「公然と憲法に違反」―立憲主義、違憲審査制、中国憲法

抄録

In this paper, on the 30th anniversary of the 1989 Tiananmen Square protests, I reexamined the connection and disconnection between the modern constitutionalism in western Europe and the Chinese constitution (thought and system). The constitutional review was employed as the focal point in this discussion.

First, the constitutional review has two meanings: the protection of human rights and the protection of constitutional order. The constitutional review is one of the crucial elements of constitutionalism. Its system and operation are a measure of realization and retention of the constitutionalism.

Second, the Chinese constitution enacted in 1982 was based on the bitter experiences of the Cultural Revolution. In order to protect human rights and constitutional order, various discussions were held to decide what kind of constitutional review system was to be established. Furthermore, the Chinese government and CCP rejected the judicial review and chose their own version of constitutional review that is carried out by the People’s Congress.

Finally, there is a gulf between the modern constitutionalism in western Europe and the Chinese constitution. The Chinese constitution imposes the duty of upholding and abiding by the constitution not only to the government but also to its citizens. At the same time, it is reluctant to ensure the relativity of individuals’ values. At the 1989 Tiananmen Square protests, the Chinese government and CCP criticized the students and intellectuals for joining the protest and openly violating the constitution. This accusation symbolizes the gap between the modern constitutionalism in western Europe and the Chinese constitution.