WHY LATE QING CONSTITUTIONAL REFORM FAILED: AN EXAMINATION FROM THE COMPARATIVE INSTITUTIONAL PERSPECTIVE Cheng Jie* Table of Contents I. INTRODUCTION: WHY LATE QING CONSTITUTIONAL REFORM FAILED....................................................................................108 II. WHAT CAUSED THE CONSTITUTIONAL REFORM: POSITIVE AND NEGATIVE IMPACTS OF INTERNATIONAL FACTORS.................108 A. The Boxer Rebellion and the Crisis to the Imperial Court................................................................................109 B. Preparation for Constitution-Making and the Five Ministers Abroad.............................................................112 III. THE NEW CONSTITUTIONAL REFORM IN LATE QING AND THE IMBALANCE IN POWER STRUCTURE................................115 A. The New Reform Prioritizing Government Administration over Political Participation.....................119 B. The New Reform Prioritizing Centralization over Decentralization of Power...............................................124 C. The New Reform failed to resolve the Manchu-Han conflicts arising from Qing’s tribal rule..........................127 IV.CHINESE MODEL OF ENLIGHTENED DESPOTISM IN COMPARISON WITH JAPANESE CONSTITUTIONAL REFORM....129 A. Enlightened Despotism and Constitutional Monarchy..... 129 B. Imperial Constitution versus Constitutional Monarchy.... 133 C. Why the Japanese Meiji Restoration Model did not work in China..................................................................137 V. THE LEGACY OF THE LATE QING CONSTITUTIONAL MOVEMENT............................................................................ 140 A. The Concept of the Constitution as the Fundamental Law..................................................................................140 B. The Evolution of the Thinking of Civil Rights................. 144 * Associate professor of law at Tsinghua University; visiting lecturer of University of British Columbia Law School (2017 Fall). 107 108 TSINGHUA CHINA LAW REVIEW [Vol. 10:107 WHY LATE QING CONSTITUTIONAL REFORM FAILED: AN EXAMINATION FROM THE COMPARATIVE INSTITUTIONAL PERSPECTIVE Cheng Jie I. INTRODUCTION: WHY LATE QING CONSTITUTIONAL REFORM FAILED The Late Qing constitutional reform was a political reform promoted by the Qing government under both internal and external pressure. The reform inherited the Hundred Days’ Reform1 in that both had hoped to achieve a top-down political reform through adopting Western systems. For the Hundred Days’ Reform the main obstacle was the lack of consensus within the Qing government, which thereby led to the rise of conflicts between the conservatives led by the Empress Dowager and the reformists led by the Emperor. The main problem for the Late Qing constitutional reform attempt, however, was the tension between constitutional reform and constitutional revolution, or constitutional monarchy and constitutional republic. One popular explanation for the failure of the constitutional reform blames the feudal nature of the Qing government. However, the feudal government in Japan successfully transformed itself into a constitutional monarchy. Another explanation argues that the reform failed because the need of survival suppressed the need of enlightenment, which is critical for constitutional reform. This article reviews both explanations and finds them unpersuasive. Furthermore, it is argued that it is the design of constitutional institutions, especially the power structure in the constitutional reform that leads to the failure. The article develops into four parts. Part I provides the social background of the constitutional reform and explains why the need of survival was not the major reason for the failure of the reform. Part II provides the major contents of the constitutional reform and explains why it is the power structure that caused the failure of reform. Part III compares the Late Qing reform with Japan’s Meiji Restoration and explains the failure of the Late Qing reform from a comparative perspective. And Part IV further explores the legacy of the Late Qing constitutional reform and concludes the article. II. WHAT CAUSED THE CONSTITUTIONAL REFORM: POSITIVE AND 1 The Hundred Days’ Reform was between June 11 and September 21, 1898. Both Emperor Guangxu (光绪) and Empress Dowager Cixi (慈禧) supported the reform in the beginning. But the reform was later suppressed by conservative political forces headed by Empress Dowager Cixi. 2017] WHY LATE QING CONSTITUTIONAL REFORM FAILED 109 NEGATIVE IMPACTS OF INTERNATIONAL FACTORS Semi-feudalism and semi-colonialism is considered to be the basic nature of Chinese society before 1949.2 Accordingly, the failure of constitutional reforms, including the Late Qing reform was ascribed to foreign attempts of colonization and China’s counter- colonization efforts. However, a historical review of the social background of the Late Qing constitutional reform tells a more complicated story. On the one hand, the Qing government was determined to introduce constitutional reform to survive colonization by foreign countries. On the other hand, enlightenment was introduced with the constitutional reform, which was the result of foreign cultural exchange and became part of the constitutional reform. After the failure of the Hundred Days’ Reform, the Qing government became reactionary and began to persecute the reformists. After fleeting abroad, Kang Youwei and Liang Qichao continued to attack the Qing government, advocate for reform and revolution as well as introduce and explain political legal theories and evolution theories through newspapers such as The China Discussion (《清议报》) and Xinmin Po (《新民报》). Although the Imperial Court of Qing repeatedly tried to ban the newspapers, the publications were sold abroad or in foreign concessions and were therefore largely beyond the reach of the Qing government. Moreover, the ban provoked curiosity among the general population, resulting in a considerable increase in sales of the newspapers and the propagation of new ideas, including freedom, civil rights and constitution.3 Nonetheless, the main stimuli that precipitated the Qing Court’s determination to transform itself into a constitutional government was the Boxer Rebellion in 1900 and the Russo- Japanese War in 1905. A. The Boxer Rebellion and the Crisis to the Imperial Court In 1900, the Boxer Rebellion erupted. During the spring of that year, tens of thousands of peasants living in poverty in the Province of Zhili, who had been practicing spiritual possession and 2 Zhongguo Renmin Zhengzhi Xieshang Huiyi Gongtong Gangling (中国人民政治协商会议共同纲 领 ) [Common Program of the Chinese People's Political Consultative Conference] (promulgated by Chinese Pol. Consultative Conf., Sep. 29, 1949, invalidated by Constitution (1954)) pmbl. (Chinalawinfo); Xianfa ( 宪 法 ) [Constitution] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 4, 1982, amended 2004) pmbl. (Chinalawinfo). 3 According to statistics, the average sales for each issue of The China Discussion was around 3,000 to 4,000 and its readers amounted to more than 40,000 to 50,000. See ZHANG PENGYUAN (张朋园), LIANG QICHAO YU QINGJI GEMING ( 梁 启 超 与 清 季 革 命 ) [LIANG QICHAO AND LATE QING DYNASTY REVOLUTION] 206 (Zhongyang Yanjiuyuan Jindaishi Yanjiusuo (中央研究院近代史研究所) [Institute of Modern History, Academia Sinica] 1999). 110 TSINGHUA CHINA LAW REVIEW [Vol. 10:107 supernatural invulnerability, began to call themselves the “Yi He Tuan”4 and rise up against foreign forces in China. Initially, they attacked and killed Catholics but soon targeted all Christians, burning down churches and the homes of Christians. The Rebellion spread rapidly towards Beijing and Tianjin. In the beginning, the Qing government adopted a policy of appeasement and non- interference towards the Boxers. Indeed, since the failure of Hundred Days’ Reform in 1898, the Qing government had resumed its ban on association in order to outlaw the various societies and associations flourishing during the reform period. However, on January 11, 1900, the Qing Court issued an imperial decree stipulating that local officials only need to apprehend and prosecute troublemaking crooks and mobsters, and do not need to be concerned about the peaceful villagers practicing martial arts. The decree read: For the law-abiding commoners, they were either practising skills to defend themselves or organizing with their fellow villagers to defend each other. This is the righteousness of keeping watch and helping each other…When dealing with these cases, local officials only need to ask whether the person was a crook and whether he has caused trouble, and not whether they are organized or educated. Therefore, this decree was in fact protecting the Boxers. However, since January 1900, British, French, German, American and Italian ministers stationed in China as well as other foreign ministers began to jointly submit petitions to the Qing Court demanding it to outlaw the Boxer organizations. The Qing Court was both afraid of publicly offending the foreign countries and unwilling to publicly outlaw the Boxers. Instead, it issued the decree to “only consider whether the person is a crook or not, and not whether it is organized or not” and to “prioritize the arrest and dissipation of the crowds.” In May, the Boxers began to move towards the Capital. By the end of the month, foreign officials in the Beijing Legation Quarter sensed the looming danger and sought foreign help. On June 1, an international force of 432 navy troops from eight countries disembarked