The State Council and the CMC, among those constitutional institutions, are relevant to the management of military affairs. The Constitution states that the State Council “is the highest organ of State administration” (Art. 85), and empowers it “to direct and administer the building of national defence” (Article 89 (10)). On the other hand, the function of the CMC is to “direct[] the armed forces of the country.” (Art. 93. I) Then, a question arise: which institution is vested with the power of military command, the State Council, the CMC, or both?
2.1 The Central Military Commission (CMC) in Chinese Constitutional System
A. The Historical Evolution of Military Command Power in PRC In the wake of Chinese Civil War, the People Republic of China was found in 1949. The new regime allocated the command power to the People's Revolutionary Military Committee of the Central People's Government19 (PRMC,中央人民政府人民革命軍事委員會).The Organic Law of the Central People’s Government of the PRC (中華人民共和國中央人民政府組織法) of 1949 stipulated that the People’s Revolutionary Military Commission (PRMC, 人民 革命軍事委員會) “as the supreme military command of the state” (Art.5). “The PLA and other people’s armed forces shall be under the unified control and command of the People’s Revolutionary Military Commission.” (Article 23)
In the Constitution of 1954, the President of PRC “commands the armed forces of the country, and is Chairman of the Council of National Defence”
(Article 42). During the Great Cultural Revolution, the Constitution of 1975
19 The Central People’s Government (1949-1954) is quite different from the Central People’s Government after 1954. The former is a standing committee of the supreme state organ. The COMMON PROGRAM OF THE CHINESE PEOPLE'S POLITICAL CONSULTATIVE CONFERENCE (中國人民政治協商會議共同綱領), art. 12. II, “The All-China People's Congress shall be the supreme organ of state power. The Central People's Government shall be the supreme organ for exercising state power when the National People's Congress is not in session.” Art. 13. II,
“Pending the convocation of the All-China People's Congress elected by universal franchise, the Plenary Session of the Chinese People's Political Consultative Conference shall exercise the functions and powers of the All-China People's Congress, enact the Organic Law of the Central People's Government of the People's Republic of China, elect the Central People's Government Council of the People's Republic of China and vest it with the authority to exercise state power.” But the latter, namely Central People’s Government after 1954, refers to the State Council only. Article 47 of the Constitution of 1954 and Article 85 of the Constitution of 1982, “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.”
‧ 國
立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
9
deprived the state organs of the power over military affairs. It abolished the office of the President of the state. Instead, the military command power was assigned to the Chairman of the Party. The Article 15. II reads that “the Chairman of the Central Committee of the Communist Party of China shall command the armed forces of the country”. This stipulation was succeeded in the Constitution of 1978.
The design of Party’s command over military in 1975 and 1978 was totally unaccepted in the constitutional revision process after 1980. It was believed that the distinction between the functions of the state and the Party was blurred.
Because the Chinese armed forces does not only belongs to the Party’s, but also the state, a consensus at that time was that the military shall be at the disposal of a state institution in the new constitution.20 Then in the initial draft, the President was designated as the Commander in Chief, the same as the Constitution of 1954. But finally, in the Constitution of 1982, the power of command over armed forces is assigned to a new institution – the CMC of the state. The reasons are at least threefold.
Firstly, the framers of the new constitution intended to prevent from a concentration of powers. Slightly before the Party recommended the legislature to revise the Constitution, Deng Xiaoping, the paramount leader of the Party, had expounded his thought on the political and constitutional reform in the enlarged meeting of the Political Bureau of the Central Committee of the Party (中共中央政治局擴大會議)。Deng said, “[T]he Central Committee will submit proposals for revising the Constitution of the People's Republic of China to the Third Session of the Fifth National People's Congress. Our Constitution should be made morecomplete and precise so as to really ensure the people's right to manage the state organs at all levels as well as the various enterprises and institutions, to guarantee to our people the full enjoyment of their rights as citizens, to enable the areas inhabited by minority nationalities to exercise
20 陳斯喜、劉松山，憲法確立國家中央軍事委員會的經過，法學第 2 期，頁 4-5，2001 年。
‧
genuine regional autonomy, to improve the system of people's congresses, and so on. The principle of preventing the over-concentration of power will also be reflected in the revised Constitution.”21Under the “principle of preventing the over-concentration of power”, the President was eventually designed as a dignified head of state. His prerogative over military command was deprived and allocated to another institution (the CMC) instead.22
Secondly, the new constitution should bridge the gap between de jure and de facto powers on military command.23 Originally, the CMC is an institution inside the Party. It functioned until the Communist Party took the helm in 1949, when the PRMC of the state commanded the military. However, as soon as the enactment of the Constitution of 1954, the Party’s CMC was restored to take charge of military, even though the de jure Commander in Chief was the President. 24 Actually, during this period, the Party’s CMC managed the military affairs without the attendance of the President. One evidence is that after Liu Shaoqi had been elected as the President in 1959, the decision on establishment of North Sea Fleet was made by the Party’s CMC presided by Mao Zedong.25 This de jure – de facto gap on military command still existed even when the Chairman of the CPC was designated as the constitutional Commander in Chief in the Constitution of 1975 & 1978, because the CMC Chairman of the Party was not taken by the Chairman of the CPC in 1981.26 How to eliminate this gap is one of the task of the framers. The final solution is to give the CMC a constitutional status. Then the CMC has two identities, as an institution of both the state and the Party. This is called “one institution with
21 鄧小平，黨和國家領導制度的改革，載：鄧小平文選（第二卷），頁 339，北京：人民出版社，1994
年。English translate, see, Deng Xiaoping, ON THE REFORM OF THE SYSTEM OF PARTY AND STATE LEADERSHIP (August 18, 1980). http://en.people.cn/dengxp/vol2/text/b1460.html (last visited, July 10, 2018).
22 翟志勇，國家主席、元首制與憲法危機，中外法學第 27 卷第 2 期，頁 361-362，2015 年。
26 Deng Xiaoping took the CMC Chairman of the Party, while Hu Yaobang took the Chairman of the CPC.
‧
Thirdly, the constitutional theory on division between military command and military administration prevents the Ministry of National Defence from entering the chain of military command. . According to Cheng Siyuan (程思遠), a member of Constitutional Revision Committee, the balance of military and politics, legislation and execution (行政), military command (軍令) and military administration (軍政) are elements of good governance of a country. “The relationship between the Ministry of National Defence and the Military Commission is that between military command and administration,……which shall be separated.”28
Eventually, the state CMC was established in the Constitution of 1982 to command the military, by virtue of those three reasons.