Home    Theory Research    Constitutional protection for human rights in 2013 Constitution
Friday, 14 July 2017 11:27
1021 Lượt xem

Constitutional protection for human rights in 2013 Constitution

(LLCT) - All people, by nature, desire to seek the best state apparatus that can help build a society in which people are equal in all relations, dignity is respected, and citizens are free to do as they please. A law-ruled state is a form of state apparatus with certain advantages that recognize the above-mentioned goals. Building a law-ruled state, therefore, has been a requirement and demand of every modern state.

1. Despite the wide range of design among law-ruled states, most share common principles of state apparatus and operation mechanisms. In general, all law-ruled states possess the following features: 

a) State built upon the people’s will.

b) State organized on the basis of “empowerment,” or clear definition of the function and duties of each branch of power.

c) State ruled by law in which the constitution is the supreme law. Building and perfecting laws is based upon the constitution; all social relations are regulated by the law and all social entities, particularly organizations and individuals belonging to the state, abide by the constitution and the law.

d) State recognizes in principles and promulgate regulations on human rights referenced by international human rights standards. Together with the rights of personal security, the rights of “autonomy” and “self-determination” should be upheld. 

e) Constitution and laws are highly mandatory for any entities, even  organizations or individuals having the highest status in society.

f) Along with the state’s self-control mechanism (via power control and balance), external social inspections have increasingly been developed and put into practice. This mechanism promotes the role, position, and operation of an independent judiciary.

g) In addition to the above principles, many countries have been researching and designing an organ with jurisdiction and competency over constitutional violations. This is a new trend of modern law-ruled states.

By nature, a constitution is created to protect human rights, which are embodied in the recognition of citizens’ fundamental rights and freedoms as well as state apparatuses in order to exercise public power in protecting social order. However, to ensure that constitutional provisions are fully implemented, there should be methods of constitutional protection, which primarily protects human rights and bonds the state with provisions prescribed in the constitution.

Constitutional protection has been gradually recognized to be a fundamental principle of any law-ruled state. This rule has existed since the invention of any constitution. Nevertheless, it was not until 1945 that the mechanism of constitutional protection was clearly defined and strongly implemented in some countries, including the Federal Republic of Germany. With its specific features, the German model of constitutional protection has spread to many countries(1). Today, every modern state is aware of the demand for constitutional protection mechanisms and promotes the search for a model suitable to each country’s political reality.

In spite of the differences in constitutional protection mechanisms among countries(2[1]), they share certain common characteristics - having an organ to interpret the Constitution, monitor Constitutional obedience, and recommend solutions to constitution-related violations or disputes. 

2. The State of Vietnam pays constant attention to ensure human rights. The first Constitution (1946) recognized fundamental human rights. The Constitution also attached importance to the design of a democratic state apparatus to ensure the true ownership of the working people. The first Constitution of Vietnam aligned closely with common international values, including both human rights contents and methods of organizing the state apparatus. However, the nation’s decades-long resistance wars made it difficult to fully build a state in accordance with the provisions and goals stipulated in the 1946 Constitution.

The building of a law-ruled state has been a goal in Vietnam since the 7th National Party Congress in 1991, and the country has worked to clarify and implement their intended policies. In Vietnam, socialist orientation is considered a characteristic of a law-ruled state. 

Concerning constitutional protection mechanism, the 10th National Party Congress defined the tasks of “Improving the legal system; increasing the specification and feasibility of provision in legal documents; building and perfecting the checking and monitoring mechanisms of constitutional compliance and the decisions and operation of public organs (...) Building a clean, strong, democratic, strict, rule-based judicial system which protects justice, human rights (...) Developing a judging mechanism for Constitutional violations in legislative, executive, and judicial activities”([1]3).

The 11th and 12th National Party Congresses continued to affirm and develop this viewpoint. The 12th Congress even emphasized, “In the organization and operation of the State, democratization must be applied, and rule-of-law principles must be obeyed to make positive changes and create better results”(4).

In comparison with other law-ruled states, the socialist law-ruled State of Vietnam has the following characteristics:

a) The State is built on the basis of inheriting outstanding features of modern states.

b) The State is built on the basis of Marxist theory, taking socialism as the orientation of development.

c) The State is led by the Communist Party of Vietnam, the only political party.

d) The State is organized on the principles of democratic centralism.

The 2013 Constitution affirms, “1) The State of the Socialist Republic of Vietnam is a socialist law-ruled State of the people, by the people and for the people. 2) The Socialist Republic of Vietnam is a country where the people are the masters; all state power belongs to the people and is based on the alliance of the working class, the peasantry and the intelligentsia. 3) State power is unified and delegated to state agencies which coordinate with and control one another in the exercise of legislative, executive, and judicial powers(5[1]).

The State of Vietnam affirms the thorough objective: The State guarantees and promotes the people’s right to mastery; recognizes, respects, protects, and guarantees human rights and citizens’ rights; and pursues the goals of a prosperous nation and a strong, democratic, equitable and civilized country in which all people enjoy an abundant, free and happy life and are given conditions for their comprehensive development(6).

Within the broadened context of international integration today, the State of Vietnam makes a constant commitment to respect the United Nations Charter and other treaties it is a part of, including human rights conventions. The 2013 Constitution declares that Vietnam “consistently implements its foreign policies of independence, self-reliance, peace, friendship, cooperation and development; and expands the multilateralization and diversification of its external relations, promoting proactive international integration and cooperation on the basis of respect for each other’s independence, sovereignty and territorial integrity. Involved parties will practice non-interference, equality, and mutual benefit; will abide by the United Nations Charter and treaties to which the Socialist Republic of Vietnam is a signatory; will act as a friend, reliable partner and responsible member of the international community for the sake of national interests; and will contribute to the global causes of peace, national independence, democracy and social progress” (Article 12).

To fulfil those commitments, Vietnam has taken into consideration and applied rule-of-law principles in state building.

To bind the responsibilities of stakeholders, the Constitution stipulates that all stakeholders, including organizations and members of the Communist Party of Vietnam “shall operate within the framework of the Constitution and law” (Article 4). This includes the following tenets:

1) The State is organized and operates according to the Constitution and law, manages society by the Constitution and law, and implements the principle of democratic centralism (Article 8). 2) All state agencies, cadres, civil servants and public employees show respect for the people by serving them, maintaining close contact with them, listening to their opinions, and working under their supervision. They resolutely combat corruption, waste, and all manifestations of bureaucracy, arrogance and authoritarianism (Article 8). 3) The Vietnam Fatherland Front, its member organizations and other social organizations shall operate within the framework of the Constitution and law (Article 9).

These regulations as well as the restriction of rights are also publicly affirmed in Article 14: 1) “In the Socialist Republic of Vietnam, human rights and citizens’ rights in the political, civil, economic, cultural and social aspects are recognized, respected, protected and guaranteed according to the Constitution and law”. 2) “Human rights and citizens’ rights may not be limited unless prescribed by law solely in case of necessity for national defense, national security, social order and safety, social morality and community well-being”. The Constitution also clearly stipulates both the realization of rights and the performance of obligations, not only as citizens but also as humans: “1) Citizen’s rights are inseparable from citizen’s obligations. 2) Everyone is obliged to respect others’ rights. 3) Citizen performs their obligations towards the State and society. 4) The exercise of human rights and citizen’s rights may not infringe upon national interests and others’ rights and legitimate interests” (Article 15).

Publicity and transparency in state activities are highly concerned issues. For example, the right of land ownership - a rather sensitive right in Vietnam - is affirmed clearly and transparently in the Constitution: “1) Land is a special national resource and an important resource for national development, and is managed according to the law. 2) The State allocates or leases land to organizations and individuals. They recognize the users’ land use rights. Land users may transfer their rights, exercise their rights, and perform their obligations according to the law. The law protects land use rights. 3) The State may recover land currently used by organizations or individuals in case of extreme necessity, defense, security purposes, or socio-economic development in the national or public interest. Land recovery must be public and transparent, and compensation must be paid according to the law. 4) The State may also reclaim land in cases of extreme necessity prescribed by the law to perform national defense and security tasks, during a state of war or emergency, or in response to a natural disaster” (Article 54).

The people are fully entitled with land rights, including the right to ownership and the right to tight protection under the law.

Along with constantly expanding rights and the connotation of rights, the Constitution also describes the responsibility of the State to recognize these rights. It also places harsh punishments on those who use their positions of power to infringe upon human rights and citizens’ rights: “5) A person who violates laws of arrest, detention, holding in custody, pressing charges, investigation, prosecution, trial, or judgment enforcement - thereby causing damage to others - shall be punished according to the law” (Article 31).

In a law-ruled state, the judiciary plays an important part in bringing about justice based on the respect of human rights. The Constitution specifies: “3) The People’s Courts have the duty to safeguard justice, human rights, citizens’ rights, the socialist institution, the interests of the State, and the rights and legitimate interests of organizations and individuals” (Article 102).

“1) Except in the case of trial by summary procedures, People’s Assessors shall participate in first-instance trials by the People’s Court. 2) During a trial, the Judges and People’s Assessors are independent and shall only obey the law. Agencies, organizations, and individuals are prohibited from interfering in a trial.” (Article 103).

In Vietnam, the People’s Procuracy exercises the power to prosecute and supervise judicial activities. Accordingly, “3) The People’s Procuracy has the duty to safeguard the law, human rights, citizens’ rights, the socialist institution, the interests of the State, and the rights and legitimate interests of organizations and individuals, thus contributing to ensuring the strict and unified observance of the law” (Article 107)...

The current Constitution also continues to articulate the function and duty of Constitutional protection as described in the 1992 Constitution.

The National Assembly is the highest state power body in Vietnam, thus it continues to be tasked with the duties and powers involved in Constitutional protection. These duties include:

“2) To exercise the power of supreme oversight over the observance of the Constitution and the National Assembly’s laws and resolutions; to review work reports from the President, the Standing Committee of the National Assembly, the Government, the People’s Supreme Court, the People’s Supreme Procuracy, the National Election Council, the State Audit, and other agencies established by the National Assembly. (...) 10) To annul documents of the President, Standing Committee of the National Assembly, Government, Prime Minister, Supreme People’s Court and Supreme People’s Procuracy that contravene the Constitution, laws or resolutions of the National Assembly” (Article 70).

The Standing Committee of the National Assembly performs the following duties and powers: “2) ... Interpreting the Constitution, the law, and ordinances; 3) Supervising the implementation of the Constitution, the National Assembly’s laws and resolutions, and the Standing Committee’s ordinances and resolutions; and supervising the activities of the Government, the People’s Supreme Court, the People’s Supreme Procuracy, the State Audit, and other agencies established by the National Assembly; 4) Suspending or repealing the execution of formal written orders of the Government, the Prime Minister, the People’s Supreme Court, and the People’s Supreme Procuracy that contradict the Constitution, the law, or the National Assembly’s resolutions, and reporting matters to the National Assembly to decide the abrogation of such orders at its nearest session. (...) 7) Exercising supervision and guidance on the activities of the People’s Councils; to annulling resolutions by the People’s Councils of provinces and centrally-run cities that contradict the Constitution; and dismissing any councils in provinces and centrally-run cities that cause serious harm to the interests of the people” (Article 74).

Building onto the 1992 Constitution, the new Constitution supplements the National Assembly with the “vote of confidence on officials holding positions elected or approved by the National Assembly”. This creates a legal basis for the handling and even the dismissal of any Assembly-elected officials who violate the law or fail to fulfill their tasks...

Constitutional protection was established alongside the building of a law-ruled state in Vietnam. This is an important foundation for further deepening the theoretical and practical activities of the State of Vietnam.

The 2013 Constitution also institutionalizes a principle relating to constitutional protection: “The mechanism of Constitutional protection shall be provided by the law” (Article 119.2). The research on this mechanism is “not ripe enough” to present an ideal model for Constitutional protection (while the provision on the establishment of this body as prescribed in the Constitution has the highest legal value). Nonetheless, this regulation is valued as an “instalment” in the supreme law with a demand/ requirement and legal basis for the establishment of a Constitutional protection model in the near future through a separate law.

3.During the process of building and perfecting socialist law-ruled State in Viet Nam, there have been some issues relating to Constitutional protection mechanism which need further research and clarification, both in theoretical and practical aspects. 

First, regarding the “control” of power among state bodies in exercising legislative, executive and judicial powers, control is a necessary and proper issue because it requires bodies of state power to be careful and transparent when executing their functions and duties. However, the questions of “what to control, how to control, and whom to control” still need further discussion and testing.

Second, Party and State documents have fully contained all aspects concerning state apparatus. However, implementation remains the greatest present challenge. Accordingly, the thorough implementation of the Constitution’s provisions on the functions and duties of the National Assembly, the government, the People’s Supreme Court, and the People’s Supreme Procuracy in protecting the Constitution require new approaches and methods.

On the basis of the Constitution, research and discussion should be promoted so that a “Constitutional protection mechanism” will be founded soon via a separate law (as prescribed in Article 119.2). Historical realities have shown that a specialized organ with appropriate power will be able to protect the Constitution and, as a result, human rights will be realized and respected.

Continuing to research and build Constitutional protection mechanisms was a requirement in Vietnam’s implementation of the 2013 Constitution and in the decisions made at the 12th National Party Congress.

_____________________ 

(1) The Federal Constitutional Court of Germany was established in 1949 based on the Basic Law 1949 ( also known as the Constitution of the Federal Republic of Germany). This model is considered “the leading export goods” that has been applied in many countries, including a number of countries in the Central and Eastern Europe (cited from The development and fundamental factors of states ruled by law by Professor, Doctor Bodo Pieroth of the University of Munster. The documents at the Seminar “Ensuring human rights in law-ruled states and independent judiciaries” archived at the Institute of Human Rights. 

(2) Countries such as the Republic of France established the Constitutional Council. This agency does not perform the function of judging violations of the Constitution, which must go through the Parliament.

(3) CPV: Documents of the 10th National Party Congress, National Political Publishing House, Hanoi, 2006, p.126-127.

(4) CPV: Documents of the 12th National Party Congress, Office of the Party Central Committee, Hanoi, 2016, p.108.

(5) The 2013 Constitution: Article 2, National Political Publishing House, Hanoi, 2013.

(6) The 2013 Constitution: Article 3, National Political Publishing House, Hanoi, 2013.

Assoc. Prof., Dr. Dang Dung Chi

Institute of Human Rights Rerearch

Ho Chi Minh National Academy of Politics 

Related Articles

Contact us

Links