Programmatic Clauses In Constitution

Up to now,research on our country's constitution has involved nearly all aspects about "Preamble","The Fundamental Rights and Duties of Citizens" and "The Structure of The State",which makes people feel lost in it.While the study on the constitutional norms called "Programmatic Clauses" assembled in "General Principles" is yet dissociated beyond the vision of the academe,especially compared to a considerable amount of research on the fundamental rights.The reason is,the programmatic clauses are regarded as a kind of political declaration or the Party's ministerial programme taking the form of constituion,so they don't have the legal effect and can't be implemented by the court even under the circumstances of judicial review.As a result,the constitutional scholars almost neglect the value of the programmatic clauses.Furthermore,laying aside the programmatic clauses has not satisfy part of the constitutional scholars.They think that the programmatic clauses are the Achilles' Heel of constitution implement,which should be criticized and even be wiped out from constitution.Thus,even though occupying one-third of the constitution,the programmatic clauses are confronted with a predicament of normalization in China nowadays.In fact,programmatic clauses are not the unique scenery of our constitution. According to the empirieal study on more than one hundred constituional texts in the world,nearly all of those constitution contain the programmatic clauses. Thus it can be seen that the programmatic clauses assume some kind of general value at least in the formal sense.However,it's believed that the framers of different countries are rational and sagacious enough to write programmatic clauses into constituion,not only due to the formal requirement,but also based on the substantial consideration such as specific historical background,theory value and practice.The investigation to those consideration will help confirm the value of programmatic clauses.Now that programmatic clauses were written into constitution,people as the sovereign will not allow those clauses as a metaphysical existence in a long term.They will eventually focus on exploiting the legal effect of programmatic clauses and make them be implemented.The change of attitude to programmatic clauses of consitutional academe and practice circle overseas has reflected the above phenomenon.In field of theory abroad,programmatic clauses have experienced a theoretical construction process from the view of "no legal effect" to "little legal effect" then to "strong legal effect".Under the drive of academia and assistance of people,practice circle overseas,especially the court with power of judicial review begun to admit the legal effect of programmatic clauses,and implemented them in a series of classic constitutional decisions and constitutional interpretations.These provide beneficial expoerience and significant reference for our country to rethink the attitude to programmatic clauses and get programmatic clauses out of the predicament.Nevertheless,scholars and judges overseas have not construct a general basic theory about norm essence of programmatic clauses when they proved the legal effect of those clauses and carried out them. So their effort neither can explain the source of legal effect of programmatic clauses,nor guide the implementing of programmatic clauses in different situations.At the same time,theory and practice overseas can't offer an access to balance and handle the complicated relations between programmatic clauses and the Party's ministerial programme,which is a problem with Chinese characteristics on politics and constitutional law.In this connection,on the one hand,it's necessary to analyse the norm essence of programmatic clauses with a perspective vision,so that reasonable theory of norm essence can be constructed to no only confirm the functions and level of legal effect of programmatic clauses but also direct implementing the clauses in a variety of circumstances.On the other hand, through analysing the interactive relationships between the Party's ministerial programme and programmatic clauses,splitting the influence of the Party's ministerial programme from programmatic clauses properly is needed.These two basic aspects will pave the way for implementing of programmatic clauses.The implementing of programmatic clauses relies on specific implementation mechanism and implementation mode.The implementation mechanism is various state institutions and organizations to carry out programmatic clauses through interpretting and externalizing the abstract content of the clauses.While implementation mode is some specific ways and means used by those state institutions and organizations. Under the guidance of theory about norm essence of programmatic clauses,and in the situation of splitting the influence of the Party's ministerial programme,research on the implementation mechanism and implementation mode could be engaged from three perspectives:first of all,to discuss the implementation mechanism without judicial review;secondly,to look forward to the implementation mechanism with judicial review;finally,to present the way to constructing implementation mode.