This week, TransLegal begins a three-part guest blog by Pamela S. Katz focusing on the recent constitutional reform in Vietnam. Pam and I met while studying at Georgetown University Law Center. She is a Professor of Legal Studies and Political Studies at The Sage Colleges in upstate New York. In 2012 – 2013, Pam was selected to be a Fulbright Scholar in Vietnam where she taught at the University of Economics and Law in Ho Chi Minh City. Pam’s interview on the Vietnamese Constitution with Pham Minh Tuan, Ph.D in Law, Deputy Director of the Institute of Politics and Public Administration II, Ho Chi Minh City, Vietnam, is fascinating.
This first part of the series focuses on Vietnam’s economic development.
Contact TransLegal to learn about doing business in Vietnam.
Pamela S. Katz, Esq.
Many people in the United States think of Vietnam just in terms of the Vietnam War (there known as the American War). In fact, souvenir shops in the tourist part of Saigon sell t-shirts proclaiming “Vietnam: A Country Not a War.” But, as a Fulbright Scholar in Vietnam, I came to see the country differently. Among other things, Vietnam is a dynamic and instructive place to watch as it, a communist nation, moves towards more democratic governance.
One of my interests and reasons for seeking the Fulbright in Vietnam was to better understand and “feel” how economic openness in this communist/socialist nation is facilitating political openness and democracy. Unwittingly, but fortunately, I landed there in the middle of a ground-breaking constitutional amendment process. Once the constitutional amendments were made final in November of 2013, the impact of the process on democratization was, in equal measure, inspiring and disappointing. The need to maintain stability and forward momentum on the economy has both propelled and hampered efforts of reformers, both inside and outside the Communist Party of Vietnam (CPV) and the government.
ECONOMIC OPENNESS AND DEMOCRACY BUILDING – DEFINITION OF TERMS IN CONTEXT
In 1975, after the collapse of the U.S.-supported regime in Saigon, Vietnam was unified and what is now the Socialist Republic of Vietnam was born. In 1980, a new constitution applying to the entire country was adopted but the country continued to struggle economically. Shortly thereafter in 1986, Vietnam undertook comprehensive economic reforms widely known as doi moi or economic innovation and renewal. Doi Moi accelerated through the 1990s and 2000s introducing market forces and private enterprise into its theretofore collectivist and communist, centrally directed economic structure. Decentralization in many sectors of economic policy, regulation and management followed, all in hopes of improving socio-economic functioning and well-being for Vietnamese people and business, including attracting foreign investment. The new conceptualization of state power, independent economic sectors, a market economy and international integration was incorporated into the 1992 constitution, the nation’s fourth.
In 1995, the US Embassy in Hanoi was opened and Vietnam opened its embassy in Washington, D.C. the same year. In 2000, President Bill Clinton visited Vietnam and marked the beginning of an active trade relationship, among other things, which has grown to the point where today the United States is Vietnam’s main trading partner. That same year, the Vietnamese stock exchange opened. Since the young republic’s rebirth and reunification, the country and its relationship to the world in a global economy has changed considerably, including its ascension to the Association of South East Asian Nations (ASEAN) in 1995 and the World Trade Organization (WTO) in 2007. Efforts in pursuit of joint ventures between and among private and public businesses in Vietnam and foreign companies along with foreign investment by private industry and governments are made to improve growth and development.
While economic development in Vietnam has moved at a fast pace, since 2008, it has experienced a slowdown and it is still bogged down with the inefficiencies of state-owned enterprises (SOEs). The annual growth rate of the economy in 2012 was 5.03%, the lowest in 13 years. There have been enormous bad debts in the banking system and bankruptcies in the private sector. The SOE’s present a particularly thorny and somewhat intractable problem. They interfere with the free market, often violating the principles of free trade accords, like the WTO, and discouraging private investment, particularly from foreign firms. They engender awful inefficiencies yet are seen by the CPV as an essential tool in the transition to socialism and, perhaps more importantly, as a handy tool for those in power to maintain their positions and expand their power bases through political patronage.
Democracy is fundamentally self-government by the people, requiring transparency and free flow of information to and from the people to those exercising governmental authority as their representatives. Essential elements of democracy include respect for and enforcement of basic human rights, and openness to pluralism of the sort that enables and invites “negotiation with the other” and “encounter with difference”. Whether a single party system, like that in Vietnam, is compatible with democratic governance is a key question in this context. Such a system is theoretically capable of sustaining a democracy: there is nothing definitional about democracy that excludes single party systems. The United States’ Founding Fathers were suspicious of competing political parties. James Madison identified the “mischief of factions” and warned in The Federalist #10 “that the public good is disregarded in the conflicts of rival parties.” A Vietnamese governmental report issued as part of the recent constitutional revision (discussed later in this paper), asserted that “democracy is not synonymous with pluralism.” In fact, in many state and local political contests in the U.S., where one party is dominant, and more and more on a national level with the political gerrymandering of congressional districts, there is a de facto single party system. For example, the winner of the Democratic primary for the mayor’s race in Albany, New York will be the next mayor; the general election is irrelevant.
While these circumstances challenge a democracy, it is possible for democratic governance to emerge in a single party system. There can be a rich and vast plurality of voices outside party system making themselves heard. Within the party there can be many voices and challenges from representatives of the people, which is, to an extent, what we are seeing in Vietnam today (discussed later in this paper). Policy making and governance through direct democracy is an option in single party systems. But, the only way to make real a democracy in these, or any other, circumstances, is to ensure transparency in governance and openness to dissent, supported by basic human rights protections – most importantly due process and freedom of speech and assembly, all of which are sorely deficient in modern-day Vietnam.
FREEDOM IN THE MARKETPLACE TRANSLATING TO POLITICAL FREEDOM
As the Vietnamese economy grows and its markets become more open and transparent, as required by the global economy and its trading partners, will political reforms follow suit? There are arguments and evidence for several answers to this question: “yes,” “no” and “it depends.” Economic development for Vietnam includes internationalization of its markets and cities. This opening-up exposes Vietnamese people, educated in Marxism and Ho Chi Minh thought throughout their school years and in universities, to new ideas and world views. Increasing prosperity is allowing vast numbers of Vietnamese people to go abroad for higher education, returning to Vietnam after having been exposed to democracies in Australia, Belgium, the United States and elsewhere. Foreign partners, particularly outside governments negotiating trade agreements, condition cooperation on improvements in (or, at least give lip service to) Vietnam’s human rights record, including free speech and due process protections.
Yet, economic reform and the prosperity it engenders for ordinary Vietnamese can actually forestall political reforms necessary for democracy. Government efforts to keep the economy buzzing can serve to pacify the people and thereby allow autocrats to retain their power unchallenged. Cynics might witness this everywhere, including in developed nations like the United States, where some see welfare as a way to repress dissent by the poor, keeping them “calm,” somewhat content and unwilling to revolt against a system that is set up to keep them down. A market economy and a single party system may be a bad combination, but the push towards a multi-party system will unlikely arise from the poor mix. Instead, this theory holds, the ruling party will become more corrupt and tighten its grip on power, suppressing its critics, in order to retain the bounty the market system provides to them and the patronage system that keeps them in control. In Vietnam, the true believers in the socialist system that Ho Chi Minh brought through revolution to their now-unified country will seek to slow down or alter the transformation to a market economy and private ownership. Ultimately, it will depend upon internal politics and the success of efforts of political reformers to walk the tightrope of pushing for change while maintaining stability in a still war-weary, socialist society on the brink of what might be radical transformation.
CONSTITUTIONAL REVISION, 2011-2013
There is equivocal evidence of progress towards democracy in the most recent constitutional revision process undertaken by the National Assembly from 2011-2013, culminating in approval of amendments to the 1992 constitution on November 28, 2013. The current constitutional revision began in 2011 by passage of a resolution of the National Assembly, Vietnam’s legislative body. Since 1992, the country and its relationship to the world in a global economy had changed considerably. The National Assembly initiated the constitutional revision in order to facilitate the nation’s international integration, ensure stability required for economic and social development, and strengthen the rule of law.
The Constitutional Drafting Committee (CDC) was established by the National Assembly to undertake the drafting of the revisions and the implementation of the amendment process. It identified specific objectives of the revision including:
- “deepen [and]…ensure the people’s ownership of state power and affirming the position and role of the Communist Party as a leading force of the state and society…
- affirm human rights protections…
- build … economic institutions, the socialist market-oriented economy, cultural and educational development, social equality and environmental protection…
- defend the sovereignty of Vietnam…
- [ensure] rule of law…
- be proactive in international integration.”
All of these matters are addressed, administratively and/or substantively, in the first draft of the revision.
The CDC finished its first draft of the amendments, which established a constitution with 11 articles and 124 chapters, reducing the 1992 constitution by one article and 23 chapters, and modifying 99 chapters. This draft was submitted to the National Assembly in December 2012, at which time the National Assembly approved the draft and decided to submit it to the public for their opinion.
The opinion collection from the public was the most radical and progressive element of the process. It took many forms intended to accommodate the differences in education levels among the population and take advantage of the various ways in which people in Vietnam participate in their communities. In larger cities where the population is generally literate, a copy of the 1992 constitution along with the proposed revisions from the first draft was delivered to every home. On the draft itself, residents indicated their approval for or comments on the revision and then returned them to the local authority. In the rural areas, community (mostly quasi-Communist Party and governmental) groups, such as youth associations, women’s groups and farmers’ associations, held meetings at which the revisions were discussed. Minutes from those meetings were then submitted as comments for consideration. Vietnamese people living overseas were also solicited for comment via mail and the internet.
Various governmental, Party, business and educational entities and organizations were involved with opinion collection through meetings, conferences, websites and the media. One of the most prominent was the Vietnam Fatherland Front, a CPV-affiliated central clearinghouse for various political, social and community organizations throughout the country. Through their network of political and community organizations from the central to the provincial and district levels, they collected approximately eight million comments as of March 2013. Major newspapers have published full text of the proposed amendments alongside the original text to show the changes being proposed. The National Assembly had its own website for people to give comments as well as for people to review the planning documents for the constitutional amendment process. Local authorities too had links on their websites for people to post comments.
An extraordinary dissenters’ movement, in the form of an alternate draft of the constitution and an online petition, was undertaken and reported in the Vietnamese state-run media during this time. So-called Petition 72 was a group led by Nguyen Dinh Loc, a famous constitutional law scholar and former Minister of Justice. The group included former Communist Party officials, government ministers, scholars and activists. The petition they produced, posted on-line in January 2013 and eventually delivered to the CDC, criticized several aspects of the proposed draft, including those affirming the primacy of the CPV and those inadequately (in their view) protecting human rights. It was signed by approximately 15,000 supporters. And, though the petition and the group’s alternate draft were rejected outright by the government, the group proceeded to publish a warning on the Internet to National Assembly members two weeks before the scheduled vote, warning them not to accept the amendments as presented by the CDC.
The CDC had established an editorial board for the constitutional amendment process, comprised of leading scientists and intellectuals in the areas of law, social science, history and technical science in Vietnam. This board’s role was to gather, quantify, and summarize the 26 million opinions collected from the public to inform modifications of the original draft. Once the CDC approved these modifications, the proposed amendments were submitted to the National Assembly and approved on November 28, 2013 with a 98% majority. Contrary to the position of the Petition 72 group and other reformers, the approved version of Article 4 expanded the CPV’s role in government by asserting the party as the vanguard not just of the workers but of the Vietnamese people and the nation. Article 65 expanded the military’s duty to protect the CPV and placed the armed services’ loyalty to the Party above its loyalty to the people. And, while the revision inserted clauses in Articles 16, 31, 102, and 103 that appear to expand protections for free expression and due process, “these provisions have been effectively negated by loopholes and weak guarantees in other provisions”, including Article 14 which permits limitation on rights for a wide variety of reasons, vaguely stated.
This outreach to the public was truly extraordinary, though it is clear that, as with most things, the process on paper was a lot more impressive than its implementation in reality. But, to whatever extent it was real, it reflects an effort to inform and possibly empower the people. Pham Minh Tuan, Deputy Director of the Academy of Politics and Administration, Region 2, asserted that 10 – 15 years ago, people in Vietnam knew little to nothing about their constitution. Awareness has grown with this effort and, he asserted, it was considered by the Communist Party to be the largest political activity to date for people to understand the constitution and express their aspirations with regard thereto.
During the public comment and up to the date of the National Assembly approval to today, there is much cynicism and complaint about governance generally and the constitutional revision process in particular among Vietnamese. Views on the effort range from disappointment after raised expectations to guarded optimism that it presaged real efforts towards reform. Some settled on the view that the public comment effort was a cynical attempt to distract the public from the pain of an underperforming economy since 2008 and repel blame therefor from the government and the CPV. These skeptics saw the government and CPV as engaging in an enormous (and expensive) public relation effort to placate the people and regain legitimacy after the economic slowdown.
Many were disillusioned about the end result: a final revision that ignored most of the public comments and is widely perceived to have failed to advance democracy and protect human rights. One prominent CPV member, Ho Ngoc Nhuan, called public comment and revision process a “tragic comedy.” What initially seemed like an opportunity to increase opportunities for governance outside of the CPV instead served to showcase the CPV’s dominance and cement party control. Deep disappointment and anger was expressed, particularly in the blogosphere, over the failure of the final version adopted by the National Assembly to address corruption and lack of accountability in government facilitated by the iron grip of CPV. Human Rights Watch wrote that the revision undermined Vietnam’s legitimacy as a new member of the United Nation’s Human Rights Council. Business groups were disappointed that the revision failed to protect private property rights and open markets and reign in SOE’S to the extent necessary to provide an equal playing field for private and foreign investors. One commentator expressed the essence of the criticisms as follows: “to the frustration of most critics and even some lawmakers, the process of constitutional revision came to reflect the Party’s rigidity, conservative inclination, and growing sense of insecurity rather than its ability to initiate and pursue profound political reforms in the interest of the whole nation.”
Less critical and more hopeful, the revision effort provided a safety valve, allowing people to engage at some level and blow off steam to prevent an explosion of dissent. It challenged the party and government to walk a tightrope: be open to criticism and maintain stability. The treatment of the Petition 72 movement is an example of how the government met this challenge: it permitted the group’s efforts…to a point. The CPV and government took a risk when it decided to inform and involve the people as it did. While the reasons for this risk — which, I’d venture to say, was calculated –are obscure, there is no doubt that it takes the first step in civic engagement: knowledge and understanding. The information campaign undertaken through conferences, websites, banners on the street, newspapers and magazines got people knowing and talking. Even though some say that the Party’s and government’s purpose in doing so was just so much propaganda to say to themselves and the world that the People were engaged, when they undertook this effort they took the risk that people will actually become engaged. And they have. This is good news for the prospect of increased self-government and transparency in Vietnam.
MARCHING IN PLACE TOWARDS DEMOCRACY: ONE STEP FORWARD, ONE STEP BACK
Following Vietnamese politics and reform efforts since 2011 can give you whiplash: feelings of great hope, then great despair sprinkled with the brain-numbing sensation previously experienced while Kremlin-watching during the Soviet era. The government cracked down on bloggers. Then, calls to peacefully eject the National Assembly for their failure to adopt a final constitutional revision that lived up to people’s expectations were published on the Internet. Le Hieu Dang, former Vice Chairman of the Advisory Council on Democracy and Law, part of the Central Committee of the Fatherland Front and one of the Petition 72 leaders, very publicly left the CPV in protest. His departure hinted at the tumult within the highest echelons of party leadership, which are largely kept from public view, leaving Hanoi-watchers to puzzle out the political maneuverings from opaque clues and rumors. Some have boldly claimed a “leadership crisis” in the CPV, pointing to infighting between rival factions led by Prime Minister Nguyen Tan Dung and President Truong Tan Sang, respectively. In 2012, the Politburo voted to essentially remove Prime Minister Dung from power, only to be reversed by the Central Committee.
Efforts are underway by Le Hiep Dang and others to advocate for a multiparty system, which, they say, is not intended to overthrow the CPV but create a beneficial pluralism. A new party called The Democrat Socialist Party has been formed. A group called the “Civil Society Forum” has been established to “mobilize forces to officially challenge the Party.” Other prominent party members, former and current public officials and intellectuals are calling publicly for political reforms. These will not go unchallenged by the CPV. In addition to maneuverings taking place in Hanoi beyond the public eye, more obvious limitations on dissenters are apparent:
- More frequent use of Article 258 of the penal code, which permits arrest and detention for “abusing democratic freedoms” and “subverting state interests.”
- an activist, Nguyen Phuong Uyen was convicted in a secret trial of taking photographs at a political protest in Ho Chi Minh City.
- a journalist, Nguyen Dac Kien, was fired from his newspaper for his blog’s implicit criticism of a Party official in relation to the revision process.
- a reported 50 Vietnamese bloggers and activist were convicted of crimes related to their advocacy from January through May of 2013.
- In July, 2013, the government issued Decree 72, which is intended to further reign in the blogosphere, “prohibiting the posting of material that ‘opposes’ the Socialist Republic of Vietnam and ‘harms national security’ and other vague terms.
There is a feeling in Vietnam that they are “on the brink” of something, but whether that is an authoritarian crack down or a progressive opening-up is the question.
The ability of economic openness to advance democracy in Vietnam is uncertain. The mechanism for this to happen is, at best, indirect. The degree of economic openness available in a single-party, socialist nation may be limited by its nature as is the degree and style of self-government. The unique effort to engage the public in its constitutional revision process is a positive move, tempered by the government’s compelling interest in maintaining stability necessary for economic development, among other things. As the Vietnamese government and the CPV engage in power struggles at its highest levels, the activists, both foreign and domestic, and an increasingly educated and cosmopolitan public, will be working to move the debate forward. The hunger for change is coming from within, rather than, as in the past, under the influence of a foreign power. The end result is unclear: what is certain is that the chances for peaceful reform must also come from within–be homegrown and nurtured–within the distinctive history and culture of Vietnam.