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However, from a textual understanding, no evidence indicates the
“national defence” is different from its ordinary meaning. Fu Dalin’s
arguments, actually, doesn’t support his thesis on a narrow understanding of the concept “national defence”, rather a narrow interpretation of the function of “direct and administer the building national defence” in Art.89 (10).
Furthermore, concept of “national defence” in Preamble and Art. 29 of the Constitution also expresses the idea of the defence of the country with armed forces, but not limited to the civilian support for defence building (namely, national defence administration). Hence the “national defence” is identical to the social ordinary meaning and incorporates the armed forces.
But the interpretation on “national defence” cannot answer the question whether the executive can command the military. A serious reading of the Article 89 (10) reveals that the function of the State Council is to “direct and administer the building of national defence”, not to direct and administer
“national defence” per se. If the “national defence” incorporates armed forces in a social ordinary meaning, then the phrase “direct and administer building of national defence” encompasses the “direct and administer building of armed forces”, rather than “direct and administer armed forces”.
Consequently, powers in Art. 89 (10) doesn’t include the direction of the armed forces. Hence, it gives the State Council no power on military command.
B. A Structural and Historical Understanding of the Constitution According to Art. 85, “The State Council, that is, the Central People's Government, of the People's Republic of China is the executive body of the highest organ of state power; it is the highest organ of State administration (最
internal building of the armed forces”; second, the power “to manage military building by civil resources”. He refers to “military administration” in the meaning of the first dimension, while the second is called “national defence administration”同前註，註 1，頁 17。
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高國家行政機關).” Based on this clause, Fu claims that the function of the State Council is deprived of military power.52
The meaning of “power” in constitutional theory has at least two
dimensions: function and institution. As a result, executive power can refer to
“executive function(s)”, as well as “executive institution(s)”.53 From the dimension of function, whether the power of command is a component of the executive function is controversial. But from a perspective of institution, the conduct of national defence, including military command, is one of the core responsibilities of the executive branch.54 Therefore, “the highest organ of State administration” doesn’t indicate that this branch must be deprived of military command power, rather suggests a plausibility of preservation of military power. As a result, the question whether the State Council can exercise military command power, cannot be solved under Art.85. A correct interpretation must revisit the constitutional structure between the CMC (Art.
93. I) and the State Council (Art. 89 (10)).
A constitutional principle is to divide powers / functions among different institutions. If one branch has explicitly vested with a function, another one can no longer exercise it.55 As long as one institution is vested with a certain power clearly, it cannot argue that another one shares this power, unless the constitution also unequivocally state this power-sharing design. Art. 93 reads explicitly that the CMC “directs the armed forces of the country”, which vests the CMC with the power of military command.56 Article 89 (10) doesn’t suggests any power-sharing between the two institution. Consequently, the State Council has no power on military command.
52 同前註，頁 24。
53 Paul Craig and Adam Tomkins, Introduction, in THE EXECUTIVE AND PUBLIC LAW: POWER AND ACCOUNTABILITY IN COMPARATIVE PERSPECTIVE, 1, 5 (Paul Craig and Adam Tomkins eds., 2006).
54 Id, 6-8, 14.
55 The Chinese Constitution’s organizational principle of “Democratic Centralism (民主集中制)” is compatible with division of powers (權力分工) between different branches. See, 張翔，我國國家權力配置原則的功能主 義解釋，中外法學第 30 卷第 2 期，頁 288，2018 年。
56 See, Chapter 2.1.
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Furthermore, a historical understanding also suggests the State Council is deprived of command power. As mentioned before, the reasons of setting up the state CMC is threefold. Firstly, preventing from a concentration of powers.
Secondly, bridging the gap between de jure – de facto command system.
Thirdly, the division and balance of military command and administration.
This background also shows why the executive is deliberately deprived of that power. The fact is that State Council has executive powers since 1949. If the drafter intended to disperse the powers of the state, they were apt to distribute the military power to another institution, which had no substantial powers as the executive. The division of military administration from command can also be seen as a restriction on the aggrandizement of the executive power.
Consequently, the drafters of the Constitution of 1982 deliberately excluded the State Council from holding military command power.
As a result, considerations of text, history and structure suggest the State Council doesn’t share the power on military command. Hence, the Premier, as the head of the State Council, cannot deployment the military constitutionally.
In conclusion, the Constitution of 1982 distributes the military command power exclusively to the CMC. There is no overlap of command authority between the CMC and the State Council.
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3. THE CONSTITUTITIONAL POSITION OF MILITARY COMMAND POWER: A COMPARATIVE CONTEXT
Scholars on Chinese constitutional law presumes the Chinese system on military is unique, by virtue of a paucity of comparative perspective. A
comparative study shows at least three basic model concerning allocation of military command power in constitutional-legal structures: the executive control model, the independence of military command model,as well as the middle model. 57
The military command power has been entrenched in written
constitutions since American founding fathers incorporated the Command in Chief Clause in the Constitution of the United States of 1987. In this
constitution, the first model is established, which leaves the military under the disposition of the civilian executive. It introduces the principle of civilian control of military to constitutional law. In this paper, it is called executive control model. 58 During the constitutional wave in Continental Europe in 19th century, a new model of independence of military command power59 emerged in Prussia-Germany. This system deliberately segregates military command from the executive. The middle model is a compromise between the
57 In Taiwan, the executive control model is called the unified system of military command and administration
（軍令與軍政一元體制）, while the independence model is named the dual systems of military command and administration（軍令、軍政二元體制）. See, 陳新民，憲法學釋論，頁 494-497，台北：三民書局，2015 年，修正 8 版。
58 The executive, broadly defined, consists of the head of state and head of government. However, here, the
“executive” control of the military is confined to the cabinet, not a solitary head of state without fusion with the head of government. One reason to avoid the use of cabinet’s control, is that in American presidential system there is no de jure cabinet. On the other hand, although the executive control resembles the concept of civilian control of military, the latter does not exactly indicates the military is under the government’s authority, since a civilian head of state’s direct command over military, sidestepping the cabinet, still satisfies the fundamental meaning of civilian control, as in the middle model in semi-presidential regime. So executive control is more proper than civilian control.
59 The independence of military command is a reversion of Japanese constitutional doctrine of the independence of supreme command power (統帥權獨立). The supreme command power (or the power of commander in chief) is a translation of German legal term “Oberbefehl”, which means all the powers related to military affair, basically including military command and administration. Although the Imperial Japanese constitutional system left the military administration part as the cabinet’s responsibility, with the military command component of supreme command as a royal prerogative, the academia calls this system inappropriately as “the independence of supreme command”. See, 李麟，統帥權——歷史省思與文義辯證，載：軍事法理論與實務，頁 56-57，台北：新學 林，2005 年。
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two models above, which lets the non-cabinet-member commander in chief directs the military through the minister of defence.
An examination of the constitutional structure of P. R. China shows that the assignment of military power to the CMC reflects the framers chose the Prussian model of independence of military command.
3.1 The Executive Control Model
The executive control model leaves the whole military powers, including the military command power, to the executive branch (cabinet). It origins from the Constitution of the U.S. of 1787, and is succeeded by most
democratic countries. The justifications for this design are twofold. Firstly, entrenching the civilian control of military in the constitution, in order to prevent a coup d’état or military authoritarian rule. Secondly, in post-war German theory, the military is a component of the executive power. In this theory, the executive consists of three component: the government
(Regierung), the administration, as well as military.60 The government is the political part of the executive and takes charge of political leadership. The military serves as an instrument of the government to executive those political decisions. 61
A. The Commander in Chief Clause in the U.S. Constitution