THE NECESSARY CONCEPTION OF THE DEMOCRATIC CONSTITUTION

The Democratic Constitution is one of the most important institutions of a democratic government. In terms of the default mode of social organization, that is, after the political regime and democratic model has been selected, the constitution is the most important institution. All methods of making democratic institutions follow and are guided by the constitution. The Constitution is both a directional compass, a blueprint for building a democratic nation, and at the same time the navigator of a nation’s ship at sea. For such an important institution, we need to have an understanding of the democratic constitution.

1/ The concept and contents of the democratic constitution

The Constitution is a system of basic political principles for the construction and administration of the government, as well as for guiding the life and evolution of a national community. The Constitution is a fundamental law of the country, it expresses the will and aspirations of the absolute majority of the people. In a word, a constitution is an agreement for a present and a future of the people in the same country.

All concerns and priorities in the content of building democratic institutions are reflected in the constitution. Studying the constitutions of countries, we see that each constitution usually has the following four contents.

– Preamble or general national goal. These are the contents of the declaration of the country about its polity, and also the statement of the good values that the country is committed to pursuing.

– Terms of citizens’ rights and obligations. These provisions define the human rights and citizenship of each country. In general, human rights across countries have universal values and do not differ much. The International Convention on Human Rights is the most complete document on universal human and civil rights. Having a country that has used the International Convention on Human Rights as a standard to determine the human rights of its citizens is a very creative and correct application.

– Provisions on state organizations. In these articles, the issue of whether that country is under the system of unity or decentralization (federal state form), parliamentary or presidential, semi-presidential model… are all mentioned. Along with that are the principles of building a democratic state, the relationship between the elements of society, the division of power between branches of government…

– Special terms. These are special provisions of the countries. Maybe it’s the country’s own concerns in a particular context, or maybe it’s the agreements that need to be mended in the past. Each country has something special and different…

2/ The mentality of devotion and the burden of the constitution

We all know the role of the constitution in building democratic institutions and guiding people’s lives. When there is a right concept and accurate identification of the democratic institution to be built, the constitution comes into play and brings great benefits. But in the opposite case, that is, the view on the content of democracy as well as the way to build a democratic institution is not accurate, then the constitution not only does not help people to have freedom but also burdens people, making it very difficult to make the necessary changes. The article: “A new approach to building democratic institutions” mentioned that, out of 150 countries with democratic institutions, only in less than 30 countries people are free, while in the other 120 countries, there may be a democracy, but the people are not yet free. Thus, assuming that, if these 120 countries have different perceptions and change their views on the content and method of building democratic institutions, with the current constitution, can such change be implemented? Is it convenient, easy or not? The answer is not because of the constitutions themselves, or rather, because of the mentality of constitutional reverence.

Democratic constitutions, which often come after overthrowing revolutions, or the fall of dictatorships. People only see the top democracies in the world with constitutions that are stable for several hundred years. Hiring top experts, from the democratic countries they dream of to write the constitution, makes people feel more secure, and they assume that it is for the best, without needing to change, or constitutional changing should be limited. Not only that, many people also have the mentality, thinking that only amending and changing the constitution when there are major events in social life. The mentality of worshiping and crucifying the constitution is a burden that the constitution brings.

One of the reasons why the constitution is difficult to amend or replace is that when the constitution does not cover all the core and most important issues, it will create gaps and legal gaps for groups to benefits, and opportunistic components can abuse power and profit. Rights and interests go hand in hand for a while, leading to a combination of interests. Individuals, groups and corporations exploiting and profiting from the very shortcomings and distortions in the constitution will not readily accept the change, amendment or replacement of the existing constitution.

In democratic constitutions, there is a provision of laws that are closely related to life, that change from time to time, and the circumstances within which the laws are contained, and people base on them to adjust their lives and the laws. However, the provisions for amending, changing and replacing the constitution itself, or the basic laws in the constitution, are very limited and very strict. This is one of the most worrisome inadequacies of democratic constitutions. Most countries are more or less tolerant of these inadequacies. If before, escaping from the yoke of dictatorship for many countries was a big dream turned into reality. But there are more and more evidences that, just because a country is free from the yoke of dictatorship, it does not mean that the country is automatically democratic, and the people are naturally free. The number of 120 countries with democratic institutions but their people are not really free, along with the great disturbances in these countries are increasingly showing the content of democracy and the way to build democratic institutions in countries with serious problems. Thus, by virtue of their function, democratic constitutions are automatically responsible for this situation. But what is most worrisome, is not the issue of responsibility, but the ability to self-modify and replace the democratic constitutions in these countries.

3/ Necessary conception of the Democratic Constitution

The Democratic Constitution is one of the most important institutions of a democracy. But the Democratic Constitution is also a product of people’s perception of the content and how to build a democratic institution. Our perception may be correct, may be not correct, or may be not accurate. We should not worship and appreciate the role of the Constitution too much, so that it will be the Constitution that binds us again when we need to change. Just by understanding this point of view, we will surely have a beautiful and effective Constitution.

As for the requirement of the stability of the Constitution, we still need to meet. Among the four important contents of the Constitution (Foreword or general national goal; Articles on citizenship rights and obligations; Articles on state organization; Special provisions), we can frame the first two important content. Why frame the first two? Because people’s knowledge, experience, and consensus on the first two contents are not difficult to achieve. On the other hand, most of them are noble goals a country is aiming for. Noble goals are not difficult to define nor difficult to find consensus. There are only difficulties in methods, measures, and paths to the goal.

Thus, we still have two important provisions to be able to determine the content, as well as how to build a democratic institution. First of all, no matter what the content is, in principle we need to determine that these contents should not be forever, that is, they can be modified or replaced when the enough number of requirements and conditions are met. The Democratic Constitutions of the current countries are not without provisions on change and replacement, but the regulations are too difficult and strict (for example, requiring very high consensus, 70-75%) plus the mentality of respecting the Constitution makes the possibility of changing and replacing the Constitution extremely difficult and complicated.

In relation to the project on building the Vietnamese democratic institution according to the new approach that we propose, the Democratic Constitution needs to thoroughly grasp the following issues.

– It is necessary to include the core democratic institution of the Court of Human Rights in the content of articles on state organization. When the old approach does not have a core democratic institution, an institution that directly guarantees and protects human rights, or in other words, guarantees and protects human freedom, the Human Rights Court is the institutions to meet those requirements. Therefore, the institution of the Human Rights Court is worthy and necessary to be included in the articles on state organization.

– The democratic constitution should identify supporting institutions to implement the core institution, and at the same time build other institutions around and serve the core institution of the Court of Human Rights. The two most important supporting institutions of the Human Rights Court are to equip the people with knowledge about freedom, democracy, and human rights, and the institution of free protection of human rights in the Court of Human Rights.

– The institution of the Human Rights Court should be established at all levels: grassroots, state, and federal, and be an independent system with absolute power, independent of the available three powers of the trilateral institution segregation rights. If possible, it is most reasonable that the Human Rights Courts at all levels reside within the Constitutional Court. The highest level of the Court of Human Rights, or the National (federal) Court of Human Rights is the Constitutional Court.

– Another important issue that the Democratic Constitution should pay attention to is the current trend of integration and globalization of countries. Human freedom needs to be compatible and suitable for all nation.

The Democratic Constitution with its stable contents and those that need to be supplemented, amended and replaced is a necessary requirement for any country. Once we have correctly determined the core democratic institution, that is, the right content of democracy to be built, as well as how to build a democratic institution, we always hope and believe that the Democratic Constitution fully demonstrates its functions and roles, and at the same time does not cause any difficulties or barriers to any necessary change in the contents of democracy when the situation and circumstances change./.

Hanoi, October 28, 2017

Nguyen Vu Binh

Translator: Thuan Do

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