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Tuesday, December 1, 2020

Constitutional defense: The ground for guaranteeing sovereignty of the people

Updated: 08:51’ - 27/05/2020
The current Constitution of Vietnam stipulates that all state power belongs to the people. However, for several reasons, including the lack of a complete and comprehensive mechanism to defend the Constitution, the effectiveness of constitutional defense activities in Vietnam remains below expectations. This article analyzes the need and recommends some solutions for guaranteeing people’s sovereignty in the country through constitutional defense activities. 

Assoc. Prof. Tao Thi Quyen, LL.D and Mai Thi Thanh Tam, LL.M
Ho Chi Minh National Academy of Politics

Relations between guaranteeing people’s sovereignty and defending the Constitution 

State powers are essentially powers entrusted to the State by the people. Hence, the constitutions of almost all democratic countries in the world today affirm that all state power belongs to the people. According to the modern constitutional law’s theory, the Constitution of a country is not only the supreme law of its state but also the text of its people which expresses the supreme sovereignty of the people. Through the creation of the Constitution, the people determine the range of powers that will be given to the State. In the book “Constitutional Law and Politics” Prof. Nguyen Van Bong said the constitutional right is the original right because it represents national sovereignty in the most comprehensive way and empowers the country to set its own rules of organization and administration.[1] As the supreme subject of power in the nation, the people have the right to create the Constitution, form the State, authorize the State, and fix the model and the way to organize and manage the State.

It can be affirmed that the Constitution of a country is the law of the highest legal validity of such country and at the same time written agreement of the people to establish and exercise public power for the benefit of the whole society. The Constitution is employed by the people to define the government of the State (the monarchy or the republic, for example), to regulate the structure of the State (the unitary state or the federal state, etc.), to carry out the assignment of state power for each state agency to hold and implement (determining which agencies will hold and exercise which state powers, etc.), to limit the scope of activities of agencies and public servants exercising the state power (things to do and not to do, their rights, and so on), and to prescribe control mechanisms for exercising the state power of organizations and individuals.[2]

As a document defining the country’s political regime and describing the norms governing the nation’s most important social relations, the Constitution has special legal and political significance. Also, the Constitution acknowledges and embodies the best social values that are the goals of the whole society. Therefore, constitutional defense can be regarded as protection of the sovereignty of the people, the legal basis of the State, and the most lasting and noble values in society to ensure the development and prosperity of the country. Constitutional defense includes a sum of activities conducted by competent agencies to ensure respect for and the implementation of the Constitution and prevent and handle all violations of the Constitution.

Typically, constitutional defense activities include: (i) overseeing the constitutionality of legal documents and treaties that the country has signed or acceded to; (ii) interpreting the Constitution; (iii) resolving lawsuits against unconstitutional acts, including those related to infringements upon citizens’ constitutional rights and freedoms; and (iv) judging about the constitutionality of elections and referenda.

Members of the NA  Standing Committee discuss the implementation of the 2013 Constitution at its 37th session in September 2019__Photo: Van Diep/VNA

 The above-mentioned activities, whether or not conducted directly or indirectly, are all aimed at guaranteeing the sovereignty of the people. In other words, guaranteeing the people’s sovereignty is both the most basic and essential content and the overarching goal of constitutional defense.

Until now, countries around the world have applied diverse constitutional defense mechanisms, models, and methods. Some establish a specialized constitutional defense body such as constitutional court or constitutional council. Others apply a decentralized constitutional review model with many courts functioning as constitutional defense bodies. However, in most countries, constitutional defense essentially includes considering and processing documents and acts that violate the Constitution and infringe upon the sovereignty of the people.

Protection of the people’s sovereignty through constitutional defense mechanism in Vietnam

The sovereignty of the people is clearly enshrined in the current Constitution of Vietnam, the 2013 Constitution. The Preamble of the 2013 Constitution states: “The Vietnamese people create, implement and defend this Constitution to achieve the goal of a prosperous people and a strong, democratic, equitable and civilized country.” Articles 2 and 3 of the Constitution stipulate: “The Socialist Republic of Vietnam is the country where the people are the masters; all the state power belongs to the people...” and “The State guarantees and promotes the people’s right to mastery…”. Regarding the mode of exercising the power of the people, Article 6 of the Constitution says: “The people exercise the state power in the form of direct democracy and by representative democracy through the National Assembly, People’s Councils and through other state agencies.” At the same time, the 2013 Constitution also provides for some specific rights of Vietnamese citizens. For example, the right to vote and stand for election (Article 27); the right to participate in state management (Article 28); the right to vote when the State organizes a referendum (Article 29); the right to file complaints and denunciations (Article 30); the right to dismiss National Assembly deputies and People’s Council deputies (Article 7); the right to supervise activities of the state apparatus (Article 8), among others. These are political democratic rights exercised directly by Vietnamese citizens.

To a certain extent, the 2013 Constitution refers to the protection of the people’s sovereignty through constitutional defense activities. Article 119.2 states: “The National Assembly and its agencies, the President, the Government, People’s Courts, People’s Procuracies, other state agencies and the people have the responsibility to defend the Constitution. The mechanism to defend the Constitution shall be prescribed by a law.”

The 2013 Constitution also stipulates the competence of the National Assembly and the National Assembly Standing Committee in overseeing the implementation of the Constitution and reviewing the constitutionality of legal documents (Article 70.10, Article 74.4, and Article 74.7); prescribing the competence of the Prime Minister in suspending and abolishing unconstitutional documents (Article 98.4), etc.

Regarding constitutional power and revision of the Constitution, the 2013 Constitution states that the National Assembly will exercise constitutional powers (Article 69) and make and amend the Constitution (Article 70.1) and the making and amendment of the Constitution must be voted for by at least two-thirds of the total number of the National Assembly deputies (Article 85.1).

The 2013 Constitution also mentions the possibility of holding referenda on the Constitution but only stipulates in a general manner that “the holding of a referendum on the Constitution shall be decided by the National Assembly” (Article 120.4). That is, the decision to hold a referendum on the Constitution will be made by the National Assembly (possibly by a resolution of the National Assembly, not the people (through its constitutional rights).

However, the implementation of the Constitution’s and laws’ provisions on constitutional defense has revealed several limitations. Although the Constitution and laws have laid down principles on implementation of the constitutional defense, these principles seemingly fail to meet requirements of the law-ruled State while a number of very important things for constitutional defense (such as mechanisms for resolving lawsuits about constitutional rights of citizens, judging about the constitutionality of elections, referenda) are not specified in Vietnam’s current legal system. Let’s take a closer look at several shortcomings in the constitutional defense mechanism under the current Constitution of Vietnam.

Firstly, Vietnam is now applying a decentralized constitutional control mechanism under which the competence to defense the Constitution is vested with different authorities, including the National Assembly, National Assembly Standing Committee, President and Prime Minister, However, as the competence of each authority has not yet been defined, the implementation of such mechanism seems to be complicated and difficult.

Secondly, although the Constitution does provide a number of constitutional defense activities, the legal basis for implementing these activities remains incomplete, unspecific, inconsistent, and overlapping. For example, there is currently no regulations on review of the constitutionality of legally effective legal documents promulgated by the National Assembly while those on interpretation of the Constitution are sketchy. In addition, the process, procedures and methods for reviewing the constitutionality of legal documents and acts of competent organizations and individuals are too general. For instance, the law does not specify how to resolve cases when the National Assembly’s Law Committee and the agency in charge of submitting a bill, an ordinance or a resolution hold divergent opinions about the constitutionality of such bill, resolution, ordinance, or when the Ministry of Justice’s opinion on the constitutionality of a draft law, ordinance or resolution to be submitted by the Government to the National Assembly differs from that of the agency in charge of drafting such law, ordinance or resolution.

Thirdly, the Constitution does not specify the direct effect of some of its provisions, for example those on unconstitutional omission, and as a result there is no clear legal basis for resolving such issues.

For example, under Article 25 of the 2013 Constitution, citizens have the right to freedom of association and freedom of demonstration. Analyzing this law, we will see that citizens have the right to freedom of demonstration and if they want to exercise this right, they must comply with law and if we want citizens to comply with law, there must be laws for them to abide by. But in fact, up to now, we have not had any documents detailing citizens’ freedom of demonstration. As a result, citizens’ right to demonstration cannot be realized in practice. Thus, we see that when responsible governmental agencies have not issued a legal document, it is also a violation of the Constitution.

Or, as per Article 7 of the 2013 Constitution, voters have the right to dismiss deputies of the National Assembly or People’s Councils when such delegates are no longer worthy of the people’s confidence. Based on the above provisions, voters cannot exercise the right to dismiss their elected representatives without a legal document providing detailed guidance. Up to now, competent state agencies have not issued any documents regulating this issue.

Lastly, most constitutional defense methods provided in the 2013 Constitution are of political nature which seem like consulting advices or recommendations and therefore have low legal effect.

Recommendations

There are several solutions that are worth considering when studying the improvement of the constitutional defense mechanism to guarantee the people’s sovereignty in Vietnam.

Firstly, it is necessary to change mindset and raise awareness about the role and nature of the Constitution.
The most important trait, which is also the principle of the socialist law-ruled Vietnamese State is the affirmation that all state power belongs to the people. Hence, the Constitution must express the supreme power of the people and at the same time, enable the people to act as the entity that makes and decides on the contents of the Constitution.

Regarding actual validity of the Constitution, at present, there still exists an inadequate, incomplete and outdated perception of this issue. For instance, some people think that the Constitution is the most important political and legal document of the country, but it is merely a symbol having role of guiding the whole society rather than a law of direct effect in life. When discussing modern constitutionalism and the public awareness about the Constitution in Vietnam, Prof. Dr. Dao Tri Uc wrote: “Legally, the Constitution is the basic law, is the political-legal document that has the highest position in the legal system. However, in reality, a clearer, more complete awareness of the direct application of the Constitution does not exist in the mind and actions of citizens and state employees.”[3]

The current constitutional trend in the world considers a Constitution not only a political document with “passive political promises” of political parties but also a document containing real norms and direct legal effect, capable of being applied directly to state authorities, organizations and citizens.

In a law-ruled State, the Constitution is the supreme law and also the basic law of enforcement. The Constitution is not only a political, ethical or philosophical orientation but also an authentic and legally effective law. In order to ensure and promote democracy, the Constitution - the basic law of the State, the text expressing the supreme will of the people must be applied directly. Hence, the Constitution must contain an appropriate proportion of legal norms which will help clearly and accurately interpret the Constitution and facilitate its direct application.

Secondly, the Constitution should clearly state the people’s veto power over the Constitution. We propose revising the regulations on revision of the Constitution by adding a provision saying that amendments to the Constitution, after being approved by at least two-thirds of deputies of the National Assembly, must be put to a  referendum.

Thirdly, an independent specialized constitutional defense body should be formed. Article 119.2 of the 2013 Constitution stipulates: “The mechanism to defense the Constitution shall be prescribed by a law”. Hence, there should be a specialized law on constitutional defense stipulating the organization and operation of a specialized constitutional defense body, maybe the Constitutional Supervision Committee.

We suggest the Constitutional Supervion Committee be establish by the National Assembly to oversee the implementation of the Constitution by the National Assembly, National Assembly Standing Committee, President, Government, Prime Minister, Supreme People’s Court, Supreme People’s Procuracy, State Audit Office, and National Election Council. Once established, the Committee should have jurisdiction similar to that of the State Audit Office so that it can objectively and fairly independently oversee the implementation by the Constitution by other state agencies.

Lastly, the practice of  direct democratic forms in Vietnam should be enhanced. In order to achieve this target, legal documents guiding the exercise of direct democratic rights, especially the right to dismiss elected representatives,   should be shortly promulgated. Additionally, responsibility of state agencies to formule and promulgate legal documents on human rights and citizens’ rights should be clearly defined; those that issue documents or commit acts infringing upon human rights or civil rights or fail to fully and promptly discharge their responsibility to promulgate documents on human rights or civil rights must face appropriate penalties. At the same time, it is necessary to clearly define responsibility of citizens for exercising their rights and freedoms or for failing to fulfill citizen obligations; and strictly and promptly handle acts of abusing freedom and democracy to infringe upon national security and social order and safety.-


[1] Nguyen Van Bong, Constitutional Law and Politics, (Saigon, 1967), p.51.
[2] The expression of the people’s sovereignty in the Constitution, <http://tks.edu.vn/thong-tin-khoa-hoc/chi-tiet/119/503> accessed on October 1, 2019.
[3] Dao Tri Uc (2007), “The development of modern constitutionalism in Vietnam”, Journal of State and Law, No. 7, p.10

 

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