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From Marx to Market: The Debates on the Economic System in Vietnam’s Revised Constitution

  • Duy Nghia PHAM (a1)
Abstract
Abstract

This article analyzes the socio-economic and political contexts behind the 2013 Constitution of the Socialist Republic of Vietnam (2013 Constitution), in which demands for deeper institutional reform emerged in Vietnam, and explains the constitutional discourse within Vietnam as to its economic order. Diverse forces and platforms within Vietnam’s party-state and beyond have contributed to the exchange of ideas and values on the economic order. As a result of this public discourse, the provisions on the economic order of the 2013 Constitution are ideological compromises, reflecting the contradicting views within the party-state and society in Vietnam on the role of the market, private property, and the freedom to conduct business. The 2013 Constitution has taken a step towards a free market economy by recognizing the decisive role of the market in the national economy. It emphasizes the importance of the private sector and promises that it will be treated fairly among all other economic sectors. From this perspective, the 2013 Constitution contains the seeds of future political and legal guarantees which could protect individual liberties. However, in line with the socialist ideology adopted by its predecessors, the 2013 Constitution reaffirms the dominance of the public sector and the leading role of state-owned enterprises, and preserves the ambiguous “ownership of the entire Vietnamese people of land and natural resources”. Due to this ambiguity, the 2013 Constitution fails to lay down the foundations for far-reaching comprehensive institutional reforms that Vietnam urgently requires.

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Professor, Fulbright Economics Teaching Program and Faculty of Law, University of Economics, Ho Chi Minh City, Vietnam.

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1. After World War II, Vietnam declared its independence in September 1945. The Democratic Republic of Vietnam was founded, and its first constitution was adopted in 1946: 1946 Constitution of the Democratic Republic of Vietnam (adopted 9 November 1946) [1946 Constitution]. By the end of the First Indochina War (1946–1954), the country was divided into two. North Vietnam adopted the 1959 Constitution of the Democratic Republic of Vietnam (adopted 31 December 1959) [1959 Constitution], which had a socialist orientation; South Vietnam adopted two constitutions in 1956 and 1967 modelled on liberal democracy. The Second Indochina War (1955–1975) ended with the reunification of Vietnam under communist rule. Vietnam was then integrated into the socialist bloc; it adopted the 1980 Constitution of the Socialist Republic of Vietnam (adopted 19 December 1980) [1980 Constitution], which heavily borrowed from the 1977 Soviet Constitution. Following the collapse of the socialist bloc, Vietnam opened for reform, which was cemented by the 1992 Constitution of the Democratic Republic of Vietnam (adopted 25 April 1992) [1992 Constitution]. After being amended in 2001, the 1992 Constitution was then substantially revised and replaced by a new edition in 2013: 2013 Constitution of the Socialist Republic of Vietnam (adopted 28 November 2013) [2013 Constitution].

2. Compare the 2013 Constitution, supra note 1, arts 50-55 with the 1992 Constitution of the Democratic Republic of Vietnam (adopted 25 April 1992, revised in 2001) [1992 Constitution (2001 Rev)], arts 15-29.

3. For a summary of the instrumentalist approach, see Mark SIDEL, “Analytical Models for Understanding Constitutions and Constitutional Dialogue in Socialist Transitional States: Re-Interpreting Constitutional Dialogue in Vietnam” (2002) 6 Singapore Journal of International and Comparative Law 42 [Sidel, “Analytical Models”].

4. The term “constitutional law” did not exist in the socialist jurisprudence until the late 1980s. Instead, the “law of the state apparatus” (Staatsrecht) was taught in socialist legal education institutions, covering political guidelines on the organization of the socialist state and the basic rights and obligations of citizens. The term “constitutional law” only returned to Vietnam in the 1990s.

5. In this paper, if needed, I make reference to and compare the socialist economic order as provided by the 1936 Constitution of the Union of Soviet Socialist Republics (adopted 5 December 1936) [1936 Soviet Constitution], 1977 Constitution of the Union of Soviet Socialist Republics (adopted 7 October 1977) [1977 Soviet Constitution], and the 2004 Constitution of the People’s Republic of China (first adopted 4 December 1982, amended on 14 March 2004) [2004 PRC Constitution], arts 6-18.

6. 1936 Soviet Constitution, supra note 5, arts 5-11. See also J Arch GETTY, “State and Society under Stalin: Constitutions and Elections in the 1930s” (1991) 50 Slavic Review 18.

7. 1946 Constitution, supra note 1, art 12.

8. 1967 Constitution of the Republic of Vietnam (South Vietnam) (adopted 18 March 1967), arts 18-20.

9. 1959 Constitution, supra note 1, arts 9-21.

10. Ibid, art 10.

11. Ibid, art 11.

12. Ibid, art 11-12.

13. Ibid, art 14.

14. 1977 Soviet Constitution, supra note 5, arts 10-18.

15. 1980 Constitution, supra note 1, art 33.

16. Ibid, arts 15-36.

17. 1992 Constitution, supra note 1, arts 15 (multi-sectoral economy), 19 (dominant role of state sector), and 21 (allowing household and private businesses).

18. 1999 Law on Enterprise (adopted 12 June 1999) [1999 Law on Enterprise].

19. Ibid, arts 7 (rights of enterprise) and 12 (business registration procedures).

20. The updated number of registered companies, partnerships and household businesses can be downloaded from the website of Vietnam’s Business Registration Authority: News and Updates, online: National Business Registration Portal <https://dangkykinhdoanh.gov.vn/NewsandUpdates/tabid/105/CategoryID/52/language/en-GB/Default.aspx>.

21. 1992 Constitution (2001 Rev), supra note 2, arts 15-29, particularly arts 15 (socialist oriented market economy), 16 (recognition of domestic capitalist sector, freedom to competition equally before the law), 21 (no limitation of size and scope of private sector), and 57 (freedom to conduct business).

22. Thiêm BÙI Hải, “Pluralism Unleashed: The Politics of Reforming the Vietnamese Constitution” (2014) 9(4) Journal of Vietnamese Studies 1 .

23. ABUZA Zachary, Renovating Politics in Contemporary Vietnam (London: Lynne Rienner Publishers, 2001) at 75-131 .

24. ZAKARIA Fareed, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York: W W Norton & Company, 2007) at 89-119 .

25. DAO Xuan Sam, “Những Bước Đường Đổi Mới Chuyển Sang Nền Kinh Tế Thị Trường (1979-2007) [The Doi Moi Process towards a Market Economy (1979-2007)]” in DAO Xuan Sam & VU Quoc Tuan, eds, Renovation in Vietnam: Recollection and Contemplation (Hanoi: Tri Thuc Publishing House, 2008).

26. The Party called it the “comprehensive social and economic crisis”. See Communist Party of Vietnam, Strategy for Socio-Economic Development (adopted at the 7th Party Congress: June 1991). The CPV’s midterm National Congress held on 20–25 January 1994 identified four threats to the socialist regime, including: economic backwardness, “corruption and social evils”, socialist diversion, and “peaceful evolution of the hostile forces”. Báo Điện tử Đảng Cộng Sản Việt Nam [Communist Party of Vietnam Online Newspaper], “Văn kiện Đảng [Party’s Documents]”, online: Communist Party of Vietnam Central Committee <http://dangcongsan.vn/tu-lieu-van-kien/van-kien-dang/van-kien-dai-hoi.html>.

27. VU Thanh Tu Anh et al, “Institutional Reform: From Vision to Reality” (Policy discussion paper prepared for the Vietnam Executive Leadership Program, Harvard Kennedy School, 13-17 April 2015), online: <http://www.fetp.edu.vn/en/policy-papers/discussion-papers/institutional-reform-from-vision-to-reality/>.

28. “The Structural Roots of Macroeconomic Instability” (Policy discussion paper prepared for the Vietnam Executive Leadership Program, Harvard Kennedy School, 9 September 2008), online: <http://www.fetp.edu.vn/en/policy-papers/discussion-papers/policy-discussion-no3-the-structural-roots-of-macroeconomic-instability/>.

29. VŨ Thành Tự Anh, “WTO Accession and the Political Economy of State-Owned Enterprise Reform in Vietnam” (Working Paper, University of Oxford, The Global Economic Governance Programme) (GEG WP 2014/92) (October 2014).

30. PHAM Duy Nghia et al, “Unplugging Institutional Bottlenecks to Restore Growth” (Policy discussion paper prepared for the Vietnam Executive Leadership Program, Harvard Kennedy School, 26-30 August 2013), online: <http://www.fetp.edu.vn/en/policy-papers/discussion-papers/unplugging-institutional-bottlenecks-to-restore-growth/>.

31. VU-Thanh Tu-Anh, “The Political Economy of Industrial Development in Vietnam: Impact of State-business Relationship on Industrial Performance, 1986–2012” (Working Paper, United Nations University, World Institute for Development Economics Research) (WIDER Working Paper 2014/158) (December 2014).

32. KEYSER John, JAFFEE Steven & NGUYEN Tuan Do Anh, “The Financial and Economic Competitiveness of Rice and Selected Feed Crops in Northern and Southern Vietnam” (Working Paper, World Bank) (Report No ACS4325) (January 2013) at 33 .

33. PINCUS Jonathan et al, “Structural Reform for Growth, Equity, and National Sovereignty” (Policy discussion paper presented at the Vietnam Executive Leadership Program, Harvard Kennedy School, 13-17 February 2012), online: <http://www.fetp.edu.vn/en/policy-papers/discussion-papers/structural-reform-for-growth-equity-and-national-sovereignty/>.

34. VU Khong M, “The Institutional Root Causes of the Challenges to Vietnam’s Long-Term Economic Growth” (2014) 13(1) Asian Economic Papers 159 .

35. DANG Hoa Ho & MCPHERSON Malcolm, Land Policy for Socioeconomic Development in Vietnam (Cambridge, MA: Harvard Kennedy School and Institute of Policy and Strategy for Agriculture and Rural Development, 2010).

36. Vu et al, “Institutional Reform”, supra note 27.

37. Vietnam 2035: Toward Prosperity, Creativity, Equity, and Democracy (Washington DC and Hanoi: World Bank and the Ministry of Planning and Investment, 2016) at 12-13.

38. The 11th Party Congress was held on 11-19 January 2011. The political documents adopted at this 11th Congress are available at Communist Party of Vietnam Online Newspaper, supra note 26.

39. Note that only 175 official members of the Central Committee are entitled to vote. The 25 alternate-members are entitled to participate in all discussions, but they are not entitled to vote. The Central Committee elected a Politburo with 14 members at the 11th Party Congress in January 2011. The number of members of the Politburo increased to 16, as two additional members were elected at 7th Central Committee’s Plenums held on 2-11 May 2013. The next 12th Party Congress is scheduled for early 2016. From 2011 to June 2015, the Central Committee held 11 Plenums. The revision of 1992 Constitution was debated at several plenums, including the 2nd Plenum held on 1–10 July 2011, the 6th Plenum on 1-15 October 2012, and the 7th Plenum on 2-11 May 2013.

40. In Ho Chi Minh City, for example, 2.6 million copies of the Draft Constitution were disseminated in March 2013 to households for feedback. See People Council of Ho Chi Minh City, Báo cáo số 150/BC-BCĐTPHCM ngày 31/3/2013 về Tổng hợp ý kiến nhân dân thành phố Hồ Chí Minh về Dự thảo sửa đổi Hiến pháp năm 1992 (Đợt 2: từ ngày 06 tháng 03 đến ngày 26 tháng 03 năm 2013) [Report No 150/BC-BCDTPHCM on Collection of Ho Chi Minh City’s Citizen on the 1992 Constitution Amendment Draft (Second Phase, from 6 March to 26 March 2013)] (31 March 2013), online: HCM City People Council <http://www.dbnd.hochiminhcity.gov.vn/web/guest/cac-van-ban;jsessionid=73FCA78AA02641AA7CF1F2D99B7EDEF1?p_p_id=EXT_ARTICLEVIEW&p_p_lifecycle=0&p_p_col_id=column-right&p_p_col_count=3&_EXT_ARTICLEVIEW_groupId=10217&_EXT_ARTICLEVIEW_articleId=51956&_EXT_ARTICLEVIEW_version=1.0&_EXT_ARTICLEVIEW_redirect=%2Fweb%2Fguest%2Fbai-viet-tham-khao>.

41. Constitution Revision Committee, BÁO CÁO Một số nội dung cơ bản giải trình, tiếp thu, chỉnh lý Dự thảo sửa đổi Hiến pháp năm 1992 trên cơ sở ý kiến của nhân dân và của các vị đại biểu Quốc hội [Report on some explanation, reflection, and modifications on the 1992 Constitution Amendment Draft, based on comments of citizen and of members of the National Assembly] (17 October 2013), online: Library of the National Assembly <http://duthaoonline.quochoi.vn/DuThao/Lists/DT_DUTHAO_NGHIQUYET/View_Detail.aspx?ItemID=32>.

42. The most comprehensive documentation the debate on the 2013 Constitution is available online at Tài liệu sửa đổi Hiến pháp [Documentation to Constitution Revision] (26 February 2014), online: Library of the National Assembly <http://duthaoonline.quochoi.vn>. The Report presented by the Constitution Drafting Board alone runs to over 800 pages. In addition, there are extensive reports provided by the government, by the Fatherland Front, by the Supreme Court, and by the Supreme Procuracy. Rich sources of video and other records are also available online. They include reports from lively debates among members of the NA in plenary meetings sessions and controversial dialogues at workshops and meetings.

43. Party documentations are available at “Communist Party of Vietnam Online Newspaper”, online: Communist Party of Vietnam Central Committee <http://en.dangcongsan.vn/>.

44. Resolution 06/2011/QH13 on the formulation of the Constitution Revision Commission adopted by the National Assembly, dated 6 August 2011. In retrospect, the number of members on the Commission increased and changed over time. The 1946 Constitution was drafted by a 7-member Commission chaired by President Ho Chi Minh (3 Communists, 4 Non-Communists). In 1957, a drafting commission with 28 members headed by Ho Chi Minh was established, in charge of drafting the 1959 Constitution. In 1976, a Commission with 36 members, chaired by President Truong Chinh, was established to draft the 1980 Constitution. The 1992 Constitution was drafted by a 16-member Commission chaired by President Vo Chi Cong. The 2001 revision was drafted by a 22-member Commission chaired by President Nguyen Van An. The 2013 Constitution Revision Commission had 30 members. Further, the 2001 revision was drafted within only one year, but the 2013 Constitution was drafted in 3 years from 2011 to 2013.

45. Resolution 03/NQ-UBDTSDHP adopted by the Constitution Revision Commission to create the Constitution Revision Editing Board, dated 23 August 2011. The Editing Board is divided into 6 teams, with each team in charge of drafting one or more Chapters of the Draft Constitution.

46. The Constitution Revision Commission was established by the NA and chaired by the NA President, Politburo member Nguyen Sinh Hung. The other 7 Politburo members attending the Commission were: Madame Tong Thi Phong (Vice NA Chairwomen), Mr Le Hong Anh (Chair of Party Secretariat), Mr Dinh The Huynh (Chair of Party Ideology & Culture Committee), Mr To Huy Rua (Chair of Party Personnel Committee), Mr Nguyen Xuan Phuc (Vice Prime Minister), Mr Phung Quang Thanh (Minister of Defence), and Mr Tran Dai Quang (Minister of Public Security).

47. 22 of these legal scholars had been educated in the former Soviet Union, and the remaining 2 were educated in East Germany.

48. The Editing Board was chaired by Phan Trung Ly, Chairman of NA Law Committee. The board operated with support from NA Law Committee staff, led by NA member Le Minh Thong, and some staff from the NA Legislative Academy. The three economists on the Editing Board are Tran Xuan Ba (CIEM: Central Institute for Economic Management), Tran Dinh Thien (VASS: Vietnam Academy for Social Science) and NA member Tran Du Lich (Ho Chi Minh City). The only non-Party member on the Editing Board is the historian, NA member Duong Trung Quoc. For a comprehensive list of members on the Editing Board, see Resolution 03/NQ-UBDTSDH, supra note 45.

49. Personal interviews with Prof Dao Tri Uc (Vietnam National University Law School) and Prof Mai Hong Quy (Ho Chi Minh City Law University), members of the Editing Board, Ho Chi Minh City, Vietnam (18 June 2015).

50. See Proposal No 11/TTr/UBTVQH13 dated August 02, 2011, prepared by the NA Standing Committee.

51. Personal interview with Mr Le Minh Thong, NA member, Vice-Chair of NA Law Committee, Vice-Chair of the Constitution Editing Board, Harvard Kennedy School, United States of America (13 April 2015).

52. Such views were expressed in the Prime Minister’s New Year Message 2013, and in the discussions of Mr Tran Du Lich (Ho Chi Minh City) and Mr Vo Hong Phuc (Minister for Planning and Investment) at the 11th Party Congress. See MINH Thúy, “Thảo luận văn kiện Đại hội và tâm tư của một vị bộ trưởng [Discussion of the Party’s Documents and Reflections of a Minister]”, VnEconomy (14 January 2011), online: VnEconomy <http://vneconomy.vn/thoi-su/thao-luan-van-kien-dai-hoi-va-tam-tu-cua-mot-vi-bo-truong-20110113084253661.htm>.

53. Personal interviews with Tran Dinh Thien (Director of VASS: Institute for Economic Research) and Tran Huu Huynh (President of VIAC: Vietnam International Arbitration Center, former director of VCCI Legal Department), members of the Editing Board, Ho Chi Minh City, Vietnam (10 June 2015).

54. See e.g. a recent article by Le Xuan Tung, a former Politburo member and Party Secretary of Hanoi on 5 June 2015, available at: <http://www.qdnd.vn/qdndsite/vi-vn/61/43/chong-dien-bien-hoa-binh/phai-chang-kinh-te-tu-nhan-la-nen-tang-cua-nen-kinh-te-quoc-dan/362757.html>.

55. See e.g. the Resolutions at 14th Plenum of Central Committee in December 2010 (adopted with only 55.6% support for the proposition that the Vietnamese economy should be based on the “dominance of public productive means”, as proposed by the General Secretary of the CPV). Further, see the discussions of Le Huu Nghia, President of Party Academy, and Vu Duc Huy, Secretary of SOEs Party Organization at the 11th Party Congress. After two days of debate at the 11th Party Congress, the emphasis on the “dominance of public productive means” in the Resolutions was deleted and replaced by the notion of “appropriate productive means”. See MINH Thúy, “Vấn đề chưa rõ thì chưa nên đưa vào văn kiện [Unclear Issues Should Not be Incorporated into the Party’s Document]”, VnEconomy (14 January 2011), online: VnEconomy <http://vneconomy.vn/thoi-su/van-de-chua-ro-thi-chua-nen-dua-vao-van-kien-2011011405513120.htm>.

56. Changes only occurred in the former Soviet Union after the death of Stalin, and changes only took place in China after the death of Mao Zedong. Reforms took place in Vietnam in 1986 only after the death of Party Secretary Le Duan.

57. Such revolutionaries include Ho Chi Minh, Le Duan, Truong Chinh, Pham Van Dong, and Vo Nguyen Giap.

58. VU Thanh Tu Anh et al, “A Retrospective on Past 30 Years of Development in Vietnam” (Policy discussion paper prepared for the World Bank report on Vietnam 2035, 2015) [unpublished].

59. Such groups are also called state incorporations or conglomerates (tập đoàn kinh tế nhà nước).

60. The 12 national SOEs included Vietnam Petroleum (PVN), Vietnam Electricity (EVN), Vietnam Coal and Mineral Industries (Vinacomin), Vietnam Airlines (VNA), Vietnam Shipbuilding Industries (Vinashin), Vietnam Textile Industries (Vinatex), and Vietnam Post and Telecommunication (VNPT).

61. Resolution 50-KL/TW adopted by the Central Committee on restructuring of state-owned business groups and enterprises, dated 29 October 2012.

62. Decision 160/QD-TW made by the Central Committee on establishment of the Central Economic Committee, dated 28 December 2012.

63. Ibid. See also TRAN Cham, “Central Committee of Internal Affairs begins operating from February”, Vietnamnet Bridge (4 February 2013), online: Vietnamnet Bridge <http://english.vietnamnet.vn/fms/government/65805/central-committee-of-internal-affairs-begins-operating-from-february.html>.

64. LE Hong Hiep, “Power shifts in Vietnam’s political system”, East Asia Forum (5 March 2015), online: East Asia Forum <http://www.eastasiaforum.org/2015/03/05/power-shifts-in-vietnams-political-system/>.

65. LONDON Jonathan, “Vietnam: Open Secrets on the Road to Succession”, cogitASIA (20 January 2015), online: Center for Strategic & International Studies <http://cogitasia.com/vietnam-open-secrets-on-the-road-to-succession/>.

66. Mr Nguyen Van Phuc is an NA member (Vice Chair of NA Economic Committee). Other participants include Prof Tran Dinh Thien (Director of VASS-Institute for Economic Research), Mr Tran Du Lich (NA member, economist), Mr Tran Huu Huynh (VIAC President, former Director of VCCI Legal Department), and Prof Nguyen Nhu Phat (Director of VASS-Institute of State and Law). Personal interviews with Tran Dinh Thien and Tran Huu Huynh, Ho Chi Minh City, Vietnam (10 June 2015).

67. Decision 1695/QD-TTg of the Prime Minister, to establish the Steering Committee to evaluate the implementation of the 1992 Constitution, dated 28 September 2011. This Committee operated from 2011 to January 2014.

68. Sidel, “Analytical Models”, supra note 3.

69. World Bank, Vietnam Development Report 2010: Modern Institutions (January 2010), online: <http://documents.worldbank.org/curated/en/618951468329964080/Vietnam-development-report-2010-modern-institutions>.

70. Asia Foundation, “Municipal Government in Vietnam: The Cases of Ho Chi Minh City and Da Nang” (2013), online: Asia Foundation <https://asiafoundation.org/resources/pdfs/MunicipalGovermentVietnamese.pdf>.

71. See e.g. HOANG Van Luan, “Interest Group and Some Issues on Interest Group in Vietnam” (2014) 30 Journal of Social Sciences 1 .

72. See e.g. DAVIES Nick, “Vietnam 40 Years On: How a Communist Victory Gave Way to Capitalist Corruption”, The Guardian (22 April 2015), online: The Guardian <http://www.theguardian.com/news/2015/apr/22/vietnam-40-years-on-how-communist-victory-gave-way-to-capitalist-corruption>.

73. This warning was one of the messages that we raised in our joint research commissioned by UNDP Vietnam in 2009–2010 on the need to institutional reform in Vietnam. The report was introduced to the public on September 13, 2010 and was fiercely debated in Vietnam’s media, see “Chính phủ nên từ bỏ vai tổng quản với tài sản công [The Government shall refrain to act as manager of public property]”, Tuan VietnamNet (10 October 2010), online: Tuan VietnamNet <http://tuanvietnam.vietnamnet.vn/2010-09-08-chinh-phu-nen-tu-bo-vai-tong-quan-voi-tai-san-cong>.

74. GIA Bảo, “Nhận thức mới về kinh tế thị trường định hướng xã hội chủ nghĩa [New Understanding about Socialist Oriented Market Economy]”, Communist Review (28 February 2015), online: Communist Review <http://www.tapchicongsan.org.vn/Home/Thong-tin-ly-luan/2015/32163/Nhan-thuc-moi-ve-kinh-te-thi-truong-dinh-huong-xa-hoi.aspx>.

75. HA Chinh, “Hà Chính, Kinh tế thị trường và câu trả lời của Thủ tướng [Market Economy and the Prime Minister’s Answer]”, Báo Điện Tử Chính phủ [Online Newspaper of the Government] (9 March 2015), online: Báo Điện Tử Chính phủ <http://baodientu.chinhphu.vn/Tin-noi-bat/Kinh-te-thi-truong-va-cau-tra-loi-cua-Thu-tuong/221732.vgp>.

76. Nguyen Dinh Cung, the main drafter of the liberal 1999 Law on Enterprise, is currently Director of the Central Institute of Economic Management (CIEM). NGUYÊN Thảo, “Đổi mới khái niệm ‘kinh tế thị trường định hướng xã hội chủ nghĩa’? [Renovating the Concept ‘Socialist Oriented Market Economy’?]”, VnEconomy (21 April 2015), online: VnEconomy <http://vneconomy.vn/thoi-su/doi-moi-khai-niem-kinh-te-thi-truong-dinh-huong-xa-hoi-chu-nghia-20150419102024689.htm>.

77. Tran Dinh Thien is the Director of VASS-Institute of Economic Research. CIEM and VASS are the leading think tanks for economic research in Vietnam. See Sự kiện NÓNG, “Chỗ cần nhà nước thì không thấy đâu” [The State Cannot be Found in Necessary Places]”, VietnamNet (1 April 2015), online: VietnamNet <http://vietnamnet.vn/vn/ban-tron-truc-tuyen/229617/-cho-can-nha-nuoc-thi-khong-thay-dau-.html>.

78. TƯ Giang, “Cải cách thể chế từ câu hỏi chưa có lời giải [Institutional Reform from Unanswered Question]”, The Saigon Times (5 March 2014), online: The Saigon Times <http://www.thesaigontimes.vn/114301/Cai-cach-the-che-tu-cau-hoi-chua-co-loi-giai.html>.

79. For examples of the social elite resisting reform in Vietnam, see GAINSBOROUGH Martin, “Elites vs. Reform in Laos, Cambodia, and Vietnam” (2012) 23(2) Journal of Democracy 34 .

80. TRƯƠNG Đình Tuyển, “Kinh tế thị trường hiện đại theo định hướng XHCN là gì? [What is Modern Socialist-Oriented Market Economy?]”, The Saigon Times (4 November 2015), online: The Saigon Times <http://www.thesaigontimes.vn/128900/Kinh-te-thi-truong-hien-dai-theo-dinh-huong-XHCN-la-gi.html>.

81. Before Prime Minister (PM) Nguyen Tan Dung’s (2006–2011) first term, there was a Research Commission at the Prime Minister’s Office (PMRC), comprising some reform-minded advisors, such as Tran Xuan Gia, Le Dang Doanh, and Pham Chi Lan. The PMRC was suddenly dissolved in 2006 after the PM took office. After this event, some of these advisors created an independent think-tank called IDS (Institute for Development Studies). The IDS was led by Nguyen Quang A. Due to its critiques of the government, IDS was also quickly forced to close down in 2007. Although the think-tank was closed, its network of intellectuals remained and was able to organize further joint activities. They collected signatures to protest against the bauxite project in Vietnam’s Tay Nguyen highlands; they also formed the group demanding for constitutional reform in January 2013. Their request was initially signed by 72 well-known persons, and was therefore dubbed “Group 72”. Their request subsequently obtained tens of thousands of signatures from January to September 2013.

82. SIDEL Mark, Law and Society in Vietnam: The Transition from Socialism in Comparative Perspective (Cambridge: Cambridge University Press, 2008).

83. Active participants in constitutional discourse during 2011–2013 include the NA-Legislative Institute, Ho Chi Minh City Law University, Vietnam National University Law School, and VASS-Institute for State and Law.

84. Notable participants include the Vietnam Federation of Bar Associations (VFB), the Vietnam Lawyer Association (VLA), the Vietnam Union of Science and Technology Associations (VUSTA), the Institute for Law and Development (VUSTA-PLD), and the Institute for Public Policies Studies. Video records of some very lively debates on constitutional reform organized by VUSTA-PLD are available online, such as “Tọa đàm ‘Góp ý Sửa đổi Hiến pháp 1992’”, Viện PLD, VUSTA (5) [Workshop on Collection of comments to 1992 Constitution Amendment, organized by Institute for Law and Development]” (18 March 2013) (video), online: YouTube <https://www.youtube.com/watch?v=ivwQKP4oJsI>.

85. Constitution Editing Board, Report of the Constitution Editing Board (17 October 2013) (Chair: Phan Trung Ly) [unpublished], at 340-40.

86. The percentage of Vietnamese who have heard about the Constitution is extremely low. See UNDP, Justice Index: Assessment of Distributive Justice and Equality from a Citizen-based Survey in 2012 (Hanoi: United Nations Development Programme, 2013), online: <http://www.vn.undp.org/content/vietnam/en/home/library/democratic_governance/justice_index_report.html>.

87. MORRIS-JUNG Jason, “Vietnam’s Online Petition Movement” (2015) Southeast Asian Affairs 402

88. BRAND-WEINER Ian, FRANCAVILLA Francesca & OLIVARI Mattia, “Globalisation in Viet Nam: An Opportunity for Social Mobility?” (2015) 2 Asia & the Pacific Policy Studies 21 .

89. BROWN David, “Vietnam’s Communists Conjure with the Internet”, Asia Sentinel (3 March 2015), online: Asia Sentinel <http://www.asiasentinel.com/politics/vietnam-communists-conjure-internet/?utm_content=buffer83a9a&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer%3E#frameId=appnext_widget&height=64>.

90. “Online rumor mills could create political chaos”, Nikkei Asian Review (14 January 2015), online: Nikkei Asian Review <http://asia.nikkei.com/Politics-Economy/International-Relations/Online-rumor-mills-could-create-political-chaos>.

91. BUI Thiem H, “The development of civil society and dynamics of governance in Vietnam’s one party rule” (2013) 25(1) Global Change, Peace & Security 77 .

92. This may explain why Group 72, or blogs devoted to constitutional dialogue, such as NGO Bao Chau, DAM Thanh Son & NGUYEN Anh Tuan, “Cùng viết Hiến pháp [Together Writing the Constitution]” online: <https://cungviethienphap.wordpress.com/> are tolerated.

93. PEEL Michael, “Hanoi residents mobilise to save city’s cherished trees”, Financial Times (27 March 2015), online: Vietnam Studies <http://www.viet-studies.info/kinhte/HanoiTrees_FT.pdf>.

94. MINH Anh, “Cộng đồng mạng tìm cách ‘cứu’ 6700 cây xanh Hà Nội [The Internet Community Tries to ‘Rescue’ 6700 Trees in Hanoi]”, Tuổi Trẻ [Youth Newspaper] (19 March 2015), online: Tuổi Trẻ <http://tuoitre.vn/tin/chinh-tri-xa-hoi/moi-truong/20150319/cong-dong-mang-tim-cach-cuu-6700-cay-xanh-ha-noi/722606.html>.

95. LE Tuyet, “Đình công bước sang ngày thứ 4, gây tắc nghẽn Quốc lộ 1A [Strike goes on the third day, blocking the national road 1A]” Lao Động [Labour] (30 March 2015), online: Lao Động <http://laodong.com.vn/cong-doan/dinh-cong-buoc-sang-ngay-thu-4-gay-tac-nghen-quoc-lo-1a-310371.bld>.

96. NGUYEN Tu Phuong, “Vietnam strikes out at labour disputes”, East Asian Forum (10 April 2015), online: East Asian Forum <http://www.eastasiaforum.org/2015/04/10/vietnam-strikes-out-at-labour-disputes/>.

97. BUI Hai Thiem, “In Search of a Post-Socialist Mode of Governmentality: The Double Movement of Accommodating and Resisting Neo-Liberalism in Vietnam” (2015) 43 Asian Journal of Social Science 80 .

98. NGUYEN Dieu Tu Uyen, “Rage Against the State: Discontent Grows in Vietnam”, Bloomberg (15 May 2015), online: Bloomberg <http://www.bloomberg.com/news/articles/2015-05-14/in-communist-vietnam-rising-discontent-with-state-driven-system>.

99. VCCI (2012), Changing Attitudes to the Market and the State (CAMS), updated 23 July 2014, see CAMS 2014: <http://vccinews.com/news_detail.asp?news_id=32424>. 89% of Vietnamese surveyed said that they are pro-market.

100. KLEIN Ezra, “Free markets are more popular in Vietnam than in America”, Vox (3 May 2015), online: Vox <http://www.vox.com/2015/5/3/8539365/vietnam-capitalism-pew?>.

101. Social media played an extraordinary role in promoting liberal ideas during 2011–2013, especially through the blog anhbasam, which used different domain names. The blog provided links to many influential Vietnamese bloggers, creating powerful online networks that could share knowledge and establish joint actions demanding for civil rights. The owner of anhbasam was then identified and arrested by Vietnam’s public security in May 2014. In March 2016 he was sentenced to 5 years in jail. See Associated Press, “Protests as Vietnamese blogger goes on trial for ‘anti-government’ posts”, The Guardian (23 March 2016), online: The Guardian <http://www.theguardian.com/world/2016/mar/23/protests-as-vietnamese-blogger-goes-on-trial-for-anti-government-posts>.

102. Compare the draft of Constitution as modified in October 2012, September 2013 and October 2013, all provided by the Editing Board.

103. Personal interview with Mr Tran Du Lich, NA member and a member of the Editing Board, Hanoi, Vietnam (15 June 2015).

104. 2013 Constitution, supra note 1, arts 51 and 53.

105. Ibid, art 74.2 provides that the NA Standing Committee shall have the right to interpret the Constitution. However, as matter of fact, this Committee has never done so during Vietnam’s 70 years of constitutional history.

106. The Constitution left the issue of constitutional review relatively open, and provided that “constitutional review mechanism shall be provided by law”. Ibid, art 119.2

107. Vietnam Minister of Planning and Investment Bui Quang Vinh repeated his warning that law and regulation may unreasonably restrict constitutional liberties, such as the freedom to conduct business. He therefore said that “don’t let the Constitution be open, but the law be closed”, see BUI Quang Vinh, “Đừng để Hiến pháp mở, Luật đóng [Don’t let Constitution opens, but Law closes]”, Tuổi trẻ [Youth Newspaper] (17 June 2015), online: Tuổi trẻ <http://tuoitre.vn/tin/chinh-tri-xa-hoi/thoi-su-suy-nghi/20150617/dung-de-hien-phap-mo-luat-dong/762630.html>.

108. Compare 2013 Constitution, supra note 1, art 51.1 with art 52.

109. Compare 2013 Constitution, supra note 1, art 32 with art 54.3.

* Professor, Fulbright Economics Teaching Program and Faculty of Law, University of Economics, Ho Chi Minh City, Vietnam.

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Asian Journal of Comparative Law
  • ISSN: 2194-6078
  • EISSN: 1932-0205
  • URL: /core/journals/asian-journal-of-comparative-law
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