Need to clarify the Constitution on Human Rights

(Baonghean) -The Constitution is the original law, the basic law, the content needs to be concise and condensed, so it is not possible to fully present the general concepts in the Constitution, including the concept of human rights. Therefore, we need to clarify the concept of Human Rights to have a unified perception of ideology and create consensus in the whole society.

Based on the basic documents of the United Nations, including the 1948 "Universal Declaration of Human Rights" and international conventions on Human Rights, especially the international convention on civil rights, the 1966 "International Covenant on Economic, Social and Cultural Rights", Human Rights can be understood as follows:

As a philosophical and ethical value, Human Rights are a fundamental, inherent value (or also known as "Natural Rights") of human beings. These values ​​include: dignity, freedom, equality, humanity, tolerance and responsibility of each person to the community.

As a legal value, Human Rights are legal provisions (in international law and national law) to protect and fulfill the material and spiritual needs of all people in all aspects: civil, political, economic, social and cultural.

In the 1992 Constitution, Human Rights are placed in Chapter V - "Fundamental Rights and Obligations of Citizens". Article 50 of this chapter stipulates: "In the Socialist Republic of Vietnam, Human Rights... are respected, expressed in civil rights...". Thus, in the 1992 Constitution, the concept of Human Rights is identical with or included in the concept of civil rights.

Compared to the 1992 Constitution, the Draft Amendment to the 1992 Constitution places Human Rights in Chapter II, right after Chapter I "Political Regime". The title of Chapter II is as follows: "Human Rights, Basic Rights and Obligations of Citizens".

First of all, placing Human Rights in Chapter II (compared to Chapter V in the 1992 Constitution) clearly shows the importance of Human Rights and Citizens' Rights compared to the 1992 Constitution. At the same time, this draft has fully reflected human rights. Protecting human rights is an important goal of the Constitution. However, the law in general, and the Constitution in particular, always have the political nature of the State. Therefore, the Constitution of any country not only aims to protect Human Rights but also to protect the social regime. For us, if we cannot protect the socialist regime, we cannot protect Human Rights.

Second, it is necessary to clarify the concept of Human Rights in the following aspects: Talking about Human Rights means talking about the rights of all people, the natural rights of human beings. In other words, everyone has rights regardless of their race, gender, age, political status, health, etc.

Thus, the concept of Human Rights is broader than the concept of Citizenship, which is the right of a member of a certain country, determined by the nationality regime. The concept of Human Rights is broader than the concept of Citizenship in some other aspects, that is, people who are deprived of some part of their citizenship rights (such as the right to freedom of residence, the right to vote, the right to run for election due to being subject to a decision or a judgment that has come into effect...) or people who have lost their civil capacity (due to mental illness...)... they still have Human Rights. Regarding this content, Human Rights need to clearly demonstrate a number of points as follows: That is, the State respects, protects and guarantees Human Rights based on the principle of equality of all people within the territory (this means that Human Rights are not only for Vietnamese citizens) and the legal authority of Vietnam. In other words, this issue clearly demonstrates that the concept of Human Rights is broader than Citizenship Rights.

In terms of time, Human Rights are the rights of every human being from the moment he is born (in some countries, the law stipulates that a fetus that has developed to a certain level is also considered to have Human Rights) until death. Meanwhile, Citizenship Rights can be (partially) deprived when that person violates the law. Or in the case that person loses civil capacity (due to mental illness).

In practice, talking about Human Rights means talking about the law regulating the relationship between the State and the people, in which the people are the subject of rights, the State is the one who respects, protects and implements the rights of the people. Therefore, the Draft needs to demonstrate more clearly the responsibilities of State agencies and civil servants towards the people.

Therefore, it is necessary to consider, research and specifically amend the Draft Constitution as follows:
In terms of language, the law needs to be edited to make the concept of Human Rights more precise, such as: In Article 15.1 of the Draft, there is a paragraph stating "Human rights... are recognized, respected, protected, and guaranteed by the State..." This is not accurate.

As analyzed above, Human Rights are inherent, it does not depend on whether it is recognized or not. On the other hand, using the concept of "recognition" can lead to misunderstanding. The existence of Human Rights in Vietnam is due to some pressure from the outside so it must be "recognized", moreover writing like that is redundant because "respect" implies more than "recognition".

Article 16.2 Chapter II, Draft states: No one is allowed to take advantage of human rights and civil rights to infringe upon national interests, ethnic interests, or the rights and interests of others. Here, the phrase "not allowed to take advantage of human rights..." is unclear. The concept of "taking advantage" has many interpretations and can be arbitrarily applied or distorted. Therefore, it can be amended as follows: "While enjoying their rights, everyone is not allowed to infringe upon national interests or the legitimate rights and interests of others."

Article 20, Chapter II, needs to add the following principle: "No one may take advantage of the basic rights and obligations of citizens to violate the law and State policies."

Article 26, Chapter II, proposes to add the provision: "No one may take advantage of freedom of speech and freedom of the press to violate the law and policies of the State".

Article 29.2, Chapter II, Draft states: "The State creates conditions for citizens to participate in State and social management". Writing like that still follows the old way of presentation - the State is the "giver" (because "creating conditions" does not clearly show the mandatory requirement for the State. More precisely, the State may or may not do it). Therefore, it is revised as follows: "Citizens have the right to participate in State and social management".

Clause 1, Article 38 can be studied and supplemented with "Citizens are guaranteed employment opportunities and have the right to choose jobs and workplaces".

Clause 2, Article 3 8 is proposed to be reviewed and amended to "strictly prohibit acts of discrimination, forced labor, and illegal use of labor". Because the content of the Constitution stipulates general provisions for all specific regulations for each group of workers (here, minor workers) will be specifically regulated by laws.

Article 49, Chapter II should be amended as follows: "Citizens have the obligation to obey the Constitution and laws, participate in protecting national security and social order and safety, participate in building people's security and comply with the rules of public life" (add the phrase "building people's security").

Clause 1, Article 61 proposes to be studied and amended as follows: "The State encourages and supports the expansion and development of employment; issues policies to support the development of the labor market, ensuring workplace safety for workers; and prioritizes support for groups of people having difficulty finding jobs."

In addition, in Chapter II, the Draft Constitutional Amendment needs to add provisions to protect the rights and interests of vulnerable and disadvantaged social groups such as children, women, people with mental illness, people infected with HIV... Because people in these social groups often lack the ability to protect themselves. In fact, the policies and laws of our Party and State have stipulated this content such as the Law on "Prevention and Control of Viruses Causing Acquired Immunodeficiency Syndrome in Humans" in 2000; Law on "Gender Equality" in 2006; Law on "Protection, Care and Education of Children" in 2004; Law on "People with Disabilities" in 2012... Although we already have legal documents on some of these social groups, the Constitution still needs to have provisions on vulnerable social groups so that the State and society can pay more attention, properly reflecting that the Constitution is the original law, the basic law.

Human rights for our people are the fruit of the national liberation revolution led by the Communist Party of Vietnam and President Ho Chi Minh. The Party's guidelines and policies and the State's laws on human rights over the past decades have come from the Party's goals and ideals and from the nature of our regime. They do not come from any pressure from the international community or from opposition political forces at home and abroad. Thus, in this law amending the Constitution, we should inherit the fruits of theoretical and legal thinking and the people's contributions, creating a high consensus in society. At the same time, we should selectively inherit the fruits of legal thinking on human rights of mankind, in order to better ensure the rights and interests of our people.

Tran Van Ha (6/34 - Phung Khac Khoan - Hung Dung Ward - Vinh City)