>>The 1946 Constitution of Vietnam
Pham Diem
Vietnam State and Law Institute
Following the victorious war of resistance against the US imperialists, peace was restored in the reunified Vietnam embarking into the period of national reconstruction. The 1959 Constitution – the constitution of the period of struggling against the US imperialists for national salvation - was no longer suitable.
In 1976, after being elected through a general election, the National Assembly of the unified Vietnam, at its first session, officially reunified Vietnam, having renamed the country the Socialist Republic of Vietnam and decided to elaborate a new constitution.
After more than a year, the constitution – drafting committee finalized the draft. After it was commented by 44,510 senior officials of the Party, the State, the Front, the army, National Assembly deputies, provincial/municipal People’s Council deputies in the first half of 1978 with 240,000 ideas, the draft was adjusted and supplemented. And on August 15, 1979, it was put up for public discussions and comments. These two drives of public discussions attracted 17,504,000 people who proposed amendments and supplements to 138 out of the total 147 articles of the draft constitution, and on that bases, it was readjusted once more.
The new constitution was passed on December 18, 1980 by the IVth National Assembly at its seventh session and promulgated one day later by the Acting State President.
The 1980 Constitution contained 12 chapters with its Preamble and 147 articles.
Chapter I.- The Socialist Republic of Vietnam- The political regime.
Chapter II.- The economic regime.
Chapter III.- Culture, education, science and technique.
Chapter IV.- Defense of the socialist Fatherland.
Chapter V.- Basic rights and obligations of citizens.
Chapter VI.- The National Assembly.
Chapter VII.- The State Council.
Chapter VIII.- The Council of Ministers.
Chapter IX.- The People’s Councils and the People’s Committees.
Chapter X.- The people’s courts and the people’s procuracies.
Chapter XI.- National flag, national emblem, national anthem, the capital city.
Chapter XII.- Effect of the Constitution and the amendment of Constitution
As compared with the 1959 Constitution, the 1980 Constitution contained two new chapters: The chapter on culture, education, science and technique (in the 1959 Constitution, these issues were prescribed in the chapter on socio - economic regime) and the chapter on national defense (which was dwelt on in the political regime chapter of the 1959 Constitution).
Having inherited the constitutional traditions in Vietnam, on the political regime, the 1980 Constitution affirmed in its Article 5: “The Socialist Republic of Vietnam is a unified country of all nationalities co-existing on the Vietnamese land, which are equal in rights and obligations. The State protects, enhances and consolidates the national unity bloc and prohibit all acts of ethnic discrimination and division.” It further stated in its Article 6: “In the Socialist Republic of Vietnam, all powers belong to the people. The people exercise the State powers through the National Assembly and the People’s Councils of all levels, which are elected by the people and take responsibility before the people.” Besides, on the political regime, the 1980 Constitution contained new provisions not yet mentioned in the previous constitution.
First, it is the leadership of the Communist Party, which was inscribed for the first time in the 1980 Constitution but had been ignored in the previous Constitutions of 1946 and 1959 due to the then requirements of uniting and mobilizing all patriotic forces for two wars of resistance against the French colonialists and the US imperialists. The 1980 constitution affirmed in its Article 4: “ The Communist Party of Vietnam, the vanguard and the staff of the working class, which is armed with Marxism-Leninism and constitutes the only force leading the State, the society and the factor decisive to all victories of the Vietnamese revolution. The Party exists and strives for the interests of the working class and people of Vietnam. The Party’s organizations operate under the Constitution.” So, under the specific circumstances of each period, only until the 1980 Constitution, the leading role of the Communist Party was confirmed.
Second, it is the laboring people’s collective mastery which was mentioned and institutionalized for the first time in the 1980 Constitution. It affirmed in its Article 3: “ In the Socialist Republic of Vietnam, the collective masters are the laboring people including the working class, the collective peasantry, the socialist intelligentsia and other laboring people, with the working class-led worker-peasant alliance as the core. The State ensures to constantly improve and consolidate the regime of collective mastery of the laboring people in all aspects, political, economic, cultural and social, throughout the country, in each locality, each establishment, making them real masters of the society, the nature and themselves.” It can be said that the mechanism of the Party’s leadership, the State’s management and the people’s collective mastery, which had been determined in the Resolution of the Communist Party of Vietnam’s 4th Congress, the first Party congress after the country was reunified, was the spirit governing the entire contents of the 1980 Constitution.
Regarding the economic regime, the 1980 Constitution declined to recognize non-socialist economic sectors while strongly advocated the quick establish-ment of the socialist economic sectors. It prescribed in its Article 18: “ The State carries out the revolution in production relations, guides, uses and transforms the non-socialist economic sectors and establishes and consolidate the regime of socialist ownership of production means with a view to building a national economy consisting mainly of two sectors: the State-run economic sector under the entire-population ownership and the collective economic sector belonging to the collective ownership of the laboring people. The State-run economy plays the leading role in the national economy and is given priority for its development.” Another striking feature of the economic regime in the 1980 Constitution was the building of the highly centralized national economy, thus having imperceptibly eliminated the germs of the market economy. That spirit was manifest in almost all articles of the Constitution such as “The State leads the national economy under unified plans” (Article 33), “The State monopolizes foreign trade and all other economic relations with foreign countries” (Article 21),etc.
Regarding the institution on citizens’ rights and obligations, the 1980 basically inherited the provisions of the 1946 and 1959 Constitutions. What was new in the 1980 Constitution as compared to the two previous constitutions was that the citizens’ rights and obligations were placed within the mechanism of collective mastery of the laboring people. According to Article 54 of the 1980 Constitution, “ the citizens’ rights and obligations demonstrate the regime of the laboring people’s collective mastery, the harmonious combination between the requirements of the social life with personal genuine freedom, ensuring the unity of interests between the State, the collectives and individuals on the principle of one for all and all for one. The citizens’s rights are inseparable from their obligations”.
Regarding the institution on organization of the State apparatus, the 1980 Constitution saw numerous changes. First of all, it abrogated two agencies: the State presidency and the National Assembly Standing Committee, which were replaced by a new one – the State Council being composed of the president, vice-presidents, the general secretary and members. The State Council members were elected by the National Assembly and could not be concurrently members of the Council of Ministers. The State Council acted as the collective presidenship of the Socialist Republic of Vietnam and concurrently as the standing body of the National Assembly. The State Council was answerable and reported on its activities to the National Assembly. Concretely, under Article 100 of the Constitution, the State Council had the following tasks and powers:
- To declare and assume the prime responsibility for National Assembly elections, to convene sessions of the National Assembly.
- To promulgate ordinances, promul-gate laws, explain the constitution, laws and ordinances.
- To decide on national referenda.
- To supervise the activities of the Council of Ministers, the Supreme People’s Court and the Supreme People’s Procuracy; to supervise and guide activities of the People’s Councils of all levels.
- To suspend the enforcement of, and to amend or annul, documents of the Council of Ministers, which were contrary to the Constitution, laws and/or ordinances.
- To amend or annul improper resolutions of the provincial/municipal People’s Councils and dissolve such Councils if they cause serious damage to the people’s interests.
- While the National Assembly were in recess, to decide on the establish-ment, dissolution of ministries, State Committees, the appointment and dismissal of vice-presidents of the State Council, minister-directors of State Committees.
- To appoint and dismiss deputy attorneys-general, judges and people’s assessors of the Supreme People’s Court, vice-chairmen and procurators of the Supreme People’s Procuracy.
- To appoint, dismiss and recall plenipotentiary diplomatic representa-tives of the Socialist Republic of Vietnam in foreign countries, international organizations, receive foreign plenipo-tentiary diplomatic representatives.
- To ratify or abrogate international treaties, except where it deems it necessary to submit them to the National Assembly for decision.
- To prescribe military, diplomatic and other ranks and titles.
- To stipulate and decide on the conferment of orders, medals and honorary State titles.
- To decide on special amnesty.
- While the National Assembly in recess, to declare the state of war when the country is invaded.
- To decide on the general mobilization, local mobilization, curfews nationwide or in each localities.
So, under Article 100 of the 1980 Constitution, the State Council was vested with more and greater powers gathered mainly from the powers previously delegated to the State President and the National Assembly Standing Committee. Such power concentration constituted a profound change in the power structure of the Vietnamese State, as clearly seen in the State Council’s relations to the National Assembly with the former’s position being higher than that of the former National Assembly Standing Committee even though the State Council still acted as the standing body of the National Assembly and was answerable to the National Assembly, or in the position of the State Council in its capacity as the Head of State in relation to the position of the former State President where the former’s position was much higher.
The second substantial change regarding the State’s organizational apparatus under the 1980 Constitution, with the Council of Ministers having replaced the Government. According to Article 105, the Council of Ministers was composed of its chairman, vice-chairmen, ministers and minister-directors of the State Committees. It was not merely the change of appellation from the Government Council (under the 1959 Constitution) to the Council of Ministers (under the 1980 Constitution), but more importantly the enhancement of collective leadership of the Government, the enhancement of power concentration into the National Assembly. The position of the Council of Ministers was quite different from the position of the Government Council. The Government in the 1980 Constitution was no longer considered in two capacities as the executive body of the supreme state power body, namely the National Assembly, and as the top State administrative body according to the 1959 Constitution.
It can be easily realized that the Vietnamese State’s organizational apparatus under the 1980 Constitution was greatly influenced by the State model in the former Soviet Union and socialist countries in eastern Europe.
Panoramically, the 1980 Constitution was the first constitution of the independent, unified Vietnam advancing towards socialism. It was a constitution of a transitional period in Vietnam’s modern history, the period from the time the country was reunified to the time before the country embarked on the national renewal, the period in which existed monerous wrong perceptions of many objective laws, particularly in the fields of economy, law-governed State, and the period when Vietnam fell into a serious socio-economic crise. Being the legal product of such period, its limitations and shortcomings are unavoidable.-