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2 Peking U. L.J. 2 (2014)

handle is hein.journals/pekulj2 and id is 1 raw text is: Vol 2, 1ssue 1, 2014 INTRODUCTION Zhang Yongle; What is the shape of China's constitution? This is a difficult puzzle for constitutional scholars all over the world. Similar to the U.S., contemporary China has a written constitution made in 1982; however, China's Supreme People's Court has no power of judicial review according to the Constitution. Although The Standing Committee of the National People's Congress is supposed to interpret the Constitution, it rarely exercises that power. This seems a grey picture in the face of the globalization of judicial review. Moreover, if one only reads the text of China's constitution, he can hardly understand how China's working political system works in the real world. There seems to be an invisible constitution behind the formal constitutional text. One might borrow the concept constitutional convention to explain the stable part of this invisible constitution. Yet contenders can always retort: are three decades long enough to certify a constitutional convention? In recent years, this polyhedral constitution has given rise to multiple approaches in constitutional law scholarship. Some emphasize that China's constitution ought to be a law applicable in the judicial system, similar to the American Constitution and the German Basic Law. Others are suspicious of this notion of ought, believing this is merely a good wish which, although deserving sympathy, cannot find enough ground in the original intent and the overall structure of the Chinese Constitution. For scholars who have no political power to make constitutional decisions, it would be more rewarding to draw the topos of the constitution than make system design. Among the five articles under this special topic, the three ones by Zhang Qianfan, Gao Quanxi, and Zhang Yan constitute a compact discussion. From Zhang Qianfan's perspective, China's Constitution can be put in judicial application right now without waiting for a remote future. It is a commonplace that constitutional rules are selectively applied; China should not be an exception. The existence of a variety of policy-oriented, directive, and declarative articles in the constitutional text further necessitates careful selection of applicable articles. Eliminating declarative articles, economic policy- related articles, and the articles on civic duty, Zhang draws a small circle of applicable articles. For him, this is not simply a technical discussion on the judicial application of constitutional precepts; rather, it is primarily an attempt to eliminate others' fear of difficulty in the face of the globalization of judicial review. In contrast, Gao Quanxi denies the possibility of judicial review in the current 1. Associate Professor, Peking University Law School.

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