by Mark Sidel. Oxford: Hart Publishing, 2009. 234pp. Paperback. £19.95/$20.00. ISBN: 9781841137391.
Reviewed by John Gillespie, Asia Pacific Business Regulation Group, Department of Business Law and Taxation, Monash University, john.gillespie [at] buseco.monash.edu.au.
Compared with the detailed and extensive western literature about constitutional change in non-socialist Asia, surprisingly little has been written about constitutional issues in Vietnam. In this book Mark Sidel, a renowned legal scholar on Vietnam, has successfully addressed this omission by presenting a rich and absorbing analysis of constitutional change. A major challenge in writing about socialist states such as Vietnam is demonstrating that their constitutions represent more than political symbolism and warrant study as a legal statement of central organizing principles. Sidel has mustered strong evidence in this book that the current Constitution enacted in 1992 is treated more seriously than its predecessors and that it is increasingly used by Vietnamese political and legal actors as a rallying point to launch debates about sensitive political and legal issues.
The book has two stated objectives. The first is to describe in detail Vietnam’s four constitutions beginning with the first constitution enacted by the incipient Democratic Republic of Vietnam in 1946 and concluding with recent debates about the 1992 Constitution. This section also provides a rare glimpse into the two constitutions enacted in the former Republic of Vietnam. The second, more ambitious objective is to explore the potential for the current 1992 Constitution to transform into an enforceable legal text that guarantees civil rights.
In his discussion about constitutional history, Sidel first turns to the constitutions enacted in the Republic of Vietnam. Using little known and unpublished archival material from the 1950s and 1960s, Sidel shows how the Saigon Regime struggled to balance the competing demands of prosecuting a war against the North and giving the civilian government power over the military. He suggests that this study is more than an historic curiosity, since lawmakers in contemporary Vietnam are now referring to this legal legacy for ideas about reforming the 1992 Constitution. Looking south for legal solutions is not a new phenomenon. Twenty years ago when Vietnam was embarking on its doi moi (renovation) mixed market reforms, lawmakers turned to southern laws, as well as other legal sources, for inspiration in enacting the commercial legal framework.
Sidel next provides a commentary about the two pre-unification northern constitutions and two post-unification constitutions. One of this book’s strengthens is the multi-layered analysis of constitutional development. In addition to discussing the crucial relationship between party and state, [*269] Sidel also examines the roles, powers and structures of state agencies. He makes the important point that the opaque relationship between party and state complicates the already difficult task of bringing state power sharing arrangements under some kind of constitutional order. Although he does not explicitly say that a legally enforceable constitution is implausible as long as the party enjoys its position of political pre-eminence, his discussion leads readers to this conclusion.
Sidel analyses constitutional development from a liberal legal perspective and is particularly interested in constitutional guarantees such as the right to form member-directed associations. He notes that the comparatively liberal 1946 Constitution allowed some space for autonomous associations, but the illiberal 1960 and 1980 Constitutions sought to bring the entire society within the party and state orbit. Following doi moi reforms in the mid 1980s the party and state have once again cautiously opened space for particular kinds of associations.
Sidel’s second main concern is whether courts in a polity ‘lead’ by the party can independently decide cases according to the law, as stipulated in the 1992 Constitution. During the high-socialist period (1954-1986) the courts functioned much like a branch of the executive government, instrumentally enforcing party and state policies and laws. Yet even during this period some reformers argued for greater judicial independence. Sidel shows how pressure for reform gained momentum over the last decade to the extent that a small group of academic lawyers are now openly calling for a constitutional court or authority with powers to strike down unconstitutional legalization and administrative actions.
In the final three chapters Sidel argues there is progress, subject to occasional reversals, toward a legally enforceable constitution that will guarantee citizens rights. In chapter seven, he first historically examines the debates concerning the right to form associations before discussing the recent ‘David and Goliath’ struggle between the Vietnam Union of Science and Technology Associations (VUSTA) and the powerful Ministry of Home Affairs. Both agencies tried to shape the regulation of associations by preparing rival drafts of a new Law on Associations during 2005. VUSTA wanted more autonomy to form and finance associations, while the Ministry argued for the retention of tight state management over all forms of association. Sidel rightly points out that the very fact that an association was permitted to prepare a draft on such a sensitive issue shows that Vietnamese politics have moved a long way from the repressive authoritarian rule during the high socialist period.
Predicting the future direction of this debate is not easy, however, because there are mixed signals for reform. After a heated debate VUSTA’s draft did not make it to the National Assembly for deliberation. And casting further doubt on liberal reforms, the Prime Minister issued a Decision in 2009 requiring VUSTA to submit any criticisms of the party and state to the government in confidence. Meanwhile the National Assembly remains divided about reforms and cannot form a consensus to pass the draft law prepared by the Ministry of Home Affairs. Further complicating the [*270] story, the government actively encourages the formation of social organizations that promote economic development, provided they refrain from advocating views on politically sensitive issues.
In chapter eight Sidel discusses judicial independence from the party and state. He presents in compelling detail a story about party intervention to protect state officials in Hai Phong who were accused of profiting from illegal land transactions. Beginning as yet another provincial land scandal, the case soon involved the national media and eventually the intervention of the Prime Minister. Sidel demonstrates how each new intervention sought to protect a different party or state institution, but no one thought to protect judicial independence. His sobering conclusion is that the party can override at will the constitutional injunction that courts should follow the law in reaching their decisions.
To gain a clearer understanding about judicial independence this case should be considered within the broader context of judicial reform. Only a small number of cases become politicized and attract direct party intervention. Like their counterparts in China, courts struggle to decide and enforce decisions against senior party and state officials. However the rising number of civil cases involving family, inheritance and simple debt transactions reflects growing public confidence in the power of courts to make meaningful decisions on these non-political, but nonetheless important social issues.
In chapter nine, Sidel comes to grips with the central liberal project, transforming constitutional guarantees into legally enforceable rights. He first shows that constitutional provisions are sometimes used to support public causes. For example, some newspaper articles in 2005 invoked constitutional guarantees to property when opposing an unpopular decision to restrict the ownership of motorcycles in Hanoi. Interestingly, newspapers in Beijing recently ran a similar argument when city authorities decided to continue restrictions on the use of private cars after the end of the Olympic Games. It is unclear, however, whether the rhetorical assertion of constitutional provisions necessarily denotes latent demand for legally enforceable constitutional rights.
More substantive evidence for this trend is found in Sidel’s discussion about constitutional protection. He tracks in considerable detail the twists and turns in the debates about creating a court or authority with powers to strike down unconstitutional legislation and elevate the constitution above party and state. Although the review powers and the type of agency that will perform this task are still being debated, Sidel suggests that a consensus for some kind of reform has emerged.
One consequence of Sidel’s focus on the emergence of liberal constitutionalism is a tendency to downplay the equally important coordinating role of the constitution. Both reforms require the constitution to become a legally enforceable document. While liberal reforms focus on constitutional guarantees for citizens, reforms to the coordinating function of the constitution aim to circumscribe, or at least clarify, party and state powers. For example, an important co-ordinating debate examines [*271] how to create a constitutional framework that clearly defines the function and powers of state organs. Currently state agencies often use their legislative powers to expand their powers in turf battle with rival institutions.
A more sensitive reform involves the nomenklatura (to chuc can bo), an extra-constitutional system the party uses to place its members in positions of authority within state institutions in ways that reflect the realities of political power. This system not only conflicts with constitutional rules that govern the selection of senior state officials, it is also in tension with public administration reforms that aim for a merit based recruitment system and a professionally competent public service that is capable of administering Vietnam’s regulatory state.
Another important debate concerns the constitutionalization of the Leninist organizational system that maintains a parallel party and state governance system. This is a highly controversial issue for government agencies that are increasingly required by international treaties such as the WTO to follow prescribed economic policies, but are at the same time obliged to implement potentially contradictory internal instructions from party cells within the state agencies.
What seems more probable than liberal constitutional reforms, at least in the short term, is illiberal constitutionalism. Party leaders are attracted to a form of regulatory capitalism that has produced outstanding economic growth in countries such as China and Singapore, without emphasizing private rights that require constitutional guaranties and autonomous courts. The illiberal constitutionalism practiced in these countries seems to offer a way to develop a sophisticated regulatory system without exciting social demand for political and civil rights. Leaders in China and Vietnam have a similar modernizing vision, one that encourages economic, legal and material progress without embracing social and political pluralism.
This book comes highly recommended as a history of constitutional change in Vietnam; it also provides important insights into the future direction of constitutional reform. It will be of use to both legal and Asian studies students and scholars.
© Copyright 2010 by the author, John Gillespie.