The central question taken up by these pioneering papers is: “What does the 2013 constitutional debate and the subsequent constitutional reform signal in terms of political and legal reform in Vietnam?” More particularly, the papers analyze the actors, their debates, and the possible impacts of the constitutional consultation for Vietnamese constitutional reform across a range of issues including land, human rights, the role of the procuracy, political liberalization, and economic change. Ultimately these analyses inform us about the Communist Party of Vietnam (CPV)’s vision and pragmatism regarding its political and constitutional retention of power and the reform dynamics created by other state and non-state actors.
In this paper, I briefly explore recent China-related commentary on constitutional dialogue, particularly to elicit whether this can be used to explain the Vietnamese constitutional debates and their aftermath. I then turn to recent work on political protest in Vietnam to elicit whether its analysis sheds light on the performance of contemporary Vietnamese constitutional debates as presented in the accompanying papers.
I suggest that Vietnamese constitutional dialogue and its aftermath diverges from the Chinese experience in several fundamental ways. Firstly, Vietnam has officially allowed gradually escalating and now greater constitutional debate than its northern neighbour. Secondly, the Vietnamese party-state arguably lost, or at least partially lost, control of the constitutional debate in 2012–2013, which could have far-reaching consequences for the political and legal construction of the party-state over time.Footnote 1 Thirdly, the treatment of actors engaged in constitutional dialogue, as portrayed in these papers, evidences some common features with Kerkvliet’s characterization of party-state treatment of Vietnamese dissident activity, in turn, characterized as different from that of China. In consequence, I suggest the Vietnamese and Chinese socialist experience of constitutional dynamics diverge, which in turn, at least leaves open the possibility of different reform trajectories, albeit ones that are not known. Accepting an argument that the Vietnamese party-state is more permissive of constitutional reform activism than China, and accepting that reform debates spawn new possibilities (see below), the reform dynamics in Vietnam may have more impact and may realize change in advance of their northern neighbour, albeit that the reform may not resemble Western, liberal constitutionalism.
Others have also pointed out the greater openness of Vietnam to constitutional dialogue than China. Fu and Bui analyze three “pillars” of socialist Vietnamese and Chinese constitutionalism comparatively: the leadership role of the Party, the role and relevance of socialist rule of law, and how each state adapts “to populism”.Footnote 2 The authors argue that Vietnam is more open to new constitutional norms than its Chinese counterpart as a result of having greater openness in key political structures (such as the competition to be elected to Central Committee positions and “more diffuse executive authorities”).Footnote 3 Further the authors contend that Vietnam is more “open” to the influence of international law and more tolerant of “civil society” than China.Footnote 4 Bui Ngoc Son identifies a contrast in the approach to constitutionalism between China and Vietnam. The Chinese approach, he argues, is to construct Chinese constitutionalism as an “exception” to that of Western liberal states.Footnote 5 In contrast, Vietnam’s constitutional debates are not premised on Vietnamese constitutional exceptionalism, but characterized as reflecting an “instrumentalist approach to global constitutionalism to enhance domestic legitimacy”.Footnote 6 This analysis, while brief, focuses on contrasts between China and Vietnam in constitutional dialogue and reinforces these findings, at least in part.
Scale is also relevant here. As a small and relatively unified country of 94 million people,Footnote 7 Vietnam is in marked contrast with China’s population of nearly 1.4 billion,Footnote 8 stretched across a large land mass. The relative homogeneity of Vietnam (not forgetting there are 56 ethnic minorities) enables, as we shall see, a national conversation about constitutionalism, even if largely run by elites. This brief paper, however, has a limited focus and that is how these papers contribute to our understanding of Vietnamese constitutional dialogue and its relative openness. In consequence, I will not offer comment beyond the real possibility of constitutional conversation in Vietnam that includes those beyond and within the party-state, that is perhaps less open in China.
By way of background, in 2013 Vietnam passed its fifth constitution. The northern Democratic Republic of Vietnam, and its successor the Socialist Republic of Vietnam from 1975, have previously passed four constitutions. These can be characterized as: an independence constitution in 1946; a socialist constitution in 1959; a unification constitution in 1986; and a reformist doi-moi (renovation) constitution in 1992.Footnote 9 This latter constitution was amended in 2001. The introduction of the 2013 constitution was preceded by the most open call for comment about the constitution yet witnessed in contemporary Vietnam,Footnote 10 provoking many submissionsFootnote 11 including a petition from 72 intellectuals for wide-ranging and fundamental reform (commonly referred to as Petition 72).Footnote 12 Other groups also coalesced to promote change.Footnote 13
In this context, the significance of these papers needs to be explained. These papers offer the first detailed Vietnamese-authored English-language analyses of the 2012–2013 constitutional reform actors, and their strategies, across a spectrum of constitutional issues, which have been brought together to enable rich comparison of debates in different spaces. Prior to this project there had been limited English language commentary,Footnote 14 with the exception of Bui Ngoc Son (and recently with Nicholson) and Mark Sidel.Footnote 15 Bui Ngoc Son has written richly about constitutional dynamics in Vietnam both historicallyFootnote 16 and in the contemporary period.Footnote 17 Most recently, Bui and Nicholson argue that popular constitutionalism exists in Vietnam, if that is understood as people-based activism (albeit largely elite) and not conceived as emanating from the judiciary as in the United States.Footnote 18 Sidel’s 2001 analysis of constitutional dialogue concluded that the party-state was more open than in earlier periods to a broader discussion and that, in turn, this might provoke further sites for change debates.Footnote 19 Sidel’s cautious optimism was arguably greatly exceeded by the debates of 2012–2013.
The particular feature of these papers, however, is the range of constitutional debates covered, emanating from the same 2012–2013 period, and how this affords insight into a broader community of constitutional actors. The project was not to place constitutional reforms under the microscope, but to analyze the dialogue that preceded the moment of change/no change. The experience of the Vietnamese 2013 constitution-making exercise offered new and substantial debates, which the ensuing papers mined, many also comparing the 2012–2013 dynamics with those of 2001. The papers analyze the following: the resilience of Vietnamese single party leadership (Bui Hai Thiem); procuracy reforms (Pham Lan Phuong); contesting constitutional provisions on land ownership (Le Toan); the place of human rights in the constitution (Vo Cong Giao and Tran Kien); and constitutional reforms targeting the economy (Pham Duy Nghia). They offer insights into the political “signals” and strategies of the 2013 constitutional dialogue while also offering the first counter-narrative to that of the National Assembly, although its official “story” is still being assembled.Footnote 20 There may also be a dialogical impact generated by these interpretations.
In consequence, and as noted at the outset, this project affords a study of the transplantation of constitutional ideas: largely, as we will see, from the West to Vietnam. It is, however, a mistake to appropriate the rhetoric of law and development (rule of law will travel or, as here, constitutional principles will travel) given the evidence that transplants are rejected or adapted (even as between socialist states)Footnote 21 and have unintended consequences, even where there is the will to copy.Footnote 22 And there is no evidence of the will to ape a liberal constitutional order in the collective Vietnamese leadership at this time.Footnote 23 Let us turn to see what is to be learnt from analyses of Chinese constitutional dialogue.
I. CHINESE CONSTITUTIONAL DIALOGUE
China-focused constitutional scholarship written by outsiders seeks to explain how and why an authoritarian state allows constitutional debate and what the consequences of that permission might be. Hand argues that Chinese constitutional dialogue is part of a “grand mediation” orchestrated by the party-state.Footnote 24 Further, Hand suggests that in order to fully appreciate the scale of this party-state mediation, it is necessary to consider how individual claims challenge the party-state alongside claims made by broadly constituted groups for constitutional change.Footnote 25 In short, Hand seeks out “patterns of bargaining, consulting and mediating across a range of both intrastate and citizen-state constitutional disputes”.Footnote 26 Hand depicts a highly orchestrated party-state that has effective control over the development of the political-legal structures.
Yet this does not mean that the PRC has not struggled with protest. Sarah Biddulph details various policy areas (health and land to take two) that have witnessed violent protest and where arguably party-state control was tested, if not found wanting.Footnote 27 She notes the choice between resilient and rigid stability available to the Chinese, contending that China has, at this time, opted for the latter.Footnote 28 Arguably the very violence of Chinese protest on a range of policies provokes more repressive attitudes to political protest, which Biddulph chronicles.Footnote 29
A more modest thesis (because it excludes individual action from its analysis) argues that Chinese constitutional debate is a deliberative strategy of the Chinese Communist Party: where the shape of the deliberation is framed and managed by the party-state.Footnote 30 Baogang He and Mark Warren argue that authoritarian states legitimate participatory and consultative practice to produce “authoritarian deliberation and its associated ideal-type regime as deliberative authoritarianism”.Footnote 31 They argue that instigating deliberation in this way enables the Chinese leadership to “manufacture consent”.Footnote 32 And in large part He and Warren argue that the Chinese leadership retains a monopoly on the ultimate shape and form of debate, noting that deliberative authoritarianism can leave open the possibility of transforming authoritarianism.Footnote 33
It is extremely difficult to determine the causes and the consequences of legal change in the “ping pong” model of dialogue that deliberative authoritarianism affords.Footnote 34 That said, He and Warren’s analysis of deliberative authoritarianism resonates as a relevant analytical frame for the Vietnamese party-state’s use of allowing debate while “controlling dissent and maintaining order”,Footnote 35 arguably done in the name of maintaining peace and security.Footnote 36
In contrast, Dowdle argues that whether or not the constitutional dialogue in China is managed, new understandings of constitutionalism can manifest where there is dialogue “between the popular and formal component of constitutionalism” and that dialogue is “not unilateral”.Footnote 37 I do not need to engage Dowdle’s wider thesis that popular constitutionalism exists in China,Footnote 38 to accept his argument that the “conceptual mappings of its [China’s] constitutional trajectories” may be forever changed by the dialogue provoked through Charter 08Footnote 39 and through growing constitutionalist discourse also.Footnote 40 Dowdle’s thesis shares much with He and Warren and Hand’s work – all three note the dialogical nature of party-state relations; but Dowdle argues that reform can flow from the dialogue incrementally and not entirely reflecting the party-state’s design, and the focus should be on the National Assembly as a key player in these debates, rather than on courts.Footnote 41 Dowdle’s thesis was written before the crackdown on dissent and the current Chinese leadership’s escalation of control. Whether recent changes challenge the thesis, suspend it, or leave it unchanged, time will tell.
Significantly, the dynamics of constitutional debate do not necessarily produce liberal reform, no matter how much notions of liberalism inform some of the reform actors. Dowdle notes that scholars steeped in the liberal tradition are constrained in how they think about constitutional transformation by “structural-liberal ideology” which has a finite list of possibilities for constitutional reform.Footnote 42 Dowdle asks scholars not to see if there has been the adoption of liberal constitutionalism, but to analyze constitutional dialogue to see what it reveals.Footnote 43 And that is the challenge taken up by these papers. That said, the assembled papers largely assume a binary contest between liberally-inspired reforms and socialist authoritarianism. While the constitutional tussles may be largely cast as liberal versus authoritarian, the upshot of the debates may well not reflect the debates. It would be a mistake to understand the narratives set out here as confirming reform as inevitably reflecting liberal democratic principles,Footnote 44 even if many actors argue for these models.
In short, the papers suggest that Vietnamese constitutional dialogue is allowed to be relatively vibrant and wide-ranging, arguably more so than its Chinese counterpart. The papers demonstrate that across the range of issues taken up, key questions were asked as a part of the consultations. Further, the papers do not set out the details of a regressive and conservative constitutional movement as has been fostered in Chinese scholarship.Footnote 45 It has been noted that there are conservative elements contributing to the debates.Footnote 46 So how do those who debate legal power structures compare with Vietnamese activists and how are they treated?
II. VIETNAMESE POLITICAL ACTIVISM
Kerkvliet offers the first analytical study of disagreement between the CPV and its critics.Footnote 47 Kerkvliet studies dissidents–and not those involved in constructive constitutional dialogue. The relevance to this brief paper lies in how the state responds to dissidents, who are in turn disaggregated by Kerkvliet into a range of actors.Footnote 48 Kerkvliet concludes that the dissidents and the party-state share a common set of “ideals” including “development, democracy, and nationalism”.Footnote 49 This commonality of aspirations for Vietnamese reform is arguably also generally present in the constitutional actors depicted in the following papers. The dialogues chronicled emanate from a deeply-held nationalism that wishes to witness the escalation of development (whether for land and human rights or economic growth, for example) and greater democratization (whether liberal-inspired or a unique Vietnamese Party-state variant). That said, those involved in constitutional debate position their arguments largely assuming the survival of the Communist Party of Vietnam. Unlike some of the political activists, the reform arguments chronicled in the following papers are not blunt calls for multiparty democracy. They suggest nuanced and detailed arguments about change either without detailed reference to the overall party-state architecture or conceding (possibly strategically) that renovating the CPV could deliver reforms enabling stable, if more open government.
Kerkvliet also notes that there has been a long-standing openness to dialogue at least by some leaders.Footnote 50 And this general openness set out by Kerkvliet has been confirmed in the constitutional realm also.Footnote 51 This openness does not preclude the party-state from being repressive.Footnote 52 Kerkvliet sets out the divergent treatment of the 62 dissidents studied, noting there is more sympathy for those highly critical of the State who are aged, with a history of service to the Party, and who are not determined to overthrow the party.Footnote 53 It is noted that this is different from the near-uniform treatment of dissidents in China.Footnote 54 This characterization of the State’s quasi-permissive treatment of both public figures and people with good party-state credentials (war heroes, intellectuals) holds true for those involved in constitutional debate also. While Nguyen Dinh Loc, the former Minister of Justice who handed over Petition 72, was reportedly harassed by authorities, his high regard precluded explicit sanctioning of his conduct.Footnote 55
I suggest here that Vietnamese constitutional dialogue and its aftermath have differed from the Chinese experience. First, and as set out in the ensuing papers, Vietnam has officially allowed gradually escalating constitutional debate culminating in Petition 72 and the work of other groups agitating, albeit constructively, for reform,Footnote 56 and this permissiveness has a long history.Footnote 57 The treatment of the 72 petitioners, while not without application of party-state pressure, diverges from the harsh penalties for those involved in Charter 08 in China.Footnote 58
Secondly, China and Vietnam might both aspire to deliberative authoritarianism, but in the sphere of constitutional debate Vietnam is either deliberately more permissive or less able to control the discussions. At least some of the ensuing papers, and also the work by Bui Ngoc Son and Nicholson, suggest that the Vietnamese party-state, at least partially, lost control of the constitutional debate in 2012–2013.Footnote 59 And many constitutional reformers responded favourably to the invitation to debate any issue. The space for debate, however, is radically reduced once the decisions about the constitution were made. Vietnamese democratic centralism demands that once a policy/political position has been settled, all relevant actors accept the script/order.Footnote 60
Thirdly, the treatment of constitutional dialogue, as portrayed in these papers, suggests at least some parallels with the characterization of party-state treatment of Vietnamese dissidents offered by Kerkvliet. Petition 72 was launched by a former Minister of Justice, Nguyễn Đình Lộc, and backed by a group of 72 intellectuals and informed citizens, many of whom had closely worked with VCP over many years to support the state and its administration. This was not a group of “trouble-makers” but deeply concerned citizens seeking to reinvigorate and bolster reform to enable a government commanding the people’s respect. Reformers specifically identified the possibility of the ongoing leadership of the VCP, particularly if it demonstrated its capacity to reform.Footnote 61 And this constructive spirit is echoed in the papers published here also.
It is therefore possible to suggest that at least some reformers can argue for more fundamental reform in Vietnam than in China with fewer repressive consequences. This is a reality for the actors outlined in the following papers, if incremental reform is accepted by all actors. Further, if reform manifests through deliberate ambiguity less pressure is placed on all actors and some changes might come to pass over time. If we accept that reform debates spawn new constitutional possibilities, the reform dynamics in Vietnam may have more impact and may realize change in advance of their northern neighbor, albeit that the reforms may not resemble Western, liberal constitutionalism. Vietnam has embraced the use of constitutional ambiguity to bridge reformist and non-reformist differences. While this is not unique to Vietnam, it affords more space for incremental change, and arguably more space than available previously.