Chinese Constitutionalism: Five-Power Constitution
- Specific historical constitutions — Constitutional design — Separation of powers
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
A. The Comparatively Unique Constitution
1. Studies of modern constitutions and constitutional structures are invariably predicated upon the common theory that governments exercise three primary forms of legitimate power: executive, legislative, and judicial. Scholars from Montesquieu to the present have argued that separating these powers into distinct branches of government and establishing various forms of procedural mechanisms to constrain the exercise of these powers best ensures that government power is exercised efficiently and without potential of infringing upon the rights and freedoms of individuals. This understanding is so common that the vast majority of the world’s written constitutions reflect this tripartite division of government power, including the majority of post-colonial and post-Soviet constitutions which all take three powers to be the norm when designing a new constitutional government. There are, however, a handful of exceptions. Under the Constitution of the Bolivarian Republic of Venezuela: 20 December 1999 (Venez), for example, the national government is comprised of the standard executive, legislative, and judicial branches, but to this are added two additional branches: the Electoral Branch, responsible for overseeing elections, and the Citizens’ Branch which serves as ombudsman, public prosecutor, and comptroller. Less explicitly perhaps, the Constitution of Costa Rica: 7 November 1949 (Costa Rica) establishes the state’s three primary powers as the executive, legislative, and judiciary, yet also provides for the establishment of two additional and independent government organs: the Supreme Election Tribunal and the Comptroller General. Each represents an attempt to assimilate western constitutional design models within local socio-political contexts requiring alterations to such designs.
2. Five-branch governments are not unique to Latin America, and another, earlier constitution, the Constitution of the Republic of China: 25 December 1947 (Taiwan) (中華民國憲法, hereafter 1947 ROC Constitution), also established a national government comprised of five branches.
3. This constitution, however, stands out as an anomaly for several reasons. First, it divides the central government into five distinct branches, or yuan (院) as opposed to the more common tripartite division. The two additional branches were explicitly drawn from China’s imperial heritage in a purposive attempt to infuse liberal western constitutional theory and design with chthonic Chinese political structures. Hence it is also commonly referred to as the Five-Power Constitution (五權憲法). Second, it is a constitution written to govern the entirety of the Chinese mainland, yet after the loss of the civil war with the Communists in 1949 (communism), the Nationalist government relocated to the island of Taiwan and established the Republic of China on Taiwan. Since then, the constitution has effectively governed only the inhabitants of Taiwan and a handful of offshore islands, whilst that government still maintains the claim that the document represents the legitimate constitution for all of China. Lastly, due to various international and domestic political pressures, this constitution has never been given a complete overhaul so as to better reflect the reality of Taiwan’s contemporary constitutional landscape. Instead it has been subject to several piecemeal reforms since 1990, each a response to various political crises. These reforms have transformed the original parliamentary system of the constitutional document into a frequently unstable semi-presidential system prone to political gridlock (semi-presidentialism). Since 1947, this constitution has survived a civil war, thirty-eight years of inertness under martial law, and has provided a foundation for political democratization in post-martial law Taiwan. This entry provides an overview of the contents of the constitution as well as a survey of its tumultuous history.
B. Early Constitutional Movements in China
4. Debates over the establishment of a constitutional government in China gained momentum in the 1880s. At the time, the ethnically Manchu imperial family of the Qing Dynasty (清1644–1911) governed China. After centuries of discontent over being ruled by a ‘foreign’ people, several reformers increasingly demanded greater representation for ethnically Han Chinese in government policy making and the development of a constitutional monarchy (monarchical constitutions) similar to that of Great Britain, Japan, or Imperial Germany. The failure of half-hearted political reforms by the Qing royal family, as well as severe economic turmoil and the encroachment of Western nations, eventually led to the overthrow of the Qing government and of the imperial system altogether in 1911. The establishment of the ROC followed, yet the early republic suffered several years of warlordism and intense political factionalism. From 1911 to 1949, attempts to produce a centralized constitutional government resulted in over twelve constitutions and draft documents being written or promulgated. Within the various drafts one sees the primary tension playing out over the establishment of a presidential system or a parliamentary system (Zhao). French, German, and American constitutional designs heavily influenced various constitutional drafts as the political stakeholders attempted to either empower the Presidency or limit it. This often-violent tug of war over constitutional design led several scholars and statesmen to question the legitimacy and practicality of western constitutional transplants, and many began seeking alternative strategies for constitutional and administrative design.
C. Theoretical Foundations of the Five-Power Constitution
5. One sceptic of western constitutional transplants, Sun Yat-sen (孫逸仙, 孫中山, 1866–1925), began advocating the development of a hybrid model which combined the traditional western division of powers into three branches with two additional branches of government drawn from China’s imperial past: the Examination Yuan and the Control Yuan (borrowing and migration of constitutions).
6. Sun Yat-sen conceptualized two distinct forms of legitimate government power: zhengquan (政權) and zhiquan (治權). The first, zhengquan, equates to a form of individual sovereign political power held by each citizen of China. It manifests in the four inviolable individual rights of election, recall, initiative, and referendum (elections; direct democracy). The other power, zhiquan, constitutes the power of government institutions to administer the state. This second form is similar to the more common executive, legislative, and judicial powers of constitutional governments. For Sun, both forms of power were necessary to produce a legitimate and efficient government, yet the government’s power to administer should never be allowed to infringe on the sovereign political power of the people (Pan 65–66).
7. Sun argued that in western constitutionalism, the tripartite separation of power and the various forms of checks-and-balances systems all failed to adequately protect individual sovereign political power from the government, and this was one of the main reasons that the direct transplantation of western constitutional models had continually failed in China. Sun theorized that by dividing the central government into five distinct branches, the power to administer (zhiquan) would be sufficiently diluted to the point that no single branch could gain hegemony over the other branches, nor could any government branch through the exercise of its power infringe upon the sovereign political power of the people.
8. In addition, the creation of additional branches of government drawn from China’s imperial past would resolve two problems Sun saw in western constitutional governments. First, Sun criticized western electoral systems for what he viewed as merely allowing the wealthy to be elected and for having most executive appointments be based on nepotism. Furthermore, the fact that the powers of appointment and confirmation were typically vested in the executive and/or legislative branches, and not an independent branch, failed to ensure a high level of transparency and accountability (Sun 150–151). Such practices did not necessarily allow the best and most talented people to be considered for civil service. Drawing on imperial China’s examination system—in which prior to appointment all public officials in local, provincial, and central government posts were required to pass a series of centralized exams open to all persons irrespective of social class—Sun suggested that China establish a constitutional branch of government, the Examination Yuan, to oversee all matters related to the candidacy, tenure, promotion and demotion, and salaries of public officials (Sun 93–98). Thus, the Examination Yuan would utilize its power to administer (zhiquan) in order to ensure the best and most capable individuals gained government positions (appointed or elected), and by extension, this branch would protect the sovereign political power (zhengquan) of the people to elect representatives for specified offices.
9. Second, Sun believed that western governments tended to vest too much power in the legislative branch. Specifically, Sun pointed to the power of the United States (‘US’) Congress to confirm presidential appointments as well as investigate and carryout trials for impeachment. Sun argued this contradictory power could potentially allow the legislature to hold the executive ‘hostage’ and thereby impede the functioning of the central government. Again turning to China’s imperial past, Sun opted to introduce a fifth branch of government based upon the imperial Censorate (yushi 御史). Officials appointed as Imperial Censors were tasked with investigating complaints of government corruption and incompetence and reporting directly to the Emperor. As such, these agents were fairly independent of the imperial bureaucracy and possessed a high level of investigative autonomy. In fact, their job was not only to investigate and censure government officials, but also to offer remonstrance to the Emperor, should his actions be deemed contrary to the promotion of good governance. From this rich historical tapestry, Sun Yat-sen hoped to retain the supervisory powers of the traditional Censorate and weave them into the fabric of a modernized constitutional framework wherein the Control Yuan would exist as an independent government branch ensuring that government corruption or incompetence would not infringe upon the sovereign power of the people (Sun 145–146).
D. Designing the Five-Power Constitution
10. Sun Yat-sen’s theory of five-power constitutionalism is rather unsystematically scattered throughout various speeches and essays written from 1910s through the mid-1920s. Sun died in 1927 without completing an actual draft of a five-power constitution. His son, Sun Fo, and a handful of other Kuomintang elite were left with the task of formulating the first draft. After several revisions, a draft passed the final reading by the National Assembly on 25 December 1946 and went into effect on 25 December 1947. This section outlines the constitution in its original form, whilst subsequent sections trace the evolution of the constitution through successive amendment processes.
11. The 1947 ROC Constitution contains a preamble and fourteen chapters comprised of a total of 175 individual articles. The Preamble states that the constitution is designed to protect the freedoms of all the people of China and to ensure tranquillity. Chapter 1 sets out the general provisions which include, inter alia, that the government of China is a Republic based upon the Three People’s Principles of Sun Yat-sen; that all citizens regardless of race are equal; and that all citizens possess the full sovereignty of the republic (ROC Constitution, Arts 1–6). Chapter 2 provides a robust list of the rights and duties of citizens including, inter alia, freedom of expression, gender equality, religious freedom (freedom of conscience and religion or belief), freedom of assembly, habeas corpus, as well as the duty to perform military service and pay taxes (ROC Constitution, Arts 7–24). The remaining sections set out the structure of government and define central-local relations.
12. Although the constitution is commonly called a ‘five-power’ constitution, it actually distributes power amongst seven different organs: the National Assembly, Presidency, Executive, Legislature, Judiciary, Examination, and Control.
13. National Assembly (國民大會) (Chapter 3, Arts 25–34)—Given the geographic size of China and its large population, the drafters of the constitution did not think it possible to allow for direct elections and direct exercise of individual zhengquan on a national level. The National Assembly is comprised of provincial and municipal elected representatives. It is empowered to elect and/or the President and Vice President of the Republic, amend the constitution; and approve amendments to the constitution put forth by the legislature after public referendum (ROC Constitution, Art. 27). As popularly elected representatives, members of the National Assembly cannot be prosecuted for opinions or votes cast in assembly (ROC Constitution, Art. 32), nor can they be arrested without the consent of the National Assembly, except in cases of flagrante delicto (ROC Constitution, Art. 33).
14. Presidency (總統) (Chapter 4, Arts 35–52)—The President of the Republic is not merely a disempowered figurehead, but is vested with a great deal of powers ranging from control over the Republic’s foreign relations (ROC Constitution, Art. 35) and command of the entire armed forces (ROC Constitution, Art. 36) to the appointment of members of the judiciary, executive, and examination branches of government (ROC Constitution, Art. 41). The President is also given fairly broad powers to declare martial law and promulgate emergency decrees (history and concepts of emergency). The ambiguity over the extent of these powers would lead to serious problems in the decades following the constitution’s promulgation.
15. Executive (行政院) (Chapter 5, Arts 53–61)—The Executive is comprised of ministers, heads of commissions and ministries, and ministers without portfolio, and are appointed by the President of the Republic with the consent of the Legislature. The Executive is headed by the President of the Executive Yuan, commonly translated as the Premier or Prime Minister. Based on the original constitutional document, the Premier is appointed by the President of the Republic with the approval of the National Assembly. The Executive controls the everyday management of the central government, and it is responsible to the Legislature for most matters and fiscally responsible to the Control Yuan.
16. Legislature (立法院) (Chapter 6, Arts 62–76)—The Legislature is a popularly elected government body with seats allotted to individual provinces based on population, as well as seats reserved for Mongolia, Tibet, overseas Chinese, and occupational associations (ROC Constitution, Arts 62 and 64). Members serve a three-year term and may be re-elected (ROC Constitution, Art. 65). The Legislature is vested with the power to pass statutes, budgetary bills (public finance), as well as approve bills on amnesties (amnesty), declaration of martial law, and the declaration of war and conclusion of war (ROC Constitution, Art. 63). Statutes passed by the Legislature must be submitted to the President of the Republic and the Executive Yuan, and must be approved by the former (ROC Constitution, Art. 72). As elected officials, all members are protected from prosecution for opinions or votes cast whilst in session, and may not be arrested without permission of the Legislative Yuan.
17. Judiciary (司法院) (Chapter 7, Arts 77–82)—All members of the Constitutional Court of Taiwan (Judicial Yuan) (ie, the Grand Justices and the administrative body of the judiciary) are appointed by the President of the Republic with the approval of the Control Yuan (ROC Constitution, Art. 79). The Judiciary is granted independence (independence of the judiciary) in deciding civil, criminal, and administrative cases, as well as cases involving the discipline of public officials (ROC Constitution, Art. 77). Grand Justices may not be removed from office unless convicted of a criminal offence or subjected to disciplinary measures (ROC Constitution, Art. 81). Supplementary legislation related to the Judiciary provided Grand Justices with life tenure upon appointment, but this was later amended to nine year terms. The organization and administration of intermediate and lower courts falls under the control of the Judicial Yuan.
18. Examination (考試院) (Chapter 8, Arts 83–89)—The Examination Yuan is one of two government branches which draws upon China’s imperial heritage. Under the imperial system, all individuals (males of any socio-economic background) were entitled to sit for a series of centralized examinations. Success at various levels of these exams provided access to government service. Sun Yat-sen wanted a centralized bureaucracy, and an educated bureaucracy. Therefore, he incorporated the Examination Yuan into his Five-Power system. Under the 1947 ROC Constitution, the Examination Yuan controls the examination, employment, registration, service rating, scale of salaries, promotion and transfer, security of tenure, commendation, retirement and old age pension for all public officials (ROC Constitution, Art. 83). Under the original provisions of the constitution, the President of the Republic with the consent of the Control Yuan appoints its members, president and Vice President (ROC Constitution, Art. 84).
19. Control (監察院) (Chapter 9, Arts 90–106)—The Control Yuan is a government supervisory branch inspired by the Censorate of the imperial Chinese political system. The Censorate supervised the functioning of the imperial bureaucracy and investigated claims of corruption or dereliction. The modern Control Yuan has members who are popularly elected from the provinces and municipalities, with seats reserved also for Mongolia, Tibet, and overseas Chinese (ROC Constitution, Art. 91). These members serve a six-year term and are eligible for re-election (ROC Constitution, Art. 93). The Control Yuan is vested with the powers of consent, impeachment, censure (censorship), and auditing (ROC Constitution, Art. 90). The power of consent provides the Control Yuan with the authority to refuse to confirm presidential appointments to the Judiciary and the Examination Yuan. The Control Yuan is empowered to impeach any non-elected public official at the national and local level, including the President and Vice President of the Republic. However, the Control Yuan may only advise for impeachment, the actual trial and determination of punishment rests with a special committee under the Judiciary for most impeachments and with the National Assembly for cases involving the President and Vice President of the Republic. The power of censure provides the Control Yuan with the authority to request government departments to deal internally with personnel problems, without resorting to impeachment proceedings. And the power of audit provides the authority to review the initial passage of the government’s annual budget, as well as scrutinize its execution. In addition, members are provided considerable powers of investigation requiring the vast majority of government offices to turn over any and all documents related to an ongoing impeachment or censure case at the request of the Control Yuan.
20. The remaining chapters of the constitution outline the jurisdictions and relations between central and local government institutions (Chapter 10, Arts 107–111); provides a basic structure for local government at the provincial and county level (Chapter 11, Arts 112–135); elaborate citizens’ zhengquan or sovereign rights of election, recall, initiative, and referendum (Chapter 12, Arts 129–136); outline fundamental points of national policy (Chapter 13, Arts 137–169); and enshrine procedures for the enforcement and amendment of the constitution (Chapter 14, Arts 170–175).
E. Martial Law
21. The 1947 ROC Constitution was formally promulgated with much fanfare and hailed as the harbinger of a functioning representative democracy in China; however, its operation proved short-lived. At the end of World War II, the tenuous alliance between the Nationalist and Communist parties quickly deteriorated and China was once again plunged into civil war. Elections held in accordance with the newly minted constitution yielded only a small portion of the required representatives for several elected offices due to the fact that many regions in China had already fallen to the Communists. By 1948, it was increasingly clear that the Nationalist government was losing the war against the Communist forces led by Mao Zedong (毛澤東, 1893–1976). At the request of President Chiang Kai-shek (蔣介石, 1888–1975), the National Assembly and the Legislative Yuan passed the Temporary Provisions Effective during the Period the Communist Rebellion (動員戡亂時期臨時條款, 1948). The promulgation of the Temporary Provisions, when combined with the emergency powers granted to the President by the constitution, effectively nullified the powers of many sectors in the newly established constitutional government. The President of the Republic was empowered to directly appoint members to what should have been popularly elected central government offices; several basic civil and political rights such as freedom of speech, freedom of assembly, and habeas corpus were curtailed or ‘temporarily’ suspended; and contrary to explicit constitutional provisions several criminal activities committed by civilians were placed under the jurisdiction of military courts (Hsieh 63–70). Such measures were, however, not enough. In 1949, the Communists succeeded in taking control of mainland China and founded the People’s Republic of China, while in the same year the Nationalist government fled to the island of Taiwan off the southern coast of China, and established the Republic of China on Taiwan. To this day, both governments claim to be the sole legitimate representative of China.
22. The unique five-power constitutional system designed to provide a representative democratic government for all of China functioned as such for less than a year. When the Nationalists fled to Taiwan, they brought with them the 1947 ROC Constitution and the five-power government structure to govern Taiwan (though much of the document was suspended under Martial Law and the Temporary Provisions). During the next four decades in Taiwan, political and civil rights of citizens were severely restricted; elections were indefinitely suspended until the Nationalists were able to reclaim the mainland; and the Nationalist Party maintained a firm authoritarian grasp on the central and local governments (Fell 20–24). Despite the deficit of democracy and the inert constitution, international support and strategic economic policies related to land tenure, industrialization, and targeted technology enterprises helped Taiwan develop rapidly into one of the world’s leading economies. This in turn led to increased international and domestic pressure for political liberalization, democratization, and the abolishment of Martial Law.
F. Democratization and Constitutional Reform
23. Martial Law was formally lifted in 1987 and in 1991 the Temporary Provisions were abolished. These two acts paved the way for a series of constitutional reforms that would allow Taiwan’s government to transition from a one-party authoritarian regime to a representative democracy. Constitutional reform, however, was not a simple matter. The original constitution was designed to govern all of mainland China, and the goal of military recovery by the Nationalist had all but vanished from public discourse. The electoral design for presidential, legislative, Control, and National Assembly offices provided by the constitution simply did not reflect the reality of the government’s position in Taiwan. Calls for drafting of a completely new constitution began, yet in the end politicians from both major parties, the Nationalists (KMT, 國民黨) and the Democratic Progressive Party (DPP, 民進黨) agreed to work within the framework of the existing constitution. Conservatives on both sides feared that the introduction of a new constitution would indicate to the international community the birth of the Republic of Taiwan, the end of the Republic of China on Taiwan, and represent a formal declaration of independence from mainland China (Yeh 55–56). Such an act would likely result in the resumption of hostilities with mainland China and a loss of international support, particularly from the US. Therefore, reforms did not alter the text in any way, but instead, amendments were passed in the form of Additional Articles (中華民國憲法增修條文) appended to the end of the constitutional document. After seven such additions, the text 1947 ROC Constitution has become quite confused.
24. Constitutional reform can be divided into three major phases (Yeh 55–59):
25. Phase One: The initial phase of constitutional reforms (1991, 1992, 1994) primarily dealt with the troublesome issue of democratic representation in post-Martial Law Taiwan. The Additional Articles of 1991 sought to re-aligning voting allocations of representative central government positions to those living in Taiwan, Matsu, Kinmen, Penghu, and overseas Chinese. After 1991, those living in ‘Free China’ voted for members of the National Assembly, Control Yuan, and Legislative Yuan. The Additional Articles of 1992 focused on increasing the power of the Presidency. They provided that the President of the Republic would be elected by the people and that the Control Yuan members would no longer be elected and instead would be appointed by the President. The method of Presidential election was not decided until the passage of the Additional Articles of 1994. These articles provided that the president would be directly elected by popular vote.
26. Phase Two: The 1997 constitutional reforms reflected the Taiwan government’s anxiety over the British handover of Hong Kong to mainland China and the potential influence over cross-straits relations and Taiwan’s international relations. The Additional Articles of 1997 increased the power of the Presidency by allowing the President of the Republic to appoint the Premier (head of Executive Yuan) without the requirement of legislative consent. More controversially, it reaffirmed the ‘provincial’ status of Taiwan to further demonstrate the central government’s stance that it represented the ‘true’ government of China. This reform phase cemented the slow transition of the Taiwanese government from the parliamentary system established in the constitutional document to a ‘president-strong’ semi-presidential system.
27. Phase Three: The constitutional reforms of 1999, 2000, and 2005 dealt with many issues, yet they primarily represent attempts to negotiate the existence of the politically contentious National Assembly. The institution was originally designed to deal with the problem of political representation for the enormous population of all of China; however, with the ROC government no longer attempting to reclaim the mainland the need for such an institution to represent the much smaller population of Taiwan proved superfluous. Sensing their coming demise, in 1999 the National Assembly passed another set of Additional Articles providing its members with greater power and extending their term in office. Public outcry at the move soon resulted in the Additional Articles of 2000 that transferred the bulk of the National Assembly’s powers to the Legislative Yuan and provided that the National Assembly would become a non-permanent institution holding sessions only when constitutional revisions were to be voted on. The latest reform of 2005 effectively abolished the National Assembly and transferred its remaining powers of constitutional revision to the Legislative Yuan. Furthermore, the Additional Articles of 2005 provided that the Legislative Yuan maintained the power of impeachment over the President and Vice President of the Republic and the Constitutional Court (Council of Grand Justices) held the power to adjudicate such impeachments. Lastly, and perhaps most important for future constitutional change, the 2005 Additional Articles established a new procedure for amending or altering the constitution. A proposal for constitutional amendment must pass the legislature by at least three-fourths of a legislative session attended by three-fourths the total members. After such passage, the proposal must be publically announced for a period of six months after which a public referendum is to be held. For the amendment to pass the referendum, it must be approved by a simple majority vote comprised of a minimum of one-half the total eligible voters of Taiwan (2005 Additional Articles, Art. 12). This sets a remarkably high threshold for future constitutional reform.
G. The Future of the Five-Power Constitution
28. Over the past three decades, there have been repeated calls by various political parties and scholars to draft of an entirely new constitution that is more in touch with the current socio-political situation of the Republic of China on Taiwan. It is clear that the actual constitutional practice of the national government of Taiwan has moved far from the dictates of the 1947 ROC Constitution, and this in turn evinces the potential value of a new document reflecting Taiwan’s current practice and needs. Furthermore, while the piecemeal reforms to the current constitution did resolve several problems, the ambiguity remaining in the original document and within the language of the Additional Articles has produced new problems and areas of institutional conflict. A new constitution could remedy this by formally restructuring the government and clearly outlining the lines of powers and authority. However, the global implications of such a high profile political reform—particularly the potential impact on cross-straits relations with mainland China—precludes the likelihood that the Taiwanese government will draft a completely new constitution in the near future. That said, since the lifting of Martial Law in 1987 and the termination of the Temporary Provisions in 1991, the 1947 ROC Constitution has undergone several revisions that have significantly altered the original theoretical underpinnings of its five-power structural design. Successive amendments abolished the National Assembly transforming the government from a semi-bicameral system (bicameralism) to a unitary system with all legislative power now solely vested in the Legislative Yuan. The representative nature of the government watchdog, the Control Yuan, has been removed along with its power of consent over presidential appointments and the power to impeach the President and Vice President of the Republic. Recent calls for abolishing both the Examination Yuan and the Control Yuan argue that such a move would further streamline the government and save money by eliminating numerous pensioned positions. They further contend that the Executive Yuan, Legislative Yuan, and the administrative litigation system could more efficiently handle the maintenance and supervision of the civil service regime. On the other hand, however, unlike the abolishment of the National Assembly (which left the Legislative Yuan as the sole parliamentary body), the elimination of these two branches would publically signal the end of the five-power system of government and the implicit adoption of a three-power constitutional structure. Such changes would require constitutional amendment. Given the high threshold for passage of such amendments established in 2005, it is not clear that future changes will be possible.
29. When compared to Sun Yat-sen’s original theory and rationale for the five-power system, such drastic changes beg the question of whether the five-power constitution still exists, or if the government’s reluctance to draft a new constitution allows the current document to simply mask the emergence of an ever more standard tripartite constitutional system.
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