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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 The power to command military is definitely a royal prerogative of the sovereign in the pre-constitutional period. In the late 17th century, England firstly introduced constitutional regime in the wake of Glorious Revolution, with the Bill of Rights of 1689 vindicating the constitutional regulation over
“raising or keeping a standing army”62. However, the military command was
60 Konrad Hesse, Grundzüge des Verfassingsrechts der Bundesrepublik Deutschland, Neudruck der 20. Aufl. 1999, S. 226 ff.
61 Ferdinand Kirchhof, Verteidigung und Bundeswehr, in: Handbuch des Staatsrechts der Bundesrepublik Deutschland, 2006, S. 636-637, Rn 7.
62 ENGLISH BILL OF RIGHTS (1689), art. 6: “That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law.”
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still the King’s prerogative and excluded from direct constitutional control until American founding fathers elaborated Commander in Chief Clause in the Constitution of the United States. US Constitution Art. 2 Section 2, states that
"[t]he President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States."63
The term “Commander in Chief” derives from English law in 17th century.
The Commander in Chief was the supreme commander in the British Army and supervised other generals.64 As “a purely military post”, it was appointed by the King, and once by the Parliament during the English Civil Wars.65
As the British Empire established colonies in North America, the Crown appointed colonial governors, regional commanders in chief, as well as “a continent-wide commander in chief” of the British Army in North America.66
During the American Revolutionary War, the Continental Congress, under Article IX of the Articles of Confederation, could regulate all military affairs, including the appointment of all commanders and directions of the entire armed forces.67As a result, the Commander in Chief of the “United Colonies” was subject to the detailed directions of the Continental Congress.68 But this system led to military ineffectiveness and failures in battlefields, by virtue of excessive congressional interventions of military operations. In order to promote military effectiveness, the Continental Congress reluctantly
delegated certain discretions to the Commander in Chief.69 The lessons in
63 U.S. CONST. art. II,§2.
64 Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 TEX. L. REV. 299, 352 (2008).
65 David J. Barron and Martin S. Lederman, The Commander in Chief at the Lowest Ebb: Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 772-773 (2008).
66 Saikrishna Bangalore Prakash, supra note 64, at 353.
67 ARTICLES OF CONFEDERATION art. IX, para. 4 (U.S. 1777):“The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States.……--appointing all officers of the land forces, in the service of the United States, excepting regimental officers--appointing all the officers of the naval forces, and commissioning all officers whatever in the service of the United States--making rules for the government and regulation of the said land and naval forces, and directing their operations.”
68 David J. Barron and Martin S. Lederman, supra note 65, at 773-774.
69 Id. at 773-779.
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Revolutionary War eventually enlightened the framers in the Constitutional Convention in 1787 to grant the Commander in Chief constitutional guarantee of effectiveness.70In addition, the practice of state constitutions also inspires the framers. After the Declaration of Independence, a wide range of state constitutions designated the governor of the state as the commander in chief.71 Two state constitutions (Massachusetts and New Hampshire) provided a model for the federal constitution: a popularly elected chief executive as the commander in chief.72 Eventually, against this backdrop, in the Constitutional Convention in 1787, the framers designated the President as the Commander in Chief.73
This constitutional design fuses the popularly elected chief executive and the Commander in Chief in one person,74 which has at least two fundamental consequences. Firstly, from the view of legislative-executive/Commander in Chief relations, the office of Commander in Chief is independent of the
Congress. Its legitimacy derives from the people, not the legislature, so that it can be no longer subject to the directions of the Congress.75 Secondly, from the perspective of executive-military relations, the Commander in Chief Clause set up a hierarchy, in which the civilian President controls the armed forces. Therefore, the principle of civilian control of military establishes, namely, the military shall be subordinated to the civil power, which was one of the complaints of the Declaration of Independence of 1776.76 From then on, the doctrine of civilian control has been entrenched in American
constitutional history. One well-known evidence is the concurrence of Justice
70 Id. at 779.
71 Id. at 781. Saikrishna Bangalore Prakash, supra note 64, 354.
72 David J. Barron and Martin S. Lederman, id. at 783.
73 There was almost no substantial debate over the Commander in Chief Clause during the Philadelphia Convention. See id. at 786-790.
74 David Luban calls this design as “fused dominion”. David Luban, supra note 2, at 483 (2008). (“All we learn from the words of the Constitution is that the highest military authority belongs to the highest civilian office: the chief executive and head of state is also the first general and first admiral. Let me call such combinations of military and civilian supremacy “fused dominion.”)
75 David J. Barron and Martin S. Lederman, supra note 65, at 767.
76 Id. at 767-768. THE DECLARATION OF INDEPENDENC (1776), states “He (the King of the Great Britain) has affected to render the Military independent of and superior to the Civil Power.”
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Jackson in Youngstown Sheet & Tube Co. v. Sawyer, “The purpose of lodging dual titles in one man was to insure that the civilian would control the
military, not to enable the military to subordinate the presidential office.”77