This part proceeds in two sections. Section A demonstrates the important role of the constitution as an instrument of governance in relation to land ownership. It notes that the constitution in Vietnam has been used to consolidate the State’s power to manage land and to limit the rights of citizens to access land. In addition, it shows that as a matter of tradition, the party leadership of the CPV has been opposed to the recognition of private ownership for two reasons. Firstly, communist states are defined by state ownership of the means of production. Vietnam, as a communist state, is no exception. Secondly, opposing private land ownership has proven to be a popular position for the CPV to adopt in various periods in Vietnam’s political history. The discussion notes, however, that the demands resulting from economic development in the past three decades have forced the party leadership to rethink its approach to land ownership in the search for new legitimacy.
Section B discusses the impact of major land protests in eroding the legitimacy of the CPV and the CPV’s ongoing internal ideological divisions over recognizing private land ownership.
A. The Constitution and the Arrangement of Land Ownership
State leaders in socialist Vietnam have long been conscious of the powerful role of the constitution as an important instrument of governance and as a means of validating the legitimacy of the CPV. The first president of the Democratic Republic of (North) Vietnam, Ho Chi Minh, took ownership of drafting the 1946 Constitution of the Democratic Republic of Vietnam (1946 Constitution) to set up the legitimacy of the State’s rule and to coordinate the State’s ruling institutions. The 1946 Constitution had four chapters, with Chapter 2 of the Constitution devoted to the protection of citizens’ rights. One of the protected rights was the right to own property, which included private ownership of land.
The 1946 Constitution was drafted at a time when North Vietnam was in a state of war, and the enlisting of peasant soldiers was crucial to the long-term goal of reunifying North and South Vietnam. Vietnam’s second constitution, which was enacted in 1959, was a closer reflection of the CPV’s attitude towards private land ownership in contemporary times. This constitution strengthened the power of the State to manage the economy; it introduced socialist central planning and prioritized the socialist form of ownership in leading the economic sector. While the right to land ownership was preserved in the constitution, land collectivization occurred throughout the countryside, and edicts were issued to prohibit private accumulation of land.
According to the narrative constructed by the CPV’s senior leaders, opposing private land ownership would liberate the peasants from feudal oppression, and party leaders used socialist land tenure reform policies to motivate the peasant troops to support the political revolution that ushered in socialism in Vietnam.
In 1975, the North Vietnamese troops were able to march to victory in South Vietnam. The reunification of the country led to the creation of a Socialist Republic of Vietnam and a new constitution in 1980.
The 1980 Constitution of the Socialist Republic of Vietnam (1980 Constitution) abolished private land ownership and imposed a public (i.e. state) ownership regime.
From 1976 to 1986, land collectivization was applied in South Vietnam. In each of the three constitutions adopted until 1980, there was little evidence that the party leadership allowed deliberative practices in the constitution-making process. For example, the 1980 Constitution was widely known as “Le Duan’s Constitution” as he was the dominant decision maker and imposed his will on the abolition of private land ownership, despite deep reservations from constitutional drafters.
In a speech delivered to senior cadres, General Secretary Le Duan expressly linked the abolition of private land ownership and the establishment of a “people land ownership regime” in the 1980 Constitution to socialist ideology and political legitimacy. He said:
If the capitalist production regime originates from feudal society, then the socialist production regime originates from the State’s firm belief in collective ownership. This belief is most correct in order for our nation to advance directly to full socialism, bypassing the stage of private capital accumulation.
In addition to ideological grounds, Le Duan justified the granting of exclusive power to the State to manage land on the grounds that land belonging to the people would be best protected by the State. He said “[t]he government of the Socialist Republic must exclusively plan and use land appropriately, and it must appropriately invest, protect, and nurture land across the territory.”
In 1986, state leaders decided to accept the market economy at the sixth National Party Congress. This led to the enactment of a new constitution in 1992.
The 1992 Constitution of the Democratic Republic of Vietnam (1992 Constitution) made substantial revisions to economic rights. In relation to land ownership, the 1992 Constitution stated that land was allocated by the State for use on a “long term basis” and that the people had the right to transfer land use rights “according to the law”.
Although this was a remarkable breakthrough from the 1980 Constitution, the construction of the text indicates that there was a compromise struck between the conservative and the more liberal-minded lawmakers.
More importantly, the drafting process of the 1992 Constitution was more transparent than that of the 1980 constitution-making process. It began in June 1989 when the National Assembly set up a Constitutional Amending Committee (CAC) to oversee the work of drafting the law and to ensure public comments were solicited.
As a result, there were some genuinely heated debates among members in the National Assembly on the right to own land and the right to transfer and to inherit the land. At the same time, senior state leaders continued to intervene in the process of deliberation. A clear example of such intervention occurred during the debate on the right to inherit land. The right to inherit land was one of the rights that was debated in the National Assembly (NA) in 1992, but it was not included in the 1992 Constitution. According to a senior member of the constitutional drafting team, the right to inherit land was submitted for discussion by NA members in the morning session on 6 April 1992, with 318 out of 422 NA members approving its inclusion in the amended Constitution. Despite its successful passage through the NA, the right did not appear in the 1992 Constitution. The Chairman of the NA had reportedly asked the NA members to reconsider the importance of including such a right in the Constitution.
An account by journalist Huy Duc described the heated exchanges inside the NA and General Secretary Do Muoi’s improper influence on the debate proceedings in the NA. As he stated in his memoir:
The Chairman of the NA Le Quang Dao stated after the vote that this was an important matter and requested the NA delegates [to] reconsider the vote (chỉnh lý). It is at this point that delegate Tran Thi Suu stood up and said “I have the impression that there is someone behind pulling the strings of the NA”. This prompted Le Quang Dao to slam his hand on the table, and he said: “who, who was pulling the string of the NA! This is a complex issue that required careful consideration, it is not the case of someone pulling the string”. In the evening session of 6 April 1992, 302/411 delegates voted not to include this right in the Constitution.
According to a senior legal drafter, General Secretary Do Muoi was a key opponent of the recognition of a right to inherit land. He said:
Mr. Do Muoi still thought it was opening too much. There were issues that the NA had voted on, he still stopped it (chặn lại). At every break in the NA session, he would run into the office of Chairman Le Quang Dao.
In addition to these observations, the senior drafter stated that the party leadership continued to object to recognizing the right to inherit land, as this would effectively result in the recognition of private ownership of land – an outcome which the party-state ideologically opposed.
At the same time, the senior leadership allowed land transfers to be recognized. Based on evidence from documentary research and fieldwork interviews, it appears that this recognition was made to allow the market economy to function and to control land transactions in the informal land market.
In 2001, the constitution was amended and constitutional dialogue continued, with the party members and party leadership giving conflicting signals by both redirecting and expanding the scope of debates at the same time.
The next constitutional debate occurred in 2010 and it eventually extended to the drafting of the 2013 Constitution and the land law. As the constitutional debates between 2010 and 2013 are the focus of this article, they will be considered in depth in a subsequent section.
In sum, state leaders in Vietnam have used the constitution to establish the State’s control over land and to legitimize the nationalization of land that had occurred in practice. For example, the 1959 Constitution of the Democratic Republic of Vietnam (1959 Constitution) legitimized the collectivization of land and the 1980 Constitution formally abolished private land ownership. At the same time, Vietnam’s first constitution after the sixth National Party Congress in 1992 provided a stronger guarantee of long-term usage of land for the people and allowed land transfers to occur. The increased protection offered by the Constitution to landholders coincided with the party leadership’s decision to allow greater space for constitutional dialogue and debate. The debates in 1992 and 2001 showed, however, that the party leadership limited the debates and usurped the viewpoints of the NA members on issues relating to land ownership and land rights. The party leadership was also vigorous in their opposition to the recognition of private land ownership.
B. The Abolition of Private Ownership and the Pressure to Re-recognize it
The preceding discussion shows that a core strain in the CPV’s ideology was its opposition against private land ownership. In 1991, the party state leadership ensured that the status quo was protected when they amended the Party Political Manifesto to state that Vietnam “has a highly developed economy based on modern production forces and the public ownership of the means of production as the primary form of ownership”.
Vietnam’s rapid economic development, however, led senior leaders to recognize the transferability of land use rights under a “public” (i.e. state) ownership land system. The 1993 Land Law recognized that landholders have five land use rights that resemble fee simple tenure.
However, the law provided that the State can compulsorily acquire land for “national and public interest” purposes.
The retention of the public ownership regime has been unpopular and widely perceived to be responsible for public corruption and misappropriation of land by state officials. In 1997, perceptions of injustice and incidents of public corruption led to the lockdown of an entire town in Thai Binh by protesters.
Despite the public’s concerns, the 2003 Land Law officially expanded the bases upon which the government could recover land to include purely economic development projects.
In 2010, agitations for constitutional reform rose significantly after the eruption of a land eviction case in Hai Phong known as the Doan Van Vuon (Vuon) land dispute.
The facts are as follows. Vuon leased nineteen hectares of coastal marshland owned by the district government to farm for fifteen years. The period of the lease was one of the points that made this case controversial. In Vietnam, the period for which land is allocated is based on the classification of the type of land. According to the 1993 Land Law, state officials may determine the lease period for coastal marshlands. In contrast, agriculture land leases were limited to a period of twenty years. In Vuon’s case, he had turned the marshland into a fish farm, which would fall under the category of agricultural land. In 2009, when the business began to turn a profit, the authorities expropriated the land. The reason cited for expropriating the land was to establish an airport on the marshland. The construction of the airport never happened. Vuon’s protest became popularized after domestic news media reported that he fended off more than 100 local government security men from his house with homemade explosives as they attempted to evict his family from his land on that fateful day.
Vuon was sentenced to five years in jail after he injured six police officers, including the chief of police.
The perceived heavy-handed approach and injustice suffered by Vuon led to an outpouring of support from ordinary Vietnamese in North and South Vietnam. The outrage over the State’s land ownership regime was expressed in Vietnamese newspapers and social media. The legitimacy relied upon by the State for its right to exclusively manage land was challenged, but it did not end there.
The Doan Van Vuon case was followed by the Van Giang land disputes and many other reported and unreported land disputes which attracted a large number of protesters.
These protesters opposed the government’s overriding preoccupation with national economic development and industrialization, an objective that was facilitated by the 2003 Land Law granting to local and national governments the power to confiscate and allocate land to land developers purely for the purpose of economic development.
In the midst of the major land protests in 2010–2013, members of the NA called for the government to include amending the Constitution and the 2003 Land Law (which had already been delayed for several years) in its legislative programme. Meanwhile, reformist politicians used the Eleventh National Party Congress held in January 2011 to force a debate on the continuing relevance of the Party Manifesto that insists Vietnam’s economy be constructed based on “public ownership of the means of production”.
The debate in relation to the Party Manifesto during the 2011 National Party Congress became a key battleground as it laid the foundation for the making of a new constitution in 2012–2013.
One of the senior leaders who appeared to have played an instrumental role in forcing a debate on the matter was the Minister of Planning and Investment, Vo Van Phuc. He argued that delegates should examine Vietnam’s application of the market economy under twenty years of Doi Moi, as Marx and Lenin taught students to assess a theory based on practice and not on dogmatic adherence to theory. He said:
The statement of the Tenth National Party Congress was the result of consolidating the 20 years of Doi Moi. At the discussion session within the Thanh Hoa delegation yesterday, there were cadres who believed that the drafting of “public ownership of the means of production means” was based on the theories of Marxism-Leninism. But I would like to say that Marxist-Leninists taught us that theory must be proved by practice. So what did practice prove: The Soviet Union and Eastern European countries that applied that model and failed; Vietnam built on these lessons and we succeeded. So why now do we give it up?
In the speech, Vo Van Phuc called for the reconsideration of the Marxist theory of socialism and he specifically questioned the view that “public ownership of the means of production” was an essential foundation of a socialist state. He said:
There is the viewpoint that the foundation of socialism is ownership. But I believe that the foundation of socialism must be social justice, income re-distribution. To view ownership as the foundation, we will make the past mistakes, following the same path which the Soviet Union and Eastern Europeans did.
This statement from Vo Van Phuc was a revelation, as he was challenging the long-accepted ideal that public land ownership was the only means to achieve social equality. In his address to all delegates, Vo Van Phuc referred to the success achieved after liberal economic reforms were implemented under Doi Moi and stated that it was time for the previously unchallenged Party Manifesto on public land ownership to be debated by all delegates at the Congress in order to reach “unity in the Party’s viewpoint”.
Vo Van Phuc created a showdown in the CPV as different members expressed contrasting viewpoints.
In response, there was strong opposition from the senior leadership. The most senior person who argued for the retention of the Marxist theory of public ownership was Nguyen Phu Trong, who was elected at this Congress as the new Party Secretary of the CPV. Trong, an elite leader, questioned the need to revise the 2001 Manifesto as “the matter has been debated several times already” and urged the delegates to vote for change only when there is absolute unanimity and where the conditions for change have ripened.
Other delegates argued that “public ownership of the means of production” was a definitive character of a socialist state and, from experience, Vietnam’s retention of the public ownership system had not deterred investors.
When the debate was voted on, the final voting count showed about sixty-five percent of delegates favoured the removal of the “public ownership of the means of production” from the Party Manifesto, while about thirty-four percent of delegates voted to retain it.
In the end, a new Manifesto was adopted and its language was similar to the one used in the Political Report of the Tenth National Congress in 2006. The latter stated that the socialist society in Vietnam was to consist of “a highly developed economy based on modern production forces and improved production relations that suit the development level of production forces”.
This outcome was considered a remarkable development, as the first draft of the Manifesto prepared for the Eleventh National Party Congress in 2011 had retained the “public ownership of the means of production”, and the elected General Party Secretary, Nguyen Phu Trong, had urged a vote for the status quo. At the same time, there was no indication that the government was prepared to accommodate the recognition of private land ownership as a consequence of adopting a new Political Manifesto.
In summary, the abolition of private land ownership formed a crucial element in the ideological and political legitimacy which the State relied on in governance. The economic reforms following the Sixth National Party Congress in 1986 and the large-scale land protests that followed have increased the pressure on the senior leadership to revisit its political ideology and reinvent its legitimacy. The developments at the Eleventh National Party Congress showed the existence of both internal struggles for change and resistance against that change.
The next Part will analyze the implications of these developments for the constitutional discussion of land ownership reforms in 2012–2013.