Comparative Research On The Model Of Judicial Protection Of Fundamental Rights

“Judicial review” or “constitutional review” refers to the review of legislation by courts or specific institutions based on constitution,which usually divided into strong-form judicial review and weak-form judicial review.“Strong-form judicial review” refers to the US-style judicial review model with judicial supremacy.The so-called “weak-form judicial review” can be regarded as the institutional compromise as well as arrangement to jointly protect the fundamental rights of citizens through but not limited to the “dialogue” between the legislature and the judiciary under the premise that the parliament has the final judgment on primary laws.The Westminster-based parliamentary system is generally seen as opposed as the judicial review system in United States.After World War II,the principle of parliamentary sovereignty is facing more and more international and domestic pressures,as well as being challenged case-by-case and by ideological changes.Canada,New Zealand and the United Kingdom adjusted their guiding principles to take more account of harmonizing the relationship between parliamentary sovereignty and judicial supremacy.Canada adopted the Canadian Charter of Rights and Freedoms in 1982,giving the courts the power to overwhelm legislation as well as giving the parliament legislative supremacy.New Zealand passed the New Zealand Bill of Rights Act in 1990,which gave the court limited power to interpret the legislation while clearly retaining the principle of legislative supremacy.The Human Rights Act was passed in 1998,by which the judiciary was given the power to declare legislative incompatibility that could not be interpreted in a manner compatible withthe rights of the Convention,thus separating the right of review from the right of decision.Moreover,by setting up Ministerial statement and the Joint Committee on Human Rights in U.K.and establishing reporting obligations of the attorney-general and Select Committee in New Zealand,both of them match the ex post review mechanism.All of these three countries deviate from the traditional parliamentary sovereignty and seek to protect fundamental rights through the redistribution of the power of constitutional review.The model of limited judicial protection of fundamental rights breaks away from the theoretical pattern of “court centralism” and “the People's Congress(parliament)centralism”,and opens up a “dialogue” mechanism between the legislature and the judicial institutions through division of coordination.By taking laws and specific cases as media,it gradually enhances understanding through mutual exchanges,so as to achieve the ultimate goal of a harmonious and consistent pace of the protection of fundamental rights.The most significant feature of this model is that it reserves the final judgment on the constitutionality of laws to the parliament,thus avoiding the“anti-majority problem”.At the same time,on the premise of retaining the absolute right of legislative response,the legislature endows the court with part of the right of review,thus shaping a procedural mechanism to promote the construction of constitutional consensus based on communication for the whole political community.Based on the theory of dialogue,this paper tries to explain the connections and differences between the typical judicial protection model represented by United States,the limited judicial protection model of the commonwealth and the Chinese model.Based on checks and balances,courts dominate the dialogue of fundamental rights in American model.Minorities whose demands cannot be heard in democratic process can obtain protections through constitutional litigation and meanwhile gain attention of the society.It has obvious disadvantages,which may lead to the conflicts and divisions of the society.Commonwealth model gives courts some power,but courts just push the legislature think about rights.China has no clear rules,but in practice courts are cautious.However,courts cannot completely avoid the increasing claims of rights,so it is necessary to improve the system to make the judicial and legislative institutions work together to promote the protection of fundamental rights.As a giant systematic project,the protection of fundamental rights has a long way to go.However,our Constitution still seems to be on the shelf and concerns about the fundamental rights of citizens need to be raised.It is urgent to build a responsive systematic model of limited judicial protection of fundamental rightsaccording to the reality of our country.On the one hand,courts are empowered to interpret laws in a manner consistent with the fundamental rights of Constitution.For legislation that cannot be interpreted in a manner consistent with Constitution,courts have no power to overturn or make inconsistent declarations.Instead,they should submit it to the Standing Committee of the National People's Congress for review and interpretation.On the other hand,the National People's Congress should actively respond to the court's interpretation and constitutionality review appeal,so as to form a useful dialogue between the legislature and the judicial institutions,and eventually form a sense and a culture of rights in the whole society.