| As a constitutional review method, presumption of constitutionality means that, in the course of constitutional review, legislation is presumed to be constitutional, except that there are obvious facts to proof it unconstitutional. It was originated in US, and then extended to Germany, Japan, Australia and many other countries. It plays a significant role in the rule of law. Chinese lack enough awareness of the method of constitutional presumption, which has negative influence on the effective operation of constitutional review system in some extent. To study the justification of this presumption can provide us with valuable experiences in methodology for our constitutional review system.Presumption of constitutionality fits in with the requirement of protecting human rights. Constitutionalism is the balance between power and right. The structure of checks and balances among state powers under constitutionalism is an institutional protection of human rights. Presumption of constitutionality gives respect to legislative power, so that it can exert its positive functions effectively. In the background of modern welfare state, the purpose of respect to powers is to exert the protective functions of state powers, and is in end to protect human rights.The justification of presumption of constitutionality comes also from the supreme position of constitutional law in the norm system. The supreme position requires the constitutional law to be more stable than other lower norms, and presumption of constitutionality contributes to safeguard its stableness. The supreme position also decides that the constitutional law is more abstract than other lower norms. Presumption of constitutionality can avoid the direct application of constitutional law in a great extent, thus conforms to its abstractness. Constitutional law and other norms of law have different functions, and presumption of constitutionality is benefit for them to exert their respective functions.Presumption of constitutionality also has reasonableness according to economic analysis. It saves legislative costs, conforms to the economic logic of separation of powers, reduces the political risk of judges, and controls the number of constitutional cases to reduce litigant costs. The justification of presumption of constitutionality reflects both political and legal characteristics of constitutional law. |
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