Pham Diem
State and Law Research Institute
Vietnam went through thousands of years under the feudal monarchy where all State powers (the legislative power, the executive power and the judicial power) belonged to the kings, where the relationships between the State and the people were nothing but the relationships between the emperors and the subjects, based on the supreme code of conduct being the Confucian principle of absolute respect for the kings’ powers.
When Vietnam became a French colony in the late 19th century, the foreign rulers did not introduce into the country the democratic and bourgeois political and legal institutions (the parliamentary, electoral, constitutional... regimes), but, on the contrary, maintained the local feudal regime and imposed the French’s colonial regime based on the monistic institution - namely the regime of Indochina’s Governor General (all powers in Indochina were gathered into the hand of Indochina’s Governor General being a French).
Therefore, by the late 19th century, the mainstream political and legal ideologies in the then Vietnamese society had been the monarchical ideologies, having given no chance for the constitutional ideologies to appear.
Throughout the second half of the 19th century immediately after the French colonialists opened fire to invade the country in 1858, armed struggles against the foreign invaders broke out repeatedly and widely, of which the strongest and most prominent one was the “Can Vuong” (Rescue the King) movement. These struggle movements were all led by feudal intellectuals with the aims of ousting the French colonialists and helping the kings to restore the independent and sovereign monarchy. By the end of the 19th century, the anti-French movements basically had come a cropper. This testified to the impotence and obsoleteness of the monarchical ideology in the political arena.
In face of the failure of the “Can Vuong” movement and the strong impacts of the modernist ideology from overseas, the patriotic movement in Vietnam in the early 20th century saw a big shift from the monarchical ideas to the democratic bourgeois trend typicalized by “Dong Du” (Go East) movement led by Phan Boi Chau and “Dong Kinh Nghia Thuc” (a school set up by a group of Vietnamese revolutionaries) movement led by Phan Chu Trinh. The then Vietnamese patriots approached new ways for national liberation: the modernistic movement in Japan, the modernistic road blazed out by Tan Hoi (1911) revolution in China, the way charted by the Great Revolution in France. Though different in their colors, all these were actually the bourgeois democratic ideology and their core content was the constitutional ideology.
1. Phan Boi Chau’s constitutional ideology
Being a feudal intellectual soon aware of the situation, Phan Boi Chau (1867-1940), one of the typical Vietnamese patriots in the early 20th century, shifted from monarchical standpoint to bourgeois democratic standpoint. In 1904, he set up a political organization called “Duy Tan Hoi” (Reformation Society), advocating to rely on Japan to oust the French colonialists from the country and gain national independence, first of all sending young people to Japan for study. In 1912, he established a new political organization called “Viet Nam Quang Phuc Hoi” (Vietnam Restoration Society). Yet, due to fierce repression by the French colonialists, his two movements broke up and he himself was put under house-arrest by the French until he died in Hue.
Throughout his activities, Phan Boi Chau was fully aware of the necessity for the country to have a constitution. In his works written in 1907 under the title “De Tinh Quoc Dan Ca,” Phan Boi Chau highly praised Japan for the promulgation of its constitution, being the first constitutional ideologist in Vietnam.
Till 1929, though having still been unable to regain independence for the country, Phan Boi Chau himself drafted the Vietnamese Constitution. In 1932, in his interview granted to “Dong Tay” (East West) paper, issue of January 9, he against reiterated the importance for a country to have its own constitution: “I think our country has so far had no constitution, and now the promulgation of a constitution is not only a good thing, but also a must. Naturally, there must be a constitution. For my part, I have already nurtured in my mind a constitution which has been compiled after the constitutions or such countries as Britain, Japan, the United States, Germany, Russia,...” But, to him, such a constitution could be perfected “only when proper things are selected to suit our people’s intellectual level.”
So, Phan Boi Chau was the person who thought highly of the role and importance of the constitution. Under the then circumstance when Vietnam had been a French colony labeled as “An Nam thuoc Phap’’ (An Nam under France), the viewpoints on nation, national independence and sovereignty had to be the prerequisites and foundations of the constitutional ideology. On this issue, Phan Boi Chau’s viewpoint was stark clear and specific. To him, “a country must have its people, land and sovereignty; lacking one of these things, a country can not be constituted.” He analyzed the organic relationships between these three elements: “The most important thing is sovereignty, the importance in sovereignty is independence and absolute sovereignty, both internally and externally.” According to Phan Boi Chau, regaining independence and sovereignty was the first priority of Vietnam.
The country’s name and national flag are symbols of an independent and sovereign state, to which Phan Boi Chau attached great importance. Under the French rule, the country’s name was labeled as “An Nam thuoc Phap” (An Nam under France), which was rejected by Phan Boi Chau who used the name “Vietnam” for his political organization such as “Vietnam Quang Phuc Hoi” (Vietnam Restoration Society) or in his book such as “Viet Nam Vong quoc Su” (History of the Loss of Vietnam), “Viet Nam Quoc Su Khao” (Research into Vietnam’s National History)...
Vietnam under the feudal regimes had no national flag, but only the kings’ flags, which, according to Phan Boi Chau, was “strange thing for a country to have only the emperor’s flag but not the national flag.” Even, when the country was conquered by the French colonialists, France’s national flag was used in Vietnam instead of Vietnam’s own national flag. Phan Boi Chau was the first to mention of Vietnam’s national flag. Right after its establishment in 1912, his political organization - “Viet nam Quang Phuc Hoi” - chose the country’s national flag in rectangle with yellow background symbolizing the yellow-skin people of Vietnam and a cluster of five red stars symbolizing people of five strata being intellectual, peasant, worker, trader and soldier.
A central element of the constitutional ideology was the perception of the model of the State institution, which, according to Phan Boi Chau, developed through two stages: the constitutional monarchy then the parliamentary republic.
After breaking off all relations with the feudal monarchy and advocating the constitutional monarchy, Phan Boi Chau set up “Duy Tan Hoi” (Reformation Society), and strongly condemned the feudal monarchy: “The despotic venom has spread from overseas to our country for thousands of years now, thus enabling a single man (the king) and several ten thousand of mandarins to oppress and exploit our people.”
Phan Boi Chau’s constitutional ideology was clearly and specifically reflected in the guiding principle of “Duy Tan Hoi”: “To oust the French, restore Vietnam and build a constitutional monarchy.” Though heavily influenced by the institution of constitutional monarchy in Japan, his constitutional ideology saw two different things: First, he did not advocate the maintenance of the Nguyen dynasty. Right in his book “Viet Nam Vong Quoc Su” written in 1905, Phan Boi Chau strongly criticized the puppet and corrupt nature of the Nguyen dynasty; and to him, the appointment of Cuong De, a royalist, to be head of Duy Tan Hoi, only aimed to “win the hearts and minds, rally patriotic intellectuals and gain sympathy and support of many people in the country.” Second, according to him, in the constitutional monarchy, the king must not hold great powers. Particularly, he highly praised the people’s power and the parliament’s role. He held that people of Vietnam, regardless of their social status and economic background, all had the right to vote; that the keeping or dethroning of the king, the promotion or demotion of mandarins would be decided by the people; a big parliamentary building would be erected in the heart of the capital city; all political affairs should be decided by the public...
Through practical activities and particularly under the impact of the 1911 revolution in China, Phan Boi Chau step by step shifted from the constitutionally monarchical standpoint to the parliamentary republic viewpoint. In 1912, at the founding congress of Viet Nam Quang Phuc Hoi, Phan Boi Chau said: “Now that the situation has changed, I propose to the public the change from the constitutional monarchy to the parliamentary republic.” His new viewpoint was supported by people and officially inscribed in the guiding principle of Viet Nam Quang Phuc Hoi: “To oust the French, to restore Vietnam, to establish the National Republic of Vietnam.”
According to Phan Boi Chau’s viewpoint on a political regime built after the model of parliamentary republic, the parliament acted as the mainstay with extremely great powers, being the body representing the people. Meanwhile the government was the executive body, being answerable to the parliament. He held that laws, taxes... were decided by the parliament without intervention by the government which had to present reports before people. Particularly, the parliamentary model put forth by Phan Boi Chau consisted of three houses- the upper house (senate), the middle house and the lower house - to coordinate with, and supervise, one another. To him, “the upper house (senate) must get the consent of the middle house and the middle house must wait for the consent of the lower house before implementing their ideas” and “the lower house is the place where the vast majority of the public have jurisdiction over the affairs of the middle house and the senate.”
Whatever doctrine, constitutional monarchy or parliamentary republic, he advocated, Phan Boi Chau always highly valued civil rights. It can be said that this is one of the prominent features of his constitutional ideology. He held that “once the civil rights are highly valued, the people shall be respected and the country becomes strong. If the civil rights are ignored, the people shall be held in contempt and the country turns weak. If the civil rights are completely lost, the people shall be enslaved and the country shall be lost.” He soon realized the close tie between the civil rights and independence, country and State administration.
Civil rights were concretized in citizens’ rights which, according to Phan Boi Chau, were very comprehensive and listed in his two books “Tan Viet Nam” (New Vietnam) and “Viet Nam Quoc Su Khao” (Research into Vietnam’s National History), including the right to equality, the right to vote, the rights to freedom of speech, freedom of thought, freedom of movement, freedom of residence, freedom of press, freedom of association, freedom of meeting, freedom of business,...
Yet, to him, in the civil rights, the interests were closely associated with obligations, and while having rights people had the following obligations: the obligation to labor, the obligation to study, the obligation to help and support one another, the obligation to save the country, the obligation to pay taxes, the obligation to abide by law, the obligation to supervise the government.
In a nutshell, Phan Boi Chau’s constitutional ideology was comprehensive and profound, which stemmed from his noble heart and feeling to save the people and save the country.
2. The constitutional ideology of Phan Chu Trinh
Phan Chu Trinh (1872-1926) was also a Confucian scholar. He worked as a feudal mandarin for two years (1902-1904), then resigned and devoted his heart and mind to the cause of national salvation. He lived and operated in France for 14 years (1911-1925). This had great impacts on his constitutional ideology.
Phan Chu Trinh also highly praised the constitution, having considered it a legal tool to check, then proceed to abolish the despotic feudal regime. He said: “When a country is ruled by the ideas of one person or a royal court, it is nothing but a flock of sheep, which are happy or miserable, left with full stomach or hungry, depending on the shepherd’s generosity or egotism. If a country is ruled by the people, the people themselves shall formulate the constitution, laws and set up agencies to care for the general affairs of all people.” He took the French democracy then as an example to analyze the relationship between the president and the parliament within the framework of the constitution: “Once elected, the president must swear before two houses to abide by the democratic constitution, not to betray friends, not to follow one party against another party, to maintain justice and to be dethroned by people if committing mistakes.”
Phan Boi Chau and Phan Chu Trinh shared the objectives of saving the country and saving the people, but followed different ways and different measures to achieve such goals. If Phan Boi Chau advocated foreign support and uprisings to regain independence, Phan Chu Trinh protested uprisings and foreign assistance, but advocated reform and reliance on the French administration “to civilize the colony and turn Vietnam into an autonomous region.”
Though having deeply grieved for scenes where the French had maltreated his compatriots, Phan Chu Trinh held that in the immediate future, the task of restoring national independence and sovereignty of Vietnam should not be set forth. He advocated the reliance on France to achieve social progress and conduct economic, political, cultural and social reform in the colony. With such reformist measures, namely to rely on the French to get rid of the feudal monarchy, modernize the country, the political objective set by Phan Chu Trinh was only an autonomous regime in Vietnam. Such autonomy, though having not been explained by Phan Chu Trinh, could be clearly seen through his way of struggle as well as through the State model he had envisaged, as having meant that Vietnam would be ruled by the Vietnamese, but not by the colonialists. This was reconfirmed in a document of the Office of Indochina Governor General, which had assessed: “Though these trends seem to be so different in appearance, it must be recognized that such activities are harmonious and all aim for the ultimate goal of ousting the foreigners.”
So, on the question of national independence and sovereignty, Phan Boi Chau held a stark-clear, definite and resolute viewpoint to boycott the French while Phan Chu Trinh held a vague and limited viewpoint, i.e. to rely on the French to regain autonomy for Vietnam, though their patriotism was incomparable to each other.
Unlike Phan Boi Chau who at first advocated the constitutional monarchy then later shifted to support the parliamentary republic, Phan Chu Trinh rejected the feudal monarchy as well as the establishment of the constitutional monarchy but baptized the parliamentary republic right from the beginning. According to Phan Chu Trinh, the state built in Vietnam after the model of parliamentary republic would be organized on the principle of separation of the three powers- the legislative power, the executive power and the judicial power- with the following three major sections:
- The parliament which held the legislative power, having composed of two houses: the lower house comprising around 60 congressmen elected directly by the people, which was tasked to make constitution and laws and possessed great powers, and the upper house, not elected by people. The two houses joined together in electing the President and the cabinet.
- The President and the cabinet holding the executive power. The President headed the executive branch, were elected among the parliamentarians by the parliament. The cabinet was elected by the parliament, having comprised around 20 ministers.
- The justice institute which held the judicial power, managing the adjudicating officials and the trial throughout the country, having the right to adjudicate ordinary people and even the government, being independent in adjudication and abiding by law only. The adjudicating officials were persons who had well studied laws.
The political regime model advocated by Phan Chu Trinh was not totally identical to those in France, the United States,... then.
Civil rights also constituted the cornerstone in Phan Chu Trinh’s constitutional ideology, but the contents of, and his methods to exercise, civil rights were somehow different from Phan Boi Chau’s viewpoint on civil rights. The contents of Phan Chu Trinh’s ideology on civil rights covered the abolition of the feudal monarchy, the exercise of democracy, the raising of people’s intellectual level. His methods and guiding principles of exercising the civil rights were to follow France’ civil rights and to rely on the French for civil right reform in Vietnam. He requested the French rulers to carry out reform in the colony, to modify their ruling policies in order to help the Vietnamese people step by step approach civilization. He also highly praised the guiding principle of “self-civilization.” Besides, he traveled together with his comrades to provinces and cities, setting up trade associations, propagating civil rights, establishing educational schools. All these gave rise to Duy Tan (Reform) and Dong Kinh Nghia Thuc (School founded by a group of revolutionaries) movements.
Panoramically, the patriotic movements together with its constitutional ideology in Vietnam in the early 20th century, though having failed to gain success due to many objective and subjective causes, aroused and inflamed the spirit of patriotism of the Vietnamese people, especially after the failure of repeated armed uprisings against the French colonialists. Though impractical, the constitutional ideology in the early 20th century was like a vital force having spread into the country. For the first time, the Vietnamese were able to approach new political matters such as constitution, democracy, equality, civil rights, which had never before existed in the feudal society and were completely opposite to the absolute monarchy.
The patriotic movements and the bourgeois ideology of constitutional democracy in the early 20th century constituted one of the socio-political prerequisites for Vietnam to absorb Marxism-Leninism in general and the marxist constitutional ideology in particular. Therefore, when speaking of the constitutional history in Vietnam, we cannot help mentioning of the ideological trend of bourgeois constitutional democracy in the early 20th century.-