The rule of law in Vietnam-core values and new aspects of approach

Các đạo luật từ đó sẽ bớt đi tính tư biện, tính lý thuyết bởi các nguồn pháp luật mới này hình thành từ các hoàn cảnh khác nhau của đời sống xã hội và có đầy đủ khả năng cùng với pháp [r]

THE RULE OF LAW IN VIETNAM – CORE VALUES AND NEW ASPECTS OF APPROACH

Dao Tri Uc Professor, School of Law, Hanoi National University

Abstract:

The rule of law in Vietnam has been officially constitutionalised in 2001 (Article 2) Research on the core values of the rule of law has been raised in the context of current requiring for legislative, executive and judicial reforms in Vietnam Based on the recognition

of the common values of a rule of law, the author considers supremacy of law to ensure respect and protection of human rights, fairness and justice as the core values of the rule of law in modern Vietnam From there, the author has returned to the social values in tradition, national culture, social governance methods, ideological trends, as well as products of constitutionalism and legalisation They are all the characteristics of the legacy which carry the core values of the rule of law In the current context of Vietnam, the key elements of a rule

of law can only be established and developed once they are in combination with values such

as the rightness of leaders, ethics in public service, and judicial integrity

Introduction

Fundamental principles of the rule of law in Vietnam requires to be determined on the basis which combines the popularity and peculiarity of the rule of law‘s theory and practices, reflecting organisational and operational practices of the political system, the government structure, and the legal system in Vietnam

It is necessary to say that, in the Vietnamese rule of law model, appropriate contents and progressive views on the rule of law are common and popular values That is because this kind

of knowledge is strongly humanistic, reached by the human philosophical and political thinking through numerous tests of history in different countries and different periods of time These common values form the general principle and define the basic characteristics of a rule-of-law State, marking the continuous development in the awareness and practice of organising the Government In our point of view, fairness and justice are the core values of the rule of law

There are some efforts in using appropriate rhetoric in common language The world phap quyen (Rule of Law) in Vietnamese suffices to clarify the interference between two values which are law and human right, as the requirements of justice to the law, and the binding of law

due to its fairness This is definitely the common value of the rule of law that acts as a foundation to establish the necessities for the rule of law

Each model of the Rule of Law contains the basic elements of the rule of law regime and its specialities Researchers have been agreeing that, when designing the model and embarking on constructing the rule of law, countries all want to apply the common and necessary factors in a way that suits their own situation, given the differences in history,

culture, and political context of each country240 We however conclude that these ‗variants‘ can only be related to non-fundamental elements (also known as characteristics) Thus, the basic element of a rule-of-law State is a constant and popular one! There will be no rule of law and there will be unable to establish and affirm the rule of law in a country that has its common elements and specialities excluded, disabled, or opposed each other

In Vietnam, the rule of law has been established under the influence of a variety of cultural and traditional factors, as well as economic, social and international factors Therefore, the study of these factors is essential for the process of building and improving the Rule of Law

in Vietnam nowadays

1 The inheritance of traditional values

1.1 The mentality of tolerance, humanity, and fainess

In the history of the rule of law, there are two different notions of moral and cultural basis of the Rule of Law The Normativity‘s Rule of Law, typical of Hans Kelsen (1881-1973), considers any government having laws as the Rule of Law, provided that the laws are regulated by the government, and the government is guaranteed to operate under a specific legal order241 This perspective does not concentrate on the nature of law, denies the relationship between law and culture and morality242

The positive aspect of this empirical rule of law is that it emphasises the stability and reliability of the law thanks to the guarantee from the government All individuals and organisations are consequently responsible for their behaviours before the law The government takes responsibility to ensure the legal order according to the legal principles It is called

model of a rigid Rule of Law243

Meanwhile, there is another perspective which associates the government not only

with the law but also with culture and social morality This is the model of a tolerant and flexible Rule of Law 244 This model does recognise legal norms, however, the core of the relationship between the government, the law and ethics is that the legal structures are the foundation for individuals to act following both legal and moral principles, and then to take legal responsibility for their own behaviours Hence, law and morality have become the norm for behaviours, yet legal responsibility remains the last measure The moral foundation of the rule of law here is the values of tolerance and fairness The law is not only based on mere submission but a regime, an order of self-awareness and self-responsibility on the basis of freedom to participate in social processes and social relations

Iian Stewart, The Critical Legal Science of Hans Kelsen, (1990)17 Journal of Law and Society, p.273

244 George P.Fletcher, Basic Concept of legal Thought, Oxford University Press, 1996, p.13; Michael Freedman, Human

Rights, Democracy and Asian Values, The Pacific Review, Vol.9, No.3, 1996, p.355

From this perspective, a unique element of Vietnamese history is that, although being

an feudal state with a autocracy regime and a profound influence of Confucianism, the law always creates and maintains a written legal system at an advanced level compared to other countries This is evidenced by systemised ancient laws, customary laws of different regions,

and every dynasty managed to codify the law: The Criminal Code of the Ly Dynasty (1042), The National Criminal Code of the Tran Dynasty (1230), The National Criminal Code, also known as the Hong Duc Code, was drafted and issued in 1483 under the reign of King Le

Thanh Tong, also known as Hong Duc (1460-1497) The Hong Duc Code had a wide scope of governance, covering all the basic areas of contemporary social life, being the most wonderful text in the history of Vietnamese written law245 The Vietnamese imperial law had many elements absorbed from contemporary foreign law, yet at the same time mainly bore the national culture It was a tool to protect the monarchy, the interests of dynasties, but the sense

of tolerance, the spirit of goodwill was still a unique aspect, which had values and lasting influence from one era to another in the national history That spirit can be seen in an instance

of King Tran Minh Tong in June 1315 forbidding father and son, husband and wife and family members from accusing each other246 Professor Phan Huy Le – a Vietnamese famous historian gave the following figures: of all 722 articles of the Hong Duc Code, 400 had never

been in the laws of Han, Tang, Song, Ming Dynasties in China, but possessed the unique

content and modifications of Vietnam247 They included sectors of civil, marriage and family, inheritance rights, rights of marginalised groups, with the application of various rules of customs and religions in the indigenous regions It is possible to state some provisions with heavy moral content and fair value, as stipulated in Article 388 on inheritance: half of the assets shall be used to worship ancestors with the rest divided equally among the children, regardless of gender In the context of a strong influence of Confucian morality with inequality in family relations, combined with the inferior status of women, the Hong Duc Code was setting out rules to protect women, and husband-wife equality in property relations could be considered unique – expressing the combination of law with moral and human

values In another law of the Le Dynasty, called the National Litigation Charter (Quốc triều khám tụng điều lệ), there were very humane provisions on claiming for debt cases: ―If the

debt is due on the day of a funeral, the creditor should therefore show mercy, not to demand

so that it negatively affects the funeral, until the service is completed‖ Professor Phan Huy Le also remarked: ―Le Thanh Tong was a Confucian devotee, his phylosophy is based on the Confucianism, but he knew how to combine Confucian thoughts, the rules of virtue with the rule by law, on a strong national spirit and consciousness‖ 248

245

Nguyen Ngoc Huy, Ta Van Tai, The Le Code: Law in traditional Vietnam, Ohio – London 1986; Dao Tri Uc (ed): Study

on the Vietnam legal system from XV to XVIII century, The Social Science Publishing House, 1994, Page 262

248 Phan Huy Le, Le Thanh Tong (1442 – 1497), The summary record of Conference ―Le Thanh Tong – The person and

career‖, The Hanoi National University Publishing House, Hanoi, 1997, page 18

1.2 Traditional governance: the village democracy

Another traditional value that influences the nature and characteristics of the current rule

of law in Vietnam is the regime of village self government in the local government tradition

The history of the Vietnamese administration shows that the ancient society of Van Lang State (7th century BC) was based on rural communes with the nature of the village community combined of geographical-social relations (community) and family relations249

The commune of this period was where farmers freely gathered to discuss and solve all common problems; in other words, the rural commune of Vietnam from the past had had a natural, sustainable foothold with highly autonomy Those qualities has made the strong cohesion of the Vietnamese rural community going through changes and obstables in the history The long-term existence of the public ownership on land in the rural community has also contributed to this cohesion

For more than a thousand years Dai Viet was conquered by the Chinese (179 BC - 905), those conquering governments were unable to assimilate the Vietnamese people, unable

to change the structure and the traditional lifestyle of the Vietnamese communes and villages, and unable to control this kind of units250 This historical factors once again demonstrates the cultural and institutional sustainability of the local grassroots communities

During Dai Viet‘s independence and autonomy, the policy of Vietnamese feudal dynasties was still to increasingly tighten the correlation between ‗Village‘ and ‗State‘ Similar to the rural communes in the past, the Viet villages had become and always been the basic units of independence and autonomy251

The policy of La réforme administrative des communes had been implemented for 40

years (1904-1944) with seven reforms on all three regions of Vietnam There were many contents, including the maintaining of the self-governing communes and villages, considering

a commune as an administrative legal entity – one having a comprehensive set of rights and obligations regarding administration and assets252

The highlight of the rule of law here was the existence of the independence and autonomy

of the Vietnamese village, consequently recognised by the central government This had become a historical element, expressed as a sustainable value of culture time after time

However, it is necessary to take into account a negative aspect of traditional local autonomy That was, through many historical periods, the independence and isolation of the local community has led to the situation where ―the King came second to the village rules‖ This has existed in parallel with the sense of preserving traditional values, against the law of

249

The history of Vietnamese state and law, The Hanoi National University Publishing House, page 51

250 The history of Vietnamese state and law, The Hanoi National University Publishing House, page 71, 239-241

251

Phan Huy Le, Return to the origin, The World Publishing House, Hanoi, 2011, p 759

252

Nguyen Minh Tuan, The Cai luong huong chinh policy during the French colonial regime in Vietnam, in ―The influence

of French legal tradition on Vietnam law‖, The Hanoi National University Publishing House, 2016, page 181-182; Nguyen Thi Viet Huong, Democracy in the village: ―Tradition and Modernity‖, Journal of State and Law, volume 3/2011, page 18-27

the conquerors These phenomena have gradually formed in Vietnamese people the attitude of non-compliance with or even disregarding the law This factor requires to be considered in the contemporary context where the socio-economic dimension has been expanded, the collision between that farmer attitude and the new legal order results in misbehaviours, complicated to

be governed from the requirements of the rule of law

1.3 The elements of justice and constitutionalism

The period of modern Vietnamese history related to the French colonial period (1858-1945) had witnessed two main phenomena of the law Firstly, it was the imposition of the law serving the French colonial aggression and exploitation in Vietnam Secondly, the influence of progressive Western legal ideas penetrated into the Vietnamese legal system, including ideologies and institutions having important and long-lasting effects to establish the legal structure for Vietnam later on

For the first phenomenon, it can be affirmed that, through more than 80 years being a French colony, the colonial law had indeed been an effective tool for the greedy colonial exploitation policy of the French colonialism in Vietnam Despite this, the laws that the colonialists ‗carried‘ with their army not only acted as instruments of the colonial government, but were originally the offspring of a legal civilisation at its home country253

Indeed, the simplified the Cochinchine Civil Code of the Southern region of 1883, the Tonkin Code of 1831, Hoang Viet Code of the Central region (The Annam Civil Code) of

1936, supplemented and amended in 1939, the Criminal Code, the Criminal Procedural Code

and Law on Court Organisation in the years 20 of the twentieth century, ‗made by French‘,

contained in themselves the legal values of a progressive legal background belonging to the French people When came to Vietnam, despite the intention of the carriers, these values were naturally shined and welcomed The important thing was that those values had met the needs

of the development of contemporary Vietnamese society following innovation and integration with the outside world

It should be noted that, at that time, the over exploitation policies and programmes of the colonial government had led to enormous changes in the socio-economic life of Vietnam, starting from late nineteenth century to the early twentieth century

With the aim of serving the colonial exploitation through an economic development programme, the French government prioritised building public facilities Various railways and arterial roads, seaports, irrigation works had been invested and built up Besides the policy of building and developing urban areas, the process of land and capital accumulation had been increasingly fierce, followed by the development of the great-ownership regime254 The colonial government had concentrated on developing the commercial sector early The

253

Dao Tri Uc, The relationship of Vietnamese law and French Law from the logic of law receiving and transformation, in

―The influence of French legal tradition on Vietnamese law‖, The Hanoi National University Publishing House, 2016, page 17-18

254

Yves Henry, Économie agricole de l'Indochine, Hanoi, 1932, page 223

beginning of twentieth century ceased to witness the policy of ‗emphasising farming, lessening trade‘ or ‗closed-door‘ of the Nguyen dynasty previously The market had appeared in Indochina, including not only the market of self-sufficiency, but also the industrial goods market, the real estate market, utility service market, and market of other services such as transportation255

In such context, despite the fact that the civil and commercial laws were made by the French, they possessed strong catalysts and returned to serve the development of civil relations The introduction of the French Civil Code to Vietnam at that time equalled the introduction of doctrines and regulations on property rights, contracts and obligations, commercial companies, etc This had satisfied the needs of contemporary Vietnamese social development towards innovation and international integration Hence, the Vietnamese legal system, which used to be strongly influenced by the Chinese imperial law, started to have an access into the civilised legal values of the outside world In this way, they had accelerated the process of renewing the customs and practices in contemporary Vietnamese social activities As many French scholars have confirmed, the French Civil Code of 1804 itself was the result of a long and smooth process of

combining the Roman written law of southern France with the customs (coutumes) of German

people in northern France – a process of unifying diverse practices existed in France at that time256 Thus, going the exact way of establishing the Civil Code of 1804, the French in Vietnam

in the years 20-30 of the twentieth century had harmonised the laws with other customs and traditions popular in different regions of Vietnam This created for the society an open and flexible legal order, promoting socio-economic development towards legal equality257

In the structure of the colonial exploitation policy, there was a notable element of the policy on institutionalisation, civilisation, privatisation and legalisation258 The education and legal policy had the content of ensuring the rights, firstly the property rights, to improve the rigid regulations of the first colonial exploitation period, which had shown a tendency to eliminate the attempts to serve the second colonial exploitation policy of the French Therefore,

together with the effort to ensure civil rights, there lay an encouragement for the freedom of civil transaction formation, protection of property rights, antitrust, protection of land interests, the right to benefit from public interests; and as a support to implement those rights, it is permissible to execute the right to vote on colonial government missions at local levels That

context had brought some ideas of constitutionalism with different colours, depending on the social standing of the theorists Yet they all had one thing in common, that was to share their own perspectives in order to seek prosperity for the country of Vietnam within the framework

of the colonial regime Another common point was that those theorists at that time were mainly mandarins who served the Vietnamese imperial government, or they were civil servants working for the French colonial apparatus Most of them were Western educated Meanwhile,

255

The History of Viet Nam, Volume 7 (1897-1918), The Social Science Publishing House, Hanoi, 2013, page 83

256

René David, French Law, Its Structure, Sources and Methodology, Paris, 1972, p 132

257 Dao Tri Uc, Ibid., page 19

258

The History of Viet Nam, Volume 9, The Social Science Publishing House, Hanoi, 2013, page 47

the difference among those people was the approach to realise their ideological maps For example, the thinker Nguyen Truong To (1830-1871) was the first person in Vietnam to raise the idea of limiting power of the monarchy by law, whilst maintaining the type of constitutional monarch This idea of a constitutional monarchy in a country with thousands of years of traditional monarchy was obviously a bold idea which went beyond the thoughts of people at that time The constitutional monarchy was also the idea of Pham Quynh (1892-1945) However, Pham Quynh went further than the initiator of that thought by his requirement of establishing

autonomy for Vietnam under the French Indochina (Indochine francaise), strengthening the

Vietnamese imperialism under the protection of France The constitution presented to recognise the French protection that, according to him, was only at a supervising level!259

Representing the other trend of early Vietnamese constitutional thought was the thinkers Bui Quang Chieu (1873-1945) and his Constitutional Party which existed in the years 1919-1920, Nguyen An Ninh (1900-1943), Phan Chau Trinh (1872-1926) and Phan Boi Chau (1867-1940) This trend took into account the people‘s participation in political life, to assure the rights such as freedom of the press, freedom of speech It also advocated for progressive ideas under the strong influence of J.J Rouseau and of the France‘s Declaration of the Rights of Man and of the Citizen of 1789, with the popular theory of Phan Boi Chau on replacing the monarchy regime with the democracy regime260 There had been suggestions on democratic governance based on the replacement of the monarchy with the republic and parliamentary regime, implementing the principle of decentralisation, promoting the Constitution and the law instead of moral governance

During 1917-1923, under the influence of progressive democratic ideals of the French revolution, stemming from studying the situation of French governance in Indochina and in Vietnam, a group of Vietnamese in France including some well-known activists such as Phan Chau Trinh, Phan Van Truong, Nguyen The Truyen, and Nguyen Ai Quoc had cooperated in the Association of Patriots On 19th June 1919, on behalf of this Association, Nguyen Ai Quoc (also known as President Ho Chi Minh) had signed and sent out a document named The

Vietnamese People‘s Claim (Revendications du Peuple Annamite) to the Versailles Peace Conference in Paris, and published it in the French left-wing newspapers L‘Humanite và Le Populaire, mentioning the fundamental human rights of freedom and democracy, including

freedom of press, freedom of speech, freedom of assocication and freedom of going and residing abroad, freedom of study, the right to appoint representatives of the Vietnamese people

in the French National Assembly; the right of self-determination for Vietnamese people; equality for and non-discrimination against the Vietnamese Especially, the Claim demanded the publication of the Constitution and the establishment of the rule of law, abolishing the rules and Administrative Orders of the French and Indochina government261

259

Pham Quynh, The Constitutionalism in Vietnam, The Nam Phong Journal, volume 151, June 1930

260 Phan Chau Trinh, The speech on military rule and democracy, Journal of History Study, Volume 67 October 1964, page 22

261

The complete works of Ho Chi Minh, The National Political Publishing House, Ha Noi, 2011, Volume 1, page 141

These thoughts were external expressions of social-political activities and movements

of different classes in Vietnam, including the elites who were looking for pathways to liberalise the country This should have also been considered in the regional and international context in

this historical period, with the success of Japan‘s Empero Meiji or Meiji the Great (1852-1912)

and of the Revolution in China establishing the China Nationalist regime – the first modern

republican regime in China founded by Sun Yat-sen (1866-1925) in the beginning of 1912 It

was true that those first swallows of progressive constitutional thought in the history had been supported and encouraged by these strong winds

1.4 From the Declaration of Independence of the 2nd September 1945, and the 1946 Constitution, to the 2013 Constitution: the core values of the Rule of Law of Vietnam

Values of freedom, equality and justice have always been prioritised over other values, and the Vietnamese Declaration of Independence in 1945 must be considered grasped with the contemporary rule of law

The Declaration began with a quote from the United States Independence Declaration in

1776: ―All men are created equal, that they are endowed by the Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness‖, and the Article 1 of the Declaration on Human Rights and Civil Rights of the French Revolution in

1789 (Déclaration des droits de l'homme et du citoyen de 1789): ―People are born free and

equal in rights, and always have to be free and equal in rights‖ (―Les hommes naissent et demeurent libres et égaux en droits.‖) According to Ho Chi Minh, the Declaration of

Independence showed to go beyond the old notions of human rights and freedom It used to be perceived that the freedom of people was the rulers‘ gift, which should have been asked for Vietnamese people, in hoping for the French colonial government‘s generosity The Vietnam Declaration of Independence in 1945 had reached the central point of the modern rule of law on human right unable to be dispossessed

The outstanding product of modern Vietnamese constitutionalism is the 1946 Constitution The birth of that Constitution showed the high determination of President Ho Chi Minh and the Vietnamese leaders at that time trying to put the progressive ideals into the reality of Vietnam, despite the country still being poor and struggling with the legacy of the Colonialism

The timely issuance of the 1946 Constitution reaffirmed the logic raised by the

American constituents in the past: ―That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed‖ It has been obvious that by putting more efforts to build up the Constitution and to organise the General Election,

the mindset about rule of law at the time had connected factors of democracy, human rights and

Constitution together There, democracy is the root, the Constitution is the premise, ensuring human rights is fundamental, impulsive, and being the goal of that democracy It therefore can

be said that, the Diagram of the first political legal regime and its starting point was the political

foundation based on the Constitution That diagram got to be generalised by President Ho Chi Minh as following: ―The regime certified by the 1946 Constitution has ensured the national

independence and become the comprehensive democracy for the people The right to vote and stand for election, the right to participate in the government jobs have been ensured; freedom and democracy has been implemented – That is a new democracy‖262

After the period of the social governance under the bureaucratic, centred regime since

1975, the 2013 Constitution marked the return of some historical values of the rule of law The ideology of respect and protection of human rights was the foundation to construct the mechanism of decentralisation and power limitation, and the orientation for continuing administrative reform, judicial reform, building and improving the legal system One of the most important advances of this Constitution is to constitutionalise the principle of right

limitation Article 14.2 the 2013 Constitution affirms: ―Human rights and civil rights shall only

be limited by regulations in case of necessity due to national defence, national security, social order and safety, social morality, and the health of the community‖ The limitation of rights is

―the provision recognised in the International Declaration of Human Rights of 1948 and in some other international treaties on human rights.‖ Article 29.2 of the International Declaration

of Human Rights clearly states that, when exercising the rights and freedoms, people shall only subject to statutory restrictions, with the aim of ensuring the appropriate recognition and respect

to the rights and freedoms of others, as well as satisfying social order, morality and the common welfare in a democratic society

The most important guarantee for the human rights protection is the recognition of the

legal principle of the presumption of innocence (Article 31 of the Constitution), which is the

condition for legal safety of the citizens in their daily lives and activities

Together with recognising courts as judicial bodies, which exercise judicial rights, the courts‘ mission is determined to project justice and human rights These are new points of great significance in the history of Constitutionalism in Vietnam, which affirm the principles of a modern judiciary, for example, the principle of two-level trials which is a guarantee to promote the rights for requesting review of the judgement; principles of the right to defend for defendant, the right to protect legitimate interests of the involved parties; the principle of juror‘s participation in trials These are principles that reflect the democracy and promote the people‘s right to access justice From the perspective of the rule of law, it can be seen that the 2013

Constitution further enhances the rule of law in the Vietnamese judiciary

2 New aspects of approach

2.1 The move from The Rule by Law to The Rule of Law and the law supremacy

Since ancient time in the West as well as in the East, legal systems have been established and widely applied in order to maintain the order and protect the state regimes However, when referring to using laws to govern the society, it can also be seen that inside monumental legacies of legal thoughts there have been hiding different views and, moreover, different methods in using the law

262

The complete works of Ho Chi Minh, Volume 4, page 491

Strictly abiding by the law used to be considered as the only exact factor regarding the role of law, because the law has always been the embodiment of the will of the state It is also

a consequence of maintaining overlong the centralization of power in Vietnamese society It has been evidenced in the Constitutions of 1980, 1992 which all determined the principle of The Rule by Laws (Article 12)

When compliance with the law is a mandatory requirement, it is a principle People then call it the Rule by Law or legality When compliance with the law becomes a reality of society and the nation, a requirement of life, society and national activities, it is a regime of the Rule by law Nevertheless, whether it is a principle or a wide-ranging governance regime, the central issue is still the strict adherence to the provisions of the law

One of the requirements of the Rule by Law is that all activities, acts, documents and decisions must be in accordance with the law But in fact, for decades in Vietnam, this principle could not be ensured anywhere and at all times A version of this principle in the legal system is a document of a lower authority must be consistent with that of a higher authority, each document must be in accordance with all higher documents and with the Constitution Therefore, the legal regime requires to establish a strict upper and lower order for legal documents However, this is exactly the difficulty that a legal system creates itself and therefore, it is not accidental that there are thousands of "sublicenses" issued by the ministries and local governments every year Besides, the reality of lower documents going beyond the authority of upper documents with thousand reasons still exist in the Vietnamese legal system Additionally, in legal reasoning, the debate that whether or not the documents of law enforcement agencies and local government agencies are legal documents (so that it

"must be followed") is prolonged without an end! The inconsistency of what is considered " the law" has undermined the possibility of direct application of the acts and the codes, giving rise to the need of interpretation (but no one has the authority to explain officially!) as well as the need to look for legal provisions that result in limited capacity to use the law and the right

to access to the law of the people

The Rule by Law also raises other issues such as: who would be obliged to obey the law? Who has the right to require others to obey the law? The process of implementing democracy, fighting against and preventing bureaucracy and corruption also has the basic content of eliminating the privilege, excluding the ―exceptions‖ and prohibited area of the law, but it is impossible to have satisfactory answers for these questions on the ground of the legal principle This is the weakness of the Rule by Law in the history, as it could not request respecting the law Respecting the law requires a different view in which the law could not

―be placed under someone‘s power‖ (Plato)263

and it must show ―the restriction of the State

power‖ (K Marx)264

and law is the expression of ―the consensus of people‖ (J Rousseau)265

263

Guthrie W.K.C, A History of Greek philosophy: Volume 4: Plato: The Man and His Dialogues: Earlier Period,

Cambridge University Press, 1986, p.511

264 The Complete Works of Karl Marx and Friedrich Engels, Volume 4, The National Political Publishing House, Hanoi,

1985, p 726

In other words, the law has to be used not only as a tool to control people but also as one to control the State

The State enacts laws not only to organise and govern the society but also to organise and govern itself The law must become a tool which could control, regulate, inspect and monitor the State‘s organisation and its method of operation The State must be placed under the law, not above or outside the law The law is not only a tool to maintain and develop the society but also a tool to maintain the existence of the State The State‘s function and power must stay within the framework stipulated by the Constitution and the law By putting itself in the rule of law, the State would be able to promote its power but if it goes beyond the rule of law, it would always be at risk of autocracy and losing democracy The Rule of Law is a State built on a constitutional and legal basis with its accountability regime and legal responsibility Exceeding the permitted limit, the State would degenerate into a ―monster‖ – as Thomas Hobbes asserts, depriving people of freedom The State and citizens both have rights and obligations The State and citizens both have to fulfil their duties The State must be subject to the law- a core element of ideology about the rule-of-law State This has a particularly important meaning to the context of fighting against corruption in Vietnam nowadays That is

an important view point of the law supermacy

Therefore, the rule of law is not only the supremacy of all laws but it also requires to respect the law with fairness, equality and for people

2.2 Constitutional Review Mechanism

By the time of issuing the 2013 Constitution, we had witnessed the lack of compatibility between the Constitution and the actual development of economic and social

life It was also known as the difference between the ―legal Constitution‖ and the ―practical Constitution‖ Negative phenomena such as land corruption, uncontrollable turmoil of the real

estate market, wastefulness and lack of control in the management and utilization of the country's resources, inadequacies in activities business dynamics of the state-owned economic sector, etc., were manifestation of the disparity between the legal Constitution and the practical Constitution in our country over a long period of time The legal Constitution had emphasised and even absolutized the role of public ownership, especially land ownership, the role of government in governing land and public property These inadequacies had affected basic categories of the Constitution in real life, such as property rights, legal safety for people, the limit of state power, and the State‘s power controlling mechanism

The supremacy of the Constitution can only be done when constitutional views and principles are maintained and respected in the practice of social activities and national activities To prevent constitutional violations, to protect human rights and the freedom of citizens effectively mean to make the requirements of the Constitutional regime being respected and to guarantee that there is mechanism to protect and restore constitutional order

265

JJ Rouseau: The Social Contract, The Ho Chi Minh City Publishing House, 1992

The resolution of the Tenth Congress of the Communist Party of Vietnam could be considered as the first document of the Party which set out the task of building and completing the mechanism of checking and supervising the constitutionality and legality in activities and decisions made by public authorities, as well as the initiation of a decision-making mechanism on constitutional violations in legislative, executive and judicial activities.266

Until now, different from many countries in the world, the supervision and protection

of the Constitution in Vietnam are not assigned to any specialised agency but are entrusted to many competent state agencies Specifically, the National Assembly - the highest authority, performing the function of supreme supervision for the activities of the State, supreme supervision

of compliance with the Constitution, law and resolution of the National Assembly (Article 70.2 of the 2013 Constitution); The National Assembly Standing Committee supervises the implementation of the Constitution, law and resolution of the National Assembly, the ordinance and the resolution of the Standing Committee of the National Assembly (Article 74.3 of the Constitution) The Government, the Supreme People's Procuratorate and the Supreme People's Court are also responsible for protecting the Constitution through implementing their duties and powers The mechanism monitors the implementation of the Constitution through ensuring the constitutionality and legality of legal documents - one of the most important contents of constitutional activities Accordingly, the National Assembly performs the right to supervise documents of the President, the Standing Committee of the National Assembly, the Government, the Prime Minister, the Supreme People's Court and the Supreme People's Procuratorate; it also has the authority to abandon any document of these agencies if that document is contrary to the Constitution, law and resolution of the National Assembly The Standing Committee of the National Assembly supervises legal documents of the Government, the Prime Minister, the Supreme People's Court, the Supreme People's Procuratorate and the resolution of the People's Councils of provinces and central cities It has the right to suspend any document of these agencies if that document is contrary to the Constitution, law and resolution of the National Assembly The Prime Minister has the right to suspend the implementation or removal of any document of Ministers, Heads of Ministerial-Level Agencies, People's Committees and Presidents of Provincial People's Committees if that document is contrary to the Constitution, law and documents of superior state agencies; suspend the implementation of resolutions of the Provincial People's Councils which are contrary to the Constitution

It could be said that this is a decentralised mechanism of constitutional monitoring,

which can also be called the general mechanism of supervision and constitutional guarantee

of legal documents, however, this mechanism does not work in practice

The Constitution gives the National Assembly the right to issue and amend both Constitution and statutes, to supervise the implementation of the Constitution and the law

266 The Communist Party of Vietnam Document of The 10 th National Congress of the Communist Party, The National Political Publishing House, Hanoi, 2006, page 126-127

However, neither the Constitution nor the law stipulates the responsibility arising from the unconstitutional laws that the National Assembly has enacted or been mistaken during the approval process

From the legal aspect, the supreme power position belonging to the National Assembly

is explained by the fact that the National Assembly is the highest delegated body, the highest state authority, the highest legislative body and the highest supervisory body (Article 69 of the 2013

Constitution) However, what is worth mentioning here is the ambiguity between the power of

the National Assembly and the power of the Constitution

There is an obvious reality that not every law enacted by the National Assembly expresses the will or benefit of the people classes Besides, not all members of the National Assembly have fulfilled the representative responsibilities to their electors, which are fighting for the electors‘ interests Only when a statute is enacted by the National Assembly does a regulation of the Constitution being implemented, which means that the power of the Constitution has been placed under the legislative authority of the National Assembly!

Since the National Assembly is the only body having legislative authority, it could enact any statute that seems appropriate In addition, the right to interpret the Constitution belongs to the Standing Committee, which is the standing body of the National Assembly (Article 74 of the Constitution) It is assumed that if an agency of the National Assembly or a parliamentary member indicates that a certain law is unconstitutional, the National Assembly could still "make it constitutional" by explaining the law Hence, it is sometimes the case that the amendment of the Constitution would also be based on the current law instead of doing the opposite With that kind of mechanism, it is very difficult to detect and deal with an unconstitutional statute and the consideration of constitutionality in any form would become unnecessary or meaningless, unless the National Assembly becomes proactive in monitoring and detecting the unconstitutionality Besides, the authority to suspend and exclude documents which are contrary to the Constitution as mentioned above is practically not applicable Therefore, the study to build a constitutional monitoring mechanism in Vietnam is being posed as an urgent requirement in a democratic Rule of Law

In Article 119, the 2013 Constitution sets out the highest legal basis for the implementation of this task by stipulating: "all acts violating the Constitution are to be dealt with" and providing ―mechanism to protect the Constitution by law‖ However, until now, this specialised mechanism has not been studied and implemented yet The design of a model of this future mechanism should come from the purpose of examining rules and acts about their constitutionality This major test must be based on the spirit of the Constitution, the statutes and must determine the intent, content, purpose of the law to make the necessary decisions

In a complicated and conflicting relationship of rights and interests, this constitutional oversight regime needs to be independent, to have the necessary authority and to operate strictly in accordance with judicial procedures Because this is an assessment about the appropriateness of statutes, decisions of state agencies, not only with specific provisions of

the Constitution but also with the principles and requirements of the democracy, general principles of law, judgements must be made suitable to a broad social vision and legal knowledge in its breadth

2.3 Ensuring fairness, implementing justice

In the national tradition and the moral values of Vietnamese people, fairness, righteousness have always been valued and appreciated The existing evidence of that is the perception of the role of justice with character as a social value in solving legal issues Then from there, those values have been considered as legal behaviour standards: Article 6 of the Civil Code 2015 defines the ability to apply case law and justice in solving civil cases and stipulates ―The Court must not refuse to resolve any civil case due to the reason of not having laws to apply‖ (Article 14.4 the Civil Code)

It can be affirmed that the recognition of these new legal sources is a bright spot in Vietnam's modern legal thinking, which is the result of an innovative and open thinking to receive the progressive values of the era, stemming from the assumption that "the law is not created by human but comes from the fairness and the rationality of nature and human behavior, the law is a natural manifestation of life‖ 267 The law could not be arbitrary or be a product of judgment

Equity is a social issue with a broad popularity Confronting to the requirements of the rule of law, it involves all three areas: legislation, executive and judiciary

For legislative activities, the criterion of fairness lies on the issue of ensuring the

harmony of social benefits The role of legislation in the condition of market economy is to create legal models that connect social interests268, to eliminate confrontation, to seek consensus by creating equal possibilities for all social sectors of the country in enjoying social welfare, limiting and eliminating the manipulation of the economic and political power of this group to other groups

Ensuring the stability of social benefit must stem from eliminating the reasons leading

to inaccurate or inadequate adjustments of law for groups of social interest Some cases which reflect the lack of social benefits are:

- Because lawmakers do not recognise interests of group A or B as legitimate

- Those legitimate benefits, though being recognised or verified, are still overlooked because of some deficiencies from the policy-making mechanism and the law

- The legitimate benefits are recognised by law but there is no mechanism to implement or there is prevention of implementation

- Due to the irresponsible attitude or the inconsideration of law enforcers, legitimate interests have not been implemented in practice

- Illegal benefits overwhelm legitimate benefits

Therefore, the role for the law to create sustainable development is the ability of the law to create a stable and lasting social environment through a mechanism reflecting social benefits into the law and on the basis of a fair legal order for a sustainable social order

For the executive branch, this is the right to access to public service, an important

manifestation of the Rule of Law In a country, the executive often holds and uses a large amount of financial resources and human resources This is also where several jobs are created and therefore, it becomes the target of people intending to seek ―perquisite‖ As for developing countries, human resources are used the most in the executive In order to raise awareness of respecting principles of the Rule of Law, there must be some guarantees that the recruitment of the executive system must be based on competence rather than money and relationships, which have been the causes of discriminatory selection

A competence-based administration is a manifestation of fairness and justice in the rule of law regime In many developed countries, a culture has been formed whereby those working in state agencies have been selected entirely based on their professional capacity and their qualifications from reputable educational institutions Citizens also highly appreciate reliable training institutions, they respect and support the civil servants due to the notion that they are competent and capable of undertaking the work of public services On the contrary, it also gave them an attitude of not accepting civil servants abusing their power to seek their own interests.269

For the Judiciary, Article 102.3 of the Vietnam's 2013 Constitution laid the

foundation for a new thinking about the role of the Court to protect justice because the nature

of Court is a journey of seeking justice The first rule-of-law symbol is the Lady Justice with a sword, scale and blindfold which indicates the idea of a fair national and social order Since that ancient time, the Court has been attached to the irreplaceable supremacy of maintaining justice, having open and transparent procedures, having an independent and objective position And therefore, the Court has been the first important factor, the epitome of the Rule of Law and the method of organising democratic power on a legal basis

The right to access justice has the main content: the right to be heard in time and fairly before the law and before the Court The protection of law according to fair proceedings is synonymous with protection by the Court on behalf of law and justice

The right to access justice of the people corresponds to the obligation of the State, represented by the Court That is the core of the principle that the Court must not refuse to resolve any case The French Civil Code since it was named Napoleon Emperor has so far maintained the rule: "Any judge rejecting to adjudicate with the reason that the law does not stipulate, the regulation is unclear or incomplete, may be prosecuted for a refusal of trial‖ (Article 4) For the first time in Vietnam's legislative history, this idea has been concretised by the 2015 Civil Code of Vietnam as stipulated in Article 14.2 as follows: ―The Court must not

269 Lijphart A Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries New Haven; London

1999, p.98

refuse to resolve any civil case due to the reason of not having laws to apply‖ In this case, the

2015 Civil Code provides courts with customs, legal similarities and equity

The principle that the Court shall not refuse a trial is an important principle to ensure people‘s right to access justice in the Rule of Law On the one hand, that principle is associated with promoting the role and strengthening the independence of the Court On the

other hand, it is associated with establishing the law-making role of the Court through the

development of case law, along with the traditional role of applying the law French professor

René David stated that ―recognising and applying case laws means that judges must take the general ideology of justice to be the basis to command, so that in every specific situation it can achieve the spirit of balance and the harmony of interests‖ 270

In the issue of security and justice protection, it is essential to clearly identify two sides of a problem On the one hand, legal regulations enacted by competent state agencies always involve the potential for lack of specific, being overlapped, inconsistent adjustments and lack of clarity in some certain situations On the other hand, new relationships and disputes arise more and more Since then, the Court's practical role in overcoming the inherent deficiencies of the legal system during the process of applying the law is obvious and the application of the Court's case law will complement these loop-holes in time to guarantee and better protect the legitimate rights and interests of people The Court's case law, as well as the customs and equality, when it comes to being sources of law and the basis for handling legal situations, will contribute to make the law timely meet the demands of life and create new development directions for social relations

Since then, the law should be understood in a broad sense which would make its content more appropriate, vivid and more attached to the rapidly changing reality nowadays, without rigidity and lack of adjustment capability From there, statutes will lessen its subjectivity and theory because these new legal sources stem from different circumstances of social life These sources are thoroughly capable and more fully and timely regulated by law

to ensure and protect human rights and civil rights in time in the Rule of Law The use of case law and other sources of law such as customs, fundamental principles of law and equity requires the increasing guarantee of the Court‘s independence On the other hand, circumstances which raise the need to expand sources of law require more independent capability of the Court!

The thinking about function of the Court to protect justice goes towards another problem: Courts should be entitled to interpret rules that are applied in an appropriate way with the context of legal relations arising in certain circumstances, in order to create strong and transparent legal guarantees, to get easier in reaching consensus among relevant parties and to ensure maximum fairness and justice

270

René David, Les Grands Sistêms de Droit Comtemporains, Dalloz, Paris, 1978, p.142

2.4 Consolidating the moral foundation of public services and the judiciary

2.4.1 Interference between law and morality

Plato once pointed out that power needs to meet all three qualities: courage, caution, and fairness, and impulse of the qualities is conscience.271 The politics in different countries, different cultural traditions and ethnic characteristics in each historical period have led to differences in the way of understanding and organising state power as well as putting common characteristics of the rule of law into practice The inclusion of moral values in the substantial law and procedural law is considered a very clear trend of the modern Rule of Law

The legal reality in Vietnam, especially in public services and judiciary, has shown that the law needs to go parallel to other elements in society such as morality, integrity, talent, and dedication

Obviously, the law cannot be enacted and implemented by itself In order to fully and accurately enforce the law, morality and conscience of humans, particularly the leader, are required Bureaucracy, greed, disregard for other people's interests, authoritarianism, deception, etc are diseases that can lead to misapplication of the law and make it misleading, distorted, though the law is fair and appropriate

2.4.2 The legitimacy of power

When discussing the new thought on the moral basis of the rule of law, it is necessary

to revise and clarify the legitimacy of power

Legitimacy includes the following aspect or important factors:

a The majority‘s perception of the rightness and legitimacy in the organisation and

operation of institutions compared to their expectations

b The majority‘s psychological perception of the capability and commitment of the

state power‘s representatives

c The majority‘s psychological perception of moral factors of leaders in the state apparatus, of the fairness in the state‘s decisions

d The majority‘s awareness of the legality in the organisation and operation of state agencies

Generally, state power is righteous when in the eyes and hearts of the people (at least the majority), the government, institutions, civil servants and the leaders appeared appropriate

to the people‘s conceptions and expectations of a decent government Those concepts are often not associated with legal factors, even rarely take the law as a basis

The perception‘s core element of the rightness of state power is the people's belief in that their material and mental life and the country in general related to their support for the state, that the state is subsidising them and representing their interests, the government is theirs and for them Therefore, the rightness is in close relation to benefits Thus, planning or

271

Irwin, Terence (1995), Plato Ethics, Oxford University Press, USA

implementing policies based on a sense of rightness is much more difficult than referring to policy decisions and laws on a legal basis However, the foundation of rightness is something that a power institution cannot ignore It is always understood as the majority‘s perception of relevance or irrelevance, the relevant level and satisfaction of their interests from the State The corollary of state power which is considered righteous is the prestige index to the people, the recognition of the people to the right of the state agency to lead or govern them; the consent, submission, acceptance or support of state authorities‘ decisions and laws It is the foundation for achieving effective management and administration, effective use of power Therefore, the goal of any power regime is the right to maintain its sustainable foundation.272

The legitimacy and prestige of a political institution, a state institution in particular and the political system in general, must truly be the result of self-sacrificing leadership, talent, the wisdom of those leaders for the people, for the country without seeking their own privileges and benefits.273 Along with the harmonisation with the masses, the honest, straightforward and open dialogue is the key to the rightness and long-term prestige of a political regime and government power Dialoguing with, listening to critical opinions, conflicting views, and adjusting the necessary levels of decisions made due to critical opinions and views, etc is considered the motto of the leadership and management agencies, of leaders and organisations, which demonstrates the governing power of a political party

2.4.3 Ethics in public service

Ethics in public service is a moral area in management, a foundation for establishing and maintaining culture and civilisation in the relationship between the public service machine and people and enterprises, among partners in the cooperative relationships, including the hierarchical administrative relationships, in the internal and external relations of the public service system

Public service ethic manifests itself in many areas, but it shall always be the first requirement in every area for the people who perform public duties to distinguish right-left, right-wrong, good-bad, truthful-treacherous, to help avoid desire, greed, that is to keep the mind pure, to promote the formation and preservation of the integrity of people in the name of public service and state power Besides, there are demands on human behaviours in relation to the citizens – the serving objects of public service to cultivate the sense of responsibility for the assigned task, the will to constantly study to have sufficient knowledge, capability and bravery to serve the citizens, without the sense of doing a nine-to-five job

The national governance in general and civil service in particular nowadays have passed the viewpoint threshold of the classic and simple governance, which claims that the effectiveness of governance is to achieve the initial goals set for certain ways and deadlines, without taking into account the psychological, social, political and ethical factors that arise in governance In all areas of governance and public service, the ethical and virtuous content in

272 Hindess B Discourses of Power: From Hobbes to Foucault – Oxford; Camb., Mass 1996, p.144-145

273

Deutsch K.W The Nerves of Government: Model of Political Communication and Control N.Y 1966, p15

the interactions of public service has been included in the core position, in addition to the professional content This is because in fact, the criteria of ethics are indispensable guarantees for the stability of the civil servant and the public service system.274 Many of that content has even been transformed into professional and institutionalised criteria.275 For example, the requirement of non-discrimination, which is typically ethical, has become a statutory principle in implementing the right for public access, in distributing and regulating to balance public resources, including public finance, in determining obligations and the national budget revenues… Starting

in the 80 of the twentieth century, many countries have enacted laws on public service morality For example, in October 1990, the US Congress issued the Law on Principles of Morality and Conduct of Government Officials Many ethical requirements have been defined such as: not allowing money and other interests to affect impartiality and objectivity; in performing public service, shall not utilise the information obtained from public service to gain personal benefits; shall not make promises difficult for organisations to implement; shall not do work outside of the scope of responsibility if it affects public service276…

In Vietnam recently, on 27th December 2018, the Prime Minister issued the Decision approving the Project on Public Service Culture The Project stipulates that civil servants are not allowed to flatter their superiors, to supervise, examine, reward or punish with bad motivation The fact shows that these behaviours are able to exist when there is a lack of moral standards in the public system

2.4.4 Judicial Integrity

Judicial integrity is an interesting concept Its core is the requirements from the society and the public about the judiciary It also is the necessary quality of a judicial system and judicial officers in order to ensure their fulfillment

In terms of vocabulary, the concept of integrity, which is ‗liem chinh‘ in Vietnamese, is based on the meaning of the two parts ‗liem‘ and ‗chinh‘ People can open any Vietnamese

dictionary to learn about the lexical meaning of these concepts, but Ho Chi Minh was the one

who gives the most precise definition, easiest to understand In the work ―Can, kiem, liem chinh‖ written in June 1949, he said: ―Liem is to be pure, not greedy, chinh means not to be dark,

means straightforward and righteous

Judicial integrity, therefore, can be interpreted as a demand for a pure judicial system, the honourable team of judicial officers, committed to maintaining and protecting the rightness and justice ―Sacrificing, complying, public-spirited, and selfless‖ are the qualities that President Ho Chi Minh proposed to the judiciary and the judicial officers in ‗The Letter to the National Judiciary Conference in February 1948‘.277

From this general approach, the issue of judicial integrity can be defined more specifically

in the following aspects:

274

Barzelay M.Breaking through bureaucracy; a new vision for managing in government Berkeley, 1992, p4-5

275

Aberbach J.D., Putnaam R.D, Rockman B.A Bureaucrats and Politicians in Western Democracies, Havard, 1981, p.24-25

276 Bowles N The government and politics of the U.S, London, 1998 P125

277

The Complete Works of Ho Chi Minh, Volume 5, p 52

Firstly, the spirit of professional responsibility, honour, and conscience of the judicial career

This is a very important aspect of the ethics of judicial professionals such as: Judges, Prosecutors, Investigators The sense of responsibility and honour, as well as the judicial career conscience should be considered the foundation of integrity education It is the responsibility of respecting and protecting human rights, protecting the people, a combination of inner self-respect with the responsibility for people A sense of career honour is a judicial officer‘s self-awareness of the social evaluation of himself, which is the driving force for decisions made

in the process of applying the law

Since then, when it comes to judicial integrity, there is an inevitable concept of the level

of social prestige, the social role of judicial authorities and judicial officers, and their awareness

in this regard

Secondly, the issue of fighting against corruption, ensuring the purity of the judicial system

In a study on corruption and anti-corruption, author Susan Rose – Ackerman pointed out that ―because the judicial decisions have been able to redistribute the power and property, Judges are able to take advantage of their professional position to benefit themselves‖ If the judicial authorities become a link of corruption, both citizens and officials share a common understanding that bribery can solve all legal problems! That way of thinking is often seen not only in the public sector, but also in some typical disputes regarding transactions or assets in the private sector If the parties try to avoid colliding with the judicial system, their agreements would have been able to circumvent the law at the beginning, yet as such, the losing party fell into a difficult situation without the normal protection from the judicial authorities having made impartial judgements Hence, an honourable and reputable judicial system is essential in fighting against corruption and maintaining legal order for the society.278

Conclusion

Stemming from approaching values, the author concluded that the Rule of Law in Vietnam has been formed developed on the basis of the core values which are fairness and humanity Fairness and humanity must exist both in the law‘s content and in values that go hand in hand with the law

Considering the logic of forming these core values, the construction and improvement

of the current rule of law can be receptive and return to the historical legacy of the imperial period, including the period when Vietnam was a French colony, the first time Vietnam came out of the ‗seclusion‘ from feudal dynasties in order to approach the Western governance The ideology of the Declaration of Independence on 2nd September 1945 and of the Constitution

1946 has been a valuable legacy for building up the current rule of law, considering its most core values

278 Susan Rose – Ackerman: Corruption and Government – Causes, Consequences, and Reform Cambridge University Press,

1999, p 200-201

In addition to the efforts to create the key elements of the rule of law, it is important to reinforce the moral foundation of the rule of law by paying attention to the requirements of ensuring the legitimate power in actual activities of the Party and the Government, ensuring public service ethics, and the integrity of judicial agencies Establishing this requirement is a new approach to the rule of law in Vietnam

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