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]
Trang 1Professor 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
The French invasion of Vietnam started on September 1, 1858 when the French army stormed Son Tra peninsula in Da Nang What followed was an almost 80-year colonialization process that took place under peace treaties of 1862, 1883, and 1884 between the French and the Nguyen Dynasty Merely 2 years after the first treaty that ceded three southern provinces to France, the French government, on July 25, 1864, issued a decree enforcing the application of French laws in the territories This move could be considered a “law invasion” that accompanied the French colonial invasion of Vietnam
Following this event, the subsequent years of the colonial era were marked with “made in France”
codes including the “Bo Luat Nam Ky Gian Yeu” (the Summarized Cochinchina Code) of 1883, the
“Bo Dan Luat Bac Ky” (The Tonkin Civil Code) of 1931 and the “Bo Luat Dan su Trung Ky” (The Civil Code of Central Vietnam) of 1936, and the “Bo hinh luat canh cai” (the Reformed Criminal Code) of 1912 These laws were reminiscent of the French Civil Code of 1804 that accompanied French expeditionary armies to American, African and Asian countries throughout history Looking
Trang 2further 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 2 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
1 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.
3 Patrice Morlat, Pouvoir et repression au Vietnam durant la period colonial (1911-1940): Thèse de doctorat 3e cycle
(Université Paris VII, 1985) 366.
Trang 3appearance 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
Another inherent factor that enabled western ideologies and legal institutions to take root in Vietnam was the country’s tradition of village democracy In the history of Vietnamese society, the ancient society was formed during the time of the Van Lang State (the 7th century BC) and was based
on rural communes as village communities They were units of the most stable, long-lasting and most popular structure of the Vietnamese people at that time1 Within those units, the customs of farming
as well as marriage, family and village relationships remained the tools that governed community
1 Phan Huy Le, History of Vietnam, Volume 1 (Hanoi Education Publisher, 2012) 135
Trang 4relationships 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 7 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
That context gave rise to the emergence of differing constitutional ideologies, depending on the
social standing of the initiating ideologist These ideologies, however, shared the pursuit of prosperity
for the Vietnamese nation via the dissemination of their concepts Within the framework of the colonial
system, another similarity was that ideologists were mostly either mandarin serving the Vietnamese
imperial court or civil servants, most of whom received western education, working for the French
colonial government The difference between them was the way of realizing their thought diagrams
Ideologist Nguyen Truong To (1830- 1871), for example, was the first Vietnamese who initiated the
idea of controlling monarch power within the boundary of law while favoring the maintenance of
monarchy, albeit in the form of constitutional monarchy The initiation of the constitutional monarchy
concept in a country that had undergone thousands of years of absolute monarchy was obviously a
bold move that went beyond contemporary people’s thinking Constitutional monarchy was also the
idea of Pham Quynh (1892 – 1945) However, Phạm Quỳnh went further than the initiator of the
ideology by requesting the establishment of an order regime for Vietnam as part of French Indochina
1 According to: History of Vietnam, Volume 8 (Social Sciences Publisher, 2012) 44.
Trang 5He 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 những 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
1 Pham Quynh,’The constitutional issue for Vietnam’ (1930) 151 Nam Phong Magazine
2 Phan Chau Trinh,’Presentation on the imperial rule and civilian rule theories’ (1964) 67 Historical Research Magazine 22
Trang 61912 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 1 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 7 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 4 (Hanoi National Politics Publisher 2011) 1-3.
2 See: Russell, Bertrand, History of Western, Philosophy (Routledge 1991) 120-124.
J.Rawls, A Theory of Justice (Belknap 1971).
Trang 7and 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 2 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, 2 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 4 (Hanoi National Politics Publisher 2011) 7.
2 Ho Chi Minh, Ho Chi Minh’s complete works vol 4 (Hanoi National Politics Publisher 2011) 366.
3 Dang Phong, Vietnamese economy history (Hanoi Social Sience Publisher 2002) 185.
4 Stein Tonnesson,’Ho Chi Minh’s first Constitution (1946)’ (International Conference on Vietnamese Studies and the
Enhancement of International Cooperation, Hanoi, July 1998) 5.
Trang 8universal 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
The 1946 Constitution sketched a unique modus operandi in the relationship among the branches
of power and thus ensured the independence and autonomy of each power institution This is visible
with the Constitution providing that the Prime Minister - the head of the Cabinet - “shall be responsible
for the political path of the Cabinet” and the Parliament is entitled to conduct a vote of confidence in
the Cabinet although it can also do so if the Prime Minister or one-fourth of the Parliament members
brings up such a matter In the event the Parliament holds a vote of no confidence in the Cabinet,
the State President is entitled to bring the matter to the Parliament for a review and if the latter, after two reviews, maintains its decision, then the Cabinet that lost confidence shall have to resign
The arrest and prosecution of cabinet personnel for minor offenses shall be subject to the approval
of the Government Council The independence and autonomy of the Government under the 1946
Constitution was also demonstrated by its right to propose bills before the Parliament as well as the
right to execute acts not only as “the execution body of the National Assembly” as stipulated in the
1959, 1980, 1992 and even the current 2013 Constitution
Trang 94 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
1 Nguyen Minh Doan, ‘Further improving the regime of election of elected representatives in Vietnam’ (2011) 7(192) Journal of Legislative Studies 16
Trang 10The 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 do 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
The principle of the Rule by law has a core aspect which is full compliance with law However,
within the framework of the State “making” or “recognizing” laws, over the past decades, this principle has not always been upheld anywhere and at any time A variant of this principle in the legal
system requires that documents should be issued by a lower authority to be consistent with those
issued by a higher one Each document must be consistent with documents that prevail over it and all
legal documents must not conflict with the Constitution Therefore, the legislation regime requires a
1 Karl Marx, Engels, Karl Marx and Engels’ complete works vol 5 (Progress Publishers 1964) 203.