Forms And Characteristics Of Unconstitutional Review In British

In modern democratic state, constitutional law is a fundamental law, and it reflects spirit of rule of law and constitutional order of a state. System of constitutional safeguard must be established and perfected in order to uphold constitutional dignity and guarantee constitutional enforcement. Unconstitutional review is the core and main content of system of constitutional safeguard. Constitution of the People's Republic of China and relevant laws establish system of unconstitutional review through which National People's Congress and Standing Committee of the National People's Congress can scrutiny constitutionality of laws, but in practice, that system fails to exploit its due usefulness. How to exploit its effectiveness, handle relation between courts and People's Congress properly under system of People's Congress, and then guarantee constitutional enforcement? We can draw on beneficial experience of the system of unconstitutional review in British which equally emphasizes the scrutiny of UK Parliament and the review of courts.It is under the background of unwritten constitution that system of unconstitutional review in England is constructed and operated. Under the background of unwritten constitution, understanding system of unconstitutional review in British is based on the premise about how to grasp contents of constitution of British. Unconstitutional acts refer to kinds of actions that violate constitutional principles and constitutional laws; thereby unconstitutional review is a system through which UK Parliament and courts can review and decide actions exercised by public authorities in accordance with constitutional principles and constitutional laws.Hierarchy of effect between constitutional laws and common laws as the premise of unconstitutional review under unwritten constitution embodies the hierarchy of effect between primary legislations including constitutional content and subordinate legislations and between constitutional laws and common laws. The hierarchy of effect between primary legislations including constitutional content and subordinate legislations enables the former to be a basis of constitution through which courts can review the constitutionality of subordinate legislations. Constitutional laws represented by Community law and the Human Rights Act 1998 have special status and validity unlike common laws, thereby it makes constitutional laws to be review basis through which courts can review acts of Parliament. Other than visual constitutional laws, constitutional principles including parliamentary sovereignty, law of rule and separation of powers which embody basic content of British constitution are review basis through UK Parliament and courts can exercise the power of unconstitutional review.We can't confine the system of unconstitutional review in British to one area, i.e. courts review constitutionality of laws. We should base ourselves on two basic functions of unconstitutional review, i.e. handling dispute of vires among institutions of government and protecting fundamental rights and duties of individual citizen to grasp forms of unconstitutional review in British. It includes pre-legislation scrutiny through which UK Parliament scrutiny bills of government on the basis of principles of parliamentary sovereignty and rule of law, post-legislation scrutiny through which Law Commission as an independent authority scrutiny Acts of Parliament which have been enacted, indirect review through which courts examine Acts of Parliament by virtue of construction of law under unwritten constitution, the review about constitutionality of subordinate legislations exercised by courts, the review through which courts examine whether primary legislations and subordinate legislations are compatible with Convention rights in accordance with the Human Rights Act 1998, the handling about dispute of vires by virtue of courts, traditional protection of fundamental rights of individual citizen by virtue of courts and protection of human rights of individual citizen by virtue of courts under the Human Rights Act 1998. The mode of unconstitutional review adopted by British is different from the mode of unconstitutional review by virtue of ordinary court or special authority. It is a mixed system of unconstitutional review and is a system equally emphasizing the scrutiny of UK Parliament and the review of courts. This mixed system has its characteristics, including a variety of basis of unconstitutional review, extensive nature of constitution of unconstitutional review, variety of authority of unconstitutional review, diversification of form of unconstitutional review and variety of procedure of unconstitutional review. This mode, of course, has some defects.UK Parliament has very important status in political and legal life of the country, its course of action in scrutinizing bills of government and Acts of Parliament resembles that of our system of People's Congress, and the enforcement of the Human Rights Act 1998 has important role of reference and apocalypse for safeguard of our constitutional enforcement and perfection of system of our unconstitutional review. The experience of UK demonstrates that we should base safeguard of constitutional enforcement on legal system of our own country and not to try to break through the existing constitutional framework, courts should deal with relationship between People's Congress and courts appropriately under the system of People's Congress, organization of state power must perfect security of legislation about fundamental rights of citizen, organization of supreme power should bear legal function to scrutiny constitutionality of legislation and enable courts to bring all their capacity into play in applying to our constitution.