The development of Vietnamese constitutionalism: from modern to contemporary era

The Standing Committee of the National Assembly (SCNA) oversees the execution of the Constitution, laws, the National Assembly’s resolutions, and the SCNA’s ordinances and resolutions [r]

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THE DEVELOPMENT OF VIETNAMESE CONSTITUTIONALISM:

FROM MODERN TO CONTEMPORARY ERA

Professor Dao Tri Uc

School of Law, Vietnam National University, Hanoi Permanent Member of the Drafting Committee for the Vietnam 2013 Constitution

Abstract

Modern Vietnamese constitutionalism is seen as the product of a combination of national traditions and ideological values inherited from the country history and the process of absorbing legal system in unique ways Among the traditional values influencing the formation of constitutional thought, it is worth mentioning the autonomy of village management in the local governance tradition The stability and durable vitality of the autonomous rural commune regime were preserved and acknowledged even during the period when Vietnam became a French colony (1858-1945) Today’s Vietnamese constitutionalism is based on the tradition of tolerance and humanity, which facilitates access to fair values and justice as well as to meet the requirements of respect and protection of human rights, the legitimacy of power and the integrity of the people on duty The content of modern Vietnamese constitutionalism is determined according to the logic of the tradition of social solidarity which, in the language of modern Constitutionalism, is social consensus with guarantees by constitutional institutions and corresponding legislation as well as the necessary Constitutional guarantee mechanism which remains as the concerning future issue

In addition, the paper also discusses the barriers to the completion of Vietnamese constitutionalism such as the influence of the ownership regime, power centralism, and low legal awareness which were all products of smallholder agriculture and past long wars

1 The French colonial era and the “import” of constitutionalism into Vietnam

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further into history, we may think of the administrative and legal legacies left by the Roman armies in Europe as a whole and France in particular from the 5th century1.

From the late 19th century to the late 1930s, the French colonial government executed major colonial exploitation programs in Vietnam The first program commenced in 1887 under Governors-General Paul Doumer, Paul Beau, and Albert Sarraut (first tenure 1911-1914) with a major agenda covering economic, financial, colonial government organization and military spheres Economically, the program comprised of plans to develop major transport infrastructure projects including roads, railways, waterway routes, and ports Many industrial establishments were formed and most of them were mining, textile, agricultural, forestry, and food facilities Plantations grew fast as a result of the land accumulation process while the accumulation of capital took place with increasing magnitude, followed by the formation and development of the great estate ownership regime2.

The second wave of colonial exploitation started from the 2nd tenure of Governor-General Albert Sarraut (from January 1917 to December 1919) and continued under the rule of his successors including Maurice Long (Feb 1920 to March 1923), Martial Merlin (Aug 1923 to Jul 1925), Alexandre Varenne (Nov 1925 to Aug 1928), and Pierre Pasquier (Dec 1928 to Jan 1934) with a “Nineteen-point policy”, the ambitious “Reform Program”, and the “divide and rule” political guideline French scholar Patrice Morlat summarized the purpose of the French reform policy in this period as “the oppression of native people’s opposition movements, the building of major public works, the consolidation of the structures of the mandarin system - three pillars of the new colonial policy”3.

In this same period, colonists realized that it was impossible to enforce a fully exploitative and conquering policy in a country whose people had a thousand-of-year tradition of fighting foreign invaders and enslavers Moreover, colonial exploitation ambitions could not be fulfilled by the French alone This awareness was reflected in the policies of the French administration with lessons learned from the policies of other conquering nations including the US policy toward the Philippines and that of France toward African countries Therefore, in the 1920s and 1930s, in parallel with colonial exploitation programs, the French adopted a policy of “collabouration with native people”.

The primary purpose of this policy was to create in the native society a class of educated and qualified human resources for the colonial government’s economic and political objectives and to reduce the burden on the French government when it came to the execution of military objectives This French policy gave rise to an upper class, a class of land owners, especially great land owners in Cochinchina, a class of civil servants who were on the colonial government’s payroll, a class of businessmen, agricultural, transport and public work experts, and so on

The “collabouration with native people” policy, which allowed Vietnamese people access to certain rights to the extent not detrimental to the interests of the colonial rulers, encouraged the search by profoundly divided social strata for various ways of spiritual life This served as the cause of the Amos, “The Code Napoleon and the Modern World” (1928) 10 J Comp.Leg

Limpens, “Territorial Expansion of the Code” in B.Schwartz, The Code Napoleon and the Common Law World (1956) 2 Yves Henry, Economie agricole de l’Indochine (Hanoi 1932) 223.

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appearance of several religious sects, particularly the Buddhist movement, in the late 1920s and early 1930s Christianity also thrived across the country while Protestantism and Caodaism took root as well Many quasi-religious customs and habits such as ancestor worship and ancestor veneration were studied and introduced into legal rules and community management policies The colonial government also promoted the restoration of Confucianism by upholding the five virtues Ren (humanity, benevolence), Yi (righteousness), Li (propriety, rites), Zhi (wisdom, knowledge), and Xin (trustworthiness) The Civil Code of Central Vietnam, which was initiated by Governor-General P Pasquier and issued during this period, followed the spirit of reforming customs and traditions in that context

The catalyst here was the French colonial exploitation process since it was the process that created economic relationships that could no longer be contained within the rigid administrative bounds as well as the anti-western closed-door policy adopted by the Nguyen Dynasty several decades earlier

The unprecedentedly intensive and well-orchestrated application of the two colonial exploitation programs led to major changes in the socio-economic life of Vietnam from the late 19th century to the early 20th century As a result of exchanges between regions, the domestic market developed and became multi-fold with industrial goods market, property market and service markets including transport, processing, electricity and water rather than a self-sufficient one Since foreign trade was considered by the colonial government a key sector, a large number of capital-intensive firms with long-range liner fleets were incorporated Foreign trade granted Vietnam access to the outside world although this fragile native market remained heavily dependent on the economy of the sovereign nation The above-mentioned colonial exploitation programs resulted in the emergence of the bourgeoisie class in cities and rural areas and the merchant class This gave rise to the need for the legal governance of relationships which were unprecedented in Vietnam

In that context, despite the fact that civil and commercial codes were “made by French” for Vietnamese territories, they acted as strong and effective catalysts for the development of previously formed civil relationships The introduction of the French Civil Code into Vietnam at that time was synonymous with the introduction of doctrines and institutions of property rights, contracts and obligations, commercial corporations, etc The move was designed to meet the needs of Vietnam’s contemporary society development following the line of reformation and international integration It afforded the country’s legal system, which had previously been orbiting around the Chinese feudal legislation, an access to mankind’s civilized legal values From this angle, it can be pointed out that first and foremost, the civil codes of the 1920s and 1930s accelerated the refreshing of customs and habits in the contemporary Vietnamese society and the alleviation of outdated customs including, among other things, patriarchy as well as their impacts on property, marriage and family, and inheritance relationships

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relationships For over one thousand years, Dai Viet (former name of Vietnam) was under Chinese rule (179 BC to 905 AD) The Chinese rulers, however, failed to assimilate the Vietnamese people and to change the structure and lifestyle of the country’s traditional villages and communes Neither did they succeed in controlling these grassroots units

Under Vietnamese feudal dynasties, despite the imperial centralization of power, the central government regarded villages and communes as grassroots units and refrained from directly intervening in their affairs

During the French colonial rule (1858-1945), the organization of local authorities was included by the government on the agenda of the colonial exploitation policy With waves of local government reforms, a village self-governance regime was maintained with each village being considered an administrative legal entity This historical fact once again speaks volumes about the viability of grassroots communities’ culture and institutions in Vietnamese society

2 The early factors of Vietnamese constitutionalism

Included in the structure of the colonial exploitation policy discussed above was a new noteworthy policy toward native people of adopting modernized education, introducing the class of civil servants and bourgeoisie, and introduction of legislation Addressing a meeting held in Hanoi on April 27, 1919, Governor-General Albert Sarraut said: “You have seen that my efforts are usually directed to two matters: law and education – the two ideas considered the pillars of my colonial policy”1 In that education and law policy, the upholding of rights, property rights in particular, promoted material progress for local people since tough restrictions during the early days of the conquest had proved to be restrictive and could have eliminated the French administrators’ reform efforts designed to serve the colonial exploitation policy Together with the attempt to ensure civil rights was the promotion of the freedom to enter into civil contracts, the protection of ownership rights, the opposition to monopoly, the protection of land-related interests, the right of access to public welfare and, as an enabler for the effort to execute those rights, the permission of the right of voting in the election of representatives into the colonial government of various levels

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He requested the solidification of the Vietnamese feudal system under French protection and with the presence of a constitution designed to codify the protectoral system of which the extent should, according to him, only be limited to monitoring and control1.

Representatives of another trend of Vietnamese constitutional ideologies during this early period included Bui Quang Chieu (1873-1945) and his Constitutional Party, which existed during the 1919 – 1920 period, Nguyen An Ninh (1900 – 1943), Phan Chau Trinh (1872 – 1926), and Phan Boi Chau (1867 – 1940) This trend paid more attention to people’s participation in political life, ensuring freedom rights such as press freedom and freedom of speech It promoted progressive ideas under the strong influence of J.J Rousseau and the French Declaration of the Rights of Man and of the Citizen with a celebrated theory by Phan Chau Trinh regarding the replacement of imperial rule with civilian rule2 Proposals were put forward for democratic governance based on the exercise of the decentralization of power principle, the upholding of the constitution and law instead of Confucian ethical system, and the replacement of the monarchy with a republic and the constitutional system

Despite those similarities, early modern Vietnamese constitutionalists differed significantly in their proposals of road maps to realize their ideologies While Phan Chau Trinh considered the exercise of democracy associated with the necessity to overthrow the monarchy and establish a republic under French support, Phan Boi Chau insisted on first regaining independence from the French, even with the use of force, before democracy could be exercised while monarchy would remain in place

Also in this period, under the influence of the French Revolution’s progressive democratic thoughts and following a study of French rule in Indochina and Vietnam, a group of Vietnamese in France including renown activists such as Phan Chau Trinh, Phan Van Truong, Nguyen The Truyen and Nguyen Ai Quoc worked together in the so-called Hội người An Nam yêu nước (Association of Annamese patriots) On June 18, 1919, on behalf of this association, Nguyen Ai Quoc, who later became President Ho Chi Minh, signed and sent a document called “List of Claims of the Annamese People” to the Versailes Peace Conference in Paris and published it on leftist French newspapers including L’Humanite and Le Populaire The document mentioned the fundamental human rights of the Vietnamese people including the right to freedom, the right to democracy, the right to self-determination as well as the Vietnamese people’s right to equality to the French In particular, the claims demanded the substitution of a system of laws for the system of decrees run by the French government and the Indochina authorities

In short, in a special context when the French conquest and invasion policies in the late 19th and early 20th centuries were executed in Indochina and Vietnam, constitutional ideologies emerged on the basis of various viewpoints and were disseminated across the contemporary society via different means with the major aspects and the incomplete patterns and components of constitutionalism Nevertheless, those ideologies were indeed external manifestations of the results of vibrant socio-political activities and movements among several social strata, including the intellectual elite whose primary cause was questing for paths to national liberation This should also be considered in the international and regional context in this historical period with the success of the reform by Emperor Meiji (1852-1912) in Japan and that of the Chinese revolution with the establishment of the Republic of China – the first modern republic of China founded by Sun Yat-sen (1866-1925), starting from Pham Quynh,’The constitutional issue for Vietnam’ (1930) 151 Nam Phong Magazine

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1912 We can say without doubt that the very first swallows of progressive constitutional ideology in the history of Vietnam were profoundly inspired and encouraged by those winds of good changes Those progressive thoughts, however, were faced with huge obstacles The colonial semi-feudal system was sinking further into a policy of crackdown and absolutism

3 The September 2, 1945 Declaration of Independence and the Constitution of 1946 - the foundation and existence of the modern Vietnamese constitutionalism

According to Vietnamese historians, the modern era of the history of Vietnam started from the creation of a democratic republic following the successful August Revolution of 1945, marked with the widely known Declaration of Independence delivered by President Ho Chi Minh on September 2, 19451 If freedom, equality and justice have always been put by ideologists of all times at the top of ethical values2, then Vietnam’s 1945 Declaration of Independence should necessarily be considered a document that fully conveys the ethical values of the times The Declaration opened with a quote from the United States’ 1776 Declaration of Independence: “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” and Article of the French Revolution’s 1791 Declaration of the Rights of Man and of the Citizen: “Men are born and remain free and equal in rights” By quoting those, as Ho Chi Minh remarked, “immortal” statements, the Declaration of Independence showed that it had extended beyond the concept that human rights and a man’s freedom were gifts from the ruler, and that it had reached the central factor of the modern constitutional ideology on man’s natural rights The author of this writing once commented that Vietnam’s 1945 Declaration of Independence demonstrated itself as the first-hand absorber of the humanitarian rule of law ideas that came not from the France as a greedy and barbarous conqueror but from the progressive France where the great revolutions of the 17th and 18th centuries took place, the France represented by Denis Diderot, Jean Jacque Rousseau, and Francoir Vontaire, the authors of Enlightenment ideas that upheld the values of humans as owners of sacred and unalienable rights, and the France of the 1804 Napoleonic Code In 1919, i.e., one-fourth of a century prior to the delivery of the Declaration of Independence, the list of claims signed by Ho Chi Minh - Nguyen Ai Quoc and sent to the Versailes Peace Conference captured attention with point number requesting the French government to substitute a system of laws for the system of decrees That was the very idea that served as the motive leading to the creation of the 1804 Napoleonic Code, a document whose colossal scope demonstrated the determination to break away with the estate system and arbitrariness existing under the absolute feudal system, the privileges and prerogatives of the nobility and the Catholic clergy, the rules of warlords, the system of arbitrary land ownership and taxation - all of those things that the French colonial rulers had restored in their Vietnam colony in almost 100 years Those ideas together with several years of practical experience of Ho Chi Minh and many other Vietnamese intellectuals in France further highlighted the humane significance of the 1945 August revolution that marked the creation of the current Vietnamese State

The masterpiece of the modern Vietnamese constitutionalism is the very 1946 Constitution The creation of the Constitution demonstrated an extremely high level of determination of Ho Chi Minh 1 Ho Chi Minh,’Declaration of Independence’ Cuu quoc newspaper (Hanoi, September 5th 1945) vol 36.

Ho Chi Minh, Ho Chi Minh’s complete works vol (Hanoi National Politics Publisher 2011) 1-3. 2 See: Russell, Bertrand, History of Western, Philosophy (Routledge 1991) 120-124.

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and the then leaders of Vietnam in introducing progressive ideas of the times into the country’s real life in order to immediately realize the newly gained achievements of human rights and citizens’ rights despite the burden of colonial legacy and poor standards of living Addressing the first meeting of the Provisional Government of the Democratic Republic of Vietnam on September 3, 1945, i.e., immediately after the delivery of the Declaration of Independence, Ho Chi Minh said: “Since we had been ruled by the absolute monarchy and then by the colonialists who were no less absolutistic, we have so far had no constitution We now must have a democratic one” He added “I request the Government to hold a general election by adopting universal suffrage as soon as possible”1 It is obvious that by attaching importance to the preparation and issue of a constitution and holding a general election, the Vietnamese constitutionalism in this period did connect democracy, human rights, and the Constitution In this connection, democracy was the root; the Constitution was the premise, and the assurance of human rights was the foundation that acted as the impetus and the objective of the democracy The chart of Vietnam’s first political system and the starting point of the country was constitution-based politics The chart was summarized by President Ho Chi Minh as follows: “A regime supported by the 1946 Constitution ensured national independence and a broad democracy of the people The right to vote and to stand as candidate as well as the right to participate in state affairs is ensured; the right to freedom and democracy is exercised - that’s a new democratic regime”2

The humanity of the 1946 Constitution needs to be evaluated in the context of extreme difficulties when it was created In the period between 1935 and 1945, Vietnam was an agricultural country with manual production, low productivity, extensive farming and poor yields Throughout the country there were only 12 small facilities that could only provide irrigation for 15% of the cultivation area Flood was common but no drainage facilities were in place Industry was very fledging, represented by the mining business and a number of light industry establishments The country then had 200 industrial establishments involved in such business lines as milling and rubbing, textile and paper making with 90,000 workers, 60% of whom worked in mining Metallurgy, manufacturing, and chemical industries were not available3 In education, 90% of the population was illiterate and out of 10,000 people there were only 115 early education students, 210 primary school students, and vocational and higher education students In healthcare, the entire country had 213 doctors, 335 nurses, and 264 midwives The ratio of doctors and nurses to people was 0.23 to 10,000 Prior to the 1945 August revolution, million people died of starvation

The 1946 Constitution clearly reflected the ideas of the popular sovereignty Specifically, the Constitution defined the duty of “exercising a strong and insightful government of the people” (Preamble), “All and any rights within the country are vested in the entire people of Vietnam” (Article 1) Some scholars believe the Constitution, by these words, were profoundly influenced by J.J Rousseau’s idea of popular sovereignty4 The correctness of this opinion can be justified since Rousseau’s idea of popular sovereignty used to be the flag and inspiration for the 1789-1799 French Revolution and thus could not but be taken by the founders of the new regime in Vietnam as a 1 Ho Chi Minh, Ho Chi Minh’s complete works vol (Hanoi National Politics Publisher 2011) 7.

2 Ho Chi Minh, Ho Chi Minh’s complete works vol (Hanoi National Politics Publisher 2011) 366. 3 Dang Phong, Vietnamese economy history (Hanoi Social Sience Publisher 2002) 185.

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universal value that supported the legitimacy of the State of the Democratic Republic of Vietnam and the de facto rights of the Vietnamese people as well as timely demonstrated the true aspirations of the people, which had been manifested by J.J Rousseau’s idea

Thanks to the 1946 Constitution, it was probably the first time Montesquieu’s idea of the separation of powers had made a stop in a South-east Asian country, and it did so in its own way From the Third to the Fourth Republic, France, where Baron de La Brède and de Montesquieu came from, could not have a design of power as thorough as that of the American democracy If we look at the formula of Montesquieu himself, the separation of powers system with its key aspects had existed in Vietnam’s 1946 Constitution, which included a mixture of French and American elements The French elements included: The Chief Executive: The President (France) or the State President (Vietnam), who is elected by the National Assembly, serves as the chairman of Cabinet meetings and is the head of Government In other words, the President and the Cabinet make up the Government; the President (France) or the State President (Vietnam) is entitled to request the National Assembly to review laws The head of the Cabinet is nominated by the President (or State President) for confirmation by the National Assembly before eventual appointment by the President (or State President) American elements manifested themselves in the fact that Vietnam’s 1946 Constitution went further than the French version when it came to the separation of powers At the same time, the 1946 Constitution covered the three major matters: It states that constitutional rights are vested in the people (Article 70) while law-making rights are vested in the National Assembly (Article 23) The State President is entitled to, within 10 days of the voting by the Parliament on a bill, request a review thereof; if the bill is adopted by the Parliament, then the State President shall be obliged to sign it into law (Article 31); judges shall be nominated by the Government (Article 64)

Vietnam’s 1946 Constitution, however, was yet to reach the full extent of separation of powers under Montesquieu’s idea of power “checks and balances” Although it is expressly determined that the Parliament is the law-making body, the Government is the executive body and that judicial bodies are independent and courts are entities exercising such powers, the Constitution still considers the Parliament “the top authority body” Ministers are answerable to the Parliament for the issue of government decrees and must resign from their office once voted out by the Parliament No judicial mechanism is in place to evaluate and make judgments on Parliament acts or Government decrees

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4 The period of bureaucratic and centralized planning in socio-economic management - challenges and obstacles facing constitutionalism

Bureaucratic and centralized planning, which dominated the entire socio-economic life including the area of state organization, started and functioned throughout the war and remained in place for 10 years after the reunification of Vietnam in 1975 It is understandable that war acted as the objective reason of that mechanism while the subjective factor was the prolonged maintenance of a system of warfare-style commands and orders even during peacetime This resulted in an unprecedentedly profound economic crisis before the country embarked on a process of reform, first in socio-economy and then in the political system

From the perspective of human rights The 1959 Constitution, followed by the 1980 and 1992

versions, defined the mechanism of centralized planning and ownership by the entire people as playing the leading role Land was determined to be under ownership by the entire people Private ownership was not recognized and protected while collective interests overrode individual rights and interests In my humble opinion, this is the very cause of the reservation in establishing necessary legal mechanisms to ensure full respect for and effective protection of human rights throughout the period of central planning, bureaucracy and subsidies Specifically, it was only until 1995 that the first amended constitution was enacted to recognize property rights and non-property rights Except for the 1988 Criminal Procedures Code, other codes including the Civil Procedures Code and the Administrative Procedures Code were delivered much later in 2004 and 2010, respectively

From the perspective of exercising popular sovereignty Throughout this period, representative

democracy remained the major form The Constitution vested all state powers in the people but the exercise of such powers was “via the National Assembly and people’ councils at local levels” The institution of final determination by the entire people established in the 1946 Constitution, followed by the institution of referendum stated in all the subsequent constitutions, had never been exercised in reality and the Law on referendum was only enacted in 2015 Fairly speaking, of course, all this does not mean the absence of various forms of direct democracy such as the institution of election, the institution of removing National Assembly and people’s council representatives, the institution of grassroots democracy as well as other capabilities of the people to directly participate in and decide matters of the State and the community This writing cannot afford to deep-dive into those institutions, yet we can say that the quality and actual efficiency of direct democracy patterns remain inadequate and much remains to be done to fill that deficiency1.

From the perspective of state power organization – it was the affirmation of the power centralization system All of Vietnam’s constitutions in this period defined the National Assembly as the top official authority; the 1959 and 1980 Constitutions, when mentioning the National Assembly, even granted it the right to “determine for itself other rights and powers when it shall deem necessary” while defining the Government as an execution body under the National Assembly The court, which was to perform trials, was answerable to and to report to the National Assembly as well as people’s councils (of equivalent levels) although the principle of judicial independence and “obey only the law” was maintained

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The vertical organization of state power also followed the logic of power centralization although the role of local authorities was both appreciated in awareness and in reality Therefore, local authorities, namely the people’s council and the people’s committee, were not totally bound institutions They were chiefly governed by the central government while being answerable to local people

The legal doctrine of Vietnam in particular and those of former socialist countries as well as the Marxist legal doctrine in general not totally deny the separation of powers They, however, only consider it the division of functions and duties among government authorities The legal science absorbed that idea from Karl Max’s statement that claimed “the separation of powers is nothing but the common division of labour that applies to the state apparatus for the sake of simplicity in management, inspection and supervision”1 In other words, the separation of balance powers among state authorities in order to exclude the possibility of loss of control or the superiority of one scope of powers to another was not accepted Rather, Marxism-Leninism as well as practices of state apparatus organization and operation in socialist countries for a long time maintained the principle of power centralization as the realization of the “all power to the workers” principle Therefore, the definition of powers and duties for state authorities only serves to create smoothness and facilitation for their operations

The characteristics and nature of the ownership regime and those of the power centralization mechanism served as the determinant of the nature and characteristics of the correlation between the State and law as an important manifestation of constitutionalism Marxist theories in socialist countries including Vietnam in this period held that law was merely what the will of the ruling class evolved into Nevertheless, those theories at the same time admitted that “the will that evolved into law” was, in its turn, determined by the characteristics of the economic system and cultural conditions of the relevant society As a result, to a certain extent, the State was bounded by law and the Rule by law principle, therefore, became one of the key principles of the entire state and social management mechanism However, since the State managed society and economy by law, apart from the scope of “making” or “recognizing” by the State, there would be no other room for law! This perception dominated socialist legal theories and the consequence was the State existed before law, overrode law and, under certain circumstances, the State may not be bounded by law! That was highly visible with the existence of special mechanisms such as the special court, administrative reformation, one-tier (without appeal) trial mechanism, etc that had already been in place The important principles of statutory conditions for the limitation of human rights were not in place then Under such circumstances, law could not restrict the arbitrariness in administrative and, more broadly, economic and social management, thus creating opportunities for the “beg-grant” mechanism, the bottom-up mentality of reliance, the increase of power concentration and red tape In the legal system, the share of private legal institutions and regulations was negligible with public legal institutions and regulations being prevailing

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strict top-down order in regards to legal documents Yet this is a tough issue that a legal system creates for itself and it is therefore no accident that every year there are thousands of “sub-licenses” issued by ministries and local authorities Besides, for hundreds or even thousands of various reasons there still exists in Vietnam’s legal system the situation in which documents issued by lower authorities conflict with those issued by higher ones In addition, among legal theorists, the debate over whether documents issued by executive bodies and local authorities are legal documents and whether they must be complied with has been going on endlessly! The non-uniformity of the so-called “law” has accidentally eliminated the direct applicability of laws and codes and has given rise to the need for interpretation as well as the need to search for legal provisions Consequently, the people’s capacity to use law and their access to law are restricted

5 The revival and development of Vietnamese constitutionalism in the Doi Moi period and issues found

5.1 Context and reasons

Vietnam’s Doi Moi Policy, which were initiated and led by the Communist Party of Vietnam (CPV), was prompted by the need to overcome socio-economic crisis and rampant bureaucracy On top of the reform agenda was the implementation of economic reforms along the market orientation, opening up and integration, followed by reforms in social policy, politics and government apparatus.1.

The emergence and development of the market economy in Vietnam has generated sweeping changes in social life Production forces have grown rapidly and have changed existing economic relationships as well as created new ones in business activities and circulation of money The State, as a result, is required to fine-tune the legal system to create a necessary and sufficient legal framework for the robust development of economic activities Socially, although the market economy has yet to address the rich-poor gap, it has been able to better address the relation between economic growth and social equality Thanks to the legal system, the danger of social contradictions and conflicts has been regulated, curbed and eliminated

5.2 The development of the awareness of the Constitution

First and foremost, it was the gradual rectification of the incorrect awareness of the position and role of the Constitution in social life as well as State activities The common but incorrect awareness, especially among authorities, was that the Constitution must be concretized with acts As a result, the following perceptions were prevailing:

Firstly, acts were commonly referred to as the prevailing basis when an authority needed to decide a certain matter while the Constitution was not considered the direct source of reference for a thorough solution

Secondly, when seeking to protect their legitimate rights and interests, citizens did not have the habit of utilizing the Constitution as evidence to justify the existence of the rights they needed to exercise and those that needed to be ensured or protected by the State, or proving the corresponding responsibilities of the relevant State authority

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Thirdly, acts, decisions and documents that conflicted with the Constitution were not duly sanctioned. The positive changes in the awareness of the Constitution produced the following results: There has been a more complete awareness of the nature of the Constitution Specifically, the Constitution is not simply an act of the superficially highest effect in the national legal system It is, first of all, a document representing the people’s will and an embodiment of the popular sovereignty The people, based on the Constitution, exercise their rights either directly or via (by proxy) State institutions Therefore, it is necessary to innovate the representative democracy regime while attaching importance to the development of direct democracy

Only by the Constitution and only to the extent of the Constitution can the legal obstacles that hamper the progress of the country and society be removed These obstacles include, among other things, critical issues of the economic regime such as ownership, economic sectors, and the management of national properties Respecting the Constitution means respecting the most universal and complete will of the people Constitutionalism, therefore, is synonymous with recognizing the supremacy of the popular sovereignty

5.3 Regarding human rights

Under the 1992 Constitution as well as the 1959 and 1980 predecessors, human rights were presented at the 5th position following political systems, economic regime, culture, education, and science and technology This correctly reflected the characteristics of the bureaucratic and subsidy mechanism in the awareness of human rights and the comparison of human rights to common interests of the community and the State A positive development, however, is that after a very short period from the launching of the reforms, the concept of “human rights” for the first time appeared in the 1992 Constitution (Article 50) albeit with incomplete determination that such rights were “embodied in civil rights”, “stipulated by the Constitution and law”, and “not separate from obligations” (Article 51)

During the execution of economic and political reforms, the State of Vietnam demonstrated very clear and strong political commitment to the implementation of international obligations in regard to human rights The country’s commitment was embodied in its accession to multiple conventions on human rights in the 1980s, in the bid to become a member of the UN Human Rights Council in 2013, and in the first, second and third Universal Periodic Review (UPR) in 2009, 2014 and 2019, respectively This influences the awareness of state authorities and binds them to the adherence to constitutional rights, which will eventually ensure the realization of the country’s commitments

Over the past years, the awareness of Vietnamese state authorities and personnel of respecting, protecting and ensuring human rights and civil rights has improved considerably This has facilitated the exercise of human rights and civil rights in general as well as constitutional rights in particular Education and communication activities on human rights and civil rights have been carried out by many institutions including universities, research institutes, government agencies, social organizations and so on in various forms

One of the progressive developments of particular importance is the constitutionalization of the limitation of right principle.

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defense, social order and safety, social ethics, and community health” This regulation indicates the constitutionalization of human rights and civil rights under the 2013 Constitution already stayed close to the regulations of the International human rights law

An important assurance for the protection of human rights and civil rights as well as the most critical and solid shield against violations by procedural authorities is the recognition of the presumption of innocence principle This is the most “classical” principle of criminal procedures that has been stated in several important international documents such as the 1948 Universal Declaration of Human Rights (UDHR) (Article 11.1); the 1966 International Covenant on Civil and Political Rights (Article 14.2) In particular, the UDHR considered this principle the “dignity of mankind’s civilization” The 2013 Constitution provides that: “A man who has been accused shall be considered innocent until he has been proven guilty following duly performed legal proceedings and after a verdict of guilty by a court has become legally effective” (Article 31.1) Adopting this principle, the 2013 Constitution provides legal safety for citizens in their life and activities

In parallel, the Party and State have clearly expressed their critical attitude and taken actions against the loss of democracy, superficial democracy, violation of human rights, false prosecution, harassment by civil servants, and indifference to the people’s sufferings and problems1.

5.4 Regarding the organization and control of power

In the context of building and developing a market economy, opening doors, integrating internationally and exercising socialist democracy, the preference for centralization of power has gradually shifted to the reasonable separation of power

This started with the Resolution of the National mid-tenure meeting (after the 7th Congress) of the CPV (1994) when a wholly new set of requirements were made in regards to the “clear division” of state authorities’ activities Not long before that, the 1992 Constitution mitigated the power centralization characteristic of its predecessors by removing a clause that allowed “the National Assembly to determine for itself other rights and powers when it shall deem necessary” (Article 83 of the 1980 Constitution) and listing 14 duties and powers of the legislature (Article 84 of the 19912 Constitution) With the amendment of 2001, by stating “The State of the Socialist Republic of Vietnam is a socialist rule-of-law one (Article 2), the 1992 Constitution officially established a new mechanism where“state power is unified and there shall be division and coordination among state authorities in exercising legislative, executive and judicial powers” (Article 2) That overall mechanism of state power organization, however, fell short of interpreting in a more clear-cut manner the legislative, executive and judicial powers as well as subjects thereof This mission was left to the 2013 Constitution According to this latest version of the constitution, the National Assembly is defined as a body that exercises legislative power while judicial power is vested in courts (Article 102) At the same time, the 2013 Constitution also added the factor of power control “among state authorities in exercising legislative, executive and judicial powers” (Article 2.3).

1 Communist Party of Vietnam, Documents of the 11th National Party Congress (Hanoi National Politics Publisher Hanoi 2011) 48

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The practical activities of state power institutions have been performed following an agenda of increased power control and combating corruption The National Assembly attaches importance to performing its control function in the forms of hearing and vote of confidence in cabinet members and formation of supervising missions with dedicated topics These forms of supervision have drawn the people’s attention and has generated tangible impacts on the supervised entities

The division of power and coordination between the National Assembly and the Government is best demonstrated in the law-making procedures Most bills are submitted by the Government to the National Assembly before the latter’s committees assess and bring them to open discussions The Government, however, has little chance to defend their proposed bills in the event there are differences in its position and that of the National Assembly In such cases, based on assessment results of the National Assembly’s committees, the Government will, through the working group, accept comments and revise the bills before submitting them at the next National Assembly meeting

The mechanism of power separation has also taken shape when we follow the shift in the position of the Court - the entity exercising the judicial power The Court and the Procuracy used to share the duty of “safeguarding the socialist rule of law and the socialist regime, protecting the property, lives, freedom, honor and dignity of citizens”, but their duties have now been separated with the Court being expressly defined as the body that exercises judicial powers, and it is “charged with defending justice, human rights and interests of citizens” (Article 102 of the 2013 Constitution) Courts of all levels used to “be answerable to and report their work to” elected bodies, but now that requirement only applies to the Chief Justice of the Supreme People’s Court (Article 105 of the 2013 Constitution) The previous principle of “during trials, the judge and jurors are independent and comply only with law” has now been changed to “institutions and individuals are strictly prohibited from interfering in judges and jurors’ trial activities” as an important assurance for the independence of judges and jurors Besides, this also helps define responsibilities, including criminal liabilities (for example, Article 372 of the Criminal Procedures Code), for the violation of such prohibition Previously, violations in executive and official activities were only dealt with within the framework of those systems, but now judicial procedures have been established for the trial at administrative courts of administrative cases upon a petition filed by an individual or institution (Law on administrative procedures of 2010) In addition to the rule that requires judges and jurors “to comply only with law”, the Constitution for the first time grants the Supreme Court the function of “consolidating reality of trials, ensure the uniform application of law to trials” (Article 104 of the 2013 Constitution) The 2015 Civil Code accepts judicial precedents and equity as sources of law (Article 6.2) and expressly provides that a court shall not refuse to handle a civil case on grounds of the unavailability of a law to refer to (Article 14.2 of the 2015 Civil Code) The court must, in that case, base their trial on customs, analogy, the fundamental principles of civil law, judicial precedents and equity What is mentioned above indicates a new independent position of the Court, which was previously out of the question

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formerly, local authorities were viewed as various levels of authority of a unified state power The process of democratizing the central-local relationships has so far only taken place within the framework of de-concentration, not decentralization The 2013 Constitution created an important highlight in the awareness of the central-local relationship as well as the standing of “local entities” in the vertical relationship of the state power organization The highlight was better interpreted under Article 112 of the Constitution according to which local authorities shall decide local matters as prescribed by law and shall be subject to higher authorities’ inspection and supervision The duties and powers of local governments are determined on the basis of the separation of powers between central and local authorities as well as among various levels of local authority.

What counts here is there has been common awareness of the delegation of powers to local authorities The separation of “central” and “local” in terms of concept and in terms of duties and authority under the 2013 Constitution is a very important legal sign in the viewpoint and orientation of the local governance policy in Vietnam, which is directed to decentralization instead of being limited to de-concentration This will help increase the efficiency of national governance, reduce bureaucracy, increase promptness in policy responses, improve democracy in the making of policies on local affairs and statement management activities, promote democracy and provide better opportunities for the people to participate in decision-making processes These are the core values of the modern decentralization and local self-government

5.5 Regarding the constitutionality

The effort to establish in Vietnam an effective mechanism to prevent the violation of the Constitution was discussed several years ago and was officially recognized in the Resolution of the 10th Congress of the CPV in 20061.

Constitutionally, until now, constitutional review in Vietnam, unlike many other countries in the world, has not been assigned to a dedicated authority but remains vested in multiple competent state agencies Specifically, the National Assembly, the highest state authority, is charged with the supreme overseeing of the State’s activities and of the compliance with the Constitution, laws as well as with the National Assembly’s resolutions that it issues (Article 70.2 of the 2013 Constitution) The Standing Committee of the National Assembly (SCNA) oversees the execution of the Constitution, laws, the National Assembly’s resolutions, and the SCNA’s ordinances and resolutions (Article 74.3 of the Constitution) The Government, the Supreme People’s Procuracy and the Supreme People’s Court also play a role in safeguarding the Constitution by performing their respective duties and powers The mechanism for overseeing of the execution of the Constitution is performed through the assurance of the constitutionality and legality of legal documents, one of the most important aspects of the Constitution safeguarding mission Under this mechanism, the National Assembly oversees the documents issued by the State President, the Standing Committee of the National Assembly, the Government, the Prime Minister, the Supreme People’s Procuracy and the Supreme People’s Court, and can abrogate these documents should they conflict with the Constitution, laws, and the National Assembly’s resolutions The Standing Committee of the National Assembly oversees the documents

2006) 127

Communist Party of Vietnam, Documents of the 11th National Party Congress (Hanoi National Politics Publisher Hanoi 2011) 142

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issued by the Government, the Prime Minister, the Supreme People’s Procuracy, the Supreme People’s Court, resolutions of people’s councils of provinces and centrally run cities, and can suspend these documents should they conflict with the Constitution, laws, and the National Assembly’s resolutions The Prime Minister can suspend or abrogate documents issued by ministers, head of ministry-level entities, people’s committees and Chairmen of people’s committees of provinces and centrally run cities should they conflict with the Constitution, laws and documents issued by higher authorities The Prime Minister can also suspend the execution of resolutions of people’s committees of provinces and centrally run cities should they conflict with the Constitution

This mechanism, which is a scattered mechanism of Constitution oversight, can be called a general mechanism of oversight and ensuring the constitutionality of legal documents It, however, does not operate in practice due to the following reasons:

The Constitution vests in the National Assembly the authority to issue and amend the Constitution and acts and to oversee the execution of the Constitution and laws Both the Constitution and laws, however, not specify the responsibilities arising from unconstitutional acts that the National Assembly has enacted or in respect of which there were mistakes during the adoption process

Legally, that the supreme power belongs to the National Assembly is explained by the fact that the legislature is the highest representative body, the highest State power entity, the highest law-making body and the highest overseeing body (Article 69 of the 2013 Constitution) Yet, what is noteworthy here is the clarity between the power of the National Assembly and that of the Constitution

It is a natural fact that not all acts enacted by the National Assembly represent the will or interests of all strata of the population And not all National Assembly delegates a good job of representing voters and their interests Given the fact that the provision of the Constitution needs to wait until an act is made by the National Assembly to be executed, the power of the Constitution has actually been placed under that of the National Assembly

Since the National Assembly is the only body with the power to make laws, it can enact any acts that it deems appropriate In addition, the authority to interpret the Constitution is vested in the Standing Committee of the National Assembly (Article 74 of the Constitution) Assuming that an entity under the National Assembly or a National Assembly delegate finds an act unconstitutional, the National Assembly can “make it constitutional” by way of interpretation Therefore, it is totally possible that the amendment of the Constitution is based on a current law, not the other way round Under such a mechanism, the unconstitutionality of an act is very hard to detect and deal with and the review of its constitutionality in any form will become unnecessary or futile unless the National Assembly itself performs the overseeing and detection of unconstitutionality The authority to suspend or abrogate unconstitutional documents mentioned above is rarely exercised in reality Therefore, research to build Constitutional review mechanism of judicial nature in Vietnam emerges as an urgent requirement in a democratic state of rule of law

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constitutionality behaviors, a check that is chiefly and firstly based on the clarifying of the spirit of the Constitution and acts as well as the identifying of the intention, content of governing purpose of a law to make the necessary judgments

Conclusion

In the social context of Vietnamese history, constitutionalism has taken shape and grown with multiple historical turns but has always been a phenomenon that is both universally and nationally unique The development of Vietnamese constitutionalism has been studied from the perspectives of constitutionalism:

- As ideological values and the people and nation’s aspirations for freedom and democracy; - As the reality of life, determined by the socio-economic and political foundation with all ideals and practical challenges;

- As the presence of the constitution and the major acts enacted and executed on the basis of the Constitution;

- As the presence and operation of democracy exercise institutions, the methodology of power organization;

- As the degrees of awareness of the role of the Constitution and the utmost respect for the Constitution;

- As the mechanism and the efficiency of reviewing Constitution

Over several periods of the history of the nation and society, the above mentioned major factors of Vietnamese constitutionalism have still followed the natural logics to survive and grow The Constitution is the product of the democratic institution and a tool to realize and support democracy Constitutionalism reflects and outlines the direction to institutionalize democratic ideas into the Constitution, thereby exercising democracy As such, democracy is the root, the Constitution is the premise and the respect for and assurance of human rights is the foundation that acts as the impetus and the objective to be reached

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Ho Chi Minh, “Declaration of Independence” Bao cuu quoc (Hanoi, September 5th 1945) vol 36 Ho Chi Minh, Ho Chi Minh’s complete works vol (Hanoi National Politics Publisher 2011) J.Rawls, A Theory of Justice (‎Belknap 1971)

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