Lawyer Tran Thi Tuyet
The State and Law Research Institute
The 1946 Constitution was Vietnam’s first Constitution, a democratic and progressive Constitution resulted from the people’s national democratic revolution.
Unlike the Constitutions of many other countries, Vietnam’s was not at all associated with the establishment of power of the local bourgeoisie which had, for various reasons, by the early 20th century been politically and economically weak and came into being after the Vietnamese working class. So, Vietnam’s Constitutional history was typically characterized by the fact that the emergence of the Constitution was closely linked to the establishment of the Communist Party’s leadership over the revolution, to the process of formation and development of the new-type State and to the establishment and exercise of the people’s rights in Vietnam.
Only after 14 months after the provisional Government issued Order No.34 of September 20, 1945 setting up the Constitution Drafting Committee and only 9 months after the National Assembly officially set up the Committee headed by President Ho Chi Minh, the first Constitution of the Democratic Republic of Vietnam was passed by the National Assembly on November 1946 at its second session.
The 1946 Constitution was composed of the Preamble and 7 chapters with 70 articles.
Chapter I: The political regime (3 Articles)
Chapter II: The rights and obligations of citizens (18 Articles)
Chapter III: The People’s Parliament (21 Articles)
Chapter IV: The Government (14 Articles)
Chapter V: The People’s Council and the Administrative Committee (6 Articles)
Chapter VI: The judiciary bodies (7 Articles)
Chapter VII: The Constitutional amendment (1 Article)
Besides the Independence Proclamation on September 2, 1945, the Preamble of the 1946 Constitution once again reaffirmed the great achievements recorded by the Vietnamese revolution: “The August Revolution has regained sovereignty for the country and freedom for the people, giving rise to a democratic republic.”
Made under extremely difficult conditions of history full of complicated political and social changes that threatened the survival of the young revolutionary administration as well as the national independence and unity, the 1946 Constitution stressed in its Preamble: “Our nation’s task in the present stage is to defend the territorial integrity, to regain full independence and rebuild the country on a democratic foundation.”
Prior to the August Revolution, Vietnam had been a semi-feudal colonial country and the August Revolution was a national democratic revolution led by the political party of the proliteriat. Therefore, the 1946 Constitution was elaborated on the following three principles:
Uniting the entire people, regardless of races, genders, social classes and religion;
Ensuring the democratic freedoms;
Building a strong and wise administration of the people”
(Preamble)
In order to fulfill the urgent tasks of the then revolution, the 1946 Constitution had to be a platform of “uniting the entire population” and “the policy of great unity during this period is the only way of survival of Vietnam’ proliteriat as well as other social classes”(1) and “the national unity is the most important principle of Vietnam’s Constitution”(2) and a great lesson and experience of the Vietnamese nation’s thousand-years-old history of national construction and defense, which was inherited and brought into full play by the former Indochinese Communist Party, now the Communist Party of Vietnam, in the process of leading the Vietnamese people in the struggle to regain power and build the administration.
The above-mentioned principles and tasks were fully reflected in all chapters and articles of the 1946 Constitution.
On the political regime, the 1946 reaffirmed: “Vietnam is a democratic republic. All power in the country belongs to the entire people of Vietnam, regardless of races, genders, richness or poorness, social classes, religion, (Article 1) and “Vietnam constitutes an indivisible bloc consisting of the northern, central and southern regions” (Article 2).
The 1946 Constitution institutionalized the Indochinese Communist Party’s line of the people’s national democratic revolution. That the 1946 Constitution did not state the Party’s leadership though in fact the Indochinese Communist Party was the only force that led the State and the revolution in Vietnam was only a tactical move aimed to disintegrate the enemy and unit all patriotic forces for the main and urgent task of fighting the domestic hostile forces and foreign invaders.
Having acknowledged the citizen’s obligations and rights and having properly settled the relationship between the State and the population, the 1946 Constitution once against reaffirmed the Vietnamese citizen’s new legal status.
However, within the framework of a Constitution of the people’s national democratic revolution and under the then political, economic and social conditions of Vietnam which had just been freed from the feudal and colonial yoke, the 1946 Constitution could not but only acknowledge the Vietnamese citizen’s most essential rights and obligations. For the first time, the right to equality in all aspects, political, economic and cultural, between Vietnamese citizens, the equality before law (Articles 6 and 7), the ethnic equality (Article 8), the equality between male and female (Article 9), the right to freedom of speech, publication, press, association, meeting, religious belief, residence, movement... (Articles 10, 11) were clearly defined in this basic law.
The right to election and candidacy is the most important political interest of the Vietnamese citizens, ensuring that the people can participate in the management of the State and perform their role as the masters of the country. The election regime determined on the basis of the principle of universal, equal, direct and secret ballot as stated in Order No.51 of October 17, 1945, was now acknowledged in this basic law (Articles 17, 18 and 19). At the same time, people are entitled to dismiss the representatives they elected (Article 20), to decide on matters related to the Constitution and to the destiny of the nation (Article 21).
After the August Revolution, most of the land was still in the hands of the landlords while more than 90% of Vietnam’s population were peasants who had little or no land. Yet, for the sake of broadening the national unity bloc so as to gather forces in the struggle against the main enemy and for the defense of newly gained independence and sovereignty, the Indochinese Communist Party did not then carried out the land reform. The 1946 Constitution still recognized: “The Vietnamese citizens’ private ownership of their property is ensured.” (Article 12). So, the Constitution still recognized the existence of feudal and capitalist exploitation. This was a wise and flexible response to the then circumstance where the first priority had to be given to the national unity and to the defense of the country from foreign invasion. However, the 1946 Constitution also recognized the rights and interests of the toiling people, intellectuals and manual laborers, which were guaranteed (Article 13).
On the cultural and social fronts: In order to quickly eradicate illiteracy and raise the intellectual levels of the real masters of the country, the State of the Democratic Republic of Vietnam promoted the development of education. Article 15 of the 1946 Constitution clearly stated: “The primary education is compulsory and free of charge at all local primary schools; people of ethnic minorities have the right to learn through their own languages. Pupils of poor families shall be given assistance by the Government. Private schools can be opened and the teaching and study must follow the State curriculum.”
Regarding the organization and operation of the State apparatus, the 1946 Constitution reflected clearly the principle that “the administration must be made strong and wise” and “all the power in the country belongs to the entire people of Vietnam.” The State apparatus was organized and operating on a broad democratic base ever seen in the country, with the people having participated in the management of the State and the society through mechanisms of direct democracy (Articles 21, 32 and 70) and representative democracy (Articles 24, 25 and 58).
Under Article 57 of the 1946 Constitution, the State bodies were organized at five levels: central; regional (northern, central and southern Vietnam); provincial or municipal; district and communal. And at these five levels, all the State bodies were organized into three systems:
1.- The system of State power bodies, which includes the People’s Parliament (at the central level) and the People’s Councils (in localities). These bodies were elected by the people, they represented the people and acted on the latter’s behalf in holding all power in the country or each locality.
“The People’s Parliament is the ultimate organ of State power of the Democratic Republic of Vietnam” (Article 22). “It is elected every three years by the people (Article 24). The People’s Parliament settles all national issues, makes laws, votes on the budget and ratifies treaties which Vietnam has signed with foreign countries (Article 23). It is organized according to the single-house regime. The permanent office of the People’s Parliament is the Standing Committee which is composed of the chairman, two vice chairmen, one full member and 3 alternate members” (Article 27).
At the local level, there were the provincial, municipal, town and communal People’s Councils which were elected directly by the people (the People’s Councils were not set up at the regional and district levels) (Article 58). “The People’s Councils decide on issues in their respective localities and their decisions must not contravene the directives of the superior levels. (Article 59)
Members of the People’s Parliament and the People’s Councils can be dismissed by the people if they proved unworthy of their role as the representatives of the people (Articles 41 and 61).
2.- The system of State management bodies, or executive bodies, which were elected and dismissed by State power organs (Articles 45, 54, 58 and 61). Under the 1946 Constitution, the system of State management bodies includes the Government and the Administrative Committees in localities.
The Government of the Democratic Republic of Vietnam was “the highest administrative body of the country” (Article 43). It was subject to the control by the People’s Parliament or the Standing Committee thereof.
The Government of the Democratic Republic of Vietnam was composed of the State President and Vice Presidents, and the cabinet comprising the Premier, possibly Vice-Premier(s), ministers and vice-ministers (Article 44).
Under the 1946 Constitution, the State President was the head of the Government elected by the People’s Parliament for a five-year term. He was himself a parliamentarian (Article 45). The State President selected the Premier among the parliamentarians and the Premier selected ministers also among the parliamentarians, and all these selections were put up for voting by the Parliament (Article 47).
Due to practical political and social conditions after the August Revolution, the 1946 Constitution gave the State President great powers: Acting on behalf of the country; being the supreme commander of the army he had the right to appoint or dismiss generals; and many other important powers (Article 49).
For a long period of the people’s national democratic revolution, President Ho Chi Minh used the form of “Order” more often in running the national affairs for the interests of the nation and the people.
The State management bodies at the local level were the Administrative Committees the members of which were elected and dismissed by the People’s Councils of the same levels. Due to the lack of the People’s Councils at the regional and district levels, the regional Administrative Committees were set up with their members being elected and dissolved by the provincial/municipal People’s Councils and the district Administrative Committees were set up with their members being elected and dismissed by the commune People’s Councils (Article 58).
The Administrative Committees were responsible to their superior levels and the People’s Councils of the same levels (Article 60); had to follow the orders of the superior levels and to implement the resolutions of the People’s Councils of the same levels, which were already approved by the superior levels; and ran all administrative affairs in their respective localities (Article 59).
3.- The system of judiciary bodies, which, under the 1946 Constitution, included the supreme court, the appellate courts, the first-instance courts (Article 63). The system of prosecutors was included into courts while the judges were classified into two kinds independent from each other: The court judge and the accusation judge, who were both appointed by the Government (Article 64).
The trial of criminal cases had to be participated by people’s juries who should make comments or join the judges in deciding verdicts for important criminal cases. People of ethnic minorities were entitled to use their own languages at court sessions. The defendants were entitled to defend themselves on their own or by hired lawyers.
The 1946 Constitution created legal basis for the revolutionary administration to perform its tasks, and created foundation for making new laws of the Democratic Republic of Vietnam. Moreover, it also constituted a strong political mainstay for the Democratic Republic of Vietnam State in the revolutionary struggle and a political platform to gather all patriotic and democratic forces in the country before the anti-French colonialist war of resistance.-
Footnote:
(1) and (2) Some ideas on Vietnam’s Constitution “Su That” (Truth) paper on November 8, 1946.