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Human rights and civic rights: proposals for constitutional revision

Updated: 16:30’ - 28/08/2012

Associate Prof. LL.D Mai Hong Quy
Ho Chi Minh City Law University

Human rights and citizens’ rights in the 1992 Constitution

The 1992 Constitution marks a new development in the content and form of provisions on citizens’ fundamental rights and obligations in light of the renewal line of the Party and State. Like the 1980 Constitution, these rights and obligations are enshrined in Chapter V of the 1992 Constitution, following the chapters on the political regime and economic system. However, Chapter V of the 1992 Constitution (consisting of 34 articles from Article 49 to Article 82)  retains only four articles from the previous constitution and adds four totally new ones:  Article 50 on human rights, Article 57 on citizens’ freedom of business in accordance with law, Article 72 on the right of individuals to be presumed as innocent, and Article 81 on the obligation of foreigners residing in Vietnam to obey the Constitution and laws of Vietnam and their right to state protection with regard to their lives, possessions and legitimate interests in accordance with Vietnamese law. The remaining articles are perpetuated from the 1980 Constitution with appropriate amendments and supplements.

The 1992 Constitution has recorded a number of achievements.

It amends the economic and social rights of citizens which were provided in the 1980 Constitution based on a simplistic perception of socialism, such as the right to free education and scholarship, the right to free medical care, the right to have homes and employment… for all citizens. Such amendment assures the enforceability of these rights and enhances the practical effect of the Constitution.

It recognizes again a number of rights greatly significant to socio-economic development which were enshrined in the 1946 Constitution but excluded from the 1980 Constitution, including the right of private ownership with regard to property, capital and means of production (Article 58); the right to freedom of business (Articles 20 and 57); and land use rights (Article 58). These rights have contributed to liberalizing and promoting creative potential and capacity of people, thus creating great socio-economic development in the country over the past two decades.

The 1992 Constitution broadens many important civil and political rights, such as the right to inviolability of the body and the protection by the law with regard to life, health, honor and dignity (Article 71); the right to presumption of innocence and the right to receive compensation for material damage and to have reputation rehabilitated (Article 72); the right to inviolability of domicile (Article 73); the right to safety and secrecy of correspondence, telephone conversations and telegrams (Article 73); the right to freedom of movement and residence (Article 68); the right to be informed (Article 69); and the right to lodge complaints and denunciations (Article 74). These amendments conform to the international law on human rights.

Human rights are for the first time incorporated in Vietnam’s constitution (Article 50), creating a constitutional basis for carrying out research into and teaching on human rights as well as for the ideological struggle in the area of human rights.

Also for the first time in the country’s constitutional history, a very important principle for citizens’ rights and obligations is affirmed: “The rights and obligations of citizens are determined by the Constitution and laws” (Articles 50 and 51).

However, the provisions of the 1992 Constitution on human rights and citizens’ rights and obligations still have some limitations and inadequacies.

Firstly, the position of Chapter V of the 1992 Constitution is inappropriate. Most constitutions in the world put these rights in Chapter II, following the chapter on the political institution) or right in Chapter I. This reflects different views about the importance of these rights.

Secondly, compared to the constitutions of other countries, the 1992 Constitution attaches too much importance to economic, social and cultural rights while paying undue attention to civil and political rights, a traditional group of rights which still constitutes a principal content of many constitutions in the world. This undue attention is exhibited in two aspects: (i) the list of civil and political rights lacks some important rights; and (ii) the contents of civil and political rights remain sketchy compared to the corresponding provisions in the international law on human rights and the constitutions of other countries.

Thirdly, many rights are accompanied by the phrase “as provided by law”, which reflects an inconsistency with and a violation of the very important principle recognized for the first time in Vietnam’s constitutional history: “Citizens’ rights and obligations are determined by the Constitution and laws.”

Fourthly, the Constitution does not provide its direct applicability. This has resulted in the problem that many constitutional rights (such as the right to assemble, the right to organize, and the right to vote in public referenda) cannot be exercised in reality due to lack of guiding regulations. In addition, the term “law” used in the above phrase means not only laws but also sub-laws, thus worsening the risk of abuse by state bodies. Whereas, the constitutions of other countries use a stricter phrase: “in cases and according to procedures prescribed by law”.

Fifthly, subjects of rights in the 1992 Constitution are citizens in most cases. This scope is too narrow and is not in line with the common trend endorsed by other constitutions in the world, which stipulate that subjects of rights are everyone, including citizens, foreigners and stateless persons who are lawfully present in the country (excluding the rights to elect, stand as candidates for election and vote in public referenda, which are restricted to citizens only).

Sixthly, some articles of Chapter V are merely explanations, but not legal norms, such as Article 49, which says that “Vietnamese citizens are persons bearing Vietnamese nationality.”

Proposals for revision

The title of Chapter V of the 1992 Constitution does not embrace the contents of its provisions (which apply not only to Vietnamese citizens but also to foreigners and stateless persons). So the Chapter should be renamed “Human rights and fundamental rights and obligations of citizens”.

The structure of the Constitution should be redesigned in light of the idea that regards human rights and citizens’ rights as one of the two core institutions in the constitution (the other institution is on organization of state power). So, the chapter on human rights and citizens’ fundamental rights and obligations should be moved to the second place (following Chapter I) in order to express the significance and importance of this institution.

Articles in the chapter on human rights and citizens’ fundamental rights and obligations should be arranged in the following order: general principles on human rights; fundamental rights and obligations of citizens; civil and political rights; economic, social and cultural rights; new rights; and obligations.

As a manifesto of people’s rights, the Constitution should focus on providing rights rather than obligations of humans and citizens. On the other hand, rights and obligations should be clearly distinguished. The stipulation that a right is concurrently an obligation in a number of articles of the 1992 Constitution should be avoided.

It should be consistently asserted that the principle of respect for human rights conforms to the achievements of renewal and the international conventions which Vietnam has concluded, ratified or acceded to. The Constitution should also clearly distinguish human rights from citizens’ rights and determine the relationship between these rights and national sovereignty. Therefore, the provision on the principle of respect for human rights (Article 50 of the 1992 Constitution) should be moved from Chapter V to Chapter I (General Provisions). Besides, it is unnecessary to enumerate all the areas provided in the two United Nations conventions on human rights promulgated in 1966 (the International Convention on Political and Civil Rights and the International Convention on Economic, Cultural and Social Rights), since this way of presentation is lengthy and irrational as observed in Article 50 of the 1992 Constitution.

The perception on subjects of rights should be renewed. The provisions on this issue in the 1992 Constitution do not conform with the principle of people’s mastery as well as the current common trend which regards human rights and citizens’ rights as natural, inherent values of the people. This not only clearly manifests the State’s respect for citizens’ rights but also expresses the mission of the State to enforce and protect these rights. Therefore, the Constitution needs to clearly determine the responsibility of state bodies for respecting, guaranteeing and enforcing these rights.

It is necessary to express in a more consistent and articulate manner the principle that human rights and citizens’ rights are determined by the Constitution and laws. Restriction of rights and imposition of new obligations must be prescribed by the National Assembly in the Constitution and laws.

The use of the phrase “as prescribed by law” should be carefully considered as it might lead to two possibilities: the first is that sub-law documents might restrict human rights and citizens’ rights; and the second is that it may lead to different ways of interpretation, making the enforcement of these rights difficult.

In addition, the Constitution should provide a direct legal validity for the institution on human rights and citizens’ rights as this would not only be important for the respect for and protection of these rights but also help prevent infringements of different subjects, including state bodies. That is not to mention that when disputes occur, a constitutional protection mechanism would be of great significance in protecting individual citizens before power bodies.

The Constitution should also define the rights more clearly in both content and technique of presentation and add a number of primary but essential human rights, such as the right to live, the right to freedom, the right to pursue happiness, the right to have nationality and the right not to be tortured and maltreated.

On the other hand, the Constitution should also embrace other rights which have been acknowledged in other laws, such as the right to freedom of the press: “The press and means of communication are not subject to censorship”, which has been affirmed in the Press Law, because this right is very important for democracy and the press is a channel for public voice and a tool for controlling state power.

The right to freedom of commitment and agreement should also be included in the Constitution (at present this right is provided in the Civil Code) because (i) this is a fundamental civil right; (ii) only together with this right, can the right to freedom of business (Article 57) be brought into full play; (iii) if the Constitution does not include this right, the provision on the right to freedom of business is right but is not enough because freedom of commitment and agreement is the basis of the right to freedom of business; and (iv) this right has a broader sense (applicable to all people) than the right to freedom of business (applicable only to businesspeople).

Citizens’ rights should be provided in a way suitable to the country’s socio-economic conditions so that they are more practical and enforceable. Some non-essential rights and obligations (such as the right to build homes) should be removed while some new rights should be added to conform to reality and general trend (such as the right to live in a clean environment, the right to freedom of commitment and agreement).

New constitution-making techniques should also be applied to making short, concise and easy-to-understand provisions containing legal norms while scrapping those of declarative nature (such as Article 49 of the 1992 Constitution). As mentioned above, human rights (applicable to all) should be clearly and accurately distinguished from citizens’ rights (applicable to Vietnamese citizens). For example, the term “citizens” in Article 57 of the 1929 Constitution on the right to freedom of business, Article 70 on the right to freedom of belief and religion, Article 71 on inviolability of the body, etc., should be replaced with the word “everyone” as these rights apply not only to Vietnamese citizens but also to foreigners and stateless persons.-

VNL_KH1 

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