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The Provisional Constitution of the Republic of China was the constitutional law of the Republic of China during the tutelage period. It was the second constitutional law since the Qing Empire was renamed and restructured as the Republic of China. It was enacted by the National Government in May 1931 and was abolished naturally until December 25,1946, after the implementation of the Constitution of the Republic of China. [1] However,
it was never promulgated by the competent authority.
Background of the enactment of the law
editIn 1928, the Nationalist Government led by Kuomintang achieved a basic victory in the Northern Expedition, and the domestic situation in China had finally been settled.
According to the provisions of Sun Yat-sen's National Founding Guidelines, the military administration ended, and the country would enter the tutelage period.
In March 1929, the 3rd National Congress of the Kuomintang decided not to formulate a constitution for the time being. Instead, they formulated the National Government Organization Act and the Tutelage Period Guidelines to supplement the National Founding Guidelines.
On May 8, 1931, the National Assembly was held. The Political Tutelage Period Act was passed on May 12 and was promulgated and implemented by the National Government on June 1.
Content
editThe Political Tutelage Period Act has a total of eight chapters and 89 articles. The content of the Act includes a general outline, people’s rights, tutelage guidelines, national livelihood, national education, central and local authorities, governmental organization, and supplementary regulations. Its primary characteristics are as follows:
1. For the freedom and rights of citizens, except for religious beliefs, indirect protectionism is implemented, i.e., the protection of human rights depends on laws, and the government can restrict it according to the laws [3].
2. The Tutelage Period Guidelines have reconfirmed the form of party governance, and the party governing the country is the Party-State.
3. There are two chapters on national livelihood and education. They announce the government’s policy guidelines and goals in these two respects awhile implementing Sun Yat-sen’s policy on the livelihood of the people.
4. The authority of the central and local governments are subject to the principle of equal rights. It is also subject to the content of the powers of both parties,except for industrial and commercial patents and monopoly franchises, which are under the jurisdiction of the central government; the rest are regulated in detail by law [4].
5. The National Government organization includes five yuans and a committee system, i.e., it is composed of National Government committees. In addition to representing the Republic of China, the party chairman also nominates the president of the five yuans. Therefore, the National Government organizationdisplays obvious characteristics of the presidential system. Provinces and counties would prepare for self-government, and governors would be elected by the people.
6. The supplementary regulations stipulate that this Provisional Constitution is the supreme law of the tutelage period. The Central Executive Committee of the Kuomintang is responsible for interpreting the law. The Provisional Constitution does not specify the amendment procedures. The amendment
procedures can only be implemented in accordance with the established procedures, i.e., re-election of the National Assembly. It is, therefore, a rigid
Provisional Constitution.
Abolishment
editThe Provisional Constitution of the Republic of China was the Provisional Constitution of the Tutelage period. It was initially scheduled to be abolished at the end of the Tutelage period in 1936. However, due to the Japanese invasion of China, the constitutional National Assembly was delayed repeatedly, and constitutionalism was not initiated. In 1946, the Constitutional National Assembly enacted the Constitution of the Republic of China, along with the Preparatory Procedures for its Implementation. All laws that conflict with the Constitution were to be repealed immediately. At the same time, the National Government promulgated the Act on the Termination of the Tutelage Period to end the government operation during this period.