On the Selective Application of the Chinese Constitution

To treat and implement the Chinese Constitution seriously, selective application is necessary. As an implementable fundamental law, its fundamental character determines that only some provisions of the Constitution receive direct application. The Constitution is not merely a political declaration, and thus generally the positive rights it provides should not be directly applied. The Constitution is also not an ordinary law, and therefore the civil obligations or the particulars of economic policies it provides should not be applied; these matters should be left to legislation. With the structure of its application clarified, the Chinese Constitution becomes entirely applicable and implementable. This article first critiques several theories of political constitutionalism in order to clear theoretical obstacles to the Constitution's application. Next, the article discusses the basic principles of applying the Constitution and proposes neutral criteria for identifying directly applicable Constitutional provisions. Finally, the article applies these criteria to evaluate the applicability of a number of provisions of the 1982 Constitution, and from this forms an applicable Constitutional framework.