Keywords: completing legal basis to ensure democracy; relationship between democracy and law.

1. The relationship between democracy and the law

The term democracy was created in the 7th - 6th century BC. According to Aristotle (384 - 322 BC), Solon (about 638 - 559 BC) was the first to lay the foundation for the democratic principle. In his thought, Solon wanted to build a state on the basis of democracy through election and integration of aower by means of law, in which the law plays a crucial role in the exercise of mastery of the people.

Democracy in the history of mankind is a multi-meaning category and has a significant relationship with the law. In this article, we focus on democracy as a fully realized subject - Democracy, meaning “Democracy” in its truest sense - encompasses in it all the physical and spiritual aspects of democracy, from economy and politics, to society and culture. Such democracy can only be guaranteed to implement and achieve the highest results through the law. Especially in the conditions of the rule of law, this relationship becomes stronger than ever.

In the current period, the Party, State and people are building and completing a new democracy - socialist democracy. In essence, socialist democracy is the mastery of the people in participating in the management of the country in all aspects, or in other words “power belongs to the people”. President Ho Chi Minh affirmed his point of view on democracy in building the State of Vietnam as “Our country is a democratic country. All benefits are for the people. All powers are for the people. Renovation work, construction is the responsibility of the people”(1). First of all, that right must be expressed, recognized, and protected by law. It is because of the law and through the law that people can grasp their rights and obligations in realizing democracy and voluntarily implement democracy, thus ensuring a society of both democracy and discipline. Imbued with Marxism - Leninism and Ho Chi Minh Thought, the Party has always emphasized democracy and promoted democracy continuously during the process of leading the Vietnamese revolution. Right at the 6th Party Congress - the first congress marking the renovation process, the Party identified the expansion of socialist democracy and promotion of mastery of the people as key principles in the Party’s activities: “In all activities, the Party must determine the thought of ‘people as the root’ to build up and promote the mastery of the working people”(2).

In the Credo of national construction in the transition to socialism (1991), the Party identified: “The entire organization and operation of the country’s political system in the new period is to build and to gradually perfect the socialist democracy, ensure the power belongs to the people. Democracy associated with social justice must be carried out in all fields of politics, economy, culture, and society through the activities of the state elected by the people and by the direct form of democracy”(3). This view continues to be recognized in the complementary and developed Credo in 2011.

Thus, the Party has considered the construction of socialist democracy not only as one of the components that express the nature of socialist regime but also as the norm of formation, development, and self-improvement of the socialist political system. “Democracy is both the goal and the driving force of the renovation and the emergence of socialism in the country”.  Derived from that role of democracy, the Party and State have been constantly constructing and perfecting the legal basis for the realization of democracy, maximizing the mastery of the people in building and defending the country. Democracy and law always have closely-knit relationships with each other, creating conditions for each other’s development. The realization of democracy must rely on the law and follow the law. In like fashion, the content of the law must be directed towards democratic goals, or in other words, democracy is a measure of the regulation progress. For law activities such as issuing, implementing, and protecting the law to achieve high efficiency, they should be based on democracy and conducted by the democratic method. However, to initiate specific directions and solutions to improve the legal basis of implementing democracy in Vietnam, we need to consider the specific relationship between law and democracy cautiously.

The law was originated and developed through the creation of human consciousness on the basis of awareness of legal phenomena that exists in social life, thereby setting general rules and standards of conduct for all subjects, including individuals, communities, and socio-political organizations. In relation to democracy, the law is a concretization of the Constitution, guiding and regulating the implementation of democracy in our country. At the same time, the law is the means of recognizing and implementing democracy, which is the basis for organizing democratic institutions, the implementation of democracy in society. There cannot be a general or abstract democracy, but only a concrete one. That is, rights must go hand in hand with obligations in accordance with the law. All democratic rights of the people must be concretized by law and realized in social life.

On the other hand, democracy is a measure to assess the progress of law and is also the most fundamental factor for comparing the legal system between different countries and political regimes over different historical periods. Talking about this, President Ho Chi Minh once compared: “The old law was the will of French colonialism, not the general will of our entire people. The old law set out to preserve the social order, but that order only benefits colonialism and feudalism. It was first set out to punish and oppress our people. The law of capitalism was meant for punishing workers and peasants”(4). Thereby, he affirmed: Our law is “truly democratic law because it protects the freedom and democracy for all the working people”(5). Thus, the key to comparing the difference between two legal backgrounds, colonial law and socialist law, is democracy. The colonial, feudal law was considered anti-progressive because it served only the minority of oppressors and exploiters. The main purpose of colonial law was to maintain domination and to legalize the trampling on freedom and democracy of the people. It is the non-democratic nature of the colonial law that caused its elimination in the process of social progression to build a new social regime, which is socialist.

Distant from democracy under the old regime, the socialist democracy, recognized and strengthened by our law, aims to serve the majority of the working people and is reflected in all fields of economics, politics, ideology, culture, and society. The first Constitution of our country, issued in 1946, emphasized that “all Vietnamese citizens are equal in all aspects: economy, politics, and culture”(6). Specifically, in the economic field: the law recognizes the right to freedom and equality of opportunity between production and business entities, the economic sectors of society. Domestic and foreign economic entities operate under the mechanism of autonomy in production and business and are equal under the law. In the political field, the law creates conditions for people to participate in the common affairs of the State and society; all power belongs to the people, especially the State power (the right to nominate and to vote). In addition, the law also recognizes democratic rights, including freedom in political activities (the right to inform and to be informed), as well as diversifying forms of democracy (such as representative democracy and direct democracy), in which the focus is on ensuring and implementing direct democracy for the people to participate and contribute ideas to the common national affairs. In the field of ideology, culture-society, the law protects citizens’ right to freedom of thought, liberates the spirit and promotes all human abilities (the law recognizes human rights, the right to freedom of beliefs, religions, and also recognizes the principle that citizens are allowed to do all the things that are not prohibited by law).

Corresponding with the recognition of the people’s right to democratic freedom, the law also strictly and accurately regulates the duties and powers of the powerful institutions to ensure the democratic rights of the people. At the same time, it also creates a mechanism to ensure that people can inspect and supervise the activities of state agencies, social organizations, and other empowered individuals. Thereby, the law contributes to the restriction and prevention of abuse of power, authoritarianism, and violation of democratic freedoms by powerful agencies against the people.

Thus, through legal regulations, the people’s democratic rights are implemented, and guaranteed to be implemented. The law recognizes the fairness among citizens in term of rights, obligations, and responsibilities.  Fully aware of the importance of the law in the implementation of democracy and in  promotion of the mastery of the people, right from the resolution of the 6th Party Central Committee, the Party has affirmed: “Managing the country by law, not just by morality. The law is to institutionalize the Party’s guidelines and strategies, express the will of the people, and must be accomplished in a uniform manner throughout the country. Obeying the law means obeying the Party’s guidelines and strategies. Managing the nation by law requires attention to the law construction. Therefore, the Party needs to supplement and complete the legal system step by step to ensure that the state apparatus is organized and operated according to the law”(7).

In a socialist law-ruled state, democracy is manifested and implemented in different forms and manners. However, the most popular and effective form today is through law and is realized by law. Democracy will be used to measure the law’s progress and development. A legal background is considered progressive only when the true values of democracy are shown in legal activities: from legislative activities to legal realization. It means that the legislative process must be conducted in a democratic way, as well as be able to mobilize the active participation of people in this activity. Democracy also requires a clear designation of people’s rights and obligations when building a system of policies and laws. Simultaneously, when the law is disseminated in life through a reflection from the local levels, the law should gradually adjust to suit the will and aspirations of people. It is necessary for the laws of our country to fully express the will and aspirations of all classes of people. That is the only and most effective way for the legal rules and standards to be realized in a vivid way in life, forming legal culture in society. The Party emphasized: the important thing to promote democracy is to build and perfect the legal system, strengthen the socialist legislation,  and improve the people’s legal knowledge. At the same time, “all the Party’s guidelines, policies and laws of the State are for the benefit of the people, acquiring opinions from the people”(8).

On February 18, 1998, the Politburo (8th Tenure) issued Directive No. 30-CT/TW on the development and implementation of the Democracy Regulations at Grassroots Levels. This is the first separate document on this issue. The Politburo stated that this Directive must be issued because: “the mastery of the people is still violated in many places and in many fields; Bureaucracy, corruption, and power abuse causing troubles for the people are still widespread and have become serious that we have not been able to repel and prevent. The motto ‘people know, people discuss, people do, people check’ have not been concretized and institutionalized into the law, slowly undertaken into life”(9).  Accordingly, “the immediate important and urgent step is to promote the mastery of the people at local levels which are the place to directly implement all the policies of the Party and the State, the place to exercise directly the mastery of the people. To do so, the State needs to issue a legal regulation on Democracy at the local levels, requiring everyone and every organization at local levels to solemnly implement”(10).

The promulgation of the Party’s Directive 30 aims at continuing to expand socialist democracy in our country, to promote the mastery of the people in the process of constructing and managing the country, and to well implement the motto “The Party’s leadership, the State’s management, the people’s mastery”. The Directive clearly stated that the immediate important and urgent task is to promote the mastery of the people at local levels because the local level is the foundation, the cell that makes up an individual society. It is the living area of the people, where people work and produce, creating both the material and spiritual wealth of society. Because the main basis is the reality of life, it should be the starting point of all the Party’s guidelines and strategies and all the State’s policies and laws, as well as the place for implementation, verification, supplementation and development of the policies of the Party and State. Therefore, implementing democracy at the local level will create direct democracy for the people. This is both a condition and a premise for building a socialist democracy.

To implement the Politburo’s Directive 30-CT/TW, the Standing Committee of the National Assembly (10th Tenure) issued resolutions No.45/1998, No.55/1998, and No.60/1998, which assigned the Government to promulgate decrees on the implementation of the Democracy Regulation in 3 types of local levels. The Government has issued 3 decrees to supplement and concretize this issue: Decree No. 29/1998ND-CP about Regulation on implementing Democracy in communes (May 11, 1998); Decree No.71/1998/ND-CP about Regulation on implementing Democracy in the activities of organizations and agencies (September 8, 1998); and Decree No.07/1999/ND-CP about Regulation on the implementation of Democracy in State enterprises (February 13, 1999). Moreover, the Steering Committees for the implementation of the Democracy Regulation from the central to local levels have been established to implement Directive 30. On March 28, 2002, the Secretariat of the Party Central Committee (9th Tenure) issued Directive No. 10-CT/TW on Continuing to promote the development and implementation of the Democracy Regulation at the grassroots levels.

It can be said that Directive 30 of the Politburo is the right policy, compatible with people’s minds. The Directive was issued at the right time, meeting the expectations of the people and producing a wide response of rapid and spirited implementation on a large scale in nearly all of the 3 types of local levels (commune, wards, townships; agencies; state-owned enterprises). In places where it is conscientiously practiced, the establishment and implementation of the local democracy regulation has created a significant change in the awareness of members of the political system as well as of the general populace about democracy, making all people care about and participate in implementing well the promotion of the mastery of the people right from the local level. Therefore, the policies of the Party and State on economic, cultural, and social development, ensuring national security and defense, are well understood and enthusiastically supported in comments and emulation by the people. Most of the problems between the people and the government were reconciled, contributing to consolidating the great unity of the entire people, creating a harmonious and open atmosphere in the community, and contributing to political and social stability.

The development and implementation of the democracy regulation at local levels also contributed positively to the consolidation, renewal, and quality improvement of the local political system, building and reorganizing the Party, as well as promoting a renewal of the Party’s leadership methods to construct a transparent and strong government. In addition, the implementation of this regulation also promotes the reform of administrative procedures, improves the direction, management, and administration of the government, changes the working style of public personnel, party members, and officials, and reforms the operation mode and content of the entire political system in the spirit of “respect for the people, close to the people, understand the people, learn from the people and be responsible to the people”.

However, compared with the requirements of Directive 30, the results in the development and implementation of the local democracy regulation in recent years have not been uniform and solid. In fact, many levels of Party committees, organizations, authorities, Fatherland Front, and people organizations have not yet fully grasped the spirit of the Party’s Directive and State decrees on this issue. There are still ministries, departments, and central organizations which are slow to issue documents directing and guiding the implementation of the Regulation on democracy in their respective fields, departments, and unions. In many places there is also a situation of “full assignment” on the building and implementation of the local democracy regulation for the steering committee, without regular inspection to ensure synchronous and practical policies and solutions. Therefore, the implementation of democracy at local levels is still strongly formalistic. There are still many violations of the mastery of the people rights, which are the manifestations of bureaucracy, corruption, and negativity in “not a small part of officials and party members”. If this situation is not discovered, prevented, and moderated in time, it will reduce trust and cause discontent among the people.

Facing this situation, on April 20, 2007, the National Assembly Standing Committee issued Ordinance No. 34/2007 PL-UBTVQH Tenure 11 on the implementation of democracy in communes, wards, and towns.

In response to the requirements of the country’s renovation, industrialization and modernization, as well as international economic integration, it is more important than ever to continue constructing and perfecting the legal basis for the implementation of democracy at local levels, expanding democracy in all areas of social life.

The Ordinance on the implementation of democracy in communes, wards, and towns has been coming to life, containing profound theoretical and practical values. The promulgated Ordinance has created a new democratic atmosphere which has raised up the awareness of law observance of the people. However, the formulation and implementation of the Ordinance on Democracy in communes, wards, and towns is an on-going and long-term action that is also important in our social life. Therefore, it is necessary to continue researching and learning from experiences in the process of implementation, and to improve the legal value of the Ordinance on the implementation of democracy in 3 basic types, thereby expanding to a number of other types of institutions in the current period.

2. Perspectives and solutions to construct and complete the legal basis to ensure democracy in Vietnam today

First, it is necessary to continue promoting education and communication for key officials in the Party, State agencies, the Fatherland Front, socio-political organizations, and the general population, educating them about the policies and directives of the Party and State on democracy in general and the implementation of local democracy in particular, such as Directive No. 30 of the Politburo (8th Tenure), Directive No. 10 of the Party Central Committee Secretariat (9th Tenure), the Ordinance to implement democracy in communes, wards, and towns, thereby raising awareness for officials, party members, and the entire population on the issue of democracy and expanding socialist democracy in our country, especially the close bond between democracy and the law in the current period.

Second, it is necessary to improve the intellectual level in general and legal knowledge in particular for the people. Forming a lifestyle and a legal culture for the people is vital because there will be no progressive legal culture, no real democracy when people do not have the habit of living and working according to the Constitution and the law, and lack understanding of democracy in society.

Third, it is imperative to build a system of policies and laws according to democratic requirements. These must clearly define the rights and obligations of citizens in different areas of social life, starting from democracy in the fields of economics, politics, and ideology. In accord with this, it is necessary to build strict regulations regarding confrontation against power abuse, anti-corruption for empowered individuals, and to enhance people’s trust towards the Party and State.

Fourth, the implementation of the Ordinance on Democracy at the grassroots levels requires simultaneous and unified coordination in activities between the Party, the government, the Fatherland Front, and mass organizations in order to actively build a transparent and strong political system at the local level. Continuing to democratize the activities of the State and society will attract and create conditions for all classes of people to participate in the common activities of the Party, State, and society. However, the expansion of democracy must go hand in hand with the necessary legislation and social order. It is necessary to ensure the legal principle in the organization and operation of all state agencies, social organizations, and civil behaviors.

Fifth, to effectively realize democracy, it is necessary to associate the construction and implementation of democracy with the implementation of political tasks, socio-economic developments, and the building of political systems, especially at local levels. Policies should be adopted to promptly encourage and reward localities and individuals who do well; at the same time, in order to solve the relationship between democracy and discipline, there must be resolute confrontation of elements that take advantage of democracy, causing internal disunity, disturbances, and law violations of the people’s mastery. This is also a suitable time to upgrade Ordinance No. 34 into the Law on grassroots democracy practice, which will create a solid legal basis for ensuring democracy in our country today.

Sixth, the construction and implementation of local democracy in our country has been confirmed through experience as the right policy, has positively impacted many aspects of social life, has directly promoted  economic–social development, and has strengthened the close relationship between the Party, State, and Vietnam Fatherland Front. However, implementing such policy more effectively and sustainably in the long term requires the leadership and regular direction of the committees at all levels, the serious implementation of the government and the Fatherland Front, along with the active and voluntary participation of all people.

Seventh, it is necessary to create a healthy social environment to expand democracy and  to strengthen legislation through the building and consolidation of the state law and practical civil society. Our Party emphasized: “To build a democratic society, officials, party members, and public personnel must really be the public servants of the people. It is essential to identify forms of organization and have mechanisms for people to exercise democratic rights in the economy, politics, culture, and social activities. To uphold the responsibilities of Party and State organizations towards the people”(11).

In conclusion, as one of the social consciousness formations, law plays an important role in regulating human attitudes and behaviors in the process of settling social relationships as well as in implementing political tasks. It is one of the factors that ensure the people’s right to freedom and democracy, directly adjusting, supplementing, and perfecting democratic values. At the same time, through the law and by law, the people’s democratic rights are recognized and guaranteed to be exercised. Therefore, to promote the mastery of the people in the current period, for the people to decide on their own destiny, it is necessary to legalize democratic rights; the implementation of democracy must be founded on the basis of law. In other words, it is necessary to continue building and perfecting the legal basis for the implementation of democracy in Vietnam.

__________________

Endnotes:

(1) Ho Chi Minh: Complete Works, vol.5, National Political Publishing House, Hanoi, 1996, p.698.

(2) CPV: Documents of the 6th National Congress, Truth Publishing House, Hanoi, 1987, p.29.

(3) Credo to construct the nation in the period of transition to socialism, Truth Publishing House, Hanoi, 1991, p.19.

(4), (5) Ho Chi Minh - State and Law, Legal Publishing House, Hanoi, 1985, p.185, 187.

(6) Vietnam’s Constitution through the periods, Ho Chi Minh City Publishing House, 2005, p.15.

(7) CPV: The Party’s Complete documents, vol.47, National Political Publishing House, Hanoi, 2006, p.455.

(8), (11) CPV: Documents of the 10th National Congress, National Political Publishing House, Hanoi, 2006, p.125, 125.

(9), (10) Documents of the Party and State on the Regulation on democracy at local levels, National Political Publishing House, Hanoi, 2004, p.9, 10.

Dr. Tong Duc Thao

Dr. Tran Van Thang

Ho Chi Minh National Academy of Politics