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.
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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).
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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).
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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.127The 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,
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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