Constitutional mechanisms for human rights protection in Vietnam’s socialist-law governed state

This is also consistent with the newly Constitution’s provisions, especially Article 119 (paragraph 2) related to its establishment. Here are several recommendations and suggestions for[r]

CONSTITUTIONAL MECHANISMS FOR HUMAN RIGHTS

PROTECTION IN VIETNAM’S SOCIALIST-LAW GOVERNED STATE

A/Prof Hoang Van Nghia

Ho Chi Minh National Academy of Politics, Vietnam

A/Prof.Nguyen Minh Hang

Vietnam Judicial Academy

Dr Le Thi Thu Mai

Ho Chi Minh National Academy of Politics, Vietnam

Abstract

The main goal of this paper is to identify the Constitutional Mechanism for the Protection of Human Rights in the Socialist law-governed state of Vietnam today through assessing the concept, substances and the interrelationship between Constitution, human rights and the rule of law, both in theory and practice in Vietnam today Since the 1st Constitution of 1945, Vietnamese legal system in general and constitional rights have been developed and contributed significantly to the development

of constitutionalism, rule of law and good governance, and in its turn, the consistent improvement of the respect for, protection and promotion of human rights for all in Vietnam However, constitutional rights need constitutional mechanisms for their implementation and realization Utilizing the case-study approach, the paper analyzes, interprets and clarifies the relationship, role, position and characteristics of constitutionalism, rule of law and human rights, as well as their mechanisms for protection, in the viewpoints of a socialist law-governed (rule-of-law) state The paper assesses the achivement of constitutionalizing, as well as legalizing human rights, especially the right to access to information The paper clarifies some inadequacies and limitations of the application of constitutional rights in practice At the same time, the paper proposes some recommendations for the development and improvement of the mechanisms for constitutional and human rights protection

in the model of the socialist law governed state in Vietnam today.

Keyword: Human Rights, Constitutionalism, Mechanisms, Vietnam.

Acknowledgement: This research is funded by Vietnam National Foundation for Science and

Technology Development (NAFOSTED) under grant number 505.01-2018.03

I Guarantee of human rights as the constant goal of the Communist Party and State of Vietnam

As the goal of the Socialist regime and the nature of society, the Communist Party and State of Vietnam, guaranteeing human rights work has been a special concern and attained many important achievements during nearly 30 years of renovation As a result, awareness and practice of guaranteeing human rights, especially of cadres, public servants, and the whole society, have significantly improved

In the process of international integration, from the Party’s perspective, Vietnam may need to regain its initiative in the field of human rights Currently, the trend of globalization and regionalization has strongly been taking place, not only in the economic sector, but also in other fields, including human rights Therefore, every nation get engaged in and affected by these processes, whether they are in favor of them or not These processes are also driven and boosted by Vietnam’s extensive integration into international community, both on a global scale as well as in each region and sub-region As a result, the requirement for the completion and establishment of independent bodies for guaranteeing human rights is objectively indispensable in the current trend of international integration and development practices of the country

It is noteworthy that the establishment of a national human rights institution (NHRI) must meet some international standards on national human rights mechanisms, in line with international and regional trends Through both internal and external activities, this agency can actively contribute to Vietnam’s promotion

of human rights achievements; as well as in cooperating and struggling for human rights

Currently, there are more than 120 countries around the world having NHRIs (including the model of the National Human Rights Commission and the National Assembly Inspection (Human Rights Ombudsman)) In Southeast Asia, in addition to the five countries that already have national human rights committees, several countries are preparing to follow this trend In addition, ASEAN member countries continue to improve the current system, especially the participation of NGOs Regional organizations of which Vietnam is a member, such as APEC, ASEM have made human rights a primary concern, a major and regular activity The above context requires us to set up a human rights agency that is capable of meeting external demands

Based on the context and the political reality of Vietnam, the construction of the NHRIs that fully

comply with provisions of the Paris Principles, is inappropriate However, the establishment of an

independent institution to supervise the implementation of human rights in Vietnam is necessary That institution must be first of all a governmental agency, which should be under the National Assembly Practices in Vietnam show that, in order to better implement the protection of human rights, it

is necessary to have a specialized agency on this issue Such agency should be organized based on international regulations and practices, but must ensure the socialist orientation and the leadership of the Party (that is, it needs to ensure political and professional confidence), our Party and State views

on human rights To establish such an agency, there must be a step-by-step preparation roadmap on a legal basis, personnel and operating conditions

To meet the above requirements, in the short run, an agency should not have all the functions prescribed by the Paris Principles; instead, these functions should be divided among a number

of agencies that have adequate professional expertise as well as political reputation When these

agencies stably operate, they can be merged into one national body

The aforementioned points are the rationale and practical basis that are important for the

further perfection of current human rights agencies and the proposal for the construction of a NHRI

in Vietnam.

The establishment of a NHRI organized and operated under the Paris Principles, which was adopted by the United Nations (UN) in 1993 in Paris, is an urgent requirement in the context of Vietnam’s deep integration into international and regional institutions

Comments and recommendations of the Committees of the International Covenants on Human Rights as well as of the United Nations Human Rights Council (UNHRC) suggest that Member States should consider establishing a national body that operates according to the Paris Principles to promote and guarantee human rights

Vietnam has been an active member in regional and international institutions, especially the United Nations and ASEAN Vietnam is also a member of ASEAN and the ASEAN Intergovernmental Commission on Human Rights, the Intergovernmental Committee on the Promotion and Protection

of the Rights of Women and Children, and the ASEAN Commission on the Protection of the rights of migrants, etc At the two Universal Periodic Review (UPR) cycles of the UNHRC on the implementation of human rights (which all UN member states have an obligation to report), Vietnam has received recommendations on the establishment of a NHRI

The process of building and perfecting a socialist law-governed State that respects and guarantees human rights and civil rights always sets urgent requirements on perfecting institution, a mechanism that effectively guarantees human rights Renovation and international integration along with the development process of market economy not only offer tremendous opportunities but also poses serious challenges for the assurance and promotion of human rights Therefore, the need to build a NHRI has a significant theoretical and practical meaning

It is necessary to build a NHRI and provide a scientific and practical basis for the effectiveness and efficiency of NHRIs in the world and has significance for Vietnam Through research on the mechanism and operation of NHRIs around the world, the study proposes a number of suitable models for Vietnam

2 Existing mechanisms for human rights protection in Vietnam

2.1 The Socialist Law Governed State of Vietnam

The Constitution of 2013 of the Socialist Republic of Vietnam solemnly affirms that the Socialist

law-governed state of Vietnam “is a state of the people, for the people and by the people” (Art 2

(1), the Constitution of 2013); mastered by the people, all state powers belong to the people (Art 2 (2), the Constitution of 2013) The Constitution also clearly identifies that Vietnam’s state power is unified, assigned and collaborated, controlled by state organs in exercising the legislative, executive and judicial powers (Art.2 (3), Const 2013)

In summary, Vietnam’s socialist law-governed state is the rule of law state that is characterized by the following major elements: a) to respect the people’s sovereignty (Art.3); b) to recognize, respect, protect, and guarantee human rights (Art.3); c) to emphasize the status and position of human rights

in the constitution, returned to chapter 2 of the const 2013 (since the 1st Constitution of 1946); d) to enhance judicial independence (art 102 (1); e) to uphold accountability, openness, transparency, etc.,; f) Constitutional law is supremacy (Art 119 (1)); g) the protection of the constitution belongs to state organs and the people (119-2); and h) The mechanism for constitutional review shall be established

by law (119-2) Thus, the Constitution of 2013 laid down a platform for establishing a Constitutional review in order to safeguarding the constitutionality in general and human rights in particular

2.2 The Existing Mechanisms for Human Rights Protection

2.2.1 O rganization and apparatus of the Socialist Republic of Vietnam

The Constitution of Vietnam clearly states that the state of the Socialist Republic of Vietnam is

a socialist law-governed state, of the people, by the people, and for the people Its state powers are unified based on the distribution and control among state organs in order to exercise the legislative, executive and judical powers (Article 2, the 2013 Constitution) The Constitution also constitutes the organization and operation of the state organs in safeguarding the constitutionality, democracy and human rights for all citizens and individuals

Figure 1 Organization of the State Apparatus of Vietnam

ORGANISATION OF THE STATE APPARATUS OF VIETNAM

Government National

Assembly

State President

Supreme People’s Court

Provincial People’s Court

District People’s Court

Provincial People’s Procuracy

District People’s Procuracy

Provincial People’s Council

Provincial

People’s

Committee

District

People’s

Committee

District People’s Council

Commune

People’s

Committee

Commune People’s Council

Supreme People’s Procuracy

The Mechanisms for Human Rights Protection based on the Constitution are identified under the following institutions: 1) the National Assembly, 2) the Executive (the Central and Local Governments) and 3) the Judicial (the Peoples’ Courts and People’s Procuracies)

The Mechanism for Human Rights Protection under National Assembly’s Bodies are identified

in the table 3 below Its major institutions include 1) the National Assembly’s Standing Committee; 2) National Council; 3) Law Committee; 3) Judicial Committee; 4) Committee on Culture, Education, Youth and Children; 5) Committee on Social Affairs; 6) Council of Election; 7) Auditing Committee, etc

Figure 2 The National Assembly’s Bodies

The institutions under the Government which are mainly responsible for the implementation

of human rights are 1) The Office of the Government (with the specific bodies such as Department

of Internal Affairs, Department of Public Administration Reform, etc.); 2) Committee of Religion; 3) Ministry of Foreign Affairs (Dept of International Organisations) responsible for executing many international human rights treaties); 4 Ministry of Justice; 5) Ministry of Public Security; 6) Government Inspectorate; 7) Committee of Ethnicity; 8) Ministry of Labour, Invalids and Social Affairs (Dept of Children Protection and Dept of Gender Equality, etc.); 9) National Committee for the Advancement of Women; 10) Steering Committee for Human Rights, etc

The 2013 Constitution also identifies that the mechanism under Judicial Bodies are 1) the People’s Courts (the Supreme People’s Court and Provincial People’s Courts) and 2) the People’s Procuracy

(the Supreme People’s Procuracy and Provincial People’s Procuracy)

According to the 2013 Constitution, other mechanisms also related to the protection of human rights are the so-called “socio-political organizations”, which are under Vietnam Fatherland Front, namely Trade Union, the Farmers’ Association, Youth Union, the Veterans’ Association, or other socio-professional organisations such as Vietnam Lawyers Association, Journalist Association, Association of Children’s Rights Protection, etc

2.2.2 The court system: its hierarchy and competence

The hierarchy of Vietnam’s people’s court system reflects the nature of the country’s political and administrative systems This affects the independence of local courts, the court system’s compliance

with the law itself, and the extent to which human rights are protected The courts are divided into central and local courts, which are classified into three levels, as illustrated in Figure 3, below

Figure 3 Hierarchy in Vietnam’s Court organisation and Structure of the People’s Courts

Supreme People’s Court Cassation Court Council of Judges Regional Supreme

Criminal Court Civil Court Economic Court

Committee of Judges

District People’s Court

Criminal Judge Civil Judge Economic Judge Labour Judge Administrative Judge

Criminal Court Civil Court Economic Court Labour Court Administrative Court

Labour Court Administrative Court Appellate Courts

Provincial People’s Court

Source: the Law on Organisation of the People’s Court

The judicial bodies consist of public institutions located in both the judiciary and the executive that are responsible for judicial activities It is, however, the court system that lies at the heart of judicial bodies and judicial activities Vietnam’s judicial system consists of the people’s courts and tribunals, and the Supreme People’s Procuracy (SPP)1 The National Assembly - the highest legislative body - supervises the work of the Supreme People’s Court (SPC), which is the highest court of appeal, and the court of first instance for special cases (such as treason), as well as the Supreme People’s Procuracy (SPP)

This court, in turn, supervises the judicial work of both the local people’s courts (which are responsible to their corresponding people’s councils) and the military tribunals The people’s courts function at all levels of government, from central downward to local government2

1 Vietnam’s judiciary consists of both the court and the procuracy, which affects the degree of independence of the people’s procuracy from the people’s courts By contrast, the UK judicial system includes only the court system The Crown Prosecution Service is separate and independent from the courts.

2 Except for the communal level, where the commune administrative committee functions as a primary court.

II Constitutional Mechanisms for Human Rights Protection in the world today

2.1 Constitutional Review

Constitutional review is highly needed in the rule of law, or a law-governed state, which exists to safeguard the fundamental principles of constitutionalism, democracy, rule of law and human rights

A constitutional review means that the specific state organs review and decide the constitutionality of

laws, regulations and documents with legal significance through statutory procedures and in specific

way as provided by the Constitution.

There are several models of constitutional review in the world today which include constitutional court and constitutional council These are identified by the two typical models, the American model of Supreme Court, and the European model of Constitutional Court For the American model, the Supreme Court plays such an important role in asserting and protecting the constitutionality and democracy, in general, as well as in safeguarding human rights, in particular1 It is remarkable to note that France (and many other European constitutional systems) has a powerful constitutional court (Constitutional Council, as it is called) the authority of which is no lesser from that of the US Supreme Court, even though its modus operandi is completely different And the American Court’s powers, so eloquently asserted by Justice Marshall, have been under a constant challenge from scholars and judges alike, often united in the depiction of the so-called “counter-majoritarian difficulty”, which is just another way of questioning the Court’s legitimacy to upset democratically reached legislative choices.2

2.2 National human rights institutions

Alongside with a mechanism for constitutional review is a national human rights institution, which must be independent, transparent, open and accountable for the safeguard of human rights and rule of law There always exists pros and cons, or both strengths and weaknesses, for the establishment

of this mechanism Here are some key points for this as follows:

2.2.1 Strengths

Studying about the functions, duties, roles, powers, organizations and activities of the international and regional National Human Rights Institutions (NHRIs) shows that the NHRI is an essential institution in supervising the implementation, protection and promotion of human rights The aforementioned NHRIs exist the following advantages, or strengths:

1) Firstly, this kind of body is in accordance with the Paris Principles regarding the organizations

and operations of a national human rights institution, despite varying degrees of thickness, especially

to ensure a diverse representation; independence,

2) Secondly, it embraces its significant contributions to the consultation of policies related to

human rights for state agencies;

3) Thirdly, it plays a key role in supervising the implementation of international human rights

treaties; supervising the implementation of national obligations on respecting, guaranteeing and performing human rights;

1 Saikrishna B Prakash & John C Yoo (2003), The Origins of Judicial Review, University of Chicago Law Review, Vol

69, Summer 2003, pp.1-2.

2 See Wojciech Sadurski (2011), Constitutional Review in Europe and in the United States: Influences, Paradoxes, and

Convergence, The Sydney University Law School’s Legal Studies Research Paper No 11/15, pp.3-4.

4) Fourthly, this body actively and effectively participates in the protection and promotion of

human rights through receiving, processing and addressing human rights complaints; participate in legal proceedings to protect human rights;

5) Fifthly, this body also plays a supporting role for the judiciary to effectively protect human

rights through conducting public hearings, inquiries or testimonials on the cases or incidents related

to human rights or contrary to the law and constitution; it also conducts investigations and addresses allegations of human rights violations

6) Sixthly, a NHRI plays such an important role as a mediator in cases of human rights violations

(such as discrimination, labor, employment, ) between the stakeholders

7) Seventhly, this kind of body is an agency that is so helpful and close to the ordinary people,

individuals and social groups, especially vulnerable groups (allegations submitted to the NHRC are often considered to be a friendly mechanism to not only the accusers but also the subjects that are accused or related to those allegations)

2.2.2 Weaknesses

A study on the NHRIs in the world and in the region indicates that there are both the aforementioned strengths of having an NHRI, and the weaknesses, or shortcomings of this body These are resulted from a transition between its establishment and development in accordance with the Paris Principles

1) Firstly, there exists limitations on authority, functions, and duties are not commensurate with

the protection and promotion of human rights according to the Paris Principles For example, some

of the NHRIs have limitations due to their functions and duties, as well as a lack of legal basis, such

as the early Indonesian National Commission of Human Rights that established under the President’s Executive Order, in which the Commissioners are directly appointed by the President, have affected the independence of the Commission

2) Secondly, there also exists limitations on the Independence of the NHRIs One of the most

significant limitations of the NHRIs that is the limited function and authority, as well as the challenges

of maintaining its independence

3) Thirdly, limitations on the effectiveness and efficiency: In fact, not all of NHRIs that are

established and organized in accordance with the Paris Principles ensure its efficiency and effectiveness

On the contrary, the operation of a number of NHRIs has not been effective and efficient For example, research on the effectiveness and efficiency of the NHRIs of Malaysia and Thailand, as well as some countries, showed that there are still limitations of supervising the implementation as well as the protection of human rights due to limited authority and the lack of independence

4) Fourthly, an NHRI is an additional mechanism to the existing mechanisms for human rights

protection only It is not a replacement, but rather an additional body for state agencies in protecting and promoting human rights law

5) Fifthly, the NHRI is just a quasi-jurisdictional body, which produces mainly recommendations,

or recommendatory decisions, rather than judgements, or legally-binding decisions

III Recommendations for Establishment of A Feasible Constitutional Mechanism for Human Rights Protection in the Socialist-Law Governed of Vietnam today

In the current Vietnamese context, it is very essential for further reforming the organization and operation of state agencies, including the National Assembly, the Government and the People’s Supreme Courts This is one of the most important solutions for improving the guarantee of human rights This is a mission that has always been considered and paid special attention to in the context

of the country’s innovation and international integration Only is within the further restructure of the organization and operation of the Government, Judicial Bodies, especially their powers and functions, the guarantee of human rights could be better respected, protected and realized This shows how important and significant for establishing additional mechanisms, attached to the current ones Thanks to this additional mechanism, it helps a lot in improving the state organs themselves In contrast, if the state organs reform themselves, the new mechanisms won’t be effective and efficient

In this sense, the construction and reinforcement of human rights agencies must closely be tied to the reform of state agencies, as well as the establishment of a law-governed state

3.1 Strengthening institutions of human rights research and education

The awareness of human rights is important for the implementation of human rights Currently, there have been a number of human rights education and training institutions, including tertiary education, with different programs and content Without being timely concerned, bourgeois human rights perspectives, through beneficiaries, will inevitably affect social strata

a In view of the above situation, strengthening the organization and operation of human rights research and education agencies is essential in order to create a unified awareness of human rights Therefore, it is so important that the Government should propose a national action plan of further research and education of human rights, which is a precondition for the establishment of

an independent mechanism for human rights protection Thanks to the increase in human rights awareness, the implementation of human rights in general and the protection of the constitution in particular, will be definitely improved and developed

b There should be a specific strategy, concept and roadmap for human rights education in legal professional training institutions, in particular, and the national education system at all levels, in general Especially, in the short term, along with the expansion to all of the trainees of the training system of the Ho Chi Minh National Academy of Politics and provincial political schools, who are middle and high-ranking officials, it is so essential to educate human rights at universities and training schools In the long-term, human rights education needs to be provided at the national programme of training and education, from primary schools to higher schools More importantly, further reforming of the form and substance of the existing curriculum of human rights education for senior cadres, civil and public officials is really needed in order for ensuring they are provided the well-established knowledge and skills so that laws and policies are well-performed and human rights are well-protected in practice

c To train and to establish, based on a step-by-step foundation, a contingent of highly qualified and well-educated specialists on human rights More importantly, it is necessary to provide the knowledge of human rights for both the duty-bearers, who are senior and middle-ranking officials, especially law and policy makers, law enforcement officials, journalists, and the rights-holders, who are people, especially most vulnerable people (such as should also be attached to great importance;

as well as gathering enthusiastic writers that intensively equipped with human rights knowledge to establish a competent team that can struggle on the field of human rights …

d In addition to the expansion of the study on basic theoretical issues and current emerging issues, Vietnam should establish a national academic institution of human rights, such as the Ho Chi Minh National Academy of Politics, or the Party’s Central Theoretical Council, alongside with universities and institutes, to conduct or chair a comprehensive research program on human rights Besides, the study on basic human rights issues (from the UN viewpoint) and current human rights trends, this research program needs to clarify the position of human rights issues in socialism; as well

as human rights issues related to the socialist-oriented market economy and the socialist-law governed state under the leadership of the Vietnam Communist Party; the relationship between the Constitution and other legal provisions on human rights, conditions for guaranteeing human rights; human rights supervising mechanism in Vietnam It is also necessary to research and formulate scientific arguments

on the basis of international law and national practices for protecting and struggling for human rights… Strengthen scientific research cooperation with nations, at first are countries with the same viewpoints with Vietnam on human rights issues Focus on referring research experiences and research results of countries like China, Russia … in the field of human rights

3.2 Strengthening the existing institutions related to the protection of human rights

Along with constantly enhancing the accountability of state agencies, public service accountability, through the innovation programs of legislation, execution and judiciary activities, there is a need to continue to strengthen agencies that are currently engaging in protecting human rights

a To innovate the organization and operation of the Government’s Steering Committee on Human Rights to take better charge of all human rights activities; especially the mission of guaranteeing human rights

While a NHRI has not yet been established, it is necessary to invest in building an assistant agency for the Government’s Steering Committee for Human Rights, with officials that commensurate with the current mission, be capable of coordinating research with teaching and be well responsive to the domestic and foreign requirements of the country (in China, the Human Rights Association has 166 people; the State-law Institute of the Russian Federation has 350 people with many good specialists who are attracted from many industries / fields)

b To strengthen agencies and organizations with the function of supervising, consulting and assisting the Government in the field of human rights They are the Ministry of Justice, the Committee for Ethnic Minority Affairs; Committee for Religious Affairs; Departments of gender, children’s rights and employment under the Ministry of Labor, Invalids and Social Affairs, etc

c To establish human rights titles at the Supreme People’s Procuracy and Supreme People’s Court

to help heads of these agencies to monitor and address human rights issues within their jurisdiction

3.3 Supplement a newly-established mechanism for human rights protection to the existing mechanisms

A newly-established mechanism for human rights protection should be attached to the National Assembly’s existing bodies or other Governmental and Judicial Bodies could be a feasible solution for Vietnam at this stage