Pham Diem
State and Law Research Institute
I. The process of elaborating the 1946 Constitution
Following the victorious August 1945 Revolution, on September 2, 1945, President Ho Chi Minh, on behalf of the provisional government, read the Independence Declaration, proclaiming the birth of the Democratic Republic of Vietnam; and only one day thereafter, at the first meeting of the provisional government, President Ho Chi Minh proposed the early organization of a parliamentary general election and the elaboration of a constitution. He analyzed: “As we were formerly ruled by the absolute monarchy, then the colonial regime which was no less despotic, our country had no constitution and our people could not enjoy democratic freedoms. Therefore, I propose the Government to organize as soon as possible a general election according to the universal suffrage regime. All citizens, male and female, aged full 18 years old shall have the right to vote and to stand for the election, regardless of their economic situation, religion, ethnicity.”
On September 8, 1945, President Ho Chi Minh signed Decree No. 14-SL on the parliamentary general election, clearly stating: “The Vietnamese people, repre-sented by the National Assembly, hold the supreme power in deciding for Vietnam a democratic republic constitution... A seven-member drafting committee shall be set up to draft a constitution for submission to the National Assembly.” And such drafting committee was set up, comprising President of the Provisional Government Ho Chi Minh as its head, advisor Vinh Thuy (alias former emperor Bao Dai), Justice Minister Hoang Trong Khanh, Labor Minister Le Van Hien, Mr. Dang Thai Mai, Mr. Nguyen Luong Bang and Mr. Dang Xuan Khu (alias Truong Chinh) as its members. The Committee quickly set to work and submitted the draft constitution to the Government for discus-sion and amendment. On October 31, 1945, the Government decided to publicize the draft constitution on the press and sent the printed copies thereof to all localities throughout the country for public comments. On November 10, 1945, the draft constitu-tion was published on “Cuu Quoc” (National Salvation) paper together with the Government’s communique which clearly stated: “With the wish that the entire Vietnamese people give their opinions on the draft constitution, the Government hereby publicizes this draft constitution so that everyone can read it thoroughly, discuss it freely and make comments... The Drafting Committee will sum up all proposed amendments and comments of people and submit them to the National Assembly for deliberation.” So, the constitution had been drafted simultaneously with the process of election preparation before the National Assembly was elected.
On January 6, 1946, the first National Assembly of the Democratic Republic of Vietnam was elected through a universal suffrage general election, which, at its first session on March 2, 1946, set up a new Constitution-Drafting Committee compri-sing its head being President Ho Chi Minh and 11 members being represen-tatives of various political parties and social strata: Tran Duy Hung, Ton Quang Phiet and Do Duc Duc (of the Democratic Party), Cu Huy Can and Nguyen Dinh Thi (of Viet Minh), Huynh Ba Nhung, Tran Tan Nho and Nguyen Cao Hach (of Viet Cach (Vietnam Revolutionary League), Phan Gia Do (of Viet Quoc (Vietnam Nationalist) Party), and Nguyen Thi Thuc Vien. Meanwhile the former seven-member Drafting Committee continued to study, amend and supplement its draft, the National Construction Committee of the Government also studied on its own and draft another constitution.
During its second session (from October 28 to November 9, 1946), the National Assembly concentrated on discussion of the draft constitution before enacting it. The draft constitution presented before the National Assembly was made on the basis of the draft of the Constitution-Drafting Committee, the comparison with the draft of the National Construction Committee, the selected comments of people and the consultation of the constitutions of other countries such as France, the United States, Germany, Japan. After hot discussions and debates among deputies representing various political parties, social strata on supplements or amendments to every specific clause and article, on November 9, 1946, the National Assembly passed the constitution with 240 votes for out of the total 242 deputies present.
So, the process of drafting and enacting the 1946 Constitution demonstrated the timeliness to meet the urgent requirements of the Vietnamese revolution then and the consolidation of the young Democratic Republic and also demonstrated the democratic spirit in the constitutional affairs. Such process can be summarized through the following constitution-making steps:
Drafting - Public Discussion and Comments - Amendment and Supplement - Passage by the National Assembly.
This constitutional process has later become the legislative process in general and the constitution-making process in particular in Vietnam.
II. Contents and historic significance of the 1946 Constitution
The 1946 Constitution comprised 70 articles with a Preamble and 7 chapters: Chapter I: The Political Regime; Chapter II: Obligations and Interests of Citizens; Chapter III: The People’s Parliament; Chapter IV: The Government; Chapter V: The People’s Councils and Administrative Committees; Chapter VI: The Judicial Bodies; Chapter VII: Amendment of Constitution.
So, the 1946 Constitution covered three fundamental institutions: The State institution, the rights and obligations of citizens, and the State apparatus organization.
The emergence of the Democratic Republic of Vietnam was the fruit of the August 1945 Revolution. Therefore, right in its Preamble, the 1946 Constitution affirmed: “The August Revolution has regained sovereignty for the country and freedom for the people, and given birth to the democratic republic,” “our nation’s tasks at the present stage are to protect the territorial integrity, to regain full indepen-dence and construct the country on the democratic foundation,” “the independent and unified Vietnam steadily advances on the path of glory and happiness in the swim with the world’s progressive trend and mankind’s aspiration for peace.”
Article 2 of the Constitution stated: “Vietnam is a unified country comprising the North, the Center and the South which are indivisible from one another.”
The ideology of independence, sovereignty, unification and territorial integrity expressed in the 1946 Constitution was the inheritance of the Vietnamese nation’s thousands-of- years- long tradition of staunch fighting against foreign invaders. When conquering Vietnam, the French colonialists rejected Vietnam’s indepen-dence and sovereignty and disrupted the country’s unification by adopting the divide-to-rule policy, having divided Vietnam into Bac Ky (Tonkin), Trung Ky (Central Vietnam) and Nam Ky (Cochinchina) with three different political regimes, three different forms of administration organization and three different types of legal statuses. Immediately after Vietnam regained independence in 1945, the French colonialists returned to the country, having attacked and occupied Nam Ky in an attempt to pave the way for their reoccupation of entire Vietnam. Therefore, right in its Preamble, the 1946 Constitution confirmed Vietnam’s independence, sovereignty, unification and territorial integrity and at the same time pinpointed the fundamental and urgent task of the entire Vietnamese nation to protect the national independence. To suit the above-mentioned situation and task, the 1946 Constitution was elaborated on the following three principles (clearly stated in the Preamble):
- National unity, irrespective of races, sexes, social classes and religions.
- Ensuring democratic freedoms.
- Building a strong and clear-sighted administration of the people.
The State institution was determined right in Article 1: “Vietnam is a democratic republic. All powers in the country belong to the entire Vietnamese people, regardless of their races, sexes, economic conditions, social classes, religions.” Truly, the political regime of democratic republic had been advocated by a number of patriots in the early 20th century such as Phan Boi Chau, Phan Chu Trinh. But the political regime of democratic republic determined in the 1946 Constitution was the political regime of people’s democratic republic as the Vietnamese revolution and the State of Democratic Republic of Vietnam were led by the Communist Party of Vietnam, which, on November 11, 1945, declared “to dissolve itself,” but in fact withdrew into secret activities, in order to avoid the enemies’ slanders and distortions and to do away with misunderstanding within and without the country, which might obstruct the national unity bloc. Though in secret activities, the Communist Party kept leading the administration and people as it was a democratic republic of the working class, peasantry and people of all strata, of all Vietnamese patriots who advocated national independence.
The State institution was clearly manifest in the form of organizing the State powers, namely, the State apparatus model. The 1946 Constitution devoted four of its total seven chapters, with two-thirds of its total articles, providing for the organization of the State apparatus. Thereby, the State of the Democratic Republic of Vietnam was organized on the principle of centralized powers with all State powers being centralized into the Parliament, which was called the “People’s Parliament” and organized according to the single-house regime. The People’s Parliament was the supreme power body of the Democratic Republic of Vietnam, which settled all national affairs, made laws, voted on State budgets, ratified agreements signed with foreign countries by the Government. It was the agency representing the people and elected by Vietnamese citizens. The parliamentarians represented not only their respective localities but also the people throughout the country.
The Government was the top administrative agency of the whole country. It was structured to comprise the State President, State Vice-Presidents and the cabinet which was composed of the Prime Minister, ministers and vice-ministers. The State President, elected by the Parliament among the parliamentarians, was the Head of State, represented the country, headed the Government and presided over the Government Council. The Prime Minister was selected by the State President among the parliamentarians and put up for voting by the Parliament. Ministers were selected by the Prime Minister among the parliamen-tarians and put up for voting by the Parlia-ment. Vice-ministers might be selected from outside the parliamentarians and submitted to the Government Council for approval.
The judicial bodies being the courts included the supreme court, the courts of appeal, the second-level courts and the first-level courts. All judges were appointed by the Government. The 1946 Constitution also put up the following principles for legal proceedings:
- People of ethnic minorities may use their own languages before courts;
- All courts must conduct open trials, except for special cases;
- Defendants are entitled to defend by themselves or hire lawyers to defend them;
- It is forbidden to torture, beat, ill-treat the accused and convicts.
- When conducting trials, the judges obey only laws; no agency is allowed to intervene.
Under the 1946 Constitution, the country was divided into three regions: The North, Central Vietnam and the South; each region was divided into provinces; each provinces was divided into districts; and each district was divided into communes. Except for the regions and districts, the People’s Councils were organized at other levels. The People’s Councils were elected by local people through universal suffrage, being the bodies representing the people and deciding on local affairs. Meanwhile, the Administrative Committees were organized at all local administrative levels, which were elected by the People’s Councils of the same levels. At levels where existed no People’s Councils, the Administrative Committees would be elected by the People’s Councils of the immediate subordinate level. The Administrative Committees had the responsibility to execute all orders of the superiors and the resolutions of the People’s Councils of the same level.
The State apparatus model under the 1946 Constitution absorbed some elements of the bourgeois constitutional ideology such as the State President’s right to veto decisions of the Parliament or the Government’s decrees had to be signed by the State President and by one or many ministers, depending on the powers of the ministries. These special provisions were prompted by the fact that the then Parlia-ment and Government comprised represen-tatives of various opposition political parties (such as Viet Cach and Viet Quoc) and the requirement to ensure the nature of the people’s democratic state with President Ho Chi Minh’s role and prestige being the core.
In the 1946 Constitution, the Chapter on citizens’ rights and obligations had a special position, immediately after Chapter I on the political regime and before the chapters on organization of the State apparatus. This demonstrated the then constitutionalists’ idea of heightening civil rights.
According to the 1946 Constitution, citizens had four fundamental obligations: To defend the Fatherland, to respect the Constitution, to abide by law and to be enlisted in the army.
In the Constitution, the civic rights were prescribed concretely and compre-hensively. Politically, citizens had the right to vote and to stand for election, the right to be asked for consensus, the right to equality before law, the right to equality between men and women, the right to partake in the administrations and build the country, the foreigners’ right to take refugee in Vietnam...; socially and economically, citizens had the right to private property ownership, the right to enjoy interests of the intellectual and manual labor circles, the right to insurance for elders, children and disabled, the right to free primary education; the poor pupils’ right to enjoy assistance of the Government, the right to open private schools,... Personally, citizens had the rights to freedom of speech, freedom of publication, freedom of meetings and association, freedom of belief, freedom of residence, freedom to privacy in dwelling houses, mails,...
Though not publicized by the Parliament due to the outbreak of war, under the leadership of the Government and President Ho Chi Minh, the Constitution was enforced in reality. The emergence of the 1946 Constitution was of great significance for the then Vietnamese revolution and the constitutional history of Vietnam.
First of all, domestically, the Constitution constitutionalized the people’s democratic administration; and externally, it legalized the new Vietnam. In other words, the 1946 Constitution contributed to establishing the legality of the State of the Democratic Republic of Vietnam nationally and internationally. By then, the international law had been manipulated by imperialism and colonialism, having distinguished the “de facto administration” from the “lawful administration” with a view to negating the administrations established through national liberation movements in colonies. Under such circumstance, post-August Revolution Vietnam faced one of the political difficulties on the international arena, that was the Democratic Republic of Vietnam State had not yet been officially recognized by other countries. This really worried President Ho Chi Minh. He said: “Though we have gained independence for five months now, we have not been recognized by any country.” In face of such situation, President Ho Chi Minh and the Government quickly organized a general election to elect the parliament and drafted a constitution because those would serve as legal bases to legalize an administration set up through the Vietnamese people’s revolutionary struggle, having frustrated the schemes of the enemies inside and outside the country and contributed to consolidating the people’s democratic state. This further testified to the creativeness and far-sighted political views of President Ho Chi Minh and the Government of the Democratic Republic of Vietnam.
The 1946 Constitution served as a basic law of the State and at the same time as a political platform for great national unity, which contributed to creating the great strength of Vietnam in the war of resistance against the French colonialists. It laid foundations for the constitutional ideology with the most fundamental principles for the constitutional history in Vietnam:
- The principle of considering the constitution-making an affair of the people: “All Vietnamese people participate in making the constitution of the State.”
- The principle of independence, sovereignty, unification and territorial integrity of the country and the great national unity.
- The principle that the administration is of the people.
- The principle of centralism, with the State powers being centralized into the Parliament with responsibility assignment.
The 1946 Constitution was the quintessence of the constitutional ideology in Vietnam in the first half of the 20th century and also the opening of the constitutional history in the country. It is a distinctive constitution in Vietnam’s constitutional history.-