Deconstructing the 'socialist' rule of law in Vietnam: the changing discourse on human rights in Vietnam's constitutional reform process.

• Author: Bui, Thiem H.

Since the collapse of the Soviet Union and the socialist bloc in the early 1990s, the one party-state of Vietnam has made a concerted effort to adapt its socialist theoretical foundations and substantially transform key legacies. Since then, the concepts of the "socialist oriented" market economy and the socialist law-based state have been hailed as the most important theoretical achievements of the Communist Party of Vietnam (CPV). The doctrine of socialist law-based state has been claimed by CPV theorists as a distilled version of the rule of law towards which Vietnam is marching. (1) Building on the legacy of "socialist legality", the concept of the socialist law-based state has been given multiple meanings and dimensions. It is developing concurrently as a fundamental value, a basic principle of the Constitution and as a set of institutions to support its realization. However, the concept has insufficiently and inconsistently constructed a human rights regime, exposing disconnects with the international human rights laws that Vietnam recognizes. The dynamic discourse of human rights has emerged in Vietnam within this broader context rather than evolving independently.

The literature on the concept of socialist law-based state and human rights in Vietnam tends to be disparate. Little attention has been paid to the subtle shifts in the discourse of human rights taking place within the broad parameter of the socialist-law based state and their implications. This paper argues that the changing discourse on human rights in Vietnam is likely to transcend the socialist-law based state concept and create a new human rights identity. This identity-shaping process will have important implications for the future development of human rights in Vietnam both as an ideal and regime. The process is characterized by the contestations and challenges over ideas and values among party-state actors and various non-state actors that are unprecedented in the Vietnamese political and legal discourse.

With that in mind, this paper begins by investigating the development of the "socialist" rule of law from socialist legality to a socialist law-based state. It then proceeds to link this development to the human rights regime and the changes taking place in the discourse of human rights during the constitutional reform process in Vietnam. In setting out the context and content of constitutional reform, the paper seeks to deconstruct the socialist rule of law and interpret the discourse of human rights accordingly. It notes subtle changes taking place in the discourse of human rights as the party-state engages more deeply and substantively with international human rights law. With a view to making sense of these changes, it is important to unpack the mechanism of socialization of human rights against the background of Vietnam's politically closed authoritarianism. Furthermore, the paper aims to uncover the implications of this change for the development of Vietnam's human rights regime and ideals.

Gradual Moves to a Rule of Law Discourse in Vietnam

In Vietnam, the discussion of human rights comes within the broad framework of Nha n oc phap quyen xa hoi chu nghia (the socialist law-based state). The reason why the discourse on human rights does not have an independent standing separate from the state doctrine is because it is rooted in the traditional dominance of the socialist legality concept (phap che xa hoi chu nghia) and the doctrine of a socialist law-based state. The latter has been developed as an indigenous variant of "rule of law" since early 1990s. In this context, the point of departure for any research on the discourse of human rights in Vietnam is socialist legality and the law-based state.

Socialist Legality

The core idea behind the concept of socialist legality is that the state attaches increasing importance to the role and rule of law in governance. However, there is a vigorous debate among local actors as to the scope and level of its significance. As John Gillespie argues, "for most of Vietnam's history, laws were marginalized and play a relatively minor role compared with regulation through moral virtue, administrative measures, and self-regulation by village officials or families". (2) Mark Sidel details how, during its early period in power, the CPV marginalized laws and recounts the efforts of legal scholars and intellectuals like Nguyen Huu Dang, Nguyen Manh Tuong and Vu Dinh Hoe to gain recognition from the CPV for the role of laws in governance. (3) They made little headway: in 1959 the CPV even abolished the Ministry of Justice (mirroring the Soviet state apparatus) and only re-established it in 1980. CPV leaders from generation to generation have continued to emphasize leadership by revolutionary moral principles and rule by virtue, both core neo-Confucian governance values. Writings by Ho Chi Minh such as "Revolutionary Morality" (1958) and "Improving Revolutionary Morality, Sweeping Clean Individualism" (1969) have become classic texts for educating and training CPV members. (4) They have left a profound imprint on every Party Congress resolution, in many CPV Central Committee Plenum Resolutions, and in discussions by CPV theorists and scholars such as Dang Xuan Ky, Nguyen Due Binh, and Le Huu Nghia. (5) In recent years, campaigns for "studying and following Ho Chi Minh's moral example" and "criticism and self-criticism" have clearly emphasized moral virtue as the most critical value in governance. (6)

The realities of CPV governance, however, showed that leadership by moral virtue is insufficient and demonstrated the need for laws to regulate state-society relations. In particular, excesses in the execution of Chinese-style land reforms during 1953-56 required, ultimately, public apologies by Ho Chi Minh and Vo Nguyen Giap -- top CPV leaders who were regarded as highly virtuous--and the demotion of Party Secretary Truong Chinh. Recognizing the need for governance through legal rules, the CPV imported the Soviet idea of socialist legality in the late 1950s to provide a legal-rational basis as a supplementary source for governance that sees law as a political expediency. For the first time, the CPV officially endorsed the socialist legality doctrine at its Third National Congress in 1960. (7)

This doctrine has been reaffirmed as essential to improving the effectiveness of state management by all Party Congresses since then, including the most recent Party Congress in 2011. As pointed out by Gillespie, four fundamental principles underlie the socialist legality doctrine: the Party's leadership rule; the class-based nature of law (law as expressing the will of the ruling class); the ready substitution of policy for law; and the predominance of the collective interest over individual rights. (8) These four core principles are theoretical strongholds of the CPV and continue to prevail in the official political and legal discourse. However, they have been subject to periodic challenge since the country embarked upon Doi moi (market-based reforms) in 1986 and have been eroded to an extent.

The paramount principle of party leadership over the state and society--affirmed in Article 4 of both the 1980 Constitution and the 1992 Constitution--is ambiguously understood and inconsistently practised. Despite continued calls to strengthen the party leadership in every aspect of governance, Party Congresses regularly criticize the state apparatus' lack of effectiveness. As a consequence, socialist legality has not been well observed and has even been weakened. The Political Report presented to the 6th Party Congress in 1986 acknowledged that "it is increasingly common that the laws and discipline of the state are violated". (9) The CPV has recognized that overlaps in the functions, tasks and organization of the party and the state is a root cause of this problem, but it has struggled with "renovating the way of party leadership". (10)

Gainsborough observes that a key question for any attempt at political reform in Vietnam is how to redefine the relationship between the party and the state. (11) This key question is closely linked to the other three core principles of the socialist legality doctrine. It points to an inherent tension between party supremacy and effective governance. The CPV itself has been well aware of this issue since the early 1990s: "Realities over the past few years have indicated that for the renovation and improvement of the political system, the building and practice of socialist democracy, the pivotal issue is to clearly delineate functions and well handle the relationship between the Party, the State and mass organizations--, resolutely combat bureaucratic bad practices and acts infringing on people's mastership, and at the same time criticize and overcome distortions" (12) [emphasis added]. Socialist Vietnam's strong emphasis on the class-based nature of law is being called into question now that the country has opted for a market economy and integration into the global economy. Further, if law is considered to represent the will of the ruling class, it might be interpreted that the CPV has failed to execute that will or fulfill its leadership mission. The Political Report to the 7th Party Congress in 1991 admitted the problems: "Many laws and ordinances that have been promulgated have not [been] strictly and consistently implemented. Many cases of breaching laws have never been brought to court, there have been delays in court hearings or the judgments are not strict." (13) Law understood as the will of the ruling class depends to a great degree on the CPV's discretionary control. In a market economy, this notion poses difficulties for the business sector. There have been numerous complaints regarding "opaque and constantly changing regulations, intrusive government inspection and official corruption". (14) The introduction and practice of a market economy as well as...