Author: John Gillespie, Monash University
Under President Xi Jinping, the Chinese Communist Party is using the Seven Prohibitions to shut down discussion about liberal constitutional reform. In comparison, constitutional deliberations in Vietnam appear open, vibrant and far-reaching — prompting some commentators to speculate on whether Vietnam is a model for post-socialist institutional reform. But do all types of constitutional discourse translate into institutional reform or are some types of discourse more potent than others? This inquiry has particular relevance in Vietnam, where the discourse in social media has as much influence in shaping the constitution as that in state-mediated forums.
During the debates leading up to the adoption of Vietnam’s 2013 constitution, commentators focused on public calls for liberal institutional reforms. Hundreds of newspaper articles discussed limits to party power, constitutional review and human rights. Much has also been made of Petition 72, a demand for sweeping liberal constitutional reforms submitted by public intellectuals such as Nguyen Dinh Loc, a former minister of justice. These commentators argue that this discourse reveals broad-based support for liberal constitutionalism and law-based governance in Vietnam.
But when the National Assembly approved the new constitution in late 2013, there were few tangible changes to governance structures. Attempts to place constitutional limits on Communist Party power, promulgate a human rights declaration and legalise private land ownership were rejected. Although the new constitution appears to strengthen fundamental rights, Article 14 gives authorities wide-ranging powers to override civil rights in the interests of ‘national defense, national security, public order, the security of society, and social morality’.
In a particularly bitter blow to reformers, after years of discussion, the Party rejected a constitutional court with powers to strike down unconstitutional legislation and government decisions. Unprecedented deliberation in state-mediated forums, such as the press and academic journals, did not result in meaningful institutional change.
A look at the history of constitutional debates in Vietnam suggests that public discussion in state-mediated forums rarely produces liberal institutional reform. Since the Nhan-Van Giai-Pham affair in the 1950s, reformers have periodically urged the government to improve human rights and adhere to legal processes. But recurring attempts in state-mediated forums to introduce liberal democratic institutions, such as a constitutional court, have been unsuccessful.
Though controls are not as proscriptive as the Seven Prohibitions in China, the Party in Vietnam stage-manages constitutional debate in state-mediated forums. While windows that allow discussion about normally taboo liberal institutional reforms may open in state-mediated forums, these windows shut when constitutional amendments are passed. This forecloses further discussion and signals the limits to institutional reform.
Vietnam still lacks the institutions that are generally considered necessary for liberal constitutionalism. There is no constitutional court, electoral democracy, separation of powers or judicial protection of politically sensitive civil, economic and political rights. Although Vietnam lacks many liberal institutions, it is a mistake to believe that all public discourse surrounding the constitution is merely fictitious with no correspondence to how the government actually works. Understanding how discourse in an illiberal polity might define and constrain state power involves looking beyond the legal and technical discourse associated with liberal institutional reforms.
In tandem with Party-managed debates in state-mediated forums, there is a vibrant constitutional deliberation amongst ‘left-side’ (ben trai) social media circles. Reaching 36 per cent of the population, social media penetration in Vietnam is among the deepest in Southeast Asia — similar to Thailand. State control over bloggers and social media sites in Vietnam is less restrictive than in China. Most bloggers engage in ‘lifestyle’ politics where recounts of their lives are linked with topical social issues such as environmental pollution, urban congestion and food safety issues.
But other bloggers are playfully transgressive. Buried in their humour are satirical comments about the Party and state. They portray social problems as symptoms of wider regulatory failings and advocate systemic institutional change. Still, most bloggers are careful to avoid discussing multi-party democracy — a topic that routinely attracts penal sanctions.
While a few bloggers engage in the technical legal discourse associated with liberal constitutionalism, many more discuss national identity. This discourse, for example, stresses the long history of private control over land in Vietnam and valorises private resistance to state land grabs. Discourse of this kind constrains how the state is imagined and encourages lawmakers to craft a constitution that is embedded in the national consciousness. The extensive coverage of social media commentary about issues, such as land grabs, in Party and state publications suggests that social media is slowly influencing Party thinking. For instances, although not recognising private land ownership, the constitution of 2013 has responded to social media criticism and tightened state powers to take land.
In focusing on national identity rather than technical legal details, constitutional discourse in social media resembles the debates that surrounded other constitutions in their embryonic stage, such as early constitutional debates in the United States.
To develop into a robust legal text that can discipline institutional behaviour, what is needed in Vietnam is a sustained discussion — as has been initiated in social media networks — about whom the constitution covers, whom it does not cover, how far state powers should extend over citizens and the justification for its exclusive claim to govern the polity. A constitution that cannot justify its own authority as superior law will be eventually dismissed as irrelevant.
John Gillespie is professor of law and director of the Asia Pacific Business Regulation Group, Department of Business Law and Taxation, Monash University.