C. The Failure of Constitutional Promises of 1982
5. A PROPOSAL FOR NEW RULES
5.2 Merging the Military Command into the Executive
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military and the executive exists, a smooth coordination still depends on a consensus between the CMC Chairman and the Premier. The problems of previous system remains unsolved.
The second plan adopts a modified middle model. It designates the President at the apex of the military command, and enables the chain of command runs through the Minister of Defence. In addition, the Premier also has a say in military decision, though it’s the President who makes the final decision. However, the military command power is still a prerogative of the CMC, not the power of the executive. The military command branch and the executive branch are not merged at organizational level. Although the Premier participates the Commission on military decision, he cannot require the
commission to do what he wants, and vice versa. If a military action needs the cooperation of ministries concerning interior or foreign affairs, the latter has no constitutional obligation to cater for the CMC.
As a result, both proposals cannot solve the Chinese problem on civil-military cooperation.
In addition, these two approaches remain silent on the problem of accountability of deployment of military. Both plans do not challenge the constitution status of the CMC, so that military affairs can easily avoid legislative oversight again.
In conclusion, existing reform proposals cannot solve the problems of current military command system in effectiveness and accountability.
5.2 Merging the Military Command into the Executive
The Chinese problems stem from its military command structure. Those shortcomings will vanish as long as the dependence of military command is replaced by the executive control model.
The idea of executive control model is to allocate the military command power to the executive branch (the cabinet). There are two subtypes in this model: the Anglo-American one and the German one. In the Anglo-American
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mode, the chief executive is the commander in chief, with the minister of defence carry out the former’s order. In Germany, the military is commanded by the Minister of Defence in peace time, and the chief executive in “a state of defence”.
In the Constitution of the PRC (1982), the State Council is in charge of executive power. Following the executive control model, the military
command power shall be a prerogative of the State Council. In other words, the Commander in Chief shall be a member of the State Council, either the Premier or the Minister of National Defence. Even if the Premier is the Commander in Chief, the military command system should run through the Ministry of National Defence. This proposal will strengthen the effectiveness and political accountability of military deployment. As for effectiveness, the Premier is the superior of both the military and civilian ministers, so he has the authority to order the military or civilians to cooperate with each other directly. Additionally, the Ministry of National Defence has the authority on military command, thus, it can manage all the military affairs. As for
accountability, because the military is under the authority of a Ministry, the Minister of National Defense has to explain military policies to the legislature.
This accountability mechanism will disclose more military information, which will also decrease the information asymmetry between the civilians and the military. Furthermore, the Ministry of National Defence can also release the supreme leaders from the pressure of confronting the professional soldiers directly and enable him/her to manage other guidelines of policy. Therefore, this proposal also will strengthen the civilian control over military.
Although this proposal for arranging military command to the executive is a better choice, it faces challenges of both constitutional history and
political reality.
The first challenge is the de jure-de facto gap on military command that has recurred since the restoration of Party’s CMC in 1954. The de jure
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Commander in Chief under the Constitution of 1954 is the President, and under the Constitution of 1978 is the Chairman of the Party. However, when the Chairman of Party’s CMC didn’t take those offices concurrently, it was the CMC Chairman (of the Party) who made military decisions, not the de jure Commander in Chief. This gap still exists after 1982, because the members of state CMC and Party’s CMC are not identical during the hand-over period. Not surprisingly, the Party’s one during this period still shares a considerable autonomy relating to military affairs. The solution to this problem is simple:
just to arrange the PLA Headquarters, especially the Joint Staff Department, directly subjected to the Minister of National Defence. But the relationships between the de jure Commander in Chief, the Minister of National Defence and the Chief of General Staff (now Chief of the Joint Staff) has long suffered a paucity of clear legal provisions. A way to ensure the chain of command runs from the de jure authorities to the armed forces, is to entrench the relations between the Chief of General Staff (now the Chief of the Joint Staff), the Minister, and de jure Commander in Chief, in the statutes, or better, in the Constitution.
Another challenge is the fundamental principle of “the Party’s absolute leadership over the military (黨對軍隊的絕對領導)”, which is such a
fundamental principle that cannot be waived in current China. Some argues that this principle is composed of three elements: the political commissar system, the Party’s CMC’s command over military, as well as other subtle institutional design.143
However, the intents of the Party’s command over military cannot
support the thesis that the Party’s leadership over military must be realized by the Party’s CMC. The Party’s leadership over military, or the party-military system, was introduced for the sake of entrenching civilian control over
military in 1920s.144 Even when this system was adopted in the military of the
143 袁新濤，黨對軍隊的絕對領導與軍委主席負責制的形成和發展，黨的文獻第 4 期，頁 113，2016 年。
144 李翔，俄制東輸：國民黨軍隊黨軍體制的起源（1917-1923），民國檔案第 3 期，頁 77，2016 年。