Research On Construction Of Recognition System Of Constitutional Convention In Our Country

In 2014,the 60 th anniversary of the enactment of the Constitution(1954), a heated discussion on the enactment, amendment and perfection of the provisions of Constitution aroused and people constantly roared to amend Constitution. The more direct cause for emphasizing the value of the implementation of the Constitution is the loophole in our constitutional provisions, especially the lack of procedural rules. In the meantime, with the defectiveness of the Constitutional, there are a lot of constitutional conventions which challenge the effectiveness of constitutional supervision. Thus, it is necessary to clarify the definition of constitutional convention so as to play its due value in China and to benefit constitutional implementation and constitutional supervision as well. The studies of constitutional convention in China have gone through there periods: one is from year 1984 to year 1993, and one is from year 1993 to about year 2008, and the last one is from year 2008 till now. Nowadays, studies on constitutional convention have achieved a lot but still contain some deficiencies, which is mainly reflected on the following aspects:1.unspecified guiding ideology;2.insufficient studies on foundation theory;3.insufficiency of creative studies;4.insufficiency of systematic studies. Studies on such topic can be penetrated and exhaustive by construction of recognition system of constitutional convention,the core meaning of which is to promote the implementation and development of the Constitution.Deficiencies of constitutional rules, which supports the growth of constitutional convention will result in a dilemma of the constitutional government. In present days, the constitutional supervision system of China doesn’t work well as the National People’s Congress and its Standing Committee haven’t made any unconstitutional decree. The main difficulty of the implementation of constitution lies in the deficiencies of provisions of the Constitution. Up till now, different schools of thought haven’t suggested effective schemes to solve this issue.To solve aforementioned issue, we should focus on three dimensions:deficiencies of constitutional context, political convention challenging constitutional supervision and the implementation of the Constitution. To further the theory of constitutional convention and to make it supplemental to China’s constitutional government construction, we must develop it to meet the practical requirements of China’s constitutional government construction and to accomplish the tasks of China’s constitutional government construction. It is necessary to make constitutional convention stable by specific subjects through specific procedures in order to regulate the operation of state power and to promote the implementation of the Constitution. The construction of the recognition system of constitutional convention is to promote the development of the Constitution and to ease the dilemma of constitutional supervision and constitutional implementation.Studies of China’s scholars on constitutional convention have been very mature, which sets up a solid theoretical foundation for the construction of the recognition system of constitutional convention. The constitutional basis for the recognition system of constitutional convention is Article 62 of Constitution which delegates the National People’s Congress with supervision power on the implementation of Constitution and Article 67 of Constitution which delegates Standing Committee of the National People’s Congress with supervision power on the implementation of Constitution. Fortunately,studies of English scholars on the question of recognition of constitutional convention and Australian practices can offer certain references to our country’s construction of recognition system of constitutional convention, and experiences gained from interpretation of Constitution will provide references as well.In terms of formation, constitutional convention is formed by specific political subjects in the political practices and be recognized by specific organizations or individuals. In terms of context, constitutional convention involves fundamental issues in state political life. In terms of forms, constitutional convention is not statutes. In terms of value-orientation, constitutional convention is in line with the rules, principles and spirit of the Constitution. In terms of effectiveness, constitutional convention will bound social members psychologically to some extent. The subject of recognition of constitutional convention must initially be in line with constitutional provisions and then is convenient to operate it and ensure the authorization of it. Thus, the subject of recognition of constitutional convention can be made the National People’s Congress and its Standing Committee. It is known that rule of law not only requires substantial justice but also requires procedural justice, which means in order to be automatically obeyed by citizens, the recognition of constitutional convention must go through specific procedures including proposal and approval of request for recognition of constitutional convention, draft of recommendations on constitutional convention, deliberations and approval of recommendations on constitutional convention, release of constitutional convention and so forth. Constitutional convention recognized by the National People’s Congress and its Standing Committee shall have the same legal status as other laws enacted by the National People’s Congress and its Standing Committee since it serves as a necessary complement to the Constitution and shall be superior to general laws as it solves the fundamental problems in the political life of a country. Besides, constitutional convention, the complement of Constitution, should be based on the provisions of Constitution and be inferior to Constitution.Studies on constitutional convention should not be ignored, as due to the political environment of China, constitutional convention can definitely be prosperous on this land and constructions of some relevant systems will also inject fresh blood for solutions to many Chinese constitutional problems.