BUI NGOC SON and PIP NICHOLSON glimpse some positive responses to calls by activists for constitutional reform in Vietnam.
On 4 February 2013 former Justice Minister Nguyen Dinh Loc presented a petition, signed by 72 scholars from various disciplines, to the Constitutional Amendment Committee calling for fundamental and broad-ranging changes to Vietnam’s constitution.
Now referred to as Petition 72, the changes proposed included multiparty elections, separation of powers and, in Article 4, curtailing the current constitutional mandate of the Communist Party of Vietnam.
The petition also called for the constitution to be endorsed by referendum and to be reorientated to recognise the people as subject(s) distinct from their allegiance to the Party–state. In addition, it asked for constitutional recognition of human rights (without caveating these with a notion of responsibility to the state), that the military be accountable to the people and not the Communist Party, and for the right to private ownership of land.A call to extend the constitutional consultation period until the end of 2013 fell on deaf ears, although some extension to the consultation period was ceded. It was with great interest that Vietnam constitution watchers and members of the Vietnamese public awaited the announcement of the new constitution.
Socialist Vietnam has had four previous constitutions: 1946, 1959, 1980, and 1992. While not enforceable, the constitutions are not without value. They enunciate governance principles and aspirations for the conduct of the organs of government, the president, National Assembly, courts and procuracy, for example. They also provide the framework for subsequent legislative reform.
Adopted on 28 November 2013, with effect from January 2014, Vietnam’s fifth constitution did not include many of the fundamental reforms sought. Significantly, the Communist Party leadership and the basic structures of the state remain unchanged, with no introduction of either separation of powers or constitutional review of legislation.
A range of developments
A new provision (Article 65) requires the military to remain accountable to the Party. The national economy continues the ‘leading role’ of the state-owned enterprises. The state’s ownership of land remains unchanged. That said, the 2013 constitution introduces a range of developments. The preamble states that the ‘Vietnamese People make, implement and protect this constitution’, a rhetorical response to the call for popular constitution-making.
The Constitution introduces a new principle of mutual control among the three branches of state (Article 2). The idea of direct democracy, including the institution of a National Assembly referendum on constitutional change is outlined (Articles 6, 120).
The National Commission of Elections and the State Audit Office feature for the first time (Chapter X). The Constitution also charges the National Assembly, courts and procuracies with the responsibility of protecting human rights (Articles 96(6), 102(3) and 107(3)), and this follows a state guarantee of human rights (Article 3).
Although Articles 14 and 15 limit human rights, by balancing them with responsibilities to the Party–state, it is arguable that the Party–state has introduced a higher threshold be reached before abrogation of rights take place. What may amount to a presumption of innocence was also introduced in Article 31.
The 2013 constitution has also introduced the notion of judicial power, potentially giving the courts the power to review the legality of acts of the procuracy, particularly procedural violations of the criminal law. This is a major step as, to date, the procuracy has held the power to review the work of the courts (and this continues), but there has been no basis for the court constitutionally to review the legality of acts of the procuracy. Further, the courts were given the power to distribute decisions in some cases. While this may fall short of the power to make law, it may foster much greater transparency in judicial decision-making than currently exists.
Several interesting questions emerge from this most recent round of constitutional reforms, foremost among them being why this level of constitutional activism at this time. We suggest several possible explanations. The Party–state is acutely aware of rampant and escalating corruption in Vietnam. The country’s leadership seeks actively to distance itself from this phenomenon, positioning itself as part of the solution to the challenge of good governance. To this end, we suggest, it embarked on a program of consultation, in part to build its credibility, and to enhance its leadership credentials. This phenomenon has been called ‘deliberative authoritarianism’ in the context of China.
Whether the Vietnamese variant of deliberative authoritarianism is open to new governance models emerging over time is not yet clear. However, it is evident that the Vietnamese Party–state, while it did silence media coverage of Petition 72, has not provoked a crackdown on the petitioners. It has demonstrated greater openness and constructive engagement with radical reform than other socialist states facing a similar dialogue.
Those calling for reform have exhibited resilience and tenacity.
The reformers, almost entirely from the elite, both in terms of being highly educated and holding prior office within the Party–state, must have determined that the time had come for robust debate, particularly given the statements made by the Party–state that any issue could be raised. This was made clear by the Constitutional Consultation Committee. The petitioners were also promoting ideas that had been crafted to reflect Vietnamese nationalism and reflecting on the achievements of the Party to date. More particularly, Petition 72 reclaims Ho Chi Minh’s democratic credentials, set out in several documents in the years up to and including 1945.
While there is also a body of scholarship in Vietnam that argues that Confucius also intended constraints on government, this moral basis for introducing constitutional constraints on the current government structures is not the focus of Petition 72. Petition 72 rests its intellectual claims on the roots of democratic legal institutions being integral to Ho Chi Minh’s revolutionary government. The petition is patriotic, and notes that reform could entrench the leadership of the Party–state for years to come. Further, these particular calls for reform followed earlier agitation for reform on issues of national security, economic development, corruption and environmental protection through what is known in Vietnam as the bauxite petitions. The impact of similar calls for wideranging reforms in China, through Charter 08, may have contributed some momentum.
The question of what momentum there is for far-reaching structural and constitutional reform over time remains less clear. The Party–state has demonstrated cautious incrementalism when facing calls for fundamental reform. Those calling for reform have exhibited resilience and tenacity. Yet the broader Vietnamese population is not familiar with constitutional debate. A United Nations survey states that 42.4 per cent of people randomly selected from 21 provinces indicated that they ‘had never heard of or did not know about the Constitution’. Rural communities were even less informed about the constitution. This data was, however, collected before the process of constitutional consultation and the publicity surrounding the presentation of Petition 72.
We suggest that alleged lack of familiarity with the Constitution under-represents Vietnamese civic engagement with rights issues such as protests about household registration and privacy. While these issues may not always be framed in the language of the constitution, there is a suggestion that this may be changing.
Dr Bui Ngoc Son is a postdoctoral fellow at the Centre for Asian Legal Studies, Faculty of Law, National University of Singapore.
Professor Pip Nicholson is Director, Asian Law Centre, Melbourne Law School, University of Melbourne.