Reflections on Vietnam’s constitutional revision: are we walking the talk?

In August 2011, the National Assembly of Socialist Republic of Vietnam decided to amend the nation’s 1992 Constitution for the second time, after the first amendment in 2001. Several versions of the draft revised constitution were presented and debated in the National Assembly between 2012 and 2013. In principle, the process should end within the next 24 hours if the National Assembly, which is currently debating the final draft, adopts it. But what is driving the process? What are some of the key issues of the process and how are they reflected in the final draft?

Roots of Amendments

There are two official lines given by the government. One is the need to build on the achievements of 25 years of implementation of the doi moi (renovation) program initiated by the Communist Party of Vietnam in 1986 and update the Constitution accordingly. The other is to establish a new fundamental framework for future renovation. Viewed from these perspectives, it would appear this is an economic revival project. Yet, there are also political motivations. These include building legitimacy for the political leadership and the socialist regime, well as increasing buy-in for the current constitution by fostering dialogue between the state and the people on substantial issues of state-building. This has been driven primarily by Vietnam’s sociological reality marked, in recent times, by economic degeneration, entrenched corruption and an increasingly politically active citizenry.

In fact, according to President Trương Tấn Sang, corruption and economic ills have been so grave that even the people’s trust in the party and the regime has declined.

Seeds of discord and unconventional popular debate

Discussions around constitutional reform—especially in contexts that can hardly be described as democracies in the liberal sense of the word—are bound to elicit a high level of expectation. Vietnam has been no different. Many issues, from both the public and the government have made it to the reform agenda. Some relate to the substantive constitutional choices to be made while others focus on process. In either case, controversy has not been far away. On the process side for instance, a key question has been whether to adopt the draft via popular referendum or not. On the substance side, controversial issues have revolved around whether or not to: privatize land ownership, introduce an independent judicial review system and stronger human rights regime, abolish the single party system dominated by the communist party, civilianize the military, limit the state’s role in economic planning and grant more autonomy to local government.

Two key issues emerging from the controversies around these questions must be noted. One is the inherent tension between the adherence to socialism and Vietnam’s aspirations of modernization and industrialization in a global context, based on a democratic ethos. There is consensus between the regime and the public on the need for reform but not on its scope. The regime wants reform but, unlike the public, not so much as to completely alter the status quo. The question then is to what extent can democratic reforms be achieved within the contours of the current socialist framework?

The second is the increasing challenge to the Vietnamese constitutional order, which is largely derived from the soviet constitutional tradition. For a country that remains one of the few bastions of communist ideology with little tolerance for dissent, that these issues are being raised at all is in itself interesting. One explanation is the liberalization of the economy in recent years and globalization. Their impact have considerably diversified the social interests and made the Vietnamese society more pluralist. This has in turn resulted in different positions among the different actors in the Vietnamese constitutional reform debates. The other is a deliberate policy by the government to engage the public. Hence, while the Communist Party remains fully in control of the process, its facilitation and provision of avenues for public engagement has been unprecedented. Virtually all state-owned online media displayed the draft revised Constitution for popular comment. In addition, the draft was distributed to all households. Comments were collected from state agencies at the local and central level and made available on the website of the National Assembly and other mass media channels. National law schools and legal institutes held numerous conferences, workshops, and seminars on constitutional amendment, attended and reported by mass media. By official statistics, 26.091.276 comments were collected and 28.149 conferences, workshops, and seminars organized as part of the public consultation process. But to what extent were these efforts reflected in the draft?

An unaccomplished project?

Despite the commendable effort by the regime to open up the process, there are still reasons for concern. Firstly, the regime continues to control the constitutional debate by directing the popular discourse via official mass media, limiting discussion to its selected constitutional options, and using the congressional forum to justify and legitimize its options. In fact, nothing in the process of public consultation, suggests that this process will result in any meaningful changes to the current dispensation, as illustrated by its rejection of the so-called petition 72—a series of reform proposals put forth by a group of Vietnamese scholars—

Secondly, although the draft currently debated in Parliament retains only seven articles from the 1992 text (over 100 articles have been revised and 10 new ones introduced), no real substantial changes are discernible. Fundamental constitutional principles and the constitutional structure established by the 1992 document remain largely intact. It confirms the party and its leadership’s pre-eminence, including over the army; and reaffirms the state’s exclusive ownership of land and its central role in economic planning. Proposals for a multi- party system and popular referenda are explicitly rejected in this draft. Particularly disturbing, however, has been the response given to proposals for a centralized form of constitutional review modeled on the French conseil constitutionnel. Introduced in the previous drafts and assessed by the public and experts as a key feature of the new institutional design, the regime has not only rejected the idea, calling it a product of western “bourgeois” states that is inconsistent with Vietnam’s socialist values , but also official media and members of parliament are inhibited from even discussing it.

Whatever changes have been introduced remain technical, or are designed to strengthen whatever is left of the 1992 text, such as the roles of the three major state institutions. The few meaningful changes, such as the emphasis on the role of the courts in protecting human rights and the commitment to protect and strengthen rights such as the right to live, environmental rights, and cultural rights are weakened by provisions authorizing their restrictions on ‘public interest’ grounds. An Elections Commission and Audit Committee are created, but in the absence of a more robust constitutional framework, their effectiveness can be anyone’s guess. Given this reality, what really is the scope of the will to reform?

As mentioned earlier, the draft’s provisions are not definitive as two of the controversial issues—the central role of the state in the economy and land rights—remain particularly highly contested in the ongoing congressional debates. Yet the indications so far are that the final text that will come out of Thurday's vote in Parliament, if that in fact happens, will not be substantially different from the draft that went in.

From a realistic and objective standpoint, one can only conclude that this process, as is, is far from meeting even the regime’s own stated goal of providing a ‘comprehensive foundation for future national renovation.’ From a more positive outlook though, one can only hope that this experiment, though not perfect, will only feed the Vietnamese thirst for true and more comprehensive reforms downstream.

[1] PhD Candidate, University of Hong Kong; Lecturer, Vietnam National University