Comparative Analysis on Constitutional Supervision Modes

By Wenjing, Wang; Xiaorui, Wang | Cross - Cultural Communication, September 1, 2012 | Go to article overview

Comparative Analysis on Constitutional Supervision Modes


Wenjing, Wang, Xiaorui, Wang, Cross - Cultural Communication


Abstract

Constitution is the fundamental law of a nation and also the general regulations on administering state affairs and ensuring national security. This is why constitutional supervision is so important for a country. However, there are still many problems existing under the supervision mechanism regarding to its operability, materiality, and rationality. This paper tries to give proper suggestions on perfecting Chinese constitutional supervision through comparative analysis and other countries' advanced experiences.

Key words: Constitutional supervision modes; Comparative study

INTRODUCTION

Constitution is the fundamental law of a nation and also the general regulations on administering state affairs and ensuring national security. This is why constitutional supervision is so important for a country. Currently, the Constitution of the People's Republic of China, the Legislation Law of the People's Republic of China, the Organic Law of the National People's Congress of the People's Republic of China, and the Law of the People's Republic of China on the Supervision of Standing Committees of People's Congresses at Various Levels have provided regulations on constitutional supervision related issues which has made up the current constitutional supervision system in China. However, there are still many problems existing under the supervision mechanism regarding to its operability, materiality, and rationality. Scholars have always been discussing about the constitutional supervision modes. It is an important means for Chinese to learn from other countries' advanced experience in constitutional supervision.

1. THE USA MODE: JUDICIAL ORGANS TAKE CHARGE OF CONSTITUTIONAL SUPERVISION

The basic procedure of the USA mode: when hearing specific case in a common court, the parties and court both have the right to question the constitutionality of the case relating laws, regulations, administrative orders, and other normative files. After examination by the court, if the questioned laws, regulations, administrative orders, and other normative files are recognized as violation of constitution, the court has the power to deny its application in the court decision. According to statistics, there are more than 60 countries around the world adopt the USA mode. Of course, most of them have adjusted the mode on the grounds of their own national conditions.

1 .1 Unique Advantages of the USA Mode

On one hand, judicial organs take charge of constitutional supervision could guarantee the technicality and independence of the constitutional supervision subject. It has provided professional supervision organ for constitutional supervision. The Separation of powers system in the USA also guarantees the judicial organs' complete independence in constitutional supervision. Special and independent constitutional supervision organ makes sure the applicability of constitutional supervision and possibility of effectiveness which is an advantage that other countries who allow legislative organs take charge of constitutional supervision do not have. On the other hand, let judicial organs carry constitutional supervision power, in some degree, can ensure the fairness of constitutional supervision consequences. Since judicial organs do not have military powers or financial powers, they do not have compelling power nor take any initiative movements by controlling public wealth. Therefore, constitutional supervision results made by judicial organs are relatively impartial.

1.2 Inevitable Disadvantages of the USA Mode

First of all, allowing judicial organs hold the constitutional supervision power means to offer the constitutional supervision power to common courts. Due to the restriction in position and nature of common courts, they can only examine laws, regulations, administrative orders, and other normative legal files through specific cases instead of from a nonobjective point of view. Meanwhile, common courts can only refuse to apply constitution violated laws, regulations, administrative orders, or other normative legal files but do not have the power to repeal them. …

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