黨國體制下的中國軍事指揮權 - 政大學術集成

全文

(1)國立政治大學法律科際整合研究所碩士學位論文. 政治大立黨國體制下的中國軍事指揮權. ‧ 國. 學. Military Command Power in Party-State China. ‧. n. er. io. sit. y. Nat. al. Ch. i n U. v. engchi 指導教授：陳起行博士研究生：徐肇松撰. 中華民國一〇七年七月. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(2) Graduate Institute of Law and Interdisciplinary Studies National Chengchi University Master’s Thesis. 政治大. ‧. ‧ 國. 學. 立 Military Command Power in Party-State China. n. er. io. sit. y. Nat. al. Ch. engchi. i n U. v. Advisor：Prof. Dr. Chen Chi-shing Student：Xu Zhaosong. July 2018. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(3) 謝辭. 這個研究源於我對憲法的關注和對軍事領域的興趣。碩一的時候偶然翻到陳新民老師的《軍事憲法論》，裡邊有一篇關於統帥權的文章，當時像看小說一樣愉快的讀完了。然後就很想了解大陸的憲法是怎麼規範統帥權的。經過這幾年的學習與寫作，這本小冊子最終成為我的碩士論文。本文的完成，在學術上，得益于各位老師和同學的點撥與指教。首先要感謝指導教授陳起行老師。他是這篇文章成長過程的見證者。從我最開始產生寫這篇文章的想法，到中間方法論的幾次轉變，再到最後形成這篇稿子，陳老師一直在與我討論。最讓我受益的是，陳老. 治政永欽老師。無論是本文的行文還是方法，蘇老師都給予了很多指導，並且時刻提醒我，要與大立非西方式的大陸憲法理論進行對話。蘇老師也幫我與其他學者進行聯繫，並鼓勵和幫助我學. 師對於方法論所抱有的開放心態，給我充足的空間探索解決問題的多種渠道。其次要感謝蘇. ‧ 國. 學. 習德文，這些都是促成這篇文章的重要因素。另外，台灣師範大學陳新民老師對於黨指揮槍的討論，以及口試委員台北大學林超駿老師對於以黨領政的提醒，都讓這個研究更能接近法. ‧. 律背後的政治運作。而吳秦雯老師與廖元豪老師對我思路的指點，也對這篇文章的誕生有重. io. er. 論，讓這篇文章的論述更嚴謹。感謝以上老師與同學的幫助。. sit. y. Nat. 要幫助。政大法研所謝坤龍學長、山東大學交換生曲光毅以及廈門大學交換生馬密學姐的討. 在生活上，首先要感謝我爸媽的全力支持，除了讓我能免去經濟上的後顧之憂，還有在. n. al. Ch. i n U. v. 困難的時候包容幫助我，此乃我得以順利完成學業的根本原因。其次要感謝軍訓室的謝瀞如. engchi. 教官。她對我的諸多照顧，讓我在異鄉能順利生活。而台灣大學黃俊傑老師則啟發我超脫個人際遇，更多地關心國家和社會的命運。此外，三年來在台灣認識的朋友，不管是學位生還是交換生，給我的生活帶來很多歡樂。在此致以誠摯的謝意。本文只是一個初步的研究。對於本文的提出的問題，即軍事指揮權（或稱軍令權）如何在憲法中安排，目前的答案還難謂妥善。因此，我會對這個問題繼續探究下去。最後，本文獻給所有關心大陸進步的同道。. 徐肇松 2018 年夏政大中正圖書館 i. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(4) 摘要在中國憲法中，軍事指揮權的歸屬是一個尚未解決的問題。中華人民共和國憲法（1982）將軍隊指揮體系排除在行政機關之外。中央軍事委員會（中央軍委）指揮全國武裝力量（第 93 條），而作為行政機關的國務院“領導和管理國防建設事業” （第 89 條第 10 款）。對憲法文本的解釋，不能支持政府擁有軍隊指揮權的論點。相反，中央軍委獨佔軍事指揮權。比較研究發現，從軍事指揮權的憲法安排大致可以分為三類：行政機關控制型、軍令權獨立型，以及折中型。中國大陸的設計屬於軍令權獨立型，因為它將軍事指揮完全賦予一個行政機關外的憲法機關。從憲政主義的精神來看，行政機關控制型在追求民主正當性、效率以及自由人權保護上. 治政大陸的實務之中。此外，在社會變遷，政治現實以及憲法學說演進的情況下，當初建立中央大立軍委的憲法目的不能實現。所以，大陸的憲法改革勢在必行。. 表現最佳，而軍令權獨立型則表現最差。相應的，軍令權獨立型所具有的問題也反應在中國. ‧ 國. 學. 大陸的憲法改革者應該引入行政機關控制模式，以促進治理效率以及軍事行動的政治責任。首先，把軍事指揮權分配給國務院，並且確立從總理經由國防部長到聯合參謀部參謀長. ‧. 的指揮鏈條。其次，增強國會對軍事行動的監督，以防止行政機關濫用軍事權力。. er. io. sit. y. Nat. 關鍵詞：軍事指揮權、中央軍事委員會、行政權、文官控制軍隊、中華人民共和國憲法（1982）、. al. n. 黨國體制. Ch. engchi. i n U. v. ii. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(5) ABSTRACT The allocation of military command power in Chinese constitutional law is an unsolved question. The Constitution of P. R. China (1982) segregates the military command system from the executive. The Central Military Commission (CMC) commands the armed forces of China (Article 93), while the executive branch, the State Council retains the authority “to direct and administer the building of national defence” (Article 89 (10)). An interpretation of the constitutional text cannot support the thesis that the government can command the military. Instead, the CMC has the exclusive authority over military command.. 治政 power can be subsumed into three types: the executive control 大 model, the independence of 立 military command model and the middle model. The Chinese design is the model of. From a comparative perspective, the constitutional arrangement of military command. ‧ 國. 學. independence of military command, because it allocates military command completely to a constitutional institution other than the executive.. ‧. In the lens of constitutional interests, the executive control model performs best to. sit. y. Nat. pursue values of democratic legitimacy, effectiveness and protection of liberty and human. io. er. rights, while independence model performs worse. Accordingly, these shortcomings of independence model are also reflected in Chinese practice. Furthermore, the constitutional. n. al. Ch. i n U. v. purposes for setting up the CMC fails by virtue of social changes, political reality and. engchi. evolution of constitutional theory. Therefore, a constitutional reform for China is imperative. Chinese constitutional reformers should introduce the executive control model to facilitate effectiveness and political accountability of military actions. The first step is to allocate military command power to the State Council and set up a chain of command from the Premier through the Defence Minister to the Chief of Joint Staff. The second step is to enhance parliamentary oversight on executive deployment of military, in order to prevent the executive from abuse of military power.. iii. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(6) Keywords: military command power, Central Military Commission, executive power, civilian control of military, Constitution of the People's Republic of China (1982), partystate regime. 立. 政治大. ‧. ‧ 國. 學. n. er. io. sit. y. Nat. al. Ch. engchi. i n U. v. iv. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(7) Table of Contents. 摘要 ................................................................................................................................................ ii ABSTRACT .................................................................................................................................. iii 1.. INTRODUCTION................................................................................................................ 1 1.1 Why a Research on Chinese Military Command Power? ............................ 2 1.2 Literature Review ....................................................................................................... 3 1.3 Main Thesis ................................................................................................................... 5. 2.. MILITARY COMMAND POWER IN THE CONSTITUTION OF 1982 ............. 7. 治政 System .................................................................................................................................... 8 大立 A. The Historical Evolution of Military Command Power in PRC ......... 8. 2.1 The Central Military Commission (CMC) in Chinese Constitutional. ‧ 國. 學. B. The Constitutional Status of the CMC ........................................................ 11 C. The Function of the CMC ................................................................................. 13. ‧. 2.2 Can the State Council Command the Military? ............................................ 14. sit. y. Nat. A. The Textual Meanings of Art. 89 (10)......................................................... 14. io. THE CONSTITUTITIONAL POSITION OF MILITARY COMMAND POWER:. al. n. 3.. er. B. A Structural and Historical Understanding of the Constitution..... 17. Ch. i n U. v. A COMPARATIVE CONTEXT .............................................................................................. 20. engchi. 3.1 The Executive Control Model............................................................................... 21 A. The Commander in Chief Clause in the U.S. Constitution ................ 21 B. Taming the British Royal Prerogative over Military............................ 24 C. The Power of Command in the Basic Law of Germany ....................... 24 3.2 The Independence of Military Command Model......................................... 25 A. The Prussian-German Origin ........................................................................ 26 B. The Constitutional Doctrine and Practice in Meiji Japan ................. 28 C. Division of Military Command and Military Administration in Taiwan ......................................................................................................................... 29 3.3 The Middle Model .................................................................................................... 31 v. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(8) A. France ..................................................................................................................... 31 B. Current Taiwanese Chain of Command .................................................... 32 3.4 China: Independence Model................................................................................ 34 4.. AN ASSESSMENT OF THREE MODELS AND CHINESE DESIGN ............... 36 4.1 The Three Models ..................................................................................................... 36 A. Democratic Legitimacy .................................................................................... 36 B. Effectiveness ........................................................................................................ 37 C. The Protection of Liberty and Human Rights......................................... 40 4.2 An Assessment of the Chinese Design ............................................................. 41 A. Effectiveness ........................................................................................................ 41. 政治大. The Weak Civil-Military Collaboration................................................... 41. 立. The Situation of the Ministry of National Defence ............................ 43. ‧ 國. 學. B. Accountability of the CMC and the Military ............................................ 44 Accountability of the CMC ........................................................................... 44. ‧. The Pressure of Civilian Control: CMC Chairman Responsibility System .................................................................................................................. 46. y. Nat. sit. C. The Failure of Constitutional Promises of 1982 .................................... 47. n. al. er. io. 4.3 Conclusion .................................................................................................................. 48. i n U. v. 5. A PROPOSAL FOR NEW RULES................................................................................... 49. Ch. engchi. 5.1 Why Existing Answers Fail? ................................................................................. 49 5.2 Merging the Military Command into the Executive ................................... 50 5.3 Accountability............................................................................................................ 53 6. CONCLUSION ...................................................................................................................... 56 BIBLIOGRAPHY ...................................................................................................................... 57. vi. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(9) 1. INTRODUCTION. Which constitutional institution shall exercise the power of military command? Or in American terms, who shall be the Commander in Chief of the military? The military command power (militäriche Kommandogewalt), a legal term especially prevalent in German academia, is an indispensable component of supreme command power (Oberbefehl). The supreme command power refers to “the sum all the disposal and command power (Verfügungs- und Befehlsgewalt) over the military”,. 1. including military command and. 政治大. administration. Compared to the American counterpart, the supreme. 立. command power approximates a broader understanding of Commander in. ‧ 國. 學. Chief power, while the military command power is the narrowest understanding. 2 This article uses a broader understanding of American. ‧. Commander in Chief power and deem it as a synonym for the supreme command power. When it comes to direction and deployment of armed forces,. y. Nat. n. er. io. al. sit. I will use the military command power.. i n U. v. Constitutions in major democracies mostly deposit the armed forces under. Ch. engchi. the control of the executive branch. For example, the Constitution of the United States and France designates the President as the commander in chief, while the German Basic Law vests the power of command in the Minister of Defence.3. The power of military command, in China, falls out of the jurisdiction of the executive. The Constitution of the People’s Republic of China of 1982 adopts. 1. Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland (Band II), 1980, S. 870. Maunz/Dürig/Epping, 81. EL September 2017, GG Art. 65a, Rn. 20. 2 See, David Luban, On the Commander in Chief Power, 81 S. CAL. L. REV. 477 (2008) (“One way of posing the question is to ask whether the commander in chief power includes the entire realm of national security decisions—that would, perhaps, be the broadest definition of the power—or nothing more than a narrow power of military command.”) 3 U.S. Constitution, Article 2, Section 2, Clause 1. Constitution of France (1958), Article 15. Basic Law for the Federal Republic of Germany, Article 65a. 1. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(10) a unique framework of control over the military. The Executive, namely the State Council, has the authority “to direct and administer the building of national defence” (Article 89 (10)). On the other hand, Article 93 reads that “the Central Military Commission (CMC) of the People’s Republic of China directs the armed forces of the country.” Both the CMC and the executive are paralleled constitutional branches. Then comes one interpretative question: whether the government can command the military? If the answer is no, then legislative questions arise: Whether it is reasonable to set up a branch external to the executive to direct the military? Which branch shall exercise military command power from the point of view of constitutionalism?. 立. 政治大. 1.1 Why a Research on Chinese Military Command Power?. ‧ 國. 學. Before answer those questions mentioned above, we have to know why to study Chinese constitution, which is regarded as “a constitution without. ‧. constitutionalism” 4 or a “sham constitution” 5 in an authoritarian state. Although China has no substantial constitutional review by the judiciary as in. y. Nat. sit. western countries, evidences vindicate Chinese constitutional enforcement. n. al. er. io. mainly through the process of legislation, no matter on issues of the protection. i n U. v. of fundamental rights or separation of powers.6Furthermore, notwithstanding. Ch. engchi. the distinction of democratic and authoritarian regimes, all the constitutions share some common functions. The fundamental one is the coordination between different institutions (or branches), which is a basic question in all the countries. Constitutions arrange the powers that different branches exercise, which decreases the cost of renegotiation and conflicts between institutions, as well as guides the actions of political elites. 7This can naturally be applied to. 4. Zhang Qianfan, A Constitution without Constitutionalism? The Paths of Constitutional Development in China, 8 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 950 (2010). 5 David S. Law & Mila Versteeg, Sham Constitutions, 101 CALIF. L. REV. 863, 866 n.4 (2013). 6 Yan Lin and Tom Ginsburg, Constitutional Interpretation in Lawmaking: China's Invisible Constitutional Enforcement Mechanism, 63 AM. J. COMP. L. 467, 472 (2015). 7 Tom Ginsburg and Alberto Simpser, Introduction: Constitutions in Authoritarian Regimes, in CONSTITUTIONS IN AUTHORITARIAN REGIMES 1, 3 (Tom Ginsburg and Alberto Simpser eds., 2014). 2. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(11) China, since Chinese regime also has to response to the question of how to allocate diverse tasks to various institutions. As a result, the inquiries over constitutional structures in the Chinese context, especially the assignment of military command power in this article, is not untenable.. Although China today doesn’t face a threat of war, diverse tasks require the support of the People’s Liberation Army (PLA), such as domestic disaster relief, overseas escort, and so on. Especially, as the increases of the deployment of the PLA in recent years, laws governing military turns back to the sight of the public. A practical question asked by Xue Gangling, a legal scholar, can the government. 政治大. command the military when soldiers engage in non-war operations?8. 立. This question actually arose in Wenchuan Earthquake (2008) relief. The. ‧ 國. 學. Premier asked the military to move into the epicenter quickly and carry out a range of relief action, but it was delayed by the military several times, until. ‧. Chairman of the CMC Hu Jintao replaced Wen as the leader of rescue operation.9 A question arises, whether the Premier has the authority to order. n. al. er. io. sit. y. Nat. the military?10. 1.2 Literature Review. Ch. engchi. i n U. v. The division of powers between the State Council and the CMC has drawn the attention of legal scholars recently. Although foreign observers pointed out the importance of the office of Chairman of the CMC,11 they are confused by the ambiguous constitutional design of the chain of command. 12 A contribution made by them is to point out the paucity of institutional civilian control of the. 沈亮，魏頔，兵馬未動軍法先行——中國軍隊也需法律“掩護”，南方週末 2009 年 4 月 2 日。 http://www.infzm.com/content/26444 (last visited, July 10, 2018). 9 Nan Li, Chinese Civil-Military Relations in the Post-Deng Era, 4 CHINA MARITIME STUDIES 1, 27-28 (2010). 10 Tai Ming Cheung, The Riddle in the Middle : China's Central Military Commission in the 21st Century, in PLA INFLUENCE ON CHINA'S NATIONAL SECURITY POLICY-MAKING 84, 107 (Phillip C. Saunders and Andrew Scobell eds., 2015). 11 Chenglin Liu, The Development of Chinese Constitutionalism, 48 ST. MARY’S L.J. 199, 248 (2016) 12 Jeremy T. Paltiel, Civil-Military Relations in China: An Obstacle to Constitutionalism?, 9 J. CHINESE L. 35, 49-51 (1995). 3 8. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(12) Chinese military,13 but the normative question of whether the government can command the military, as well as how to allocate the military command power, remains untouched nonetheless. On the other hand, Chinese scholars predominantly focus on the interpretation of the Constitution. Although, in traditional textbooks in Chinese constitutional law, the narratives are almost repetitions of current legal norms over the military powers of the State Council and CMC,14 some started to reflect the tension between the Ministry of National Defence and the CMC.15 One issue in current debate is whether the State Council can command the military. Traditional understanding, based on the plain constitutional text, claims that. 政治大. the CMC exercises the power of military command, while the State Council has. 立. the power of military administration.16However, this argument is challenged by. ‧ 國. 學. younger generations. Some alleges that the phrase “national defence” in Art. 89 (10) empowers the State Council with full authority over military affairs,. ‧. including the deployment of armed forces.17 To the contrary, the other regards the “national defence” in that clause as a much limited power over national. y. Nat. sit. defence administration.18 However, because of a lack of the application of legal. n. al. er. io. methodology, the Chinese scholars haven’t got a persuasive answer.. i n U. v. Furthermore, the Chinese allocation of military command power has not. Ch. engchi. been examined in a comparative context, which makes it impossible to reflect our constitutional design systematically. Accordingly, by virtue of a paucity of systematical comparison, current plans for constitutional reform cannot solve. 13. Id. at 63. 許崇德、胡錦光、李元起、任進、韓大元編，憲法（第三版），頁 292，北京：中國人民大學出版社， 2007 年。周葉中主編，憲法（第二版），頁 340-341，北京：高等教育出版社，2005 年。胡錦光、韓大元，中國憲法（第二版），頁 402，北京：法律出版社，2007 年。 15 張千帆，憲法學導論：原理與應用，頁 345-346，北京：法律出版社，2004 年。 16 許崇德，《中華人民共和國憲法》釋義，北京：人民出版社，頁 203，1993 年 4 月。張建田，完善憲法有關中央軍委之規定問題探討，河南財經政法大學學報，第 6 期（總第 146 期），頁 11，2014 年。 17 馬嶺，論國務院和中央軍委的國防權——對憲法第 89 條第 10 項和第 93 條第 1 款的解釋，載：法律方法與法律思維，頁 128-139，北京：法律出版社 2012 年。馬嶺，我國現行憲法中的軍事權規範，法治論叢，第 26 卷第 2 期，頁 5-9，2011 年 3 月。 18 傅達林，國務院與中央軍委國防軍事權的劃分——以“國防”的憲法解釋為線索，法學第 9 期，頁 1625，2015 年。田思源，行政法視野下國防行政體制的改革，甘肅政法學院學報，總第 97 期，頁 15-17， 2007 年 9 月。 4 14. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(13) Chinese problems.. 1.3 Main Thesis This article tries to answer following questions. Firstly, does the Constitution vest the State Council with the power of military command? Secondly, is the Chinese constitutional design a unique one, or just a successor of a certain archetype? Thirdly, what are the institutional problems of current system? Fourthly, how can we solve those institutional problems on military command system? Initially, this article tries to interpret the constitutional power of the State. 政治大. Council in Art. 89 (10). Textual, structural and historical readings of that clause. 立. suggest that the State Council has no military command power.. ‧ 國. 學. Next, a comparative perspective reveals three models on the constitutional assignment of military command power: the executive control model, the. ‧. independence of military command model, as well as the middle model. The Chinese system segregates the military command from the executive, which. y. Nat. sit. matches the features of the independence model.. al. n. both institutional. performance. Ch. i n U. and original. engchi. er. io. The third thesis is that the Chinese design over military command fails on. v. legislative. promises.. A. constitutional evaluation of the three models suggests that the independence model performs worst in democratic legitimacy, effectiveness and protection of liberty, while the executive control model works best. The institutional flaws of the independence model also reflected in the Chinese practice: (1) as for effectiveness, current system hinders the cooperation between the military and civilian government, as well as weakens the function of Department of National Defence; (2) in the view of democratic accountability, it undermines parliamentary oversight and civilian control over military. Furthermore, Chinese constitutional practice cannot live up to the framer’s promises because of the evolution of society, political circumstances, as well as constitutional theory. 5. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(14) Finally, to solve current problems, it’s necessary to adopt the executive model instead. The military command power should be allocated to the State Council as the executive, with the chain of command running from the Premier through the Minister of National Defence to the Chief of Joint Staff. In order to prevent the executive from abuse of military power, accountability of the State Council to the parliament should be enhanced, by means of setting up the following mechanisms: (1) a Defence Committee in the legislature for inquiring military affairs, and (2) parliamentary ex ante consent over deployment of military overseas.. 立. 政治大. ‧. ‧ 國. 學. n. er. io. sit. y. Nat. al. Ch. engchi. i n U. v. 6. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(15) 2. MILITARY COMMAND POWER IN THE CONSTITUTION OF 1982 The allocation of military command power in the Constitution of 1982 is different from most western constitutions, which usually authorize the executive to deploy the armed forces. The structure of Constitution of 1982 is a large departure from the classic model of separation of tripartite powers provided by Montesquieu. The whole state power is horizontally allocated to the following constitutional institutions: the National People’s Congress (NPC) and its Standing Committee (NPCSC), the President, the State Council, the CMC, the Supreme People’s Court, the Supreme People’s Procuratorate, as well as a new institution, the National Supervision Commission.. 立. 政治大. Chinese Constitutional Structure in 2018 (by the author). ‧ 國. 學. President. ‧. State Council. er. io. sit. y. Nat. Central Military Commission. n. al. NPC & NPCSC. Ch. engchi. i n U. v. National Supervision Commission. Supreme People’s Court. Supreme People’s Procuratorate. 7. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(16) 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. Constitutional System. Commission. (CMC). in. Chinese. 政治大. A. The Historical Evolution of Military Command Power in PRC. 立. In the wake of Chinese Civil War, the People Republic of China was found. ‧ 國. 學. in 1949. The new regime allocated the command power to the People's Revolutionary Military Committee of the Central People's Government 19. ‧. (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. y. Nat. sit. stipulated that the People’s Revolutionary Military Commission (PRMC, 人民. n. al. er. io. 革命軍事委員會) “as the supreme military command of the state” (Art.5). “The. i n U. v. PLA and other people’s armed forces shall be under the unified control and. Ch. engchi. 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.” 8. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(17) 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. 政治大. the state, a consensus at that time was that the military shall be at the disposal. 立. of a state institution in the new constitution. 20 Then in the initial draft, the. ‧ 國. 學. 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.. y. Nat. sit. Firstly, the framers of the new constitution intended to prevent from a. n. al. er. io. concentration of powers. Slightly before the Party recommended the legislature. i n U. v. to revise the Constitution, Deng Xiaoping, the paramount leader of the Party,. Ch. engchi. 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 more complete 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。 9. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(18) 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. 政治大. enactment of the Constitution of 1954, the Party’s CMC was restored to take. 立. charge of military, even though the de jure Commander in Chief was the Actually, during this period, the Party’s CMC managed the. ‧ 國. 24. 學. President.. 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. y. Nat. sit. Zedong.25 This de jure – de facto gap on military command still existed even. n. al. er. io. when the Chairman of the CPC was designated as the constitutional. i n U. v. Commander in Chief in the Constitution of 1975 & 1978, because the CMC. Ch. engchi. 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. 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。 23 陳斯喜、劉松山，同註 20，頁 5。（ “1954 年憲法規定國家主席統率全國武裝力量，在當時是合適的，因為那時國家主席同時擔任黨中央的軍委主席。但是從長遠看，這兩個職務並不一定由一個人擔任。如果仍然採取採用 1954 年的規定，就可能會名實不符而在實際工作中造成很大困難。 ” ） 24 李晟，從軍事視角理解憲法的歷史構成：以五四憲法中的國防委員會切入，交大法學第 4 期，頁 126， 2017 年。 25 黃鈡，憲法視角下的毛澤東與劉少奇，炎黃春秋第 7 期，頁 31，2013 年。 26 Deng Xiaoping took the CMC Chairman of the Party, while Hu Yaobang took the Chairman of the CPC. 10 21. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(19) two names (一個機構，兩塊牌子)”.27 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. 政治大. Eventually, the state CMC was established in the Constitution of 1982 to. 立. command the military, by virtue of those three reasons.. ‧ 國. 學. B. The Constitutional Status of the CMC. ‧. The CMC is a supreme constitutional institution, though the Constitution of 1982 doesn’t explicitly states its status. The CMC has the same legitimacy as. y. Nat. sit. the President, the State Council, as well as other constitutional institutions,. n. al. er. io. because of the same personnel decision process. The CMC gains its democratic. i n U. v. legitimacy from the NPC, which is “the highest organ of state power” (Art. 57). Ch. engchi. and “exercise[s] the legislative power of the State” (Art. 58). The NPC is authorized “to elect the Chairman of the Central Military Commission and, upon nomination by the Chairman, to decide on the choice of all other members of the Central Military Commission (Art. 62 (6)). Art 62 also empowers the NPC to elect and decide the President, the Premier, as well as members in the State Council and other constitutional institutions.29 When the NPC is not in session, 陳斯喜、劉松山，同註 20，頁 5。陳斯喜、劉松山，同註 20，頁 5。 29 Article 62 The National People's Congress exercises the following functions and powers: …… (4)to elect the President and the Vice-President of the People's Republic of China; (5)to decide on the choice of the Premier of the State Council upon nomination by the President of the People's Republic of China, and on the choice of the Vice-Premiers, State Councillors, Ministers in charge of ministries or commissions, the Auditor-General and the Secretary-General of the State Council 11 27 28. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(20) the member changes of the CMC is subjected to the decisions of the NPCSC upon the nomination of CMC Chairman, which is the same as that of the State Council (Art. 67). 30 In addition, the removal of the members of the CMC is carried out by the NPC, adhere to the same removal procedure in other branches (Art. 63). 31 Furthermore, the work of the CMC is subjected to the supervision of NPCSC, the same with other branches (Art. 67 (6)).32 Therefore, the CMC shares the same legitimacy and procedures on personnel changes and supervision as other constitutional institutions, namely the State Council as the supreme executive, 33 the National Supervision Commission as the supreme. 政治大. upon nomination by the Premier; (6)to elect the Chairman of the Central Military Commission and, upon nomination by the Chairman, to decide on the choice of all other members of the Central Military Commission; (7)to elect the director of the National Supervision Commission (8)to elect the President of the Supreme People's Court; (9)to elect the Procurator-General of the Supreme People's Procuratorate;…… 30 There are some word nuances in the personnel changes of National Supervision Commission, the Supreme People’s Court, and the Supreme People’s Procuratorate, when the NPC is not in session. Article 67 The Standing Committee of the National People's Congress exercises the following functions and powers: (9) to decide, when the National People's Congress is not in session, on the choice of Ministers in charge of ministries or commissions, the Auditor-General or the Secretary-General of the State Council upon nomination by the Premier of the State Council; (10) to decide, when the National People's Congress is not in session, on the choice of other members of the Central Military Commission upon nomination by the Chairman of the Commission; (11) to appoint and remove, at the recommendation of the director of the National Supervision Commission, the deputy directors and members of the National Supervision Commission; (12) to appoint or remove, at the recommendation of the President of the Supreme People's Court, the Vice-Presidents and Judges of the Supreme People's Court, members of its Judicial Committee and the President of the Military Court; (13) to appoint or remove, at the recommendation of the Procurator-General of the Supreme People's Procuratorate, the Deputy Procurators-General and procurators of the Supreme People's Procuratorate, members of its Procuratorial Committee and the Chief Procurator of the Military Procuratorate, and to approve the appointment or removal of the chief procurators of the people's procuratorates of provinces, autonomous regions, and municipalities directly under the Central Government;…… 31 Article 63 The National People's Congress has the power to remove from office the following persons: (1) the President and the Vice-President of the People's Republic of China; (2) the Premier, Vice-Premiers, State Councillors, Ministers in charge of ministries or commissions, the AuditorGeneral and the Secretary-General of the State Council; (3) the Chairman of the Central Military Commission and other members of the Commission; (4) The director of the National Supervision Commission (5) the President of the Supreme People's Court; and (6) the Procurator-General of the Supreme People's Procuratorate. 32 Article 67 The Standing Committee of the National People's Congress exercises the following functions and powers: …… (6) to supervise the work of the State Council, the Central Military Commission, the National Supervision Commission, the Supreme People's Court and the Supreme People's Procuratorate; 33 Article 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. 12. 立. ‧. ‧ 國. 學. n. er. io. sit. y. Nat. al. Ch. engchi. i n U. v. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(21) supervisory institution,. 34. the Supreme People’s Court as the supreme. judiciary,35 the Supreme People’s Procuratorate as the supreme procuratorial organ. 36 Consequently, the CMC is a supreme institution in the current constitutional system. Therefore, the CMC can independently carry out its constitutional function without the any direction and intervention of other branches.. C. The Function of the CMC Art.93. I vests the CMC with the power to “direct[] the armed forces of the country.” This clause reveals explicitly that the CMC has the power of military. 政治大. command.. 立. Literally, the phrase “directs the armed forces” here, at least equals, if not. ‧ 國. 學. includes but is not limited to, “command the armed forces”. A Chinese authority on constitutional law, Xu Chongde, in his commentary on the Constitution of. ‧. 1982, claims that “that the CMC directs the armed forces of the country means it is vested with the decision-making and command power over armed forces of. y. Nat. According to the Constitutional Revision. n. al. 38. er. io. constitutional scholarship.. sit. the country.”37 This interpretation has been the dominate doctrine in Chinese. i n U. v. Committee, “Previous constitutions stipulated ‘command’ (統率) armed forces.. Ch. engchi. Because the meaning of “direct” is broader: it means not only ‘command’, but also ‘organize’ and ‘administer’, it’s more appropriate to stipulate ‘direct’ armed forces instead.” 39 However, the constitutional text juxtaposes “direct” and. 34. Article 125 The National Supervision Commission of the People's Republic of China shall be the supreme supervisory organ of the State.. 35. Article 132. I The Supreme People’s Court is the highest judicial organ. Article 137. I The Supreme People’s Procuratorate is the highest procuratorial organ 37 ，同註 16，頁 203。（原文為： “中央軍委領導全國武裝力量，就是對全國武裝力量負有決策和指揮權。 ” ） 38 張千帆，憲法學講義，北京：北京大學出版社，頁 336，2011 年。（ “1982 年憲法把最高軍事指揮權和決策權授予獨立於國家主席和國務院的中央軍委，……” ）胡錦光、韓大元，同註 14，頁 401-402。（ “中華人民共和國中央軍事委員會是最高軍事領導機關，統一領導和指揮全國武裝力量” ； “根據涉及軍事方面的有關法律的規定，中央軍事委員會行使下列具體職權：1.統一指揮全國武裝力量；2.決定軍事戰略和武（ “筆者認為裝力量的作戰方針；……” ）馬嶺，同註 17，論國務院和中央軍委的國防權，註 1，頁 129。 ‘領導’與‘統率’的區別主要不在範圍上，而是前者是實權，後者可能是實權也可能是虛權。 ” ） 39 陳斯喜、劉松山，同註 20，頁 6。 13 36. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(22) “administer” in the functions of the State Council in Article 89. 40 This juxtaposition suggests that the word “direct” doesn’t encompass “administer”. 41 Another understanding believes the adoption of “direct” instead of “command” has two reasons. Firstly, the armed forces is not subjected to one person (such as the CMC Chairman), but to the whole body of the CMC. Secondly, during the war, the CMC might not command the military by itself, but can appoint a military commander in chief to manage operational command. 42 Despite all discussions around the scope of “direct”, the power of military command sits at the core of the CMC’ power in constitutional text. In conclusion, there is no doubt that the CMC holds the military command power.. 立. 政治大. ‧ 國. 學. 2.2 Can the State Council Command the Military?. But the further question is, whether the CMC exercise that power. ‧. exclusively? In other words, whether the State Council shares this power? One constitutional question emerged in the Wenchuan Earthquake is. y. Nat. sit. whether the Premier can constitutionally order the military. To answer this. n. al. er. io. question, the point is how to interpret the power of the State Council in Article. i n U. v. 89 (10), which reads:“The State Council exercises the following functions and. Ch. engchi. powers: ……(10) to direct and administer the building of national defence;……”. A. The Textual Meanings of Art. 89 (10). 40. Article 89 The State Council exercises the following functions and powers: (6)to direct and administer economic affairs and urban-rural construction and the development of ecological civilization; (7)to direct and administer the affairs of education, science, culture, public health, physical culture and family planning; (8)to direct and administer civil affairs, public security, judicial administration and other related matters; (9)to conduct foreign affairs and conclude treaties and agreements with foreign states; (10)to direct and administer the building of national defence; (11)to direct and administer affairs concerning the nationalities and to safeguard the equal rights of minority nationalities and the right to autonomy of the national autonomous areas;…… 41 馬嶺，同註 17，論國務院和中央軍委的國防，註 1，頁 129。 42 喬曉陽，十一屆全國人大常委會專題講座第三十講：關於憲法規定的我國政治制度及其特點和優勢，中國人大網 2013 年 01 月 06 日。http://www.npc.gov.cn/npc/xinwen/2013-01/06/content_1750123.htm (last visited, July 10, 2018). 14. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(23) Traditional interpretation claims that the State Council cannot command the military. Based on the plain words of the Constitution, it pointed out that the duty of the State Council (and Ministry of National Defence) is confined to “military equipment, establishment, scientific research and the construction of military industry”, but not military command.43 But young generation reads this Article differently. The issue at the center of the current debate, is the meaning of “national defence”. The first approach argues that the concept of “national defence” in Art. 89 (10) is identical to its plain meaning in social consensus. In this view, armed forces is one component of national defence, which includes armed forces,. 政治大. defence of the frontiers, seas and air space, defence expenditures and assets,. 立. and so on. Now that the Article 89 (10) authorizes the State Council to “to. ‧ 國. 學. direct and administer the building of national defence”, the executive shall direct the whole affairs of national defence, including the armed forces. As a. ‧. result, the State Council can not only constitutionally direct the armed forces, but also take charge of military administration. Although, on the other hand,. y. Nat. sit. the CMC can also direct the military according to Article 93, it doesn’t prevent. n. al. er. io. the government from ordering the military. It means that the two branches. i n U. v. can both constitutionally command the Chinese military: the executive has. Ch. engchi. both military command power and military administration power, but the CMC only holds power of military command.44. To the contrary, Fu Dalin alleges that “national defence” as a constitutional concept in Art. 89 (10) is different from its ordinary meaning in the social consensus.45 In this theory, the meaning of “national defence” is distinguished at two levels. Firstly, the ordinary meaning of “national defence” is “military 許崇德，同註 16，頁 203。馬嶺，同註 17，論國務院和中央軍委的國防權，頁 129。馬嶺，同註 17，我國現行憲法中的軍事權規範，頁 5。 Ma Ling doesn’t explain her definitions of military command and military administration. But according to her narrative, it seems that military administration is all other affairs related to the military and national defence, except for the command of military. 45 傅達林，同註 18，頁 23。 15 43 44. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(24) and military-related defence activities conducted by the state, the core of which is the command and direction of the armed forces, as well as its building and management.”46 Secondly, a narrow meaning is confined to “national defence administration activities (國防行政活動)”, which manages the building, but not command, of the armed forces, conducted mainly by the executive and other civilians. 47 The author alleges that a structural and historical reading of the Constitution of 1982 suggests that the “national defence” in Art. 89 (10) is restricted in the narrow sense. Firstly, the Constitution set up an independent constitutional institution (CMC) to manage command. Since the CMC is not subordinated to the State. 政治大. Council, the latter is excluded from military command.48. 立. Secondly, Article 85 reads that the State Council “is the highest organ of. ‧ 國. 學. the state administration （最高國家行政機關） ”. Because the executive / administrative power ( 行政權) is distinguished from the military power in. ‧. nature, the State Council’s power on national defence is confined to the field of executive/administrative power （行政權）. As a consequence, the Article 89. y. Nat. sit. (10) shall be recognized as the power of national defence administration.49. n. al. er. io. Thirdly, Article 93 authorizes the CMC to “directs the armed forces of the. i n U. v. country”, rather than “commands the armed forces of the country” as in the. Ch. engchi. Constitution of 1954. The meaning of “direct” is broader than “command”, according to the Constitutional Revision Committee, “direct” “means not only ‘command’, but also ‘organize’ and ‘administer’ ”. This means that the CMC can carry out affairs over both military command and administration.. 50. Fu. Dalin concludes that the meaning of “national defence” in Art. 89 is limited to “national defence administration”.51 同前註，頁 24。同前註，頁 24。 48 同前註，頁 24。 49 同前註，頁 23。 50 同前註，頁 24。 51 同前註，頁 24。He defines military command as a power of “deployment of armed forces” and “command in combat”. However, his definition on military administration is a little different from Ma Ling. He alleges that the expansive meaning of military administration power has two dimension: first, the power of “administration of 16 46 47. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(25) 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.. 政治大. But the interpretation on “national defence” cannot answer the question. 立. whether the executive can command the military. A serious reading of the. ‧ 國. 學. 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. y. Nat. sit. of national defence” encompasses the “direct and administer building of. n. al. er. io. armed forces”, rather than “direct and administer armed forces”.. i n U. v. Consequently, powers in Art. 89 (10) doesn’t include the direction of the. Ch. engchi. 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。 17. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(26) 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. 政治大. military command power, rather suggests a plausibility of preservation of. 立. military power. As a result, the question whether the State Council can. ‧ 國. 學. 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. y. Nat. sit. institutions. If one branch has explicitly vested with a function, another one. n. al. er. io. can no longer exercise it.55 As long as one institution is vested with a certain. i n U. v. power clearly, it cannot argue that another one shares this power, unless the. Ch. engchi. 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.. 同前註，頁 24。 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. 18 52 53. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(27) 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. 政治大. be seen as a restriction on the aggrandizement of the executive power.. 立. Consequently, the drafters of the Constitution of 1982 deliberately excluded. ‧ 國. 學. 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.. sit. y. Nat. n. al. er. io. In conclusion, the Constitution of 1982 distributes the military command. i n U. v. power exclusively to the CMC. There is no overlap of command authority. Ch. engchi. between the CMC and the State Council.. 19. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(28) 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. 政治大. constitutions since American founding fathers incorporated the Command in. 立. Chief Clause in the Constitution of the United States of 1987. In this. ‧ 國. 學. constitution, the first model is established, which leaves the military under the disposition of the civilian executive. It introduces the principle of civilian. control model.. 58. ‧. control of military to constitutional law. In this paper, it is called executive During the constitutional wave in Continental Europe in. y. Nat. sit. 19th century, a new model of independence of military command power59. n. al. er. io. emerged in Prussia-Germany. This system deliberately segregates military. i n U. v. command from the executive. The middle model is a compromise between the. Ch. engchi. 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。 20. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(29) 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. 政治大. democratic countries. The justifications for this design are twofold. Firstly,. 立. entrenching the civilian control of military in the constitution, in order to. ‧ 國. 學. 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. y. Nat. sit. political part of the executive and takes charge of political leadership. The. 61. al. n. decisions.. er. io. military serves as an instrument of the government to executive those political. Ch. engchi. i n U. v. 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.” 21. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(30) 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. 政治大. As the British Empire established colonies in North America, the Crown. 立. appointed colonial governors, regional commanders in chief, as well as “a. ‧ 國. 學. 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. y. Nat. sit. entire armed forces.67As a result, the Commander in Chief of the “United. n. al. er. io. Colonies” was subject to the detailed directions of the Continental Congress. 68. i n U. v. But this system led to military ineffectiveness and failures in battlefields, by. Ch. engchi. 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. 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. 22 64. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(31) 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. 政治大. This constitutional design fuses the popularly elected chief executive and. 立. the Commander in Chief in one person,74 which has at least two fundamental. ‧ 國. 學. 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. y. Nat. sit. the perspective of executive-military relations, the Commander in Chief. n. al. er. io. Clause set up a hierarchy, in which the civilian President controls the armed. i n U. v. forces. Therefore, the principle of civilian control of military establishes,. Ch. engchi. 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. 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.” 23 71. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(32) 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. B. Taming the British Royal Prerogative over Military In the British constitutional system, the military command power is a royal prerogative. The constitutional history in the UK saw the process of the transformation of this power from the Monarch to the Ministers who are responsible to the parliament. During the Medieval period, the King could command the military. 政治大. himself.78 Before 1688, the royal prerogative was still completely held by the. 立. Monarch. But since the Bill of Rights promulgated, certain prerogative has. ‧ 國. 學. been modified or even abolished by the statutes of the Parliament.79 Under the Bill of Rights, though the King held a large number of powers including. ‧. military command, the raising or keeping of the military in peace time was subjected to the parliamentary consensus. From mid-eighteenth century to. y. Nat. sit. early nineteenth century, the decisions of governmental affairs gradually. n. al. er. io. transferred to the Cabinet.80 Today, in the prerogative, executive powers in. i n U. v. nature, including the deployment of military, are exercised by the Ministers on. Ch. engchi. the Queen’s behalf.81 Thus, although the Monarch is the de jure Commander in Chief, but the Prime Minister now has a final say in military decisions.82. C. The Power of Command in the Basic Law of Germany In traditional German legal doctrine and practice, the military command power is excluded from the cabinet, so that the military action can avoid the. 77. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646 (1952) (Jackson, J., concurring). Nigel White, DEMOCRACY GOES TO WAR: BRITISH MILITARY DEPLOYMENTS UNDER INTERNATIONAL LAW, 8 (2009). 79 House of Lords Constitution Committee, House of Lords Constitution Committee, WAGING WAR: PARLIAMENT’S ROLE AND RESPONSIBILTY (15th Report Session 2005–2006), Volume I: Report, para 4 (2006). 80 Nigel White, supra note 78, at 11. 81 House of Lords Constitution Committee, supra note 79, para 5. 82 Id. at para 4-6, 13 (2006). 24 78. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.

(33) parliamentary accountability. In the Basic Law, the power of command is finally vested in members of cabinet. In peace time, the Minister of Defence commands the military (Art. 65a), but he/she is subjected to the general guideline of policy set by the Chancellor (Art. 65). However, once a state of defence is promulgated, the Chancellor assumes the responsibility of command (Art. 115b).83. In conclusion, in the executive control model, the military command power is assigned to a cabinet member, usually the chief executive.. 政治大. 3.2 The Independence of Military Command Model. 立. The independence of military command model traced back to Prussian. ‧ 國. 學. constitutional practice. Unlike the executive control model, it segregates military command from the executive authority. This system was introduced. ‧. by Meiji Japan to East Asia. Taiwan also succeeded this heritage in the second half of 20th century.. y. Nat. sit. The rationale for this design has at least two dimensions. Firstly, in. n. al. er. io. traditional German constitutional theory, the military is the fourth power of. i n U. v. the state, besides the tripartite powers of the legislature, executive and. Ch. engchi. judiciary.84 This theory firstly separate all the functions of the state into two parts: the military component and civilian component.85 Then, the civilian power is distributed into three power. As a result, the military doesn’t belongs to any of the three branches, and works as an autonomous power. Secondly, a functional perspective advocates that the military actions requires effectiveness and secrecy, for the sake of guaranteeing national security. The. 83. BASIC LAW, art. 65 The Federal Chancellor shall determine and be responsible for the general guidelines of policy. Within these limits each Federal Minister shall conduct the affairs of his department independently and on his own responsibility. Art. 65a, Command of the Armed Forces shall be vested in the Federal Minister of Defence. Art. 115b, Upon the promulgation of a state of defence the power of command over the Armed Forces shall pass to the Federal Chancellor. 84 Maunz/Dürig/Epping, a. a. O., Rn. 81. 85 Klaus Stern, a. a. O., S. 849. 25. DOI:10.6814/THE.NCCU.LAWID.002.2018.F10.