The 2013 revised Constitution was built after nearly 30 years of renovation in Viet Nam amid the atmosphere of democracy, jurisdiction, openness and integration thus it contains numerous new contents and spirit, meeting the demands to comprehensively push forward the renovation cause, economic and political synchronization, national construction and defense, sustainable development and proactive international integration. It constitutes a firm political and legal guarantee for the entire Party and people to steadily advance forward in the new period.
As one of the most important contents, state power organization is a cross-cutting issue throughout all most all chapters and articles of the new Constitution, institutionalizing profoundly and comprehensively the Party’s points of view on building the socialist State governed by law of the people, by the people and for the people. Firmly grasping the spirit and contents which constitutionalize these ideas and points of view is of important significance in raising awareness and leading the implementation of the Constitution in practice, of which the primary and most important task is to continue building and completing the socialist State governed by law. First and foremost, the revised Constitution affirms that the nature of our State is a socialist state ruled by law of the people, by the people and for the people. All the state power belongs to the people (Article 2). This is the continuation of the Party and State’s consistent viewpoint on upholding the people’s right to mastery in building and completing the state apparatus. On this issue, the 2013 revised Constitution, as compared with previous Constitutions, includes new contents, manifesting more profound, complete, consistent and cross-cutting awareness.
“The Socialist Republic of Viet Nam is the country where the people are the masters; all the state power belongs to the People” (Article 2). This is a foundation stipulation which points out clearly that the origin, nature, goals and strength of the state power in Viet Nam rest in the people. That principle was stipulated in all previous Constitutions of our State. However, what is new is the revised Constitution reflects more complete the idea that the people are the supreme subjects of the state power. Through the Constitution, the fundamental legal document of the country, the people delegate and authorize their state power to the State. Accordingly, not only Article 2 stipulates the people nature of our State but several other articles profoundly and consistently manifest the idea to uphold the people’s right to mastery. Right from the Preamble, the revised Constitution solemnly declares that the Vietnamese people are the subjects who “build, implement and protect this Constitution”; and then supplements fully the forms for people to exercise the state power including not only representative democracy through the National Assembly and the People’s Councils as stipulated by previous Constitutions but also through direct democracy (Article 6), by vote when the State organizes referenda including those on the Constitution (Article 29 and Article 120). The Communist Party of Viet Nam is not only the leading force of the State and society, but “is closely associated with the people, shall serve the people, shall submit to the supervision of the people, and is accountable to the people for its decisions.” The revised Constitution this time not only recognizes the Vietnam Fatherland Front which consists of political, socio-political and social organizations, prominent individuals representing their classes, social strata, religions and overseas Vietnamese as the political basis of the people's administration which represents and protects the rights and lawful and legitimate interests of the people, but also supplements its role to conduct social supervision and criticism of the State’s activities (Article 9). The Vietnamese Trade Union is a socio-political organization of the working class and laborers, “participating in the examination, inspection and supervision of the operations of state agencies…” (Article 10). These new political and legal ways of thinking are prompted by full awareness that the people are the supreme subjects of the state power; from the State’s origin, nature, raison d’être to the State’s strength, all come from the people. This is the constitutional foundation which guarantees that the State’s organization and activities belong to the people and promote strongly the people’s right to mastery of in the state life. That constitutional foundation is certain to be concretized in laws such as the Law on Election, the Law on Removal from Office of National Assembly’s deputies, the Law on Referendum, and the Law on Oversight and Criticism on the state operation by the people. These laws will be considered by the National Assembly to include in the Program on law and ordinance building in the coming time to gradually bring into play the role of the masters of the state power through direct democracy and generate a new driving force for national development.
Second, as our State, by nature, “is the socialist State ruled by law of the people, by the people and for the people” (item1, Article 2), the revised Constitution supplements a new principle on state power organization in Viet Nam namely the state power is unified and not only delegated and coordinated but also controlled in the exercising the legislative, executive and judicial powers (item 3, Article 2). This is one of the foundation principles on the state power organization in Viet Nam. As the people are the supreme subjects of the state power, the people’s control of state power is an essential and legitimate demand. The Platform on national construction in the transitional period to socialism (supplemented and developed in 2011) also emphasizes that the control of state power is one of the organizational and operating principles of the state apparatus. To control the state apparatus, it is necessary to establish mechanisms including internal control of the state power within the state apparatus among the three legislative, executive and judicial powers and in each of the powers and external control of the state power, meaning people’s control through socio-political organizations, mass media and individual citizens. Given this understanding, the control of state power is manifested through out all chapters of the revised Constitution. This is the basis to form the mechanism of people’s supervision and control of state power which they delegate to each power. This is also a constitutional basis for amending and supplementing laws on state apparatus organization including, among others, the Law on National Assembly Organization, the Law on Government Organization, the Law on People’s Court Organization and the Law on People’s Procuracy Organization to promote the role of state power control. The control of state power is a difficult and complicated issue. As on the one hand, it prevents and fights against degradation and abuse of state power, on the other hand, it should be exercised in such away to retain dynamism and flexibility in the implementation of State’s functions. That is why, the main issue of state power control is to enable the state apparatus to control society while controlling itself which is of no less important. Thus, after the Constitution was approved and based on the Constitution, the State will promulgate laws to build mechanisms on state power control in an appropriate manner. Those mechanisms are made of non-State subjects (such as the Fatherland Front, political, social and professional organizations, mass media, and directly the people) and an internal mechanism for subjects within the State to control each other. This is also a constitutional basis for us to continue preventing and fighting against corruption and negative phenomena in the state apparatus in Viet Nam at present through completing the institutionalization of state apparatus.
Third, for the first time in Viet Nam’s history of constitution development, the term human right was used in the 1992 Constitution. It is a development in terms of concept and theoretical perception. However, the presentation of human rights and fundamental rights of citizens in the 1992 Constitution did not manifest fully and deeply the concept on people nature of the State. With the philosophy that the people are the subjects of the legislative right, human rights and fundamental rights of citizens are solemnly declared right after Chapter I (Political regime) of the revised Constitution. In addition, the revised Constitution shows new awareness on promotion of human factor, considering human as subjects and major resources as well as the goal of development. For the first time the Constitution of Viet Nam affirms principles: “In the Socialist Republic of Viet Nam, human rights and citizens' rights in the political, civil, economic, cultural and social fields shall be recognized, respected, protected and guaranteed in accordance with the Constitution and law.” “Human rights and rights of citizens may not be limited unless prescribed by a law solely in case of necessity for reasons of national defense, national security, social order and safety, social morality and community well-being” (Article 14). These are fundamental principles which uphold the State’s responsibilities in relations to human rights and rights of citizens to limit the State’s arbitrary cut down and at the same time are a constitutional basis for everyone and citizens to protect and exercise human rights, fundamental rights and obligations of citizens in their relations with the State. Without the promotion of human rights and rights of citizens, there will be no regulation on foundation principles of the revised Constitution. Based on these principles, the revised Constitution stipulates human rights and fundamental rights and obligations of citizens including, among others, supplements to some new rights, such as “Everyone has the right to enjoy and access cultural values, participate in cultural life, and use cultural facilities” (Article 41); “Everyone has the right to live in a clean environment and has the obligation to protect the environment” (Article 43). These are a constitutional foundation for us to continue renovating institution, promoting the human factor and creating new motive force for development. Then, not only laws on rights to political, economic and civil freedom such as the Law on Association, the Law on Access to Information and the Law on Demonstration will be gradually developed and completed but laws on procedures to implement these rights such as the Law on Criminal Procedures, the Law on Civil Procedures and the Law on Administrative Procedures will also be studied, revised and supplemented in line with the new Constitution’s spirit and contents.
Fourth, to reflect a new stage to promote people’s right to mastery, the broad socio-political foundation of our State, the revised Constitution demonstrates profoundly and harmoniously social interests and consensus to build strength for development, particularly in the context of increasing ethnic, religious, political and economic conflicts in many countries and regions in the world. Accordingly, the revised Constitution does not only have subjects like the people and the nation which are always the subjects from the very beginning and through out the Constitution but also concrete subjects such as scientists, talents, people with disabilities, poor people, elderly people, people in difficult situations, businessmen, enterprises and overseas Vietnamese, among others. Thus, the revised Constitution does not only recognize the interests of the people and the nation in general but also of classes and social strata. Besides, the revised Constitution also institutionalizes social values accepted and shared by the whole society and people including, among others, the values of freedom, equity, equality, democracy, human rights, and transparency which are found in several articles and items of the revised Constitution. At the same time, the thousands of years of national construction and defense history have tempered fine traditions of the nation such as the traditions of national unity, patriotism, compassion, and mutual assistance, among others. These traditions and precious values are manifested deeply in chapters on socio-economic issues, culture, science-technology, environment and national defense. These are also orientations of fundamental policies in the fields of economy, social affairs, culture, education, science, technology and environment and a constitutional basis for the State to continue completing institutions in these fields in new conditions.
Fifth, to continue building and completing the socialist State ruled by law in Viet Nam, the revised Constitution affirms that our State is the socialist State ruled by law of the people, by the people and for the people based on the principle of all power belongs to the people and on the alliance of the working class, the peasantry and the intelligentsia while supplementing a new principle as mentioned above on state power control. These principles are a constitutional basis for legislative, executive and judicial state agencies to promote fully their roles and responsibilities, effectively and efficiently assume their functions, responsibilities and authority delegated by the people to each power, limit and prevent state power abuse, and prevent and fight against bureaucracy, corruption and waste.
Based on those principles, there are adjustments concerning the state apparatus in the revised Constitution to make each agency’s functions, responsibilities and authority clearer and more transparent and ensure the delegation, coordination and control for effective and efficient exercise of legislative, executive and judicial powers. Accordingly, the National Assembly is identified as the highest representative body of the people and the highest state power body of the Socialist Republic of Viet Nam which exercises constitutional and legislative powers, decides on important issues of the country and conducts the supreme oversight over the activities of the State. The President is the Head of State and represents the Socialist Republic of Viet Nam internally and externally. The President assumes command of the people's armed forces and holds the office of Chairperson of the National Defense and Security Council. The Government is affirmed by the Constitution as not only the highest state administrative body and the executive body of the National Assembly, but also the agency which exercises executive power. The supplement of this new role of the Government in the state apparatus organization both reflects the principle of delegation, coordination and control of state power and points out that the Government is not only the executive body of the National Assembly. This is to grant the Government full status and independent authority to be accountable to the country and the people.
The People's Courts are stipulated as not only the judicial bodies of the Socialist Republic of Viet Nam as in the 1992 Constitution but also affirmed to be the bodies which exercises “judicial power” (Article 102). This new regulation not only agrees to the principle of State power organization stipulated in Article 2 of the revised Constitution, showing a clear-cut delegation of state power, but also raises the courts’ responsibilities in exercising judicial power. From now on, national equity and justice are demonstrated in a most concentrated manner by the courts’ trials. The society and the people will have concrete addresses to participate in building and supervising the exercise of judicial power delegated and authorized by the people.
The roles and tasks of people’s courts as well as people’s procuracies are also adjusted reflecting new way of thinking in the revised Constitution. The roles and duties of people’s courts are prominently stipulated in item 3, Article 102 “to safeguard justice, human rights, citizens' rights, the socialist regime, the interests of the State and the rights and legitimate interests of organizations and individuals.” The roles and primary duties of people’s procuracies are emphasized as “to safeguard the law, human rights, and citizens' rights,” and then “to safeguard the socialist regime, the interests of the State, and the rights and legitimate interests of organizations and individuals, thus contributing to ensuring the strict and unified observance of the law” (item 3, Article 107). Meanwhile, the 1992 Constitution did not differentiate the roles and duties of courts and procuracies which had the same duties: “The People's Court and People's Inspectorate of the Socialist Republic of Viet Nam are duty-bound, within their competence, to protect the socialist legislation, the socialist system, the people's rights as masters and to protect property, freedom, honor and dignity of citizens” (Article 126). Comparing the two Constitutions, it is noticeable that the revised Constitution shows new awareness on the roles and duties of courts and procuracies. This new understanding fully conforms to demands of national construction and for completing the judiciary of the socialist State governed by law of Viet Nam in which human rights and citizens’ rights are best respected, safeguarded and guaranteed through the exercise of judicial power.
The revised Constitution stipulates principles, foundation on organization and exercise of judicial power of the people’s courts. These principles are stipulated accurately and succinctly and contain new way of thinking. “The adversarial principle shall be guaranteed in trials” is a new principle in our Constitution, institutionalizing our Party’s viewpoint on judicial renewal: “strengthen proceedings in trails” to renew judicial procedures and overcome constraints in existing interrogation procedures. The revised Constitution also stipulates that the National Assembly approves proposals on appointment and relief from duty of the Chief Justice of the Supreme People's Court (item 7, Article 70). This new stipulation is a constitutional basis for fundamental transformation to enhance the status and responsibilities of the Supreme People’s Court in general and the Chief Justice of the Supreme People’s Court in particular in exercising judicial power. These new contents should be concretized in laws on organization of people’s courts, people’ procuracies and laws on judicial procedures.
To renovate local administration organization to meet the country’s development demands in the new state, the revised Constitution generally stipulates a model of local administration as a constitutional basis for concretization by the Law on Local Administration later. Accordingly, the Constitution stipulates: “Local administrations shall be organized in administrative units of the Socialist Republic of Viet Nam. Local administration composed of the People's Council and People's Committee shall be organized consistent with the characteristics of the rural areas, urban areas, islands or special administrative-economic units prescribed by a law” (Article 111). The revised Constitution stipulates principled issues on assignment and delegation between the Central and local levels, among local administration levels to ensure unified leadership of the Central while promoting dynamism, creativeness, autonomy, and self-responsibility of local administrations.
The National Election Council and the State Audit Office for the first time are constitutionalized as independent entities in a separate chapter in the revised Constitution. The establishment of these two institutions is to continue bringing to play democracy, creating conditions and mechanism for people to fully exercise their right to mastery in election and control of state power. Accordingly, the National Election Council has the duties of organizing elections of National Assembly deputies, leading and guiding elections of members of People’s Councils at all levels. The State Audit Office audits the management and use of public finance and assets.
Though the revised Constitution has not yet stipulated a mechanism for the Constitution defense to control violations of the Constitution in legislative, executive and judicial activities as set out by the Party’s documents, but, instead, the Constitution emphasizes: “The National Assembly and its agencies, the President, the Government, People's Courts, People's Procuracies, other agencies of the State and all the people shall defend the Constitution.” “All violations of the Constitution shall be dealt with.” “The mechanism to defend the Constitution shall be prescribed by a law” (Article 119). These are a constitutional basis for building a mechanism to defend the Constitution more effectively through revising and supplementing laws on state apparatus organization and laws on inspection and supervision in the coming time and a basis for studying and forming a full-fledged mechanism to defend the Constitution prescribed by law.
The revised Constitution has come into effect as of 1 January 2014. The National Assembly issued Resolution No 64/2013/QH13, dated 28 November 2013 on the implementation of the Constitution stipulating that the National Assembly, Government, levels, branches, agencies and organizations in the political system have responsibilities to organize the implementation of the Constitution and take necessary measures in time to implement the Constitution. Central and local state agencies, the Vietnam Fatherland Front, member organizations of the Front and other concerned agencies and organizations have responsibilities to organize propaganda and dissemination of the spirit and contents of the Constitution to people of all strata, cadres, public employees, civil servants, workers, armed force soldiers and overseas Vietnamese to promote emotion and confidence in the Constitution and their conscious implementation, respect and defense of the Constitution and ensure that the Constitution is abided by and strictly implemented in all aspects of social life.
State agencies from the Central to local levels and branches should be fully aware of their responsibilities in organization and implementation of the Constitution. Accordingly, it is necessary to review and adjust organizational structure, functions, duties and authority through amending and supplementing laws on state apparatus organization. At the same time, review legal documents for revision, supplement, annulment or promulgation of new laws in line with the spirit and contents of the Constitution.
According to plan, to follow up the new spirit and contents of the Constitution on state apparatus organization and other institutions in the political system, from now to October 2015 (the 10th session,13th National Assembly), the National Assembly and the Standing Committee of the National Assembly will consider the approval of 26 draft laws and ordinances. In the fields of human rights, fundamental rights and obligations of citizens, from now to 2016, the National Assembly will consider the approval of 15 draft laws; in the fields of economy, social affairs, culture, education, science, technology and environment, from now to 2016, the National Assembly will consider the approval of 38 draft laws; and in the field of national defense, from now to 2015, the National Assembly and the Standing Committee of the National Assembly will consider the approval of 10 draft laws and ordinances. So, with 89 draft laws and ordinances which are expected to be approved by the National Assembly in line with the spirit and contents of the new Constitution in the coming years, it is certain that the institutional system of the State will have fundamental and comprehensive renovations, creating new driving force for national development in the new stage - the stage of accelerating comprehensively the cause of renovation and international integration.
This article was published on Communist Review No 857 (March 2014)