Race in ROC's constitutions
China's rise and fall as an ethnic nation
By William Wetherall
First posted 15 February 2007
Last updated 15 July 2007
1912 ROC constitution ROC people equal regardless of race
1923 ROC constitution ROC people equal regardless of race
1931 ROC constitution ROC people equal regardless of race
1936 ROC constitution ROC ethnic nations of Chinese ethnic nation equal, ROC people equal regardless of race
1947 ROC constitution ROC ethnic nations equal, ROC people equal regardless of race
The various races of Chinese
Here we will look at how several generations of constitutions have defined the people of China, from the beginning of the Republic of China in 1912 to ROC today, and in the People's Republic of China (PRC) since its start in 1949. More attention will be given to ROC because it has has had a greater variety of constitutions over a longer period of time, during which national descriptions have most conspicuously changed.
Raceless nationality and ethnic subnationality
A state's demographic territory is called a "nation". The people who constitute a state's "nation" are called "nationals". An individual is a national of a state if the state recognizes that the individual possesses its "nationality" as a legal status or affiliation.
Legally, no state's nation or nationality is an ethnic or racial entity or quality. International law does not recognize "ethnicity" or "raciality" in a state's nation or nationality. Some states, however, constitutionally describe their nations in racioethnic terms and racialize their nationals in domestic laws.
Japan's constitution and nationality law have never racilized Japan's nation. In terms of both international and domestic law, being "Japanese" has always been free of racioethnic nuances. For sure, "Japanese" as a social label is highly racialized in Japan and elsewhere. In the United States but not in Japan, "Japanese" has been racialized in law (immigration and naturalization) and as a demographic term (race boxes).
China's constitutions and domestic laws, however, have increasingly described China's nation in racioethnic terms. In the midst of what is now called the Second Sino-Japanese War or Fifteen Year War (1931-1945), the Republic of China (ROC) constitutionally defined the Chinese people as a ratioethnic nation composed of several member ethnic nations. The People's Republic of China (PRC) now paraphrases this description of itself as a unitary multiethnonational state.
The nationality laws of ROC and PRC make it clear that their state nationalities are available to any qualified person regardless of race or ethnicity. However, the constitutions of both entities recognize that their nations consist of multiple ethnic subnations, and otherwise provide for the legalization of ethnic status within their state nationalities.
Translations and commentary
All of the translations of the articles cited from earlier constitutions are mine. The translations of the articles cited from the 1947 ROC and 1982 PRC constitutions are from the most widely circulated English verions.
In all my translations I have endeavored to represent the same Chinese terms and the same or simlar Chinese phrases in the same or similar English phrases. For example, 國民 will always be "national" and never "the people" or "citizens" in my nomenclature. 民族 will always be "ethnic nation" or "ethnonational" and never "nationality" or "nation" or "race" or "ethnic group". 人民 will always be "the people" and 中華民國人民 will always be "the people of the Republic of China" and the like.
Such terms and phrases have been highlighted. Where the circulated translations of the 1947 ROC and 1982 PRC constitutions are at odds with my nomenclature, I have shown my nomenclature in parentheses.
Further commentary on Chinese and English usage is found in discussions of national definition in the 1947 ROC and 1982 PRC constitutions.
Related articles
The following articles also examine nationality and ethnic status in ROC and PRC today.
The Republic of China as a state: The vicissitudes of recognition politicsROC's 13 ethnic nations: Taiwanizing Sinified-Japanized aborigines
ROC's 2000 Nationality Law: Membership in a stateless nation
ROC's 2001 Aborigine Status Act: The legal embrace of indigenous Taiwanese
Race in PRC's constitutions: Principles of ethnic equality and autonomy
PRC's 56 ethnic subnations: The racialist revolution against racism
PRC's 1980 Nationality Law: A single nationality multiethnic state
ROC constitutions, 1912 to 2005
The Republic of China was born in late 1911 and formally took its first breath on 1 January 1912 with Sun Yat-sen (Sun Wen, Sun1 Zhong1shan1, 1866-1925) at its helm in Nanking (Nanjing, southern capital). The new state quickly floundered, however, when its government was taken over by Yuan Shih-k'ai (Yuan2 Shi4kai3, 1859-1916), who declared himself a new emperor in Peking (Peiching, Beijing, northern capital).
In 1913, Sun went into exile in Japan, where he had lived before, had a following, and was known as Nakayama Sho (中山樵, Zhongshan). Yuan's death in 1916 plunged China into a period of warlordism. Sun returned to China in 1917 and in 1921 became the president of a nationalist goverment in Kwangtung (Guangdong, Canton) which controlled southern China but was not internationally recognized.
In 1928, three years after Sun's death, an expedition sent north by his successor, Chiang Kai-shek (1887-1975), seized control of Peking and declared an end to its warlord government. Chiang then established the capital of a rejuvenated Republic of China in Nanking and renamed the northern city Peip'ing (pacified/peaceful north).
ROC constitutions before World War II
Pre World War II constitutions reflect the principles of ROC's political organization before it become heavily embroiled in the defense of China against Japan.
First phase (1912-1928) -- China as a people's nation
The first republican government drafted a 7 chapter, 56 article provisional constitution in 1912 and a more elaborate 13 chapter, 140 article constitution in 1923. Neither racialized the people of China, and both prohibited distinctions of race, class, and religion among the people.
Second phase (1928-1947) -- China as an ethnic nation
In 1931, the second republican government drafted an 8 chapter, 89 article constitution that defined the people of China, as previous constitutions had, without reference to their ethnicity.
In 1936, having lost Manchuria to an increasingly aggressive Japan, ROC drafted an 8 chapter, 147 article constitution that equated the Chinese people with an ethnic nation composed of various ethnic nations that were to be entirely equal. Its education goals included the instilling of an ethnic spirit in the people.
ROC constitution after World War II
ROC's postwar constitution reflects ROC's confidence as a state after Japan's defeat in World War II -- a confidence immediately shaken by its loss of the mainland to communist revolutionaries.
Third phase (since 1947) -- Postwar and post-revolution ROC
The 1947 constitution, featuring 14 chapters and 175 articles, took the ethnic starch out it definition of the people of China while still calling for the cultivation of "ethnic spirit" in education. It also made provisions for representation of Mongolia, Tibet, and frontier ethnic nations in government.
This contsitution, partly suspended by martial law shortly after it came into effect during the civil (revolutionary) war, is still in effect.
Fourth phase (since 1991) -- Recognition of indigenous people
The 1947 constitution did not became fully operative until martial law was lifted in 1987. A number of amendments have been made since 1991, all in the form of additional articles.
Since the second round of amendments in 1992, ROC's constitution has provided for the political participation and protection of Taiwan's indigneous people -- so-called since the third revision in 1993, the United Nations Year of the World's Indigenous People.
The same amendments have also reflected ROC's commitment to protect the interests of both Kinmen and Matsu (since 1992), and also Penghu (since 2005).
1912 ROC constitution
Promulgated 11 March 1912 (ROC 1)
7 chapters, 56 articles
第一章：總綱
Chapter 1: General provisions第一條
中華民國由中華人民組織之。Article 4
The Republic of China shall be organized by the people of the Republic of China.第二條
中華民國之主權屬於國民全體。Article 5
Sovereignty of the Republic of China shall belong to the entire body of nationals.
第二章：人民
Chapter 2: The people第五條
中華民國人民一律平等、無種族、階級、宗教之區別。Article 4
The people of the Republic of China shall be entirely equal, with no differentiaion of race, class, or religion.
1923 ROC constitution
1923 Draft Constitution of the Republic of China (中華民國憲法草案)
aka Tiantan Draft (天壇草案)
Promulgated 10 October 1923 (ROC 12)
13 chapters, 140 articles
第四章：國民)
Chapter 4: Nationals第四條
凡依法律所定屬中華民國國籍者為中華民國人民。Article 4
Those who are determined by law to belong to the nationality of the Republic of China shall be the people of the Republic of China.第五條
中華民國人民於法律上無種族階級宗教之別、均為平等。Article 5
The people of the Republic of China shall in law, with no distinction of race, class, or religion, all be equal.
1931 ROC constitution
1931 Constitution of the Republic of China
During the Period of [Political] Tutelage (中華民國訓政時期約法)
Enacted 12 May 1931 (ROC 20)
Promulgated 1 June 1931 (ROC 20)
8 chapters, 89 articles
第一章：總綱
Chapter 1: General provisions第二條
凡依法律享有中華民國國籍者為中華民國國民。
Article 2 (Paragraph 2)
Those who by law possess the nationality of the Republic of China shall be nationals of the Republic of China.
第二章：人民之權利義務
Chapter 2: Rights and duties of the people第六條
中華民國國民無男女、種族、宗教、階級之區別、在法律上一律平等。Article 6
Nationals of the Republic of China shall be entirely equal in law, without distinctions of sex, race, religion, or class.
1936 ROC constitution
1936 Draft Constitution of the Republic of China (中華民國憲法草案)
aka 55 Constituion Draft (五五憲草)
Passed 2 May 1936 (ROC 25)
Promulgated 5 May 1936 (ROC 25)
8 chapters, 147 articles
第一章：總綱
Chapter 1: General provisions第三條
具有中華民國之國籍者、為中華民國國民。
Article 3
Those who possess the nationality of the Republic of China, shall be nationals of the Republic of China.第五條
中華民國各民族均為中華民族之構成(人＋分)子、一律平等。Article 5
Composing members of the Chinese ethnic nation, which the various ethnic nations of the Republic of China all constitute, shall be entirely equal.
第二章：人民之權利義務
Chapter 2: Rights and duties of the people第八條
中華民國人民在法律上一律平等。Article 8
The people of the Republic of China shall be in law entirely equal.
第七章：教育
Chapter 7: Education第一百三十一條
中華民國之教育宗旨、在發揚民族精神、培養國民道德、訓練自治能力、增進生活知能、以造成健全國民。Article 131
The educational objectives of the Republic of China shall be the fostering of ethnonational spirit, the cultivation of national morality, the training of self-governing capability, and the enhancement of livelihood faculties, in order to create healthy nationals.
1947 ROC constitution
Constitution of the Republic of China (中華民國憲法)
Passed 25 December 1946 (ROC 35)
Promulgated 1 January 1947 (ROC 36)
Enforced from 25 December 1947 (ROC 36)
14 chapters, 175 articles
Revised seven times from 1991 to 2005
12 amendement articles as of 7th revision)
Postwar constitution rush
Back in Nanking (Nanjing) from the wartime capital at Chungking (Chongqing), ROC's National Assembly adopted a new constitution that came into effect on 25 December 1947. This constitution was an expanded version of the the 1936 draft put aside amidst mounting tensions between Japan and China leading to Japan's invasion of northern China on 7 July 1937.
In the following examination of how the 1947 constitution defines and describes ROC's people, certain key words will be compared with their counterparts in Japan's postwar constitution, which was promulgated on 3 November 1946 (Emperor Meiji's birthday, now Culture Day) and came into effect on 3 May 1947, shortly ahead of ROC's constitution. ROC's constitution has been heavily revised since 1991. As of this writing (2007), Japan's constitution remains totally unamended.
Four-decade hibernation
A year after its birth, ROC's postwar constitution was sent into a cave by the "Provisional articles for the period of mobilization and suppression of the [communist] rebellion" (動員戡亂時期臨時條款) adopted on 18 April and promulgated on 10 May 1948. These articles enabled the government to impose a martial law (戒嚴令 jie4yan2ling4) throughout the mainland on 10 December 1948.
The decree was extended to Taiwan and Penghu (the Pescadores) on 20 May 1949. Taiwan, occupied by ROC in 1945 but not yet legally its territory, was rife with local unrest and open rebellion against its increasingly oppressive attempts to de-Japanese the island's six million inhabitants and exploit their resources for mainlander use.
By December 1949, ROC's government and some two million mainlanders, including a number of ROC military units, had taken refuge on Taiwan. The emergency measures, which had allowed the ROC government to suppress all dissent in the name of national defense for nearly forty years, were not lifted until 15 July 1987. This is said to be the longest period of martial law in recent world history.
The lifting of martial law in ROC corresponded with the decline in power of Chiang's Kuomintang (KMT, Guo2min2dang3, GMD) dynasty. As soon as ROC formally ended its state of war with the communist party, cross-strait relations immediately improved in the form of family visitations and cultural, athletic, academic, and business exchanges.
Amendments of amendments
Since 1991, ROC has amended its constitution numerous times. Most amendements have addressed problems of domestic governance. Some, though, reflect ROC's attempts to clarify its borders in the face of PRC insistence that ROC is squatting on PRC territory.
1947 ROC constitution born
Adopted by the National Assembly on 25 December 1946, promulgated by the National Government on 1 January 1947, and put into effect from 25 December 1947.1948 Temporary provisions begin
"Temporary Provisions Effective During the Period of Communist Rebellion" were adopted on 18 April and promulgated on 10 May 1948. The provisions were added to the constitution, and essentially suspended it by way of giving the president emergency powers to deal with the communist uprising.1987 Temporary provisions end
Temporary Provisions revamped as stand-alone law to be used in national emergenies, thus restoring the authority of the constitution. Martial law effectively lifted from 15 July 1987.1991 1st revision
Ten additional articles added to the constitution in April 1991.1991 Hostile regard of PRC ends
National Assembly resolves to abolish Temporary Provisions on 22 April, and "Period of Communist Rebellion" formally ends on 1 May 1991.1992 2nd revision
Eight more additional articles added. Adopted 27 May, promulgated 28 May 1992.1994 3rd revision
Ten additional articles replace eighteen 1991 and 1992 articles. Adopted in July, promulgated on 1 August 1994.1997 4th revision
Seven additional articles replace ten 1994 articles. Adopted in June and July, promulgated on 21 July 1997.1999 5th revision
Additional articles 1, 4, 9, and 10 amended. Amendments adopted 3 September, promulgated 15 September 1999.2000 6th revision
Eleven additional articles replace the ten 1997 articles and their 1999 amendments. Adopted in April, promulgated on 24 April 2000.2005 7th revision, first of main constitution
First revision of main body of constitution since its implementation in 1947. Proposal passed by Legislative Yuan 23 August and announced 26 August 2004. National Assembly approved proposal on 7 June 2005, and president ratified proposal on 10 June 2005. Proposal affected Articles 1, 2, 4, 5, and 8 of the constitution, and added an additional Article 12.
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Nationality and race in ROC constitutions With commentary on terminology |
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Chinese textThe Chinese text was cut and pasted from the Constitutional Reforms website of the President of the Republic of China and reformated for presentation here. Minor variations may be found in other web editions. ROC publishes its laws in Big5 traditional characters. Fortunately most traditional characters are included in the Shift-JIS Japanese coding used on this website. For the few traditional characters that cannot be directly displayed, I have shown the equivalent Japanese character or a description of the traditional character in square brackets. English translationThe English translation has also been cut and pasted from the ROC constitutional reform website. The English text is practically unchanged from versions published in earlier ROC yearbooks, one of which was consulted for purposes of comparison (China Yearbook 1963-64, Taipei (Taiwan, China): China Publishing Company, 1964, 1007 pages, hardcover, pages 868-885). CommentsSome terms have been highlighted in color to facilitate glosses or commentary, sometimes in line, sometimes in a box following the article. |
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| 中華民國憲法 |
The Constitution of the Republic of China |
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中華民國三十五年十二月二十五日國民大會通過 中華民國三十六年一月一日國民政府公布 中華民國三十六年十二月二十五日施行 |
Passed 25 December 1946 (ROC 35) Promulgated 1 January 1947 (ROC 36) Enforced from 25 December 1946 (ROC 36) | ||||||||||||||
| 第一章 總綱 | Chapter I General Provisions | ||||||||||||||
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第一條 中華民國基於三民主義、為民有民治民享之民主共和國。 |
Article 1 The Republic of China, founded on the Three Principles of the People, shall be a democratic republic of the people, to be governed by the people and for the people. |
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Three Principles of the People民有民治民享之 means "that the people possess, the people govern, and the people enjoy" -- reflecting Lincoln's "of the people, by the people, and for the people". 民 represents "the people" as in "the people of China". While some might take the 民 to be an abbreviation of 民族 (ethnic nation), the intent is not necessarily to link "the people" with "the Chinese race" (中華民族). However, the first of the "Three Principles of the People" (三民主義 san1min2 zhu3yi4) espoused by Sun Yat-sen (Sun Wen, 1866-1925) does imbue 民 with racioethnic meanings.
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第二條 中華民國之主權屬於國民全體。 |
Article 2 The sovereignty of the Republic of China shall reside in the whole body of citizens ( > nationals). |
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第三條 具中華民國國籍者為中華民國國民。 |
Article 3 Persons possessing the nationality of the Republic of China shall be citizens ( > nationals) of the Republic of China. |
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nationality / nationalsThe translation of 國民 as "citizen" is clearly an Americanization. The term is correctly rendered "national" in the translation of the 2000 Nationality Law (see below). 國民 in Japanese constitution日本国民 (Nihon kokumin), in the standard English translation of Japan's 1947 Constitution, is typically rendered "the Japanese people" but once rendered "the people of Japan" (Article 97), and once rendered "Japanese nationals" (Article 10). 国民 is typically rendered "the People" as a synonym for "the Japanese people". 諸国民 is usually "all nations" or "peoples of the world" and 全世界の国民 is also "peoples of the world". 国家, 自国, and 他国 are rendered in "nation" rather than "state" or "country" metaphors. 国民 is not translated "citizen" for good reason -- it literally and legally means "person(s) affiliated with a nation" or "national(s)" by virtue of possessing a state's nationality, regardless of elements of citizenship that derive from nationality and other personal traits.
The law defining "Japanese nationals" at the time was the 1899 Nationality Law, which was soon revised as the 1950 Nationality Law. |
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第五條 中華民國各民族一律平等。 |
Article 5 There shall be equality among the various racial groups( > ethnic nations) in the Republic of China. |
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various ethnic nationsAnother widely distributed version -- reflecting present-day preferences for "ethnic group" rather than "race" as a label for populations of people who are presumed to have a common ancestry, says "There shall be complete equality among the various ethnic groups in the Republic of China." 各民族 (ge4min2zu2) is also the standard designation for any or all of the racioethnic entities that compose the singular nationality of the People's Republic of China (PRC). It is typically rendered "any/all nationalities" in the English versions of PRC's constitution and laws. PRC currently recognizes 55 "minority nationalities" (少數民族 shao3shu4 min2zu2) in addition to the Han majority and a number of unclassified people. See PRC minority nationalities for further details. |
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| 第二章 人民之權利義務 | Chapter II Rights and Duties of the People | ||||||||||||||
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第七條 中華民國人民、無分男女、宗教、種族、階級、黨派、在法律上一律平等。 |
Article 7 All citizens [ > people] of the Republic of China, irrespective of sex, religion, race, class, or party affiliation, shall be equal before the law. |
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Article 14 of Japan's 1947 ConstitutionAnother widely distributed version says "All citizens of the Republic of China, irrespective of sex, religion, ethnic origin, class, or party affiliation, shall be equal before the law." Here, too, "race" is avoided in favor of an "ethnic origin" -- though 種族 (zhong3zu2) is arguably closer to 人種 (ren2zhong3). The standard English verson of Japan's 1947 Constitution renders 人種 (jinshu) in both Articles 14 and 44 as "race".
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| 第三章 國民大會 | Chapter III The National Assembly | ||||||||||||||
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第二十六條 一 每縣市及其同等區域各選出代表一人、但其人口逾五十萬人者、每增加五十萬人、增選代表一人。縣市同等區域以法律定之。 |
Article 26 The National Assembly shall be composed of the following delegates: 1. One delegate shall be elected from each hsien, municipality, or area of equivalent status. In case its population exceeds 500,000, one additional delegate shall be elected for each additional 500,000. Areas equivalent to hsien or municipalities shall be prescribed by law; 2. Delegates to represent Mongolia shall be elected on the basis of four for each league and one for each Special banner; 3. The number of delegates to be elected from Tibet shall be prescribed by law; 4. The number of delegates to be elected by various racial groups( > ethnic nations) in frontier regions shall be prescribed by law; 5. The number of delegates to be elected by Chinese citizens ( > nationals) residing abroad shall be prescribed by law; 6. The number of delegates to be elected by occupational groups shall be prescribed by law; 7. The number of delegates to be elected by women's organizations shall be prescribed by law. |
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| 第六章 立法 | Chapter VI Legislation | ||||||||||||||
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第六十四條 |
Article 64 |
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Article 64 provides for electing members of the Legistlative Yuan, including members from Mongolian Leagues and Banners, Tibet, various racial groups in frontier regions, Chinese citizens residing abroad, occupational groups, and women's organizations. |
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第一三章 基本國策 第五節 教育文化 |
Chapter XIII Fundamental National Polices Section 5 Education and Culture |
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第一百五十八條 教育文化、應發展國民之民族精神、自治精神、國民道德、健全體格、科學及生活智能。 |
Article 158 Education and culture shall aim at the development among the citizens ( > nationals) of the national ( > ethnic) spirit, the spirit of self-government, national morality, good physique, scientific knowledge and ability to earn a living. |
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第一三章 基本國策 第六節 邊疆地區 |
Chapter XIII Fundamental National Polices Section 6 Frontier Regions |
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第一百六十八條 國家對於邊疆地區各民族之地位、應予以合法之保障、並於其地方自治事業、特別予以扶植。 |
Article 168 The State shall accord to various racial groups ( > ethnic nations) in the frontier regions legal protection of their status and shall give special assistance to their local self-government undertakings. |
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第一百六十九條 國家對於邊疆地區各民族之教育、文化、交通、水利、衛生及其他經濟、社會事業、應積極舉辦、並扶助其發展、對於土地使用、應依其氣候、土壤性質、及人民生活習慣之所宜、予以保障及發展。 |
Article 169 The State shall, in a positive manner, undertake and foster the develop of education, culture, communications, water conservancy, public health and other economic and social enterprises of the various racial groups ( > ethnic nations) in the frontier regions. With respect to the utilization of land, the State shall, after taking into account the climatic conditions, the nature of the soil, and the life and habits ( > customs) of the people, adopt measures to protect the land and to assist in its development. |
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the peopleHere we have an example of 人民 (ren2min2) used to mean "the people" as in expressions like "the people of ABC". It is also the "people" in "People's Republic of China" (中華人民共和國). |
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