CPV’s units and members of the CPV operate within the scope of the Constitution and the laws.” Compared to the Constitutions of 1980 and 1992, Article 4 of the 2013 Constitution continue[r]
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ASIAN CONSTITUTIONAL LAW:RECENT DEVELOPMENTS AND TRENDS
THE ROLE OF THE COMMUNIST PARTY
IN ARTICLE OF THE 2013 CONSTITUTION OF VIETNAM
Dr Cam Thi Lai
Ho Chi Minh National Political Academy
Abstract
The paper analyses the theoretical and practical basis of the new regulations on the position, and responsibilities of the Communist Party in Article of the 2013 Constitution of the Socialist Republic of Vietnam Besides, the author also raises issues and requirements set out in the implementation of these regulations in Vietnam nowadays
The research questions that the author tries to answer in this article include: (1) How does the Article of the 2013 Constitution of the Socialist Republic of Vietnam (talking about the Communist Party of Vietnam (herein after CPV1) differ from those of the previous Constitution? (2) What are the
theoretical and practical basis of the new points included in Article of the 2013 Constitution? (3) What are the requirements for implementing Article of Vietnam’s 2013 Constitution?
Keywords: 2013 Constitution, Communist Party of Vietnam, CPV. Introduction
From a constitutional perspective, the role of the CPV was mentioned early in the Vietnamese Constitutions The only Constitution that did not mention this issue due to historical circumstances was the first Constitution (1946), while the subsequent Constitutions (1959, 1980, 1992, 2013) all included regulations on the CPV, in the Preamble (Constitution 1959), or in a separate clause, and later (Constitutions 1980, 1992, 2013), in both the Preamble and a separate clause
Specifically, the 1959 Constitution, in the Preamble, emphasized the leading role of the CPV (called as Vietnam Labour Party at that time) with the revolution for national independence The Constitutions of 1980 and 1992 each set aside a separate article (Article 4) that addresses the role of the CPV Specifically, Article of the 1980 Constitution stated that the CPV: “ is the only force leading the State and the society; is a key factor determining all victories of the Vietnamese revolution”, “The CPV exists and strives for the benefit of the working class and the people of Vietnam CPV’s units 1 Although the Communist Party of Vietnam is not the first and only name (since its establishment in 1930, the
Vietnamese Communist Party has used some other names such as Indochinese Communist Party (Đảng Cộng sản
Đông Dương) and Vietnam Labor Party (Đảng Lao động Việt Nam), the Communist Party of Vietnam (Đảng Cộng
(2)48 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS operate within the scope of the Constitution” These contents were later noted briefly in Article of the 1992 Constitution, under which the CPV “ is the state and social leadership force”
Besides Article 4, the Preamble to the both Constitutions of 1980 and 1992 also clearly affirmed the leading role of the CPV, while emphasizing one of the duties of the Constitution is “ to institutionalize the relationship between the CPV’s leadership, people’s ownership, and the State’s management”
Article of the 2013 Constitution of the Socialist Republic of Vietnam continues to regulate the role of the CPV with many new regulations, demonstrating new approaches and thinking not only about the CPV’s position, but also about the relationship between the CPV and the People, between the CPV and the country and the nation The following parts of this article analyses those new points of Article of the 2013 Constitution, focusing on clarifying the theoretical and practical bases and their significance In addition, the article also outlines requirements and solutions for implementing these regulations in Vietnam nowadays
1 New points in Article of Vietnam’s 2013 Constitution
Article of the 2013 Constitution of the Socialist Republic of Vietnam inherits and develops the provisions in Article of the Constitutions 1980 and 1992, with the following specific contents:
“1 The CPV - the vanguard of the working class, at the same time as the vanguard of the labour population and of the Vietnamese people, loyal representative of the interests of the working class, working people and of the entire nation, taking Marxism - Leninism and Ho Chi Minh’s ideology as the basis of thought, is the leading force of the State and the society
2 The CPV is intimately attached to the People, serving the People, is subject to the people’s supervision, and is responsible to the People for its decisions
3 CPV’s units and members of the CPV operate within the scope of the Constitution and the laws.” Compared to the Constitutions of 1980 and 1992, Article of the 2013 Constitution continues to affirm the leadership position of the CPV to the State and the society as a historical and objectively indispensable issue; however, added points regarding the CPV’s nature, that is: “the CPV is a vanguard of the working class and a vanguard of the working people and of the Vietnamese people, a loyal representative of the interests of the working class, of the working people and of the entire nation, taking Marxism – Leninism and Ho Chi Minh’s ideology as the basis of thought” In addition, this adds to the phrase “The CPV is in close attachment to the people, serving the people, under the supervision of the people, and holds responsible to the people for its decisions”, and confirms that not only CPV’s units but also CPV members must operate within the scope of the Constitution and laws1.
Politically, the additional content in Article of the 2013 Constitution is to institutionalize new points about the position and role of the CPV that were affirmed in its Platform to build the country during the transition to socialism (Cương lĩnh xây dựng đất nước thời kỳ độ lên chủ nghĩa xã hội) (addition, development in 20112) Socially, these additions are ‘to clarify the nature, role and
responsibility of the CPV to be the state and social leading force’3.
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PART - PUBLIC LAW IN VIETNAM: COMPARATIVE CONTEXTS
Firstly, to continue affirming the historical mission and the state and social leadership position in the transition period to socialism of the CPV The fact that the CPV is the force that led the Vietnamese people to gain national independence, carry out the renovation process (since 1986), and is now the only force capable of continuing to lead the people of Vietnam to build up socialism
Secondly, to identify more clearly, fully and openly the nature of the CPV to be not only a vanguard of the working class, but also a vanguard of the labouring population and of the Vietnamese people Through this addition, affirming the Vietnamese people’s recognition of the CPV’s leadership, and at the same time putting the CPV in a position to make more efforts to deserve the people’s confidence
Thirdly, to emphasize that the CPV must be in close association with the people, must serve the people, must be under the supervision of the people and be responsible to the Vietnamese people for its decisions in case those affect the interests of the state, the nation and the people of Vietnam At the same time, in order for the people to monitor the CPV’s organization and activities, and to clearly assign the responsibility to the CPV, the 2013 Constitution defines not only the CPV but also the CPV members is to operate within the scope of the Constitution and laws
In the above issues, a particularly important new point is the provision of the CPV’s responsibility in relation to the people This is the first time the issue of the CPV’s responsibility is stipulated at the constitutional level, so it has great significance in improving the responsibility of the CPV’s units Here, the 2013 Constitution does not generally stipulate “the CPV is responsible for its leadership” but clearly states that “The CPV is responsible for its decisions” This type of regulation allows to specify the responsibilities for each decision of each CPV’s unit, overcome the situation of “pushing” responsibility in practice5.
2 Theoretical and practical basis of the new provisions in Article of the 2013 Constitution of Vietnam During the process of drafting the 2013 Constitution, there were many comments in Vietnam regarding the revision of the CPV’s leadership regulations There are basically two streams of ideas6:
(i) The first opinion stream acknowledges the CPV’s leadership role and the necessity of the CPV’s ruling position, but argues that it is not necessarily recorded in the Constitution This flow of ideas, cites constitutional experience in many countries, where although there are still political parties in power but not recorded in the Constitution The 1946 Constitution and the 1959 Constitution of Vietnam also did not officially recognize the leadership and the ruling of the CPV, although the spirit of the chapters and articles still shows the leadership position of the CPV
(4)50 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS already as determined by the Resolution of the 11th Congress of the CPV”, on the other hand “ensuring the constitutional provisions are in line with the basic laws, with long-term stability”
The Constitution of 2013 recognized the leadership of the CPV following the second opinion stream In general, the supplementary points in Article of the 2013 Constitution reflect the consistent view of the CPV’s vanguard position and role in the Vietnam revolution process and the new awareness of the principle of sovereignty of the people, in the context of building a socialist rule of law state (nhà nước pháp quyền xã hội chủ nghĩa) in Vietnam7.
The view on the position stability, and the pioneering role of the CPV, is drawn from the reality of Vietnamese history During the process of revolution and national liberation against French colonist before 1945, as well as a national construction from 1945 to the present, the CPV has shown to be the vanguard of the Vietnamese people Specifically, the CPV led the Vietnamese people to carry out the revolution and achieved victories in the wars against French, American, and Chinese invaders The CPV shows that it is now the only political force capable of leading Vietnam Therefore, the amendment noted in the 2013 Constitution on the CPV as a vanguard of the workers and the people of Vietnam not only confirms the local people’s recognition of the CPV’s leadership, but more importantly, as argued by an author, “it is the people’s assignment of the responsibility to the CPV, putting the CPV in a position to strive and strive more in its vanguard position”8 In other words,
continuing to constitutionalise the CPV’s leadership role in the 2013 Constitution is considered necessary and indispensable
From the new awareness of the principle of people’s sovereignty, additional aspects of the CPV’s responsibilities in the Article of the 2013 Constitution clearly show the view of recognizing the people as the supreme subject of power, and the CPV’s position is both the society leader and the people served, being responsible to the people This is in line with international trends in which the theory of people’s sovereignty has been affirmed as a common and fundamental principle of every democratic state According to this theory, people’s power is the ultimate and the root power in societies The people directly exercise a part of their power, and at the same time entrust the exercise of power to the State When exercising the mandated power, the authorized subject must be subject to the people’s supervision and inspection In other words, the ruling of the political party is also from the people, they must listen to the opinion of the people, be under the supervision of the people, and hold accountability to the people for its political decisions9.
3 Constitution’s principle “The CPV operates within the scope of the Constitution and the laws” in the 2013 Constitution of Vietnam
This principle was firstly recognized in Article of the 1980 Constitution, then was restated in the 1992 Constitution The 2013 Constitution inherits the provisions of the previous two Constitutions, and clearly provides that not only organizations of the CPV (such as the 1980, 1992 Constitution) but also the members must operate within the scope of the Constitution and laws.
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PART - PUBLIC LAW IN VIETNAM: COMPARATIVE CONTEXTS
Firstly, from the nature, purpose, position and role of the CPV: The CPV Charter stated that:
The CPV is the vanguard of the working class, at the same time is the vanguard of the Vietnamese people, and a loyal representative of the interests of the working class, the labour population and the whole nation, taking Marxism - Leninism and Ho Chi Minh’s ideology as the basis of thought As the leading force of the state and society; the CPV closely attaches to the people, serves the people, is subject to the people’s supervision, and is responsible to the people for its decisions CPV’s units and CPV members operate within the scope of the constitution and the law.10 This is also stipulated in
Article of the 2013 Constitution
Since becoming the ruling party, the CPV has adjusted to ensure the CPV’s leadership is in accordance with the Constitution and the laws Although in the previous CPV Congresses I, II, III, IV and V, there was not regulations specified the CPV’s activities within the scope of the constitution and the law, the CPV’s practical activities have been carried out in accordance with the law Specifically, at the 3rd Congress (1960), the CPV openly pointed out the situation: “ there are CPV committees that advocate to on behalf, intermittently interfere in the work of state agencies There are CPV committees and cadres and CPV members who disregard the state government, not strictly obey instructions and resolutions of higher-level government agencies”11 The CPV Charter adopted at
the 3rd Congress stipulated: “members who violate the state’s laws are to be prosecuted in court, the competent CPV’s unit will enforce CPV discipline and their crimes will be judged by the administrative or judicial authorities”12 The Fourth Congress (1976) of the CPV stated: “CPV members and CPV’s
units must be the most exemplary in obeying all the decisions of the State”13 and “oblige CPV’s units
and CPV members to respect the powers, responsibilities and regimes of the state agencies, strictly abide by the laws and decisions of the State, considering it a CPV discipline”14
In the Platform to build the country during the transition to socialism, which was approved by the CPV Seventh Congress (1991), it said: “The CPV leads the political system and is a part of that system The CPV is closely connected with the people, under the supervision of the people, operating within the scope of the Constitution and laws”.15 In addition, the Resolution of the CPV Seventh Congress
clearly stated: “Affirming that all cadres that are CPV members in the state agencies must submit to the CPV’s leadership and implement the CPV’s resolution creativity, exemplify the observance of the State’s laws” The Eighth Congress of the CPV also affirmed: “The leading CPV promotes strongly the role and effectiveness of the State rather than changing it The CPV and every CPV member operate within the scope of the Constitution and laws and are responsible for their activities”16.
At the CPV Tenth Congress (2006), awareness of the CPV’s activities within the scope of the Constitution and the law had a new and clear development and was put into the CPV’s organization and operating principle in the CPV revised Charter And, the CPV draws lessons learned: “The system of regulations on the CPV’s leadership must be built in all branches and levels The CPV operates within the scope of the Constitution and the laws, not doing the job of other organizations in the political system”17 In particular, the revised Charter of the CPV adopted by the CPV Tenth Congress
for the first time defines: “The CPV operates within the scope of the Constitution and the laws” is one of the principles of organization and operation of the CPV”18.
(6)52 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS principle of “the CPV operates within the scope of the Constitution and the laws” is the basis for determining the CPV’s units and the CPV members must always comply with the Constitution and the laws, which is also implementation the CPV’s leadership In this regard, the CPV has affirmed: “In the context of the CPV ruling, leading the economic management and organization of life, guidelines, policies and resolutions of the CPV turn into the State’s plans, into laws, orders, statutes of the State Therefore, the observance of plans, laws, orders and regulations of the State is also the observance of the CPV’s directions and resolutions”19.
Secondly, from the position, the role of the State and the need to renovate and build the rule of law state of Vietnam
The State of Vietnam has an irreplaceable position in organizing the implementation of the CPV’s guidelines and policies
As mentioned earlier, the Constitutions 1946 and 1959 not having specified the principles that the CPV operates within the framework of the Constitution and the laws, due to various objective reasons of war time When the country was united (1975) and went up to socialism, it was considered necessary and timely for defining the leadership role of the CPV in the Constitution and law As a result, since the 1980 Constitution, the CPV position and leading role in the State and the society of Vietnam have been affirmed in Article of that Constitution and the followings (1992, 2013), concurrently with the principle of “The CPV operates within the scope of the Constitution and the laws”
The 1992 Constitution, in its 2001 revision, set the goal of building a socialist rule of law state The socialist rule-of-law state is also based on the supreme of law principle, therefore requiring all entities in society, including the ruling party, to abide by the Constitution and the laws Therefore, once the Constitution and the laws are available, the CPV is governed by the Constitution and the laws equally as any other political and social subjects
Thirdly, the requirement to build a strong CPV, truly worthy of being the leading force of the
State and the society.
The constitutionalization of the principle “the CPV operates within the scope of the Constitution and the law” in the Constitution also aims to ensure the CPV maintains its nature, goals and ideals This is also an important solution to prevent and defend any potential degeneration and degradation in the context of a single ruling party in Vietnam
From a broader perspective, the principle that the CPV operates within the framework of the Constitution and the laws stems from the requirement to constantly innovate and enhance the CPV’s leadership The implementation of this principle both creates favourable conditions for the activities of the CPV and imposes higher requirements on the CPV In addition, strictly observing this principle will help ensure the CPV’s prestige to the people
4 Requirements imposed on the implementation of the provisions of Article of the 2013 Constitution of Vietnam
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PART - PUBLIC LAW IN VIETNAM: COMPARATIVE CONTEXTS
4.1 Improving the law on the leading role of the CPV
Regarding Article of the 2013 Constitution, there are two requirements for perfecting the legal system of Vietnam20: Firstly, creating a legal corridor for the Communist CPV’s leadership activities
for the state and society Secondly, creating a legal corridor for the People to supervise the CPV’s leadership and ruling activities, ensuring the CPV’s close attachment to the People, serving the People, and being responsible to the People for its decisions
Regarding the first issue, some local scholars proposed to develop a Law on the leadership of the CPV to ensure the legitimacy and legality of the ruling party, and to overcome the risk of the CPV members standing above the laws, abusing power and not being controlled In this view, the development and implementation of the Law of the leadership of the CPV is also believed that it would create a favourable legal condition for improving the capacity and effectiveness of leadership and the ruling of the CPV21 In such a typical context of Vietnam’s political system with a single
leading and ruling CPV, the CPV is also seen as an institution that holds power like other institutions in the exercise of people’s power While other institutions (for example, the National Assembly, the Government, the Court and the Procuracy, the National Front) already have a law on, it is believed that a law on the CPV is also needed, and the Law on the leadership of the CPV would include22: the
leading and ruling function of the CPV; method of receiving leadership authorization; scope, content and mode of leadership; relationship mechanism between the ruling CPV and the State; mechanism of participation and supervision of the people for the leadership activities of the CPV; a mechanism for assessing the results of leadership and ruling activities of the CPV, etc
However, there is another viewpoint that believes it is not necessary to develop a Law on CPV leadership This is because as the ruling party, it is only necessary to develop a common rule that defines the basic rules in the relations between CPV’s units and state agencies and other social organizations This rule may be in the form of a joint document that governs the overall activities of the entities, which is the legal basis for the relationships between the related entities This joint document should include basic contents such as: Basic principles in the relationship between the ruling CPV and the socialist rule-of-law State; defining the scope of the CPV’s political functions and the state’s law-making and enforcement functions; defining the leadership function of the CPV and the management function of the State; and identifying methods, forms of assignment and control of power between the CPV and the state23, etc.
4.2 Renewing the relationship between the CPV and the State
This is a problem that has been mentioned for many years in Vietnam but has not been resolved in a definitive way Consequently, until now there is still a state of overlapping of power between the CPV and the State apparatuses, where in the political system forming two parallel branches of power with two apparatuses and two types of cadres operating in two mechanisms
However, due to the lack of clear assignment, the CPV’s ruling activities have many state nuances25 To renew the relationship between the CPV and the State, the following issues should be
focused on26:
(8)54 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS people’s power, and at the same time dominate and govern the two leading, executive and managerial entities; 2) In terms of organization, it is a union of three main relationship models, including the CPV with the representative agency; CPV with the executive agency; and the CPV with the judicial agency
- To clearly define the CPV’s leadership authority and the State’s management competence in the following aspects: The CPV’s right to exercise its political function and the State’s right to perform the legislative function; leadership and management rights; the right to make strategic decisions and the right to make tactical decisions; the right to recruit, train and arrange officials in state agencies Particularly in the field of judicial activity, the principle of the rule of law requiring adjudication being the independent right, therefore, it is impossible to distinguish the power of the CPV from the state power in the judicial activities The CPV’s leadership role in the judiciary is therefore only in terms of organization and personnel, not by issuing orders or giving opinions to intervene in judicial activities References:
The Communist Party of Vietnam, the Party Charter
The Communist Party of Vietnam, Summary report on some theoretical and practical issues through 30 years of renovation (1986-2016), National Politics Publishing House, H., 2015.
Nguyen Van Giang: The current principles of organization and operation of the Communist Party of Vietnam Publishing House of Political Theory, H., 2017.
Nguyen Van Giang- Dinh Ngoc Giang: Implementing the principle of “The Party operates within the scope of the Constitution and the laws” in Vietnam in the current period, National Politics Publishing House, H., 2011
Nguyen Thi Viet Huong, “Implementing the regulations on the leadership of the Communist Party of Vietnam in the 2013 Constitution”, in the Scientific Commentary on the Constitution of the Socialist Republic of Vietnam in 2013, cited book.
Pham Ngoc Quang - Ngo Kim Ngan: The mode of leadership of the Party towards the State in terms of building a socialist rule-of-law State of the people, by the people and for the people National Politics Publishing House, H., 2007
The National Assembly, Constitution of the Socialist Republic of Vietnam 1980, 1992, 2013.
Nguyen Phu Trong: Determined to prevent and repel corruption, National Politics – Truth Publishing House, H., 2019
Le Minh Thong, “Regulation on the political regime in the 2013 Constitution”, in the book Scientific commentary on the Constitution of the Socialist Republic of Vietnam in 2013, cited book.
Dao Tri Uc - Vu Cong Giao, “Overview of new features of the 2013 Constitution”, in the book Scientific commentary on the Constitution of the Socialist Republic of Vietnam in 2013, cited book.
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