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Constitutional protection contributes to the sustainability of the political regime

(LLCT) - The purpose and meaning of constitutional protection is to protect the people's sovereignty, political system and legal basis of society, thus contributing to ensure the stable and sustainable development of the national political regime. The solutions to strengthen constitutional protection include: clearly identifying the authority of constitution protection of the National Assembly, the State President, the Government, the People's Court and the People's Procuracy; issuing laws on the constitutional protection, establishing the Constitution Supervision Committee; enhancing education, raising awareness of the Constitution and the people's responsibility to protect it. 

The House of Vietnam National Assembly_Photo:zing.vn

Key words: Constitution, constitutional protection, Constitution implementation, protecting the political regime.

Protecting the Constitution, ensuring the respect for and strict execution of the Constitution as well as judging constitutional violations is an important element of building a law-ruled state of countries in the world.

1. Protecting the Constitution has a special legal and political meaning to every country’s political regime

Firstly, the Constitution is a document that stipulates the political regime, reflecting the political organization of a country. Each country has to choose for itself an appropriate political regime. That appropriateness is the condition for social and individual development. Implementing an inappropriate political regime would be a barrier to social development. The stability of a country’s political regime is based on a firm and united political foundation of the Constitution. In Vietnam, the 2013 Constitution prescribes the model of the socialist political regime with the following fundamental elements: People’s sovereignty, Socialist law-ruled State, leadership role of the Communist Party of Vietnam over the State and society.

Secondly, in the legal term, the Constitution is a document that contains legal norms regulating the most fundamental and important social relationships of each country. The 2013 Constitution regulates fundamental social relationships of: political regime, human rights, fundamental rights and duties of citizens; economic, cultural and social system; organization and operation of the State apparatus, etc. Therefore, the Constitution has the highest legal effect of all laws, orientating other legal normative documents.

Thirdly, on the social side, the Constitution acknowledges and reflects social values such as freedom, justice, equality, democracy, human rights, etc. These are the values that the whole society longs for. With such a special role and nature, protecting the Constitution means to protect the people’s sovereignty, the Party’s leadership, the State’s management, the legal basis and the society’s noblest values. Through that, the stability and sustainable development of the country’s political regime is guaranteed.

2. Contents of constitutional protection

Constitutional protection covers a synthesis of activities carried out by agencies and individuals whose constitutional duties and authorities ensure its respect and enforcement, prevent and deal with all constitutional violations. Specific contents include:

On the basic of constitutional supervision of legal normative documents and international treaties to which the country has signed or acceded, authorized agency to protect the Constitution will exclude and neutralize inappropriate legal normative documents that contradict the Constitution or propose certain agencies to promulgate legal normative documents in accordance with prescribed constitutional authority.

Constitutional interpretation. The Constitution contains very extensive and abstract principles and legal frameworks stabilized in a long time that need official interpretation of authorized State agencies: “through official interpretation, contents and meanings of constitutional provisions are understood consistently in conformity with specific political, economic and social conditions. Accordingly, the Constitution promotes its role as a factor that ensures the stability and development of a socio-political system as well as a legal foundation of a democratic State whose power belongs to the people”(1).

To settle appeals of constitutional violations (including those relating to violations of citizens’ constitutional rights and freedom), some countries’ law stipulates the right to initiate lawsuits to authorized State agencies for constitutional violations. The constitution protection agency adjudicates on the constitutionality or unconstitutionality of the appealled acts, obligating relating agencies or individuals to perform or not perform some certain acts to restore constitutional order and to defend citizens’ constitutional rights and freedom.

Election and referendum are two forms of constitutional democracy. Therefore, constitutional protection also includes the constitutionality supervision of elections and referendums. 

3. Some demonstrations of constitutional violations

Constitutional violations are acts of competent agencies, organizations and individuals which contradict the regulations and provisions of the Constitution. Types of consitutional violations are: issuing unconstitutional documents or creating threats of abuse of power; violating rights and freedom of people and citizens; violations due to constitutional obligation inexecution, etc. In the past time, some documents were inappropriate and even against constitutional provisions. They have been both restricted and “truncated” the constitutional rights of citizens. For example, Circular No.02/2003/TT-BCA dated January 13th 2003 of the Ministry of Public Security stipulating that each individual can register 1 motorcycle or motorbike is against the basic rights of citizens as stipulated in Article 58 of the Constitution 1992.

During the legislative construction process of ministries and sectors, there are issues that aren’t stipulated specifically by laws and ordinances, but drafting office still submit to the Government for detailed regulations. For example, Decree No. 65/2013/ND-CP regulates in details some articles of the Personal Income Tax Law, and the Amended and Supplemented Law on some articles of Personal Income Tax Law of which some contents are not assigned for the Government but the Government still have detailed provisions such as Article 4 on tax exemption income, Article 6 on taxable income, etc.

According to the Juridical Committee of the 13th National Assembly, by mid 2013, in 1,761 documents of ministers and heads of ministerial level agencies assessed by the Ministry of Justice, there are 223 documents showing signs of violations of authorization, content and effect(2).

4. Solutions to strengthen constitutional protection

In order to strengthen constitution protection, to ensure the stability and sustainable development of the political system, first and foremost, it is necessary to grasp deeply and thoroughly points of views and implementation of central tasks identified in the 12th National Party Congress: “Continuing to build and perfect the socialist law-ruled State under the Party’s leadership is the central task of the political system renovation... Continuing to perfect Constitution and law protection mechanism”(3). At the same time, institutionalizing and implementing provisions of Article 119 of the Constitution 2013: “The National Assembly and its agencies, the President, the Government, People’s Courts, People’s Procuracies, other agencies of the State and all the People shall defend the Constitution. The mechanism to defend the Constitution shall be prescribed by laws”.

To specify and implement effectively those tasks, it is essential to perform comprehensively some solutions as below:

First, continue to improve and organize the implementation of provisions on constitutional protection of the National Assembly according to the 2013 Constitution. Specifically:

To define clearly the supervision’s nature, scale and authorization of the National Assembly and the Standing Committee of the National Assembly. It is necessary to define the National Assembly’s right “to supremely supervise the constitutional execution”. Besides, the constitutionality of documents promulgated by the National Assembly should be added to the supervision scale of the National Assembly. This is the post-supervision type which means documental supervision issued by the National Assembly that has legal effect.

- Continue to improve organization and activities of National Assembly’s agencies in supervising the constitutional execution and the constitutionality of legal normative documents. Specifically:

To implement sufficiently and earnestly the mechanism of operation and coordination among agencies of the National Assembly.

Applying regulations on interim committee establishment, to ensure operations of subcommittees, working groups to assist the National Assembly to supervise the Constitution execution.

To booster the consultancy of the Constitution execution supervision, legal document supervision promulgated by the National Assembly. To formulate and implement liability mechanism for agencies and individuals delayed in submitting reports to the National Assembly to ensure time and quality of activities of report verification; pay attention to independent and objective information from inspection and audit agencies. 

To renew forms of work report review, supplement resources for report verification activities; to enhance reality investigation activities; to ensure the comprehensiveness, objectivity, accuracy and timeliness of database provided to the National Assembly. Members of the National Assembly should actively and  subjectively analyze and discuss especially about matters that are different between verification reports and reports of agencies and individuals under supervision.

To set up a clear and complete “standard” system for entities to review, analyze and make accurate and objective conclusions.

- To implement the constitutional interpretation authorization of the Standing Committee of the National Assembly. The constitutional interpretation shall ensure principles: in line with spirit, purpose, requirements and guiding views of promulgation of the constitutional; in conformity with the constitutional content and language; no amendment, supplement or new regulations are allowed. Procedures and orders to interprete the Consitution shall base on the nature and content of interpreted issues. Standing Committee of the National Assembly assigns the Government, People’s Supreme Court, People’s Supreme  Procuracy, Nationality Council and National Assembly’s Committee to edit draft resolution of the constitutional interpretation; the Nationality Council or the National Assembly’s Committee shall examine the suitability of the draft; the Standing Committee of the National Assembly reviews and approves the draft resolution of constitutional interpretation.

Second, to implement the regulation on constitutional protection of the State President.

According to Item 1, Article 88, 2013 Constitution, the State President is authorized to propose to the Standing Committee of the National Assembly to consider the constitutionality of the ordinance promulgated by the National Assembly Standing Committee. For this act to be carried out by the President, it is necessary to renew and improve the quality of President’s assisting actitivites; supplement personnel and enhance the quality of staffs and civil servants of the President’s Office; professionalization the consultancy for the President to consider the constitutionality of ordinances.

Third, to regulate in details and organize the execution of the stipulations on constitutional protection by the Government.

For the Government’s better inspection of the constitutionality of legal normative documents, it is essential to focus on:

- Clearly regulating self-inspection and inspection deadline of the constitutionality of documents due to authorization. Self-inspection deadline and responsibility should be transparently prescribed after the enforcement of documents within 5 to 10 days (from the effective signatory date). In case documents show signs of violating the Constitution, they shall be dealt with immediately. In case there is no sign of violating the Constitution, the issuing agency will send documents together with self-inspection results to authorized agencies to inspect them. About inspection deadline due to authorization, authorized agency will inspect legal normative documents within 30 to 40 days, before their enforcement dates up to the nature and level of their complexity. It is not necessary to wait for effective dates of documents to carry out inspection. 

- Clearly defining forms of handling the unconstitutional documents. Suspending in full or in part of the execution of the documents and abolishing all or parts of unconstitutional contents. Accordingly, type of suspending in full or in part of the execution is applied when the unconstitutional contents are not amended, supplemented or abolished in time and if they continue to be implemented, there will have serious consequences that affect the interests of the State, legal rights and interests of organizations and individuals. Deadline to handle unconstitutional documents should be specified within no more than 2 working days. When documents obviously show unconstitutional signs, they shall be suspended immediately (exclude when they continue to be executed, they can cause serious consequences, they shall be suspended immediately); within 10 working days, since its suspended date, they shall be taken into consideration of amendment, supplement or abolishment of those unconstitutional documents as prescribed.

Fourth, to implement the provisions on the responsibility of the People’s Court and People’s Procuracy in constitutional protection.

Item 2, Article 2 of the People’s Court Organization Law should be supplemented as follow: “The People’s Court shall have the duty to protect the Constitution, justice, human rights, citizen’s rights and socialist regime, etc”. During trial, the Court should focus on detecting and recommending to competent agencies to consider amendment and supplement or abolishment of legal documents that contradict the Constitution, laws, resolutions of the National Assembly, ordinances, resolutions of the Standing Committee of the National Assembly to ensure legal rights and interests of individuals, agencies and organizations”. It is necessary to supplement a provision to the Organization Law of People’s Procuracy: “During executing prosecution rights and supervision of judicial activities, the Procuracy shall detect and recommend to authorized agencies to consider amendment and supplement or abolishment of legal documents that contradict the Constitution, laws, resolutions of the National Assembly, ordinances, resolutions of Standing Committee of the National Assembly to ensure legal rights and interests of individuals, agencies and organizations”.

Fifth, to strengthen communication and raise awareness of the Constitution and people’s responsibilities to defend it. Renewing legal thinking of the Constitution is one of the important solutions to ensure the respect, execution and defending of the Constitution in the country at present. In order to achieve this objective, it is imperative to continue communication and education to raise awareness of the position, role and content of the Constitution. At the same time, perception of direct application effect of the Constitution should be unified. In the socialist law-ruled State, the Constitution is not only a political document but also a basic reality act containing legitimate norms which are applied directly to State agencies, organizations and citizens.

Sixth, to study the forming of the Constitutional Protection Law.

Item 2, Article 119, 2013 Constitution  stipulates: “... The mechanism to defend the Constitution shall be prescribed by a law”. Institutionalizing the above regulation, the Constitutional Protection Law should prescribe the organization and operation of the specialized agency to defend the Constitution, the Constitution Supervision Committee, which is established by the National Assembly. Its function is to supervise the constitutional execution of the National Assembly, President, Government, Prime Minister, People’s Supreme Court and People’s Supreme Procuracy.

The Constitution Supervision Committee is a special committee of the National Assembly that requires particular regulations of organization and operation to ensure certain independence over the National Assembly, its agencies and other agencies in the state system. Activities of examination, supervision and consideration of constitutional violations are carried out by specialized sub committees of the Constitution Supervision Committee. Based on reports of sub committees, the Committee shall hold plenary meeting to discuss and vote for the final decision. Reports of sub committees are approved according to the majority of votes then submitted to the National Assembly. President of the Committee shall not vote but have the final decision in case there is a tie regarding the for and against votes.

______________________

Endnotes:

(1) Le Hong Hanh: “The possibility of assigning authorization of consitutional interpretation to courts in Vietnam”, Legislative Study Journal, No. 18-2008, p. 5.

(2) Juridical Committe of National Assembly, Report No. 2081/BC-UBPL13, dated October 21, 2013.

(3) CPV: Documents of the 12th National Party Congress, Office of the Party Central Committee, Hanoi, p. 175.

Assoc. Prof., Dr. Tao Thi Quyen

Institute of State and Law,

Ho Chi Minh National Academy of Politics

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