State and Law Institute
At its 9th session in May 2001, on the basis of the report presented by its Standing Committee, the National Assembly discussed and commented on the amendments and supplements to a number of articles of the 1992 Constitution and at the same time decided on the establishment of the Drafting Committee for amending and supplementing the 1992 Constitution, which was tasked to study and gather opinions of National Assembly deputies before drafting the contents of constitutional amendments and supplements. In August 2001, the first draft of constitutional amendments and supplements was publicized for comments from the public, branches and levels. On December 25, 2001, the Xth National Assembly adopted at its 10th session the amended Constitution.
The amended 1992 Constitution also contains 147 articles like the previous Constitution, with a Preamble and 12 chapters, of which 23 articles were amended and/or supplemented and three chapters were left intact (Chapter IV - Defending the Vietnamese Socialist Fatherland; Chapter XI - National Flag, National Emblem, National Song, Capital City, National Day; and Chapter XII - Effect of the Constitution and the Amendment of the Constitution).
The constitutional amendments and supplements have focused on two institutions: the economic regime and the organization of the State apparatus, with the following fundamental and prominent points:
First, for the first time in Vietnam’s constitutional history, the amended 1992 Constitution has affirmed the building of a law-governed state in Vietnam, saying in its Article 2: “The Socialist Republic of Vietnam state is a socialist law-governed state of the people, by the people and for the people. All the State powers belong to the people with the alliance between the working class and the peasantry as well as the intelligentsia as the foundation. The State powers are unified, with assignment and coordination among the State agencies in performing the legislative, executive and judicial powers.”
Formerly in Vietnam and other socialist countries, the category of law-governed state was avoided because, to many people then, the law-governed state was considered a bourgeois political and legal category closely associated to pluralism and multiparty regime, which is contrary to the political nature of the socialist regime, to the socialist principle of power concentration and to the leadership of the Communist Party. Yet, gradually in the process of national renewal, Vietnam has become more clearly aware of the importance and objective necessity of the building of a law-governed state in the country. And, for the first time, the building of a law-governed state in Vietnam was officially affirmed in the Resolution of the IXth National Congress of the Communist Party of Vietnam before it was inscribed in the amended 1992 Constitution. In the spirit of the Constitution, the Vietnamese law-governed state is, in its nature, different from the bourgeois law-governed state, as clearly seen in its three typical features and also three factors guaranteeing the nature of the State and securing the success in the process of building a socialist law-government state in Vietnam. First, it is the law-governed state of the people, by the people and for the people with the alliance between the working class and the peasantry as well as the intelligentsia as the foundation; or in other words, it is the popular character of the state. Second, the state powers are structured on the principle of concentration of powers (the state powers are concentrated into the National Assembly) but with the assignment and coordination among the State agencies in the performance of the legislative, executive and judicial powers. Third, it is the Communist Party’s leadership over the state and the society. Throughout the historical process, the Communist Party of Vietnam has been the loyal and full representative of the interests of the people of all strata and of the Vietnamese nation. It has led the Vietnamese people from one victory to another and it is the Communist Party of Vietnam that has initiated and led the national renewal cause. In the course of its leadership, the Party has detected its mistakes and shortcomings and timely addressed them. The Communist Party’s leadership has been further confirmed in the amended 1992 Constitution: “The Communist Party of Vietnam, the vanguard of the Vietnamese working class, the faithful representative of the rights and interests of the working class, the laboring people and the entire nation, acting upon Marxism-Leninism and Ho Chi Minh Thought, is the force leading the state and the society. All organizations of the Party operate within the framework of the Constitution and law.”
It can be said that the inclusion of the provision on building a law-governed state into the amended 1992 Constitution is the outcome of the renewal of the political and legal thinking, which is qualitatively new and of revolutionary nature in Vietnam’s constitutional history.
Second, in the economic domain, after nearly 20 years’ renewal in Vietnam, the market economy has distinctly taken shape while the perceptions of the market economy, of open-door policy and international integration have become more comprehensive and profound. Therefore, this domain in the 1992 Constitution sees the most comprehensive and specific amendments and supplements. Articles 15 and 16 were amended along the direction of fully and specifically outlying the models, structure and components of the market economy. Article 15 states: “The State builds an independent and sovereign economy on the basis of bringing into full play the internal resources, actively integrating into the international economy. The State consistently follows the policy of developing the socialist-oriented market economy, with the multi-sector economic structure, diversified forms of production and business organizations based on the entire-people’s ownership, the collective ownership and the private ownership, of which the all-people’s ownership and the collective ownership constitute the foundation.”
According to Article 16, “the State’s economic policies aim to make people rich, the country strong, to better and better satisfy the people’s material and spiritual demands on the basis of bringing into full play all production capacity, all potentials of various economic sectors, including the State-run economy, the collective economy, the individual economy, the private capitalist economy, the State capitalist economy and the foreign-invested economy, in various forms, boosting the construction of material and technical foundations, expanding economic, scientific and technical cooperation and exchanges with the world market. All economic sectors are important components of the socialist-oriented market economy. Organizations and individuals of all economic sectors may conduct production and business activities not banned by law, striving for long-term development, cooperation, equality and competition under law. The State promotes the formation, development and gradual perfection of assorted markets along the socialist orientation.”
The amended 1992 Constitution has specified the role of each economic sector and the State’s policies. According to Article 19, “the State economy shall be consolidated and developed, chiefly in key branches and domains, playing the leading role and constituting, together with the collective economy, the firm foundation of the national economy.”
Meanwhile, the collective economy is specified in Article 20, which says: “The collective economy is organized with capital and efforts contributed by citizens for production and business activities in various forms on the principle of voluntarism, democracy and mutual benefits. The State creates conditions for consolidation and expansion of cooperatives to operate efficiently.”
Under Article 21, “the individual economy, the private capitalist economy may select forms of production and business organization, may set up enterprises without restriction on operation scales in branches and trades beneficial to the national welfare and people’s livelihood. The family economy is encouraged to develop.”
Meanwhile, according to Article 25, “the State encourages foreign organizations and individuals to invest capital and technologies in Vietnam in accordance with Vietnamese laws, international laws and practices, and guarantees their lawful ownership over their capital, assets and other interests. Foreign-invested enterprises shall not be nationalized. The State encourages and creates favorable conditions for overseas Vietnamese to invest in the country.”
Third, regarding the reform of organization and operation of the State apparatus, numerous amendments and supplements have been made. The old 1992 Constitution prescribed the National Assembly’s tasks and powers, saying in Clause 4, Article 84, that the National Assembly had the right to allocate the State budget, while the amended 1992 Constitution states the National Assembly has the right to allocate the central budget. Previously, the allocation of budgets for branches and localities was submitted to the National Assembly but undertaken directly by the Government. Now, it is done directly by the National Assembly. An important supplement is seen in Clause 7, Article 84 of the old constitution, which only provided that the National Assembly had the powers to decide on the nationality policies of the State. Now, under the amended Constitution, the National Assembly has the powers to decide not only on the nationality policies but also the religious policies of the State. Such addition was prompted by the practical situation in Vietnam that recently, the religious issue has been taken advantage of by domestic reactionary elements beefed up by foreign hostile forces, that bought off and incited a number of people to cause disturbances and disorder in some localities in their vain attempt to disrupt the national unity bloc and undermine the renewal cause in Vietnam. Particularly, the National Assembly’s vote of confidence on people holding positions elected or approved by the National Assembly, has, for the first time, been introduced into the Constitution (Clause 7, Article 84 of the amended 1992 Constitution). This new provision aims to enhance the personal responsibilities and keep clean the contingent of officials, contributing to raising the effectiveness and efficiency of the operation of the State apparatus.
Regarding the tasks and powers of the Prime Minister, they were previously prescribed in Clause 2, Article 114 of the old 1992 Constitution that the Prime Minister would “submit to the National Assembly or the National Assembly Standing Committee if the National Assembly is in recess for approval the proposals on appointment, removal or dismissal of deputy-prime ministers, ministers, other members of the Government.” But now, such have been defined in the amended Constitution that he/she will submit such things only to the National Assembly, but not to the National Assembly Standing Committee. Such amendment aims to enhance the role and responsibility of the Government members.
Similarly, the procuracies had their two functions prescribed in the old constitution (the function of supervising the law observance by the State agencies and citizens, often referred to as the general supervisory function, and the function of exercising the right to prosecution and supervision of judicial activities) reduced to only one function now prescribed in the amended 1992 Constitution with the abrogation of the general supervisory function. Article 137 of the amended 1992 Constitution provides: “The Supreme People’s Procuracy exercises the power to prosecute and supervise judicial activities, contributing to ensuring that laws are strictly and uniformly enforced. The local people’s procuracies and the military procuracies exercise the power to prosecute and supervise judicial activities within the scope of their respective responsibilities prescribed by law.” Such amendment aims to overcome the overlapping of functions and tasks between the procuracies and the investigating bodies and at the same time creates conditions for the procuracies to well perform their powers to prosecute and supervise judicial activities.
In short, the amended 1992 Constitution marks a step of improvement and development in Vietnam’s constitutional history during the renewal period.-