On Constitutional Conventions

Studies on constitutional conventions are aimed at exploring their outstanding position and far-reaching influence, and thus raising the significance of establishing a constitutional convention system in China. This thesis has conducted preliminary researches on the fundamental theories, the Western conventions and the possibility of establishing the conventions in China. With regard to fundamental theories, the author conducts analyses on the concept, features and effectiveness of the conventions. Further, the author points out that a constitutional convention is an uncodified custom or tradition extracted from years of practice in constitutional countries, related to basic state and social systems and widely acknowledged and abided by. Nature of the conventions lies in their fundamentalness and the unauthorized coerce force. Besides, the conventions serve as a quasi constitution, which are characterized by unwritten form and stability. The conventions will be endowed with quasi-judicial power by constitutional norms in a form of political confirmed expressions. It is for strict legal system, political bearings and public opinions that the conventions can be commonly obeyed. In a broad sense, the conventions fall into constitutional customs and constitutional cases, which center around such value objects as equality, freedom, fairness and justice. The conventions also express people's common will and interests, support the constitution practice of democratic countries, enhance the adaptability and facilitate constitution's interpretation and improvement. Through comparing and analyzing the Western particularly the British and American conventions, the author has highlighted the importance of the conventions in constitutional practice in a quest of a reference from the achievement in Western countries. Last, the author invests great efforts into the study on reasonability and necessity of establishing the conventions in China, and accordingly concludes that China should establish its own constitutional conventions at appropriate time in order to provide systematical protection for further strengthening the effectiveness through constitutional judicialization and precedent system. The author also makes tentative discussions on issues regarding establishment of the conventions in China such as principles, related government institutions and confirmation of the conventions.