accountability. In modern countries, except for monarchies, most commander in chief is elected, which makes no difference in these three patterns. However, as for political accountability, these patterns have systematical diversity.

In the independence of military command model, the military command system is isolated from responsible government. This enables the chain of command avoids accountability to the parliament, making the military command an area without legislative oversight. Moreover, the rationale for

109 Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 640 (2000)

110 Wang Xu, based on the report on the draft of the Constitution of 1982, summarizes three principle of constitutional institutions of China: democratic restriction (民主制約), institutional efficiency (機構效能), institutional coupling (制度耦合). In Wang’s context, the first principle means accountability of the constitutional institutions to the people. The last principle means more cooperation, with appropriate checks and balances. See, 王旭，國家監察機構設置的憲法學思考，中國政法大學學報第 5 期（總第 61 期），頁 138-141，2017 年。

111 Bruce Ackerman, supra note 109, at 640.

‧ 國

立政治大學

‧

N a tio na

l C h engchi U ni ve rs it y

autonomy of military command is untenable in the lens of democracy. In classic Germany theory, the whole state power is divided into civilian and military parts. This actually reflects a rejection of subordinating the military to the civilian power.¹¹²

The middle model, which is usually connected with semi-presidentialism, subjects the minister of defence (who commands the chief of general staff) to the parliamentary inquiries. However, the superior of the minister, the commander in chief (usually) is not responsible to the legislature.

Consequently, the final decision of military affairs still escapes the legislative supervision.

In the executive control model, the principle of civilian control over military is highlighted. The military is accountable to the people through the civilians. Compared with those two patterns, the executive control model varies according to executive-legislative relations. In presidential system, the president as commander in chief, with his minister of defence, has no

obligation to response to the legislature. Then, the executive model in presidential system also shows a deficit of political accountability before the legislature. On the other hand, in the parliamentary system, the whole cabinet is responsible to the legislature, as well as the commander in chief, no matter he/she is the prime minister or the minister of defence. In this view, the executive control model in a parliamentary system performs better than the other two patterns, as well as the presidential executive control model.

In conclusion, the executive control performs better than other two models.

B. Effectiveness

From the perspective of effectiveness, the executive control model still prevails. This is the outcome of the role of use of military in modern world.

112 Klaus Stern, a. a. O., S. 849.

‧ 國

立政治大學

‧

N a tio na

l C h engchi U ni ve rs it y

Currently, the deployment of military is no longer a pure military matter decided by the commander in chief. On the one hand, the deployment of military is usually substantially connected with political aims and outcomes.¹¹³ On the other hand, no matter in war or civilian events involved with the attendance of military, it’s important for the command of armed forces to cooperate with other ministries in the cabinet, especially the ministry of foreign affairs and ministry of the interior, in order to facilitate military actions.¹¹⁴

In the independence model, the supreme civilian executive power and the supreme military power is separated. It’s not easy for the Commander in Chief to contact civilian ministries to make sure civil-military cooperation, let alone ordering the ministers to execute his orders. As a result, if the use of force is free from civilian cooperation, then this system can manage it successfully.

However, if civil-military cooperation is inevitable as in most circumstances, it’s difficult for the Commander in Chief or the Premier alone to organize an effective action unless they share a consensus. The separation of military command and executive system is the institutional flaw of this model, which largely impair the effectiveness of the function of public power.

In the middle model, the problem is severe. Firstly, the military command power is overlapped between the Commander in Chief and the cabinet.

Generally speaking, the command orders runs from the Commander in Chief, through the minister of defence to the chief of general staff. However, because the minister of defence is a member of the cabinet, he/she is the de jure

inferior of the head of government. If the minister of defence can order the military directly, whether the Prime Minister holds authority over military command is in question. Especially, the title of Commander in Chief doesn’t always promise substantial powers. For instance, in Austria, the popularly

113 David Luban, supra note 2, at 540.

114 This is also a reason why the German gave up their tradition of independence of military command after World War II. See Walter Roemer, Die neue Wehrverfassung, JuristenZeitung 1956 S. 195.

‧

elected President is the Commander in Chief, but he acts as a figure head and all the military command authority is exercise by the minister of defence as a cabinet member.¹¹⁵Then it seems unclear which branch the military command power is allocated to, the Commander in Chief or the cabinet (Prime

Minister). If they have distinctive opinions on the deployment of armed

forces, especially when they belongs to different parties, a constitutional crisis might take place, since the military and minister of defence has two

principals.¹¹⁶ Under this circumstance, it’s not easy to clarify who can legally command the military, let alone the coordination between the military and other ministries.

Secondly, even if the Commander in Chief is definitely the supreme leader of the military, civil-military cooperation also depends on the relations

between the Commander in Chief and the Premier. Although the command system runs through the minister of defence to the chief of general staff, the Commander in Chief as the supreme leader of military affairs sits outside the cabinet. Therefore, every civil-military collaboration demands the consensus between the Commander in Chief and the head of government.

The executive control model, by contrast, performs better. Firstly, it has a clear chain of command, nothing like the dual-head structure in middle

model. Secondly, the chief executive has the complete authority over military and civilian affairs/departments, he or she can order certain ministries to coordinate with the military, even by means of setting up a new coordination council.

115 THE CONSTITUTION OF AUSTRIA (1920) Art. 80. (1) Den Oberbefehl über das Bundesheer führt der Bundespräsident.(2) Soweit nicht nach dem Wehrgesetz der Bundespräsident über das Heer verfügt, steht die Verfügung dem zuständigen Bundesminister innerhalb der ihm von der Bundesregierung erteilten Ermächtigung zu.(3) Die Befehlsgewalt über das Bundesheer übt der zuständige Bundesminister (Art. 76 Abs. 1) aus. [Article 80 (1) The supreme command over the Federal Army is exercised by the Federal President. (2) Insofar as, according to the Defense Law, the disposition over the Federal Army is not vested in the Federal President, it lies with the competent Federal Minister within the authorization issued by the Federal Government. (3) The command power over the Federal Army is exercised by the competent Federal Minister (Article 76, Paragraph 1).]

116 Cindy Skach, The “Newest” Separation of Powers: Semipresidentialism, 5 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 93, 97 (2007).

‧

C. The Protection of Liberty and Human Rights

The protection of liberty is the core of a classical understanding of constitutionalism. In this theory, the separation of powers runs against the tyranny by means of concentration of powers.¹¹⁷

The allocation of military command power is not fully connected with the protection of liberty and human rights.¹¹⁸ However, put the armed forces under the minister of defence, no matter in the executive control model or in the middle model, an application of administrative law is possible at least in theoretically, in order to hold the deployment of military to legal

accountability.

In conclusion, from a perspective of democratic legitimacy, the executive control model in a parliamentary system performs best, while the

independence model worst. As for effectiveness, against the backdrop of the significant connection between civilian and military affairs, the executive model prevails over the other two models. As for the protection of liberty, the independence model works worst.

Effectiveness Better Worse Worse

Protection of Liberty

Good Worse Good

117 Ilan Wurman, Constitutional Administration, 69 STAN. L. REV. 359, 367 (2017).

118 But in the classical model of independent military command, especially in Imperial Germany and Japan, the punishment of soldiers derived from the commander in chief authority, so they has no opportunity to seek judicial remedies.

‧ 國

立政治大學

‧

N a tio na

l C h engchi U ni ve rs it y

Therefore, in lens of the three values of constitutional separation of powers, the executive control model, especially in a parliamentary system, performs best, while the independence model functions worst.

4.2 An Assessment of the Chinese Design

The Chinese constitutional structure segregates the military command from the executive branch. It conforms to the independence model. Not surprisingly, institutional flaws of independence model also emerge in Chinese context, especially in effectiveness and democratic accountability. Furthermore, the legislative intents of the Constitution of 1982 cannot be achieved in current circumstances.

A. Effectiveness

The effectiveness is one of the core values of separation of powers. Current constitutional regulations on military has at least two negative impact on this fundamental constitutional interest: (1) the problem of civil-military collaboration; (2) dysfunction of the Department of National Defence.

The Weak Civil-Military Collaboration

The policy issues that the Chinese state faces can be subsumed into three types: military issues, political issues and mixed issues. Pure military issues can be decided by the CMC, and political issues can be decided by civilians (including the State Council), but mixed issues require the participation of both the military and civilians.¹¹⁹ But mixed issues has been quite prevalent in modern China, ranging from earthquake rescue to deployment of the military overseas, all of which require a cooperation between the State Council and the CMC. Although the CPC dominates all the constitutional branches,

119 Phillip C. Saunders and Andrew Scobell, Introduction: PLA Influence on China’s National Security Policymaking, in PLA INFLUENCE ON CHINA'S NATIONAL SECURITY POLICY-MAKING 1, 7 (Phillip C. Saunders and Andrew Scobell eds., 2015).

‧

military bifurcation still took place in foreign-policy and domestic crisis management.¹²⁰

The first case is the intrusion of Chinese submarine into Japanese territorial waters. On 10 November, 2004, a Chinese nuclear submarine entered Japanese territorial waters without surfacing and identifying its nationality, which is a breach of international law. Having identifying its Chinese identity, the Japanese protested with the Chinese government.

However, the Ministry of Foreign Affairs (MoFA) in Beijing had no idea about the incident. The spokeswoman Zhang Qiyue said “the relevant parties are still trying to understand the situation.”¹²¹ Until 17 November, the Chinese Vice Foreign Minister Wu Daiwei finally apologized for the incident.¹²² This accident reflects asymmetric information between the military and civilian ministries. Because the military is subordinated to the CMC, while the Foreign Minister is under the authority of the State Council, it seems rather difficult for the MoFA to get accurate information about military actions.¹²³

The second case is Wenchuan earthquake relief. On May 12, 2008, a Richter 7.8 magnitude earthquake happened in Wenchuan, Sichuan Province.

The State Council Command Department for Resisting Quake and Relieving Disaster（國務院抗震救災指揮部）¹²⁴was established, which was headed by Premier Wen Jiabao.¹²⁵ Premier firstly required the PLA “to reach the epicenter within thirty-four hours of the earthquake”, and then asked the

120 Nan Li, supra note 9, at 22-34.

121 Associated Press, Japan Protests to China over Incursion by Nuclear Sub, WASHINGTON POST (Nov. 13, 2004), http://www.washingtonpost.com/wp-dyn/articles/A46479-2004Nov12.html (last visited, July 10, 2018).

122 Chinese Submarine Enters Japanese Waters, WIKINEWS (Nov. 18, 2004),

https://en.wikinews.org/wiki/Chinese_submarine_enters_Japanese_waters (last visited, July 10, 2018).

123 Actually, the CMC take charge of military-related foreign policies directionally, while the MoFA is responsible for general and daily foreign affairs. See, You Ji, The PLA and Diplomacy: Unravelling Myths about the Military Role in Foreign Policy Making, 23 JOURNAL OF CONTEMPORARY CHINA 236 (2014).

124 The operation of this department is triggered by advice of State Seismological Bureau based on “a severe destructive earthquake”, see 國務院辦公廳關於成立國務院抗震救災指揮部和建立國務院防震減災工作聯席 會議制度的通知, 國辦發〔2000〕17 號,

http://www.gov.cn/xxgk/pub/govpublic/mrlm/201011/t20101112_62516.html (last visited, July 10, 2018).

The function of this department has been allocated to Ministry of Emergency Management of the State Council in 2018. http://www.npc.gov.cn/npc/dbdhhy/13_1/2018-03/14/content_2048552.htm (last visited, July 10, 2018).

125 新華社，溫家寶抵達四川指揮抗震救災工作，人民網 2008 年 5 月 12 日。

http://politics.people.com.cn/BIG5/1024/7229713.html (last visited, July 10, 2018).

‧

commanders immediately, on grounds that the Premier’s order seemed impossible and infeasible. Finally, the Chairman of the CMC Hu Jintao replaced Wen as the leader of rescue operation.¹²⁶ At last, over 69,000 people died in this disaster, compared with over 3,000 of the rescued survivals.¹²⁷

The Situation of the Ministry of National Defence

The Ministry of National Defence doesn’t undertake substantial tasks related to military and defence policy. Because the Constitution only empowers the State Council to manage “the building of national defence” (Art. 89(10)), the Chinese Ministry of National Defence has been deprived of the power of military command, which is the core function of defence department in western countries’ cabinets. As a matter of fact, the military headquarters are led by the CMC. These PLA headquarters are firstly General Staff Department, General Political Department, General Armament Department and General Logistics Department, which were subordinated to the CMC. Since the military reform in 2015, all the headquarters has been incorporated into the CMC as its departments, so that the CMC can directly manage military affairs itself.¹²⁸So the CMC can manage almost all the military and defence affairs via the PLA headquarters, the MoND has been largely excluded from substantial military and defence policy-making, even military administration affairs.¹²⁹

Furthermore, as for the “building of national defence” in the executive, the State Administration of Science, Technology and Industry for National Defence ( 國家國防科技工業局 ) under the State Council is responsible for the management of military technology, ¹³⁰ while the Ministry of Finance takes the

126 Nan Li, supra note 9, at 27-28.

127 Id. at 26.

128 解放軍 4 總部為何要改為 15 個部門確保軍委集中指揮，新浪網：

http://mil.news.sina.com.cn/china/2016-01-11/doc-ifxnkkuv4396567.shtml (last visited, July 10, 2018).

129 馬嶺，同註 17，論國務院和中央軍委的國防權，頁 132。張建田，同註 16，頁 11。

130 A short introduction of the State Administration of Science, Technology and Industry for National Defence (國 家國防科技工業局) See,

http://www.gov.cn/fuwu/bumendifangdating/bumendating/guofangkegongju/index.html (last visited, July 10,

‧ 國

立政治大學

‧

N a tio na

l C h engchi U ni ve rs it y

charge of national defence budget.¹³¹

Observers find out that the MoND’s responsibility is confined to external communication of Chinese military with other countries. ¹³²As a result, the Ministry of National Defence seems quite dispensable.

B. Accountability of the CMC and the Military Accountability of the CMC

The Central Military Commission undertakes the command of the armed forces, whereas it suffers from a lack of political accountability.

In spite of the fact that the personnel in the CMC is elected by the National People’s Congress (NPC), the CMC as a whole has no accountability to the parliament, but only “[t]he Chairman of the Central Military Commission is responsible to the National People's Congress and its Standing Committee”, according to the Article 94. Additionally, the Article 93 reads that “[t]he Chairman assumes overall responsibility for the work of the Central Military Commission.” This means a concentration of responsibility to the Chairman, as one Chinese authority on constitutional law comments:

“The Constitution stipulates that the Chairman of the CMC is responsible to the National People's Congress and its Standing Committee, rather than the CMC. This illustrates that, compared with state organs such as the State Council, the Supreme People’s Court, and the Supreme People’s Procuratorate and so on, the degree of concentration and personal responsibility is higher, and the responsibility of the CMC Chairman is more highlighted and emphasized.”

The government’s responsibility to the parliament grows from British constitutional convention. The “responsibility” in a constitutional sense means at least in two ways: (1) the ex-ante control by the parliament, and (2)

2018).

131 財政部：2017 年中國國防支出預算約 1 萬億元增長 7%,

http://www.mof.gov.cn/zhengwuxinxi/caijingshidian/xinhuanet/201703/t20170307_2547990.html (last visited, July 10, 2018).

132 田思源，同註 25，頁 17。David Shambaugh, MODERNIZING CHINA’S MILITARY: PROGRESS, PROBLEMS, AND PROSPECTS 124-126 (2003).

‧ 國

立政治大學

‧

N a tio na

l C h engchi U ni ve rs it y

accountability. Accountability is the narrow sense of the legal term

“responsibility”, which is composed of two meanings: the “explanatory accountability” and “amendatory (or remedial) accountability”. Explanatory accountability means “an obligation to give account – to answer, disclose, explain or justify”. Amendatory accountability means “the obligation to account for action or inaction – to ‘answer for’ whatever has been revealed of error or misgovernment, and correct or make due reparation for it.” Besides, only the amendatory accountability “is meant in phrases such as ‘held accountable for’, with its connotations of blame and penalty.”

However, the responsibility of the Chairman is limited, because the Chairman of the CMC needn’t report on its work to the parliament, compared to the executive – legislative relation. The Article 92 stipulates that “[t]he State Council is responsible and reports on its work to the National People's Congress or, when the National People's Congress is not in session, to its Standing Committee.” To the contrary, the Constitution only stipulates that the CMC Chairman has responsibility to the legislature, but doesn’t mention “reports on its work” to the NPC or NPCSC. So Article 93 implies that the CMC Chairman has no obligation to report. The Constitutional Revision Committee once explained that “because military action involves confidential matters of the state, it’s inappropriate to report.” This means that the Chairman of the CMC

在文檔中黨國體制下的中國軍事指揮權 - 政大學術集成 (頁 44-0)

B. Current Taiwanese Chain of Command

4. AN ASSESSMENT OF THREE MODELS AND CHINESE DESIGN

4.1 The Three Models

國

立 政 治 大 學

‧

N a tio na

l C h engchi U ni ve rs it y

‧ 國

立 政 治 大 學

‧

N a tio na

l C h engchi U ni ve rs it y

‧ 國

立 政 治 大 學

‧

N a tio na

l C h engchi U ni ve rs it y

‧

‧

‧ 國

立 政 治 大 學

‧

N a tio na

l C h engchi U ni ve rs it y

‧

‧

‧ 國

立 政 治 大 學

‧

N a tio na

l C h engchi U ni ve rs it y

‧ 國

立 政 治 大 學

‧

N a tio na

l C h engchi U ni ve rs it y

立政治大學

立政治大學

立政治大學

立政治大學

立政治大學

立政治大學