Constitutional law in the renovation period in Vietnam

Nói chung, về nhiệm vụ, quyền hạn của nguyên thủ quốc gia ở chính thể cộng hoà đại nghị, đều được các nhà luật học tư sản thừa nhận rằng, thực chất nguyên thủ quốc gia không tham gia v[r]

CONSTITUTIONAL LAW IN THE RENOVATION PERIOD

Key word: Inovation, Constitutionalism, Constitution

1 Constitutional reform in the light of Constitutionalism

Over thousands of years of development, human beings have acknowledged that a society must be based on the law which foundation is the Constitution if it wants to develop It has been through five constitutions in constitutional history of Vietnam, but in some points, the subject, objective and other contents of the Constitution are still not properly comprehensive in compatible with the spirit of Constitutionalism A constitution

in new era must be modified in light of Constitutionalism to become the basis for socio-economic development

The term ―Constitutionalism‖, which is already a broad, complicated concept, can be translated into Vietnamese in many ways (―Chủ nghĩa hiến pháp‖, ―chủ nghĩa lập hiến‖, ―chủ nghĩa hợp hiến‖) because the concept of ―ism‖ itself is conflict issue of legal science in Vietnam Arcording to Jay M Shafritz in The Dorsey Dictionary of American Government and Politics, constitutionalism is the development of constitutional ideas through ages While the classical theory on constitution often returns to Aristotle's ideas, the modern ones are based on the idea of the social contracts in the seventeenth century The character of a constitution is the concept of a limited Government whose ultimate authority must always adhere to the consent of those who are governed

Constitutionalism rooted in liberalism ideas in Western Europe and the United States

is a form of protection of invidual right to life, right to property, religious freedom and freedom of speech In order to guarantee these rights, constitutional makers have emphasized these the following priciples: State power control, equality before the law, fair courts and the separation of state power from the churches The school of thought is represented by poet John Milton, jurists such as Edward Coke and William Blackstone, politicians such as Thomas Jefferson and James Madison, and other philosophers such as Thomas Hobbes, John Locke, Adam Smith, Baron de Montesquieu, John Stuart Mill

The elements of Constitutionalism – the idea of limited government includes: (i) a

government which is in line with the Constitution; (ii) power separation; (iii) Sovereignty that belongs to the people; (iv) independent judiciary with the exist of Constitutional court; (v) the bill of rights; (vi) Police under the control; (vii) The army under the control of the people and (viii) no power which possesses right to suspend a part or entire of the constitution

Constitution, since it was born, just like other laws, is the rules of the king which may contain limitation the power of the mornachy itself and gradually turn to assert the rights of the people Hence, at the first phase, civil rights were recognized only for the aristocracy, then increasingly to other subjects, even those who had previously subjected to only obligations without any rights It was the age of feudalism and colonialism Turning to democratic regime where sovereignty belongs to the people, the Constitution is a social contract created by the people through exercising their right to sovereignty and committing themselves to establish the state together toward the goal of maintaining their happiness just as their wishes, not the state that oppresses them If the state does not fulfill the contract, the people can count on the Constitution to change their representatives This ideal was affirmed by Renaissance and Enlightenment thinkers such as J Locke, S Montesquieu The goal and subject of the must be stated in very first sentences of every constitutions - the Preamble

As a law on sovereignty of the people, the Constitution affirms that people are the power holder, in other words, state power comes from the people, given to state actors by the people to serve the their interests and wishes According to the theory of social contract, human natural rights can only be guaranteed when individuals consent to establish a general contract, in which state power is limited, human rights and freedoms are recognized and protected With the perception about constitution as social contract, a large number of individuals must get themselves involved in formulation and drafting the constitution to ensure the sovereignty of the people People have the right to debate, to exchange, to express their views and to assess constitutional issues; and more importantly, right to be heard about their opinions and point of view Although those conditions depend much on the context of the nation, but the participation of the people in drafting constitution may improve the truthfulness of the constitutional assessments, thereby adopt constitutional provisions that are

in accordance with the will of the people

Nowadays, the idea of people's sovereignty has been widely acknowledged in most countries around the world The constitution of many countries, through different ways (but usually in the Preamble), clearly states that the state power is based on the people, like it is stated in The Preamble of the US Constitution 1787:

―We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.‖

Although the Preamble is only about 50 English words in only one sentence but fully includes: the authortiy to issue as well as the purpose, requirements, and the content of the

Constitution, and the reader may still feel a sense of pride in the supreme law of the United States, because all the people could find their rights and interests in it Up to now, more than 50% of constitutions around the world have repeated that

Constitution are functioned to organize, restrict and control state power and to promote and protect human rights From these functions, the Constitution has many different rules, arranged in different chapters and articles Two key contents of the constitution are human rights, and separation of legislative, judicial executive power To cover all these difficult issues is not an easy task First of all, it needs to define and recognize all human rights and then to empower the authors who are responsible for conducting state affairs on behalf of the people Regulations must be codified in the way they be implemented

in practice In fact, regarding to the way constitutional regulations are codifying, there are two different types of constitutional codification: (i) in very short outline like some developed countries (classical one); (ii) in more specific details (modern one)

In classical way, the constitutional mandates of state agencies exercising legislative, executive and judicial power are not really in specific way, because the more specific, the more conflicts and overlapping are shown In the other hand, without specific regulation, state actors may cope with many difficulties in performing their mandates and it is also difficult to hold their accountability In response, this idea argues that specifying authority to exercise the each branch of legislative, executive and judicial power is sufficient to empower them Besides,

it is not easy to codify case-by-case Power separation in theory as well as in practice is only meaningfuf in order to guarantee judicial independence because the exercise of legislative and executive power is always intertwined in practice National Assembly/Parliament is empower with legislative power, but in practice National Assembly only passes or unpasses the drafts that have been prepared by the executive branch In fact, there is no separation between legislative and executive power but there is power control between the ruling party(ies) with right to establish the executive government and the opposition party(ies), with the right to criticize and change the government – the executive branch

Another function of the constitution which is rarely noticed by researchers is to creat the legal basis for the state's legitimacy In many cases the legitimacy of state power under the provisions of the constitution is very important, covering the entire constitution and the exercise of state power in accordance with the constitution As the supreme law, the Constitution must basically cover all titles in state apparatus, ie the state power must be formed in a constitutional way In a democratic age, these kinds of power must be originated from the people

Therefore, a constitution in addition to regulating components and operation of state apparatus, must provide due process by which people can exercise their power The people can elect their representatives to perform state power through election Only titles which are elected directly or indirectly by the people, shall be empower with the state power the right to decide national resources allocation, and other important issues The constitution whether it is

written in classical or modern way, has always contained regulations on election in order to form title-holders in legislative, executive and judicial branch This is the first basis to create the legitimacy of the state which has function to tak care national affairs on behalf of the people Political party may gain its leadership only through direct or indirect votes of the people for its candidates who run for these titles The candidates who can not gain the people

‗s trust, can not get their ballots either This is how the leadership, intimacy, and supervision

of the people towards the political parties can be seen, not by a single article in constitution

In general, constitution of many countries provides relatively detailed provisions on elected positions (members of parliament, presidents .), election conditions, conditions of candidates, electoral division, the number of seats in parliament arcording to each region In the parliamentary system, people elect the House of Representatives directly, the majority party at the House of Representatives or the coalition of ruling parties shall establish the government headed by a prime minister Therefore, the government is responsible to the parliament In the presidential system, people directly or indirectly elect the head of state (presidents) who is also the head of government That is why the government and the head of the government are not responsible to the parliament, but are accountable to the people Failure to seek full regulations on elections in the current Constitution of Vietnam is also one

of the weak points that have been remained since previous Constitutions In this case, the state needs to adopt law on election that has enforceability and justiciability equally to or only after the Constitution Lack of detailed regulations on rights to vote in Constitution, as well as the election process and having them regulated by the law somehow deprives essential rights in constitutional process

Controlling the state power is the following steps after election In order to control, state powers are divided among multiple branches, in other words, if the state powers are not separated, they can not be under the control This statement may be considered as the greatest contribution of separation of powers doctrine So far there are only three types of power separation: flexible separation in parliamentary system including both constitutional monarchy and Republicanism, the strong one in presidential system and te last one which is the combination of the two formes

Regarding the relationship between the head of state and the government, most of the bourgeoisie countries in parliamentary system recognizes the right of the president to appoint the head of government But the way to appoint and standards of the head of government are not clearly defined by law Lack of codified constitutional regulation leads to uncodified customary: The head of the executive apparatus must obtain the support of a majority of MPs

in Parliament like the constitutional monarchy in United Kingdom In other words, the head

of state - the president of the republic - cannot appoint someone other than leader of the political party holding a plurality of seats in parliament as prime minister

The above analysis implies the head of state no longer has a role in the bourgeois world The role of the head of state in parliamentary system as well as the King in the

constitutional monarchy can only be appreciated in cases of crisis Only in these cases, the head of states/president may act independently without depending on political parties The head of state is a potential regime in bourgeois state in order to solve the possible situation of political crisis

Under the German constitution, the President has the right to recommend the Prime Minister to the House of Representatives Within 14 days if the President's candidate does not receive an absolute majority of the votes, the House of Representatives has the right to vote for its candidates In case it is still fails to select the Prime Minister, the President has the right

to appoint the Prime Minister at his discretion to the person who gains more votes or dissolves the House of Representatives

Parliamentary system especially constitutional monarchy is the most variant system in history This is also the most classic and longest democratic system The transformation of parliamentary system as well as the formation of this system can be seen in history of state of Great Britain The manifest of this variant lies in the failure to express all the signs of main features of the system, which are recognized by codified or uncodified constitutional provisions In many cases that goal of politic system from its main feature is completely reversed One of the characteristics parliamentary system itself is that the National Assembly has the authority to monitor the activities of the executive branch - the Government It means that executive body is established by the National Assembly to conduct the implementation of the legislative decisions of the National Assembly but it is completely different With the tight functioning of the majority parties in the Congress, party members must comply with those parties' decisions So under the leadership of the leadership party, the government is formed The Prime Minister is the leader of the ruling party, all decisions of the National Assembly are decisions of the government which means the decision of ruling party This means that not only the National Assembly, the Government also has the right to monitor activities of the National Assembly In this sence, government and the House of Representatives just like two allies in a politic parties

In other words, the power separation between legislative and executive branch here, according to constitution, is no longer existent, but there is still a division between a ruling party and a responsible opposition party According to Professor Roman Herzog, President of Germany from 1994 - 1999, based on organization and operation of German state in practice,

it was Montesquieu who proposed more than a quarter of millennium ago that the three classic branches in governing - legislative, executive and judiciarybranch need to be divided equally among some institutions This idea has been widely accepted by the Western countries

On the other hand, the West has also recently encountered some issues in power separation In Germany, the government formally has competence of law enforcement while law interpretation in conducted by an independent courts Pure forms of appearance only deceive, only the courts are truly independent Besides, the National Assembly and the Government are now far from meeting all requirements according to Montesquieu ‗s idea

The first reason is the Government is appointed and may be dismissed by the National Assembly at any time Secondly, both the Government and the house of congress are in the same party or alliance, so there is practically no chance of rift between the two institutions

This change is also a result of an important political phenomenon It is the presence of bipartisan system Political activities in the UK are based on two well - organized, disciplined political parties which are capable of assuring unified action of the political party in the government as well as in the National Assembly This bipartisan system has radically changed the meaning of power separation in parliamentary system In this system, in the House of Representatives (Parliament) elections, national electors (the people) not only elect MPs to represent them, but also vote for leadership party In comply with the principles of the party, the leader of the ruling party will be the head of the state's executive apparatus Credibility of the Government to National Assembly is credibility for the ruling party itself In contrast, the Government of the ruling may question about National Assembly ‗s credit

The dissolution of parliament takes place similar In case the majority of the parliament and the Government from same party, conflicts are not likely to happen between legislative and executive branch Nowadays, dissolution of parliament no longer has its original meaning Taking advantage of this regulation, the ruling party usually conduct elections ahead of time, to prolong its existence, or strengthen the government under the party Or in another case the executive power holder wants to further strengthen his power,

or wants to salvage his power when it tends to decrease In principle, regulations on accountability of Government - executive branch to the National Assembly - the legislature,

as well as the regulations on government's credibility, were born in order for National Assembly to supervise the Government, but thanks to leadership party, the government can use these regulations to supervise the National Assembly in return, and attempt to benefit the executive branch

The political regime in the United Kingdom is typical parliamentary system, even in the form of parliamentary republics or constitutional monarchy The relationship between legislative and executive has turned into a correlation between the ―two bodies‖ of a ruling party Some people argue this relationship is like the one between the exercutive committee of the party (members of the government) with members of the party members, and people (Members of parliament) The contradiction between the two political parties that have been historically formed gradually in a peachful way without any arm conflict

The Cabinet of the United Kingdom is backed by the ruling party for the following reasons: (i) UK Government, as well as the Cabinet, includes most leaders of the party, the Cabinet members are those who have many the most prestigious in the party (executive committee); (ii) the government and the MPs always have to consult with each other and there

is a little concession from each side; (iii) in many cases, Cabinet is let to decide at its discretion some congressional issues The British cabinet of the ruling party with a tight regime is very reassuring for its governance, only two most concerned points First, the

opposition party always seeks chance to replace the government under the ruling party Second, people can replace the leadership party with the opposition party through election

The primary task of parliamentary bodies is adopting legislative projects, as well as policies of the ruling party But in fact, this is not the case The main task of the National Assembly (mainly the House of Commons) is to support or oppose the government The appearance of British House of Commons Hall also shows the distinction between the ruling government and the opposition Unlike most halls/ meeting rooms of National Assemblies in the world, the hall of British House of Commons but the House of Representatives' has rectangular shape, which is a very ancient meeting room, divided into two vertical sections with the right benches for ruling party members, front row for current ministers and prime ministers, left benches for the opposition members including the Shadow Cabinet which is the leader of the opposition party and members Under the uncodified constitution of the United Kingdom, the House of Commons has important role in law making, as well as deciding most important domestic issues, but according to priciples on activities of the party, the lower house has left opposition party (i) to debate on general principles and vote to pass the law; (ii)

to criticize the ruling government; (iii) to control financial issues

Policies and projects of the ruling party are also policies of the Government With the strict principle on activities of the party, its members always vote for their own party, so it is also the decision of the Parliament MPs from the opposition party can only criticize the ruling party's programs and policies but cannot change by themselves, except for finite cases when people's confidence (the majority of voters) with the ruling party is reduced through the results of the socio-economic situation then the opposition party changes the political situation of the country In this case, Government - the executive is overthrown along with dissolution of parliament People must vote often the for former opposition party to elect ruling party, which is responsible for establishing a new government

Unlike the parliamentary system, with the desire to form a different state model from the United Kingdom, the US state apply the power decentralization principles in a really strong way but must Legislative and executive branch have no coordination in carrying out their own different functions Legislature brach is elected by the people, and the executive which is represented by the President, is also elected by the people in different ways of election and candidacy Corresponding to different ways of election and candidacy, there are different types of powers and responsibilities, which is later known as the presidential republic system, with the influence of political parties similarly to British regime Presidential system is also called the parliamentary system in the corridor

In mixed presidential-parliamentary system, which can be seen in France, arcording curent Constitution of 1958, decentralization of power esxpess both characteristics of parliamentary and presidential system Specifically, in this system, President, the head of the state, is elected directly by the people and holds the executive power to lead the government like in Presidential system But in the same time Government - the executive is still

responsible to the National Assembly/Parliament, which is the basic feature of the parliamentary system That is the reason why the establishment of the executive branch depend entirely on the components of the parties in the Parliament The majority party in the House of Representatives has the right to form the Government In case there is no majority party, parties must join in to alliance in order to form the Government – executive branch In the case President and the majority of Lower House are from the same party, the President has real power, as in the presidential system On the contrary, if President and the majority of Lower House are not from the same party, the President has little power and gradually becomes formal as in parliamentary regime

Although being not regulated in the constitution, political parties have a really significant position in the political life of bourgeois nations, especially in in checking and balancing the ruling party in order to restrain the leadership party from over-abusing power

In this sence, opposition party is considered to be responsible for finding out the pros and cons of the ruling party

The second object which needs constitutional adjustment besides power separation is the human rights Regulations on human rights in the US Constitution, the longest effect constitution on earth, have been through a history of debate in Constitutional Conference with

55 people divided into two opposite sides to argue to or not to regulate human rights in the Constitution Finally they compromise to have both power separation and human rights in Constitution Although not accepting to regulate human rights in content of the Constitution, J Madison tried to draft 20 provisions for the recently adopted Constitution amendment His first 10 terms on human rights were accepted by the National Assembly, which compose the Bill of rights of the US that is admired until today because of its sharp content Two-thirds of all of these provisions are regulated to protect suspects and defendants through priciples on due process of law, fair trial, presumption of innocence, no cruel and unjust punishment Arcoding to the 9th Amendment, ―the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people‖ This amendment is aimed to erase any doubt from the opposite side because it is impossible to enumerate all human rights in a constitution This was also one of the foundations which contributed to the formation of international on human rights adopted by the UN In addition his dedication in drafting of Virginia Plan, the foundation of current presidential republican system, J Madison was considered the Father of the United States Constitution

The US Bill of Rights has cover all fields of social life including politic, civil, social and economic rights Failure to recognize certain human rights is obviously depriving people

of their rights And on the contrary, only recognizing the rights of a certain class, in any civil, political, economic, cultural or social field also deprive the others from their rights in the respective fields

Despite differences in political institutions, both parliamentary and presidential system are looking forward to one goal which is to protect human rights Ensuring human rights must

be defined as the goal of the state in constitution Power decentralization is not only to specialize each branch of power and keep the pride of them in exercising their power but also

to creat a control system to prevent the power abuse from state agencies

Just like in the parliamentary system, with active political parties, the ideology of separation between legislative and executive branch no longer has the practical meaning in presidential system According to the Constitution, althought US presidents has no right to submit law drafts to the National Assembly, but still can make effort to intervene into the legislative field Obama's health care reform plan which became law in 2010 is an example In this sence, constitutitonal power decentralization becomes decentralization between the ruling party and the opposition party and a guarantee for independent judiciary The presence of the opposition party is necessary for the bourgeois democracy

2 Constitutionnal Reform for development in Vietnam

In constitutional history of Vietnam, each Constitution has specific characteristics that reflects the context of the its birth The 1946 Constitution - the constitution of the people's democratic affirmed national independence and people's sovereignty with clear reflection of the idea of building a strong and transparent government belonging to Vietnamese people Vienamese people in great solidarity, without any discrimination based on ethnicit, gender, religious and class shall enjoy equal freedom In the first constitution, the aim to build a sovereign independent state was still prioritized rather than to ensure people's rights

After the historic Dien Bien Phu victory, with the aim to build socialism in the North and fight against the Americans in the South, the 1959 Constitution was adoped to reflect the transformation from democracy to socialism It can be said that 1959 Constitution, which was the Constitution of the early period of socialism, was the first step on the path to socialism in Vietnam To affirm the socialism political regime, the purpose in protecting human rights was not clearly defined in the Constitution Similarly, when the country was united, reflecting determination in the pathway to Socialism, 1980 Constitution, greatly influenced by the constitutional model of The Soviet Union in terms of both content and form, focused on building proletarian political regime of the Communist Party rather than ensuring human rights After the 1974 Victory, the policy of building socialism, which was more fully expressed through the provisions of the 1980 Constitution, was not only unfavorable for human rights implementation but also barriers constraining socio-economic development that led to the socio-economic crisis in the 1980s of the late 20th century

In the context os crisis, unfollowing the trend of giving up the socialism regime like many countries such as the Soviet Union and Eastern Europe with the policy to return to build capitalism regime, Vietnam persevered in implementing the policy of gradual reform in political life and strong innovation in economy The 1992 Constitution which codified policy of reform,

is being called the Socialist Constitution of the ―Doi moi‖ era The 1992 Constitution, along with the Communist Party's innovative policies, has significantly contributed to solve the crisis and boost the economy The fundamental issues of this Constitution were maintained with

several amendments and supplements in 2001 to codify goal to build a state of socialism and rule-of-law and policy of integration into the global world

The fundamental characteristic in socialist ideology in constitution is the denial of the idea power separation in state organization Instead, the idea of socialist centralization of power is applied One of significant amendments of The 1992 Constitution is the recognition

of the rational elements of decentralization theory in which states that the State powers are unified with the assignment and coordination among state bodies in the exercise of the legislative, executive and judiciary powers Despite this fact, the idea of socialist centralization of power still has great influence on the operation of Vietnamese State, in which the National Assembly is the highest authority of the state with powers to draw up and amend the Constitution; to make and amend laws; to decide major national issues and To exercise supreme control to state agencies

The principle on the role of Communist Party as the leading force of the State and society is the next main feature of the Vietnamese Constitution The operation of state power has always been under the leadership of the Communist Party – ―the Vanguard of the Vietnamese working class, simultaneously the vanguard of labourers and of the Vietnamese nation, the faithful representative of the interests of the working class, labourers and the whole nation, acting upon the Marxist-Leninist doctrine and Ho Chi Minh's thought‖ (2013 Constitution, Art.4) With the acknowledgment in Article 4 of the Constitution, the relationship between the Communist Party and the State is the specific relationship of political of leadership in Vietnam in comparison with the political regimes in other countries This is also one of main reasons why election in Vietnam has not been properly promoted its role in creating the legitimacy of state power Besides, the overall leadership of the Communist Party is also expressed by a system of Party agencies from central to local levels, making the legitimacy of state agencies reduced in a significant way

Although Vietnamese political system is not parliamentary one, basically the imprints

of the Vietnamese state organization are relatively similar to those of the parliamentary state For example, National Assembly of Vietnam is also empowered with supreme state power, and the Government – the ―highest administrative body‖ is established by the National Assembly and is accountable to the National Assembly of Vietnam But the difference is that the United Kingdom maintains bipartisanship with a ruling party and an opposition one which there is a real control of the executive power by the opposition party while in single-party state such as Vietnam, there is only a ruling party, without any opposition party that leads to lack of an effective way in state power control

The Communist Party and the Socialist Republic of Vietnam have initially improved this disadvantage by strengthening the participation of non-Communist Party members who are the representatives of National Assembly and People's Council, but with the amount is less than 1 or 2%, which means their voice can hardly influence on final decision in major

issues of the country This is another serious problem that needs to be solved in transformation in Vietnam

The significant change the amended Constitution in 2001 is the affirmation of establishment of a socialist rule-of-law state It was stated in Article 2 that The State of the Socialist Republic of Vietnam is a rule-of-law State ―of the people, by the people, for the people‖ The basic content of the amendment of the 1992 Constitution lies in strengthening the power of the National Assembly, by removing its authority to approve the appointment of ministers and head of other Government bodies at the same level of Standing Committee of the National Assembly; strengthening the accountabilities of the Government to the National Assembly, by empower National Assembly to conduct confidence motion on ministers or Prime Minister - the head of the Government; strengthening accurate prosecution by focusing

on the power to prosecution and control judicial activities of the People's Procuracies

Based on 1992 Constitution implementation, Vietnam has achieved great in all aspects of politic, economic, cultural and social life but the most outstanding achievement is on economic field However, since the late 2000s, Vietnam's economic development has gradually slowed down, which was caused by serial inadequacies regarding to state management, economic development models and political regimes that have not been resolved Consequently, serious bureaucracy and corruption, economic crisis, lack of competition leaded the people to lose their trust to the state

In context of economic crisis, the 1992 Constitution needs to be revised to be incompatible with new orientations and objectives in the 2011 Platform and other documents

of the XI Party Congress, which aimed to ensure the renovation of both economic and political field in order to build a socialist rule-of-law state of the people, by the people and for the people, to improve the socialist-oriented market economy, to ensure better human rights, rights and obligations of citizens, to protect the countries and to intergrate, actively into globalizing world

In 2011, the National Assembly reviewed the implementation of the 1992 Constitution and established a Draft Committee to amend the Constitution After more than a year of drafting, there were many different point of views toward constitutional issue On January 2nd

2013, the National Assembly decided to collect people's opinions on the amendment draft to the 1992 Constitution by conducting conferences and seminars; doing survey on the Internet and issueing questionaire to each household As of May 17th 2013, more than 26,091,000 feedbacks from the public were collected and more than 28,000 conferences, seminars, and talks were held On November 28th 2013, the National Assembly XIII voted to pass the 2013 Constitution, with 97.59% (486/488 representatives) of approval Althought, some have believed that the new constitution would contribute to promote the whole renovation process,

it is suggested that with the 2013 Constitution, big changes can hardly carried in all aspects, especially in political aspect However, in details, 2013 Constitution has prompted many opportunities for reform in Vietnam, including the economic management reform

The 2013 Constitution have proved a progress in constitution making techniques (both

in structure and expression) in briefer, more concise way in comparison to the 1992 Constitution, with the aim of ensuring long-termed, stable fundamental law For the first time,

it is affirmed in the Preamble that ―Vietnamese People frame, implement, and protect this Constitution‖, which express more clearly the ideology of the people sovereignty

As before, the first chapter of the Vietnamese Constitution shows many vestiges of the socialist constitution regarding to political regime, ie the state regime The 2013 Constitution not only confirmed the nature of the political system of the socialist state determined from the

1992 Constitution, but also added the term ―control‖ into the principle of state power operation For the first time in constitutional history of Vietnam, legislative, executive and judicial bodies are clearly defined, which are National Assembly, Government and the Court Also for the first time, all the term ―People" in the Constitution are written in capitalization that shows respect and appreciation to the People as state power holder

Chapter II of the new constitution was drafted based on the amendment, supplement and re-construction of Chapter V (Basic rights and obligations of Citizens) of 1992 Constitution In addition to relocating from the 5th chapter to the 2nd one, the title of the chapter is also amended to ―Human rights, citizens‘ fundamental rights and obligations" which affirms the value and important role of human rights and citizen rights in the Constitution In drafting process, this viewpoint on human rights was strongly encouraged with a high consensus Besides inheritance and clarification of regulations on basic rights and obligations of citizens s in the Constitution 1992, the new one added a number of human rights, demonstrating the State's responsibility of human rights and citizen rights implementation and goodwill of the Socialist Republic of Vietnam in fullfillment to international human rights treaties to which Vietnam is a party Hence, even though the issue

of human rights was not focused in constitutional amendment, the issues was dicussed seriously in conformity with Universal Declaration of Human Rights and the UN Human Rights Conventions

Another important new point is that the 2013 Constitution have adopted new regulations on independent constitutional institutions, which are National Election Council and the State Audit Regrettably, the Constitutional Council as a necessary addition to the power control mechanism in the state apparatus as a necessary addition to the power control mechanism in the state apparatus, which was highly expected and recommended by many jurisprudence experts, was removed from the draft at the time of adoption There are a number

of reasons for this consequence, including concerns about the conflict of jurisdiction of the Constitutional Council with the Communist Party's highest leadership and the limitations of this institution when the judicial review is established

Constitutional implementation may contain potential violation in enforcement The key disparity of the Constitution in Constitutionalism is that the provisions of the Constitution must be implemented in practice Before becoming a fundamental law, the constitution must

be an act As an act, the constitution must be enforced with posibilities of both right and wrong implementation, as the others

As a fundamental law, with the highest legal effect, enforcement and violation are more serious First of all, the subject of the Constitution is more special compared to the subject of law The difference between the subject of Constitution and with other laws is that constitutional subjects are public officials which are state power holders, not citizens The more power they hold, the more responsibility of constitutional enforcement they have As mentioned before, Constitutional implementation may contain potential violation from National Assembly/ Parliament - the legislative branch, Government - executive branch, ruling party through legislative and executive activities or local government

Besides, violation to the Constitution may cause serious consequences to many people and even harmness for generations Because such violation is usually at policy level, it may prevent national development

Finally, violations to constitution are difficult to be revealed as well as to be solved

So far, although there are as many as nearly 200 countries that have constitutions, only less than 10% have courts that have jurisdiction in constitutional violation committed by public agencies and officials In practice, constitutional violation can be action or non-action In action, constitutional violation is conducted by state actors against or not in consistent with the Constitution For example, adoption of legal instrument that is against or not in consistent with the Constitution by state authors, abuse of power granted by the Constitution; or behavior of any agency, organization or individual on behalf of the State to prevent or limit the exercise of legal rights and freedoms of individuals according to the the Constitution In non-action, constitutional violation is conducted failing to perform the Constitutional authorities and obligations, i.e actors that have authorities granted according to the Constitution do not perform or perform not in a timely manner their obligations, then they violate to the constitution

In the relationship between State and the people, once the State recognizes and affirms the rights and freedoms of the people in the Constitution, it means that the State itself defines its obligations and responsibilities to ensure implementation Therefore, the lack or delay of promulgation of legal documents regarding to constitutional rights and freedoms must also be considered in reviewing noactions of state actors that may constitute constitutional violation

In theory, once there is a violation, there must be a court trial like other law But in case of constitution, constitutional jurisdiction is not recognized by many states in the first place Even the United States, with its first written constitution that has became constitutional model of the world, was also very hesitant about constitutional jurisdiction of national authorities In famous case Marbury v Madison (1803), U.S Supreme Court established the principle of judicial review—the power of the federal courts to declare legislative and executive acts unconstitutional The unanimous opinion was written by Chief Justice John Marshall According to his arguments, whole point of a written Constitution, was to ensure

that government stayed within its prescribed limits: ―The powers of the Legislature are defined and limited; and [so] that those limits may not be mistaken or forgotten, the Constitution is written.‖ In cases where a law conflicted with the Constitution, Marshall wrote, then ―the very essence of judicial duty‖ was to follow the Constitution Marshall also asserted that the courts had the responsibility to understand and articulate what the Constitution means:

―It is emphatically the province and duty of the judicial department to say what the law is.‖ The decision concluded ―a law repugnant to the Constitution is void, and courts, as well as other departments, are bound by that instrument.‖

Back to the case of Vietnam, Vietnam has five constitutions in which the contents are basically no different from those from the West but going in details, Vietnamese Constitution has not showed the spirit of Constitutionalism The evolution of written constitutions as well

as the ideas of the constitutionalism somehow have influenced on limitation of state power that has been regulated but the idea of Constitutionalism has been express in very limited way, which can be easily proved through the content of the Constitutional provisions, also through their practical implementation of the provisions Once main criteria of the Constitution itself does not meet its the requirements according to the idea of constitutionalism, it is difficult to absorb the spirit of constitutionalism

The slogan ―EntireParty and the people must abide by the Constitution and the law‖ is one of the most popular slogans in Vietnam, as in many countries in the previous socialist system But in legal viewpoint, the slogan is not perfectly true Constitution as fundamental law with the highest enforcement must be implemented by state actors, not the people On other words, Constitution must be implemented by its organs and officials The higher position in the state state apparatus public agencies or individuals hold, the more responsible they have to comply with the Constitution In recent years, the term ―rule of law‖ has been repeated, many times, but the term ―constitutionalism" has not yet mentioned in any in official document of the Party and State of Vietnam That the reason why in the spirit of the new Constitution, every citizens and other subjects in society are responsible for implementing the Constitution According to principle of power concentration, the burden of constitutional implementation tends toward the people

Unlike other common laws, the actors who are responsible for the implementation of the Constitution must be state officials, not all citizens In all ages, leaders in a constitutional democracy can only perform within the scope regulated by law Constitutional law is to adjust political sphere and only the authorities can conduct political activities All related and political activities are subject to the Constitution During the implementation process, as in other areas, violations often occur The possibility of violation lies within the responsibility of implementation of state officials

As developing country, Vietnam although has Constitution, but pay less attention to the implementation of the Constitution Research and analysis of violations to Constitution have not been properly set out In addition, for a long time, many people mistakenly believe

that the Constitution is just like other laws which are abided by people only This common perception is shown by the expression of the above slogan: ―EntireParty and the people must abide by the Constitution and the law‖

Besides, for a long time, from the authorities to the people, there is an incorrect perception that the Constitution is the supreme law, focusing only on general principles which must be specified by other law for practical implementation Meanwhile, it can not be denied there are still constitutional violation in realit Judicial review in Vietnam is understood and regulated in a broad sense, including from oversight of superior state organs to lower ones‘ activities and lastly the compliance of citizens Finally, the Constitution empowers National Assembly with supreme control over conformity to the Constitution and the law of all state agencies It is also unreasonable in some aspects because the National Assembly itself is the most likely to violate the Constitution Besides National Assembly, the executive branch headed by the Prime Minister, is also enumerated in the list of potential subjects of potential violation to Constitution

As mentioned above, unlike other laws and regulations, constitutional violation can only

be conducted by the state actors, the more power they hold, the more, the more chance to violate the Constitution they have The posibilities of constitutional violation lies in the responsibility of constitutional implementation The government is not a angel that always do the right things According to J Madison, the government has to manage the people in parallel with managing itself Constitutional violation, if any, may be committed first by National Assembly - legislative branch, Standing Committee of National Assembly, the Government – executive branch; governmental organs - ministries and ministerial-level agencies and the court

- judicial branch People can only violate to laws and regulations because they can not have opportunity to violate the Constitution For example, crime of murder that violated to Criminal Code issued by the National Assembly, but shall not violate to relations adjusted by the Constitution It is a an legal infringement, not constitutional violation

Judicial review or in narrow sense, constitutional jurisdiction work focuses mainly on the legislative activity of the National Assembly, which is adoption of law that is conflict with the Constitution Unfortunately, previous and current Constitution of Vietnam has empowered the authorities of monitoring compliance with the Constitution to many actors: from the People's Committee at the grassroots level to National Assembly at highest level The 1992 Constitution stipulates many provisions that require the enactment of laws to enforce But after nearly 20 years since the Constitution has come into forced, the laws that should have been promulgated are still drafting The 2013 Constitution is also put in a similar situation

In law executive activities, failure to comply with the Constitution may be expressed in two main forms: promulgating legal documents under the law that are conflict with basic rights of the people arcording to Constitution; and the leadership, direction and administration of the Government, the Prime Minister, ministers and heads of ministerial-level agencies are not in accordance with the Constitutional principles, or their constitutional functions and authorities

People's rights to business freedom and tax obligations are constitutional and prescribed by law which means these issues must be regulated only in the Constitution and law Meanwhile, many decrees of the Government stipulate business conditions that may affect right

to business Consequently, many ―sublicenses" and tax policies, were born based on the regulations of the Government and ministries Regarding to human rights in judicial procedure,

as well as in many Constitution of other countries in the world, in Vietnamese Constitution, human rights such as right to inviolability of the individual and the legal protection of his or her life, health, honour and dignity and is protected against torture, violence, coercion, corporal punishment or any form of treatment harming his or her body and health and offence against honour and dignity, right not to be be arrested in the absence of a decision by the People's Court, … have been defined but in fact, arrest before trial is still popular

Conclusion

With the amendments to the Constitution since the renovation launched in 1986 along with the creation of constitutions in more and more complete way, more and more changes in the perception on Constitution and Constitutionalism have been noticed But through the provisions and the spirit of the new Constitution, there is still inadequate awareness on participation of the people in constitutional adoption and amendment, with the goal of human rights protection and responsibilityof implementation of the State agencies Although the final draft, the term ―People‖ was changed from ordinary writing to uppercase, but the role of the people only stopped at making comments on the draft And constitutional implementation has not been highlighted as state actors‘ responsibilities yet Besides, the lack of judicial review may cause constitutional violations from the authorities To overcome this problems, Vietnam may need another Constitutional amendment in next 10 to 15 years of implementation

LUẬT HIẾN PHÁP TRONG THỜI KỲ ĐỔI MỚI Ở VIỆT NAM

"Constitutional Law in the renovation period in Vietnam"

Nguyễn Đăng Dung Đại học quốc gia Hà nội

Tóm tắt:

Kể từ khi công cuộc đổi mới được phát động năm 1986 cùng với việc tạo ra các bản Hiến pháp ngày càng hoàn thiện hơn, càng ngày càng nhận thấy sự thay đổi nhận thức về Hiến pháp Mặc vậy, qua các quy định của Hiến pháp mới được thông qua và tinh thần của bản Hiến pháp vẫn toát lên nhận thức chưa đầy đủ về chủ thể, mục tiêu của Hiến pháp, và nhất là trách nhiệm của cơ quan nhà nước trong việc phải thi hành Hiến pháp

Từ khóa

Đổi mới, Chủ nghĩa hiến pháp, Hiến pháp

I Trong thời đổi mới Hiến pháp phải đƣợc chỉnh lại theo tinh thần của Chủ nghĩa Hiến pháp

Trải qua mấy nghìn năm phát triển, loài người đã nhận rằng một xã hội muốn phát triển thì phải dựa cơ bản trên pháp luật, mà nền tảng của pháp luật là luật Hiến pháp và chủ nghĩa Hiến pháp Lịch sử lập hiến Việt Nam có 5 bản Hiến pháp, nhưng hiểu về Hiến pháp theo tinh thần của Chủ nghĩa Hiến pháp thì chưa hoàn toàn, vẫn còn những chỗ chưa hiểu đúng về chủ thể, mục tiêu và, nội dung Hiến pháp thời đổi mới cần phải điều chỉnh theo tinh thần của Chủ nghĩa Hiến pháp, có như vậy Hiến pháp mới là cơ sở cho sự phát triển kinh tế -xã hội

Chủ nghĩa Hiến pháp trong tiếng Anh là Constitutionalism; có người dịch là Chủ nghĩa hợp hiến, có người dịch là ―Chủ nghĩa hiến pháp‖, có người dịch là ―chủ nghĩa lập hiến‖ Dịch

là ―Chủ nghĩa hiến pháp‖ đúng hơn, bao quát hơn Nội hàm của khái niệm ―chủ nghĩa‖ đang là

một trong những vấn đề rất lớn trong lý luận của khoa học pháp lý hiện nay ở Việt Nam Từ điển Bách khoa định nghĩa: Chủ nghĩa là học thuyết hay một hệ thống lý luận về chính trị, triết học, kinh tế, văn hóa, nghệ thuật thể hiện bằng quan niệm, quan điểm, lập trường, khuynh hướng, phương pháp luận, phương pháp sáng tác, phục vụ cho hành vi của con người … do một người hoặc một tập thể các nhóm người đề xướng534

Từ điển Chính quyền và Chính trị Hoa Kỳ của

Jay M Shafritz ghi:―Chủ nghĩa Hiến pháp là sự phát triển của những tư tưởng hợp hiến qua

nhiều thời đại Trong khi lý luận cổ điển về hiến pháp thường phải quay về với những tư tưởng của Aristotle, thì của lý luận hiến pháp hiện đại lại xuất phát từ những tư tưởng khế ước xã hội thế kỷ 17 Những biểu hiện đặc trưng của hiến pháp là khái niệm về một Chính phủ hữu hạn mà thẩm quyền tối hậu của nó luôn luôn phải tuân thủ sự đồng ý của những người bị cai trị‖ 535

với quyền lực của mỗi ngành trong Chính phủ, bình đẳng trước pháp luật, tòa án công bằng và tách biệt nhà thờ khỏi nhà nước Những đại biểu điển hình của truyền thống này là nhà thơ John Milton, luật gia Edward Coke và William Blackstone, các chính khách như Thomas Jefferson

và James Madison, và những triết gia khác như Thomas Hobbes, John Locke, Adam Smith, Baron de Montesquieu, John Stuart Mill

Chính phủ hợp hiến hiện đại gắn bó chặt chẽ với kinh tế và quyền lực của túi tiền, do ý tưởng cho rằng, những ai đóng thuế cho Chính phủ hoạt động phải được đại diện trong Chính phủ đó Nguyên tắc cung cấp kinh tế và giải quyết khiếu nại đi đôi với nhau là yếu tố mấu chốt của Chính phủ hợp hiến hiện đại; sự phát triển của các thể chế đại diện và tinh thần đoàn kết dân tộc đối lập với sự tuân thủ tượng trưng đối với nhà Vua và tòa án, đã hạn chế có hiệu quả trên thực tế quyền lực của nhà Vua

Các yếu tố của Chủ nghĩa Hiến pháp – Chính quyền bị giới hạn quyền lực gồm: i Chính quyền phù hợp với Hiến pháp; ii Phân quyền; iii Chủ quyền thuộc về nhân dân, iv Tư pháp độc lập và có tòa án Hiến pháp; v Luật dân quyền/quyền con người; vi Kiểm soát cảnh sát; vii Quân đội nằm dưới điều khiển của dân sự; viii Không một thế lực nào có quyền đình chỉ hoạt

động một phần hoặc toàn thể hiến pháp.536

Hiến pháp thủa mới ra đời cũng như các đạo luật khác, là một đạo luật của nhà vua ban hành nhưng với tác dụng hạn chế quyền lực của nhà vua, và dần dần chuyển sang khẳng định quyền của tất cả người dân Lẽ đương nhiên những quyền này mới ban đầu chỉ dành cho tầng lớp quý tộc, và càng ngày càng mở rộng cho các chủ thể khác, ngay cả của thần dân, mà trước

đó họ chỉ có nghĩa vụ mà không có quyền lợi… Đó là những thời kỳ của chế độ phong kiến, thực dân Sang tới chế độ dân chủ, chủ quyền thuộc về nhân dân thì Hiến pháp là một bản Khế ước xã hội của nhân dân do nhân dân thực hiện quyền chủ quyền của mình làm ra, cam kết với nhau cùng thành lập ra nhà nước với mục tiêu duy trì hạnh phúc của mình, mà không phải thành lập ra nhà nước để áp bức nhân dân, đúng như nguyện vọng của họ Trong trường hợp nhà nước không thực hiện được nguyện vọng đó, nhân dân có thể trông chờ vào Hiến pháp để thay đổi nhà nước Lý tưởng này được các nhà tư tưởng của thời kỳ Phục hưng và Khai sáng khẳng định như J Locke, S Montesquieu Đó là mục tiêu và chủ thể của Hiến pháp đều phải được nói nên trong đoạn văn đầu tiên của Hiến pháp - Lời nói đầu của mỗi bản Hiến pháp

Là đạo luật về chủ quyền nhân dân, Hiến pháp khẳng định nhân dân là chủ thể của quyền lực nhà nước, hay nói cách khác quyền lực nhà nước xuất phát từ nhân dân, do nhân dân trao cho và để phục vụ lợi ích và nguyện vọng của nhân dân.Theo lý thuyết khế ước xã hội, các quyền tự nhiên của con người chỉ có thể được đảm bảo khi các cá nhân cùng nhau thiết lập một khế ước chung, trong đó quyền lực nhà nước bị giới hạn, các quyền và tự do của con người được ghi nhận và bảo vệ Với quan niệm hiến pháp là bản khế ước thì việc xây dựng, soạn thảo hiến pháp phải có sự tham gia của đông đảo nhân dân nhằm đảm bảo chủ quyền nhân dân Nhân dân

có quyền tranh luận, trao đổi, bày tỏ quan điểm, đánh giá về các vấn đề hiến pháp; và quan trọng

536

Henkin (2000): Elements of Consittutionalism Unpublished Manuscript, p 203