Draft of Amendment to the 1992 Constitution
The Socialist Republic of Vietnam (SRV) has made public the draft of proposed amendments to the 1992 Constitution (herein referred to as “the Draft”) with the purpose of gathering public opinions from 1/2/2013 to 3/31/2013. We applaud this initiative because the Constitution of a nation should first and above all be a product of her citizens, by their sense of duty and for their own welfare, without exception. Recognizing our duty as citizens, we the Standing Committee, in the name of the Conference of Catholic Bishops, respectfully forward our assessment and comments to the 1992 Constitution Amendments Drafting Committee and to the entire nation.
I. Human Rights
The Draft devotes the entire Chapter II (Articles 15-52) to the rights of individuals. These rights have been officially recognized in the Universal Declaration of Human Rights (12/10/1948), which Viet Nam has signed. The Draft lists rather completely the basic human rights. The issue is how to ensure that these rights are understood, respected, protected and guaranteed by the laws in practice.
Human rights are intrinsic to human dignity and values, and are therefore universal, inviolable and non-negotiable. Universal because all people, everywhere and at all times, are entitled to those rights; inviolable because violating them means depriving people of their human dignity and values; non-negotiable because no one may compromise the rights of others.
The political power that the people confer on the State should create the conditions and environment favorable to the exercise of human rights, not for the State to dispense them as it likes. Therefore, in order for human rights to be “recognized, respected, protected and guaranteed by the State and society in accordance with the constitution and the law” (Article 15), we see the need to clarify a number of points.
The Draft asserts the right to freedom of speech (Article 26), the right to artistic and cultural creativity (Article 43), the right to freedom of belief and religion (Article 25). However, right from the beginning, the Draft already affirms that the ruling party is “the force that leads the State and society, adopting Marxism-Leninism and the thoughts of Ho Chi Minh as ideological foundation” (Article 4). So, how should we interpret and how can we implement the rights to freedom of speech and of artistic and cultural creativity as all thoughts have already been framed within an ideology? Similarly, how should we interpret and apply the right to freedom of belief and religion as Marxism-Leninism is an atheist ideology by nature? Is it the case that these rights are favors to be granted to the people at arbitrary times and places, instead of being universal, inviolable, and non-negotiable? The Constitution should eliminate these contradictions and unreasonable provisions in order to convince the people and win their trust.
In reality, tying thoughts to a single ideology has inhibited the creative thinking of the Vietnamese people. This is one of the major reasons that have led to Vietnam’s sluggishness and underdevelopment on many fronts: education, sciences and industry as well as culture and the arts. Should a foundation be necessary, we think that must be the rich cultural heritage of the Vietnamese people, and not any other ideology. This cultural heritage, formed through many centuries, helps the Vietnamese people to build and develop our country, and create a highly humanistic way of life. This culture is the very foundation of the Vietnamese people’s societal life; new ideologies may and should be welcomed to supplement and enrich, but not to substitute it. Only then will we be able to preserve and promote our cultural identity in the face of the rapid changes in today’s globalization era.
Therefore, we propose that:
- The Constitution should: clearly assert that all people are free and equal with regards to dignity, values and rights. Human rights are inseparable from dignity and values of being humans, and hence they are universal, inviolable and non-negotiable.
- Use our nation’s cultural heritage as the ideological foundation to organize and govern Vietnam’s society.
- State clearly the right to life (referring to Article 21 of the Draft): all people have the right to life. No one may take away the life of another person, from conception to grave. The State has the obligation to protect a person’s life. Everyone has the right to protect his or her life as long as this does not harm another person’s life.
- State clearly the right to freedom of speech (referring to Article 26 of the Draft): all people have the right to freedom of thought, free expression and belief.
- State clearly the right to freedom of religion (referring to Article 25 of the Draft): all people have the right to freedom of belief and religion. This right encompasses the freedom to follow or not to follow a religion, the freedom to practice religious rites, individually or collectively. No religion or ideology may be considered as obligatory for Vietnamese citizens. The State will not use negative propaganda against religions, nor interfere in the internal affairs of religions such as: training, ordainment, transfer, separation or merging… Religious organizations have the right to freely conduct social and community activities such as education, health care…
II- The People’s Right to Ownership
Political power is necessary to govern society, but the subject of political power must be all the people in the country as a whole. The people delegate the execution of this power to those who are capable and dedicated that they elect to represent them, regardless of whether these persons are affiliated or not with any political party. Only then will there be a State based on the rule of law that is “of, by and for the people” (referring to the preamble). Therefore, every citizen’s right to run for election is the essential requirement for a democratic, civilized and healthy society. Simultaneously, open, objective and fair election is the essential requirement for citizens to select representatives whom they trust. It is the people who have the right to evaluate the competency of the representatives they have elected, and when necessary, they have the right to replace those representatives.
Therefore, we propose that:
The Constitution should emphasize the people’s right to ownership, not as a theoretical proposition but as manifestation in concrete provisions of the Constitution, and implementable in practice. The Draft asserts that: “All powers of the State belong to the people founded on the alliance of the working class, the farmers and the intellectuals”. But in reality, the workers, the farmers and the intellectuals are the most disadvantaged elements of society. This reality shows that affirming the people’s right to ownership only exists on paper and in theory.
- In order to respect the people’s right to ownership, the Constitution should not and may not assert a priori the leadership of any political party (Chapter X Article 4) because the subject of political power is the people, and the people confer that power on those they trust via elections. Elected individuals shall be held accountable to the people for their acts, rather than being a vague collective where no one is held accountable in the end.
- The current Constitution only recognizes the people’s right to use land but not their right to own land. This has led to many abuses and severe injustices. Therefore, the new Constitution should recognize the right to land ownership of citizens and private organizations as in most countries in the world.
- The Constitution should respect the right of all people to participate in the system of public authorities, regardless of membership in a particular social group, race, religion…
III- Execution of Political Power
The political power that the people confer on the government is comprised of three branches: Legislative, Executive and Judiciary. In order for this power to be properly and efficiently executed, there should be legitimate independence of each branch and that should be for the benefit of the entire society. In Vietnam’s reality over many years, such independence has been non-existent, which has led to the situation of misuse and abuses of power, causing injustice and degradation in many aspects: economic, social and moral. In the end, the poor must bear all the consequences and Vietnam to this day continues to be viewed as a less developed country.
The root cause of this is the lack of distinction between the ruling party and a State that is based on the rule of law. This is manifested right in the 1992 Constitution, and the Draft follows the same path.
On the one hand, Article 74 asserts that the National Assembly is the “highest State authority”; on the other hand, Article 4 asserts that the ruling party is “the force that leads the State and society”. So, who leads whom? Is the National Assembly merely an instrument of the ruling party? If so, what is the meaning of the citizens’ electing their representatives to the National Assembly? Is this truly free choice or is it merely democracy for show?
The Draft also dedicates many chapters to talk about the National Assembly (Articles 74-90), the President (Articles 91-98), the Government and Prime Minister (Articles 99-106). There is no chapter about the Secretary General of the ruling party. In reality the Secretary General holds the utmost authority because also according to the Draft, the ruling party is the “force that leads the State and society” (Article 4)! If so, does it mean the party is above and outside the law, and not bound by the law? If the ruling party is the leader of both the State and society, why do we still need the National Assembly and justice system?
The above analysis shows the contradictions and unreasonableness in the content of the Constitution. This unreasonableness has led to the unreasonable situations in practical life, which constitute the root of social injustices, leading to social instability and hampering the healthy and sustainable development of the country.
Therefore, we propose:
- To overcome the unreasonableness in the structure of the Constitution, by eliminating the privileges of any political party, and at the same time emphasizing the role of the National Assembly as the “supreme State authority”, elected by the people and being the true representative of the people and not the instrument of any ruling party.
- To assert the separation among the legislative, executive and judicial powers, thus providing the legal foundation for the execution of these powers independently and effectively.
- Legalize the people’s controls over the enforcement of the laws by means of specific regulations.
Our assessment and comments only aim to contribute to the development of the Constitution that is reasonable and reflects the will of the people. Our desire is that all Vietnamese citizens will contribute to amending the Constitution, thus serving the holistic and sustainable development of the Vietnamese nation.
Archbishop of Hanoi, March 1, 2013
For the Standing Committee, Vietnamese Conference of Catholic Bishops
Secretary General President
(signed) (signed )
Cosma Hoàng Văn Ðạt Phêrô Nguyễn Văn Nhơn
Bishop of Bắc Ninh Archbishop of Hà Nội
Translated by Tiếng Nói Công Dân