The Democratic Constitution is one of the most important institutions of a democratic government. After the political regime and democratic model have been selected, the Constitution is the most important institution in terms of social organization’s default mode of social organization. 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 understand the democratic Constitution.

       1/ The concept and contents of the democratic Constitution

       The Constitution is a system of fundamental political principles for the construction and administration of the government and for guiding the life and evolution of a national community. The Constitution is a central system of laws of the country; it expresses the will and aspirations of the absolute majority of the people. The Constitution is an agreement for the present and a future of the people in the same country.

       All concerns and priorities in building democratic institutions are reflected in the Constitution. Studying countries’ Constitutions, we see that each Constitution usually has four contents.

       – Preamble or general national goal. These are the country’s declaration about its polity, about the good values ​​that the government is committed to pursuing.

       – Terms of citizens’ rights and obligations. These provisions define the human rights and citizenship of each country. Human rights across countries have universal values ​​and do not differ much. The International Convention on Human Rights is the 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. Also, there are the relationships between the elements of society and the division of power between branches of government.

       – Special terms. These are special provisions of the countries. Maybe it’s the country’s concerns in a particular context, or it’s perhaps the agreements to mend the past. Each country has something unique 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 good concept and accurate identification of the democratic institution, the Constitution comes into play and brings significant benefits. But in the opposite case, when the view on the content of democracy or the way to build a democratic institution is not accurate, the Constitution does not help people have freedom and 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 these 120 countries have different perceptions and change their views on the content and method of building democratic institutions, can such change be implemented with the current Constitution? 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 often come after overthrowing revolutions or the fall of dictatorships. People only see the full democracies in the world with constitutions that have been stable for several hundred years. Hiring top experts from the democratic countries they dream of to write the Constitution makes people feel more secure. They assume that it is for the best, without needing to change, or constitutional changing should be limited. Many people also think that only amending and changing the Constitution involves significant events in social life. The mentality of worshiping and crucifying the Constitution is a burden that the Constitution brings.

       One of the reasons the Constitution is difficult to amend or replace is that it will create legal gaps for groups to benefit when the Constitution does not cover all the core and most essential issues. Opportunistic constituents can abuse power and profit. Rights and profits go hand in hand for a while, leading to a combination of abuses. 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, laws are closely related to life that change from time to time, the circumstances related to the rules, and people adjust their lives and the laws based on them. However, the provisions for amending, changing, and replacing the Constitution itself, or the fundamental rules in the Constitution, are minimal and very strict. That 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 is more evidence that, just because a country is free from the yoke of tyranny, it does not mean that the government is automatically democratic, and the people are naturally free. There are 120 countries with democratic institutions, but their people are not free. The significant disturbances in these countries are increasingly showing the content of democracy and the way to build democratic institutions in countries with serious problems. Thus, democratic constitutions are automatically responsible for this situation by their function. 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 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, maybe not correct, or perhaps 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. By understanding this point of view, we will indeed have a beautiful and practical Constitution.

       As for the requirement of the stability of the Constitution, we still need to meet. Among the four critical 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 crucial content. Why prepare 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 wants. Noble goals are not hard to define nor challenging to find consensus. There are only difficulties in the plan’s methods, measures, and paths.

       Thus, we still have two crucial 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, and they can be modified or replaced when we see enough requirements and conditions. The Democratic Constitutions of the current countries are not without provisions on change and replacement, but the regulations are too tricky 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 challenging and complicated.

       Concerning the project on building the Vietnamese democratic institution according to the new approach, the Democratic Constitution needs to grasp the following issues thoroughly.

       – 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 institution to meet those requirements. Therefore, the Human Rights Court institution is worthy and necessary 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 critical 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.

       We should establish the Human Rights Court institution 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 critical 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 nations.

        The Democratic Constitution, with good contents, is required and can be supplemented, amended, or replaced, is necessary for any country. Once we have correctly determined the right democratic institution to be built, we can make a Democratic Constitution that fully demonstrates its functions and roles. Also, the Constitution should 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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