 |
| Three women in ao dai during the French colonial period__Photo: https://phunuvietnam.vn |
Tran Hong Nhung, LL.D. and Tran Thi Hoa, LL.M.
Administrative Law-State Faculty Hanoi Law University
French colonial rule brought significant changes to Vietnam’s political, legal and cultural life. Culturally and ideologically, the French colonialists’ policy was by nature one of forced assimilation aimed at making Vietnamese culture heavily dependent on French culture.[1] As a result, ideologies and contents of Western law were introduced into Vietnam, impacting both the legislative mindset of the colonial administration and the content of the legal system, introducing many new ideas.
With regard to women, although the laws of the time maintained a patriarchal regime, a number of nouveaux ideas were introduced aiming to ensure women’s legal rights.
Women’s personal rights acknowledged by law
Rights of legal equality
The laws and codes in this period embodied the “equality” ideology of the French revolution, recognizing women’s rights of equality before law. “Dan Luat Gian Yeu Nam Ky” (Brief Cochin-China Civil Law), “Dan Luat Bac Ky” (Tonkin Civil Law) and “Hoang Viet Trung Ky Ho Luat” (Central Royal Civil Law of Vietnam) all provided: “All nationals of An Nam (former name of Vietnam) are equal before law.”[2]
For the first time in the country’s history, the right of equality before law of people in general and women in particular was recognized by law. This was a major breakthrough in a context of thousands-year-old inequality between social classes and between men and women. Especially for women, this served as a legal foundation for their struggle for practical equality, starting a revolution to liberate women in Vietnam.
Besides, the laws also acknowledged a number of other basic human rights, including the inalienable personal, residence and property rights.
Both the Tonkin Civil Law and Central Royal Civil Code of Vietnam stated: “People and property cannot be infringed upon and are protected by law. The coerced enslavement of people is strictly forbidden. Nobody is allowed to illegally maltreat others. People’s property ownership cannot be deprived of by anyone, except otherwise prescribed by law.”[3] In addition, the laws of that time also acknowledged many other political and personal rights of women, including the rights to vote, to stand as candidates in elections, to work as civil servants, to serve as witnesses in civil contracts and court proceedings[4], to citizenship, and to change family names and given names[5] (Decree 49 of August 4, 1939, of Emperor Bao Dai during his 14th reign year).
Legal guarantee of women’s rights to the protection of their health, lives, honor and dignity
The criminal laws of this period saw many important improvements as compared to feudal law, which were separated into an independent branch of law, abolishing the principle of examination for penal liability, and individualizing penal liability. All acts of infringing upon women’s lives, health and honor were subject to penal liability like those against men.
Especially, the laws clearly defined offenses against women’s honor, dignity and health. The Royal Criminal Code of Vietnam stated: “Those who force sexual intercourse shall be subject to hard labor for between six years and 20 years” (Article 302); “Those who have sexual intercourse with young girls aged under 15 years shall be imprisoned for between five years and 10 years” (Article 303)[6]; “those who poison or coerce women to miscarriage shall be subject to hard labor for between five years and 10 years.”[7] Especially, the code provided: “Women, married or unmarried, are forced into sexual intercourses that accidentally cause death or injuries to the offending men shall be exempt from penal liability” (Clause 2, Article 318).[8]
Other rights
Women’s rights to education were prescribed in Article 218 of the Tonkin Civil Law: “Parents shall look after and educate their young children. Parents shall teach or send their children to schools, depending on their circumstances.”
Women’s rights to work, to initiate lawsuits, and to travel, as well as their political rights, were also acknowledged. Under Confucian ideology and feudal law, underage girls (under 21 years) were not allowed to go out at their own will. However, if appointed as teachers by the State, they were permitted to go out.[9] When they reached the mature age, they enjoyed independent personal rights, even after marriage.
In marriage, women were free to marry or divorce of their own will, which can be viewed as an major change as compared with feudal law. The civil laws in all three regions in Vietnam, Tonkin, Central, Cochin-china, provided that marriages must be consented by both sides.
The Tonkin Civil Law and the Central Civil Code stated: “The consents of both the husband and the wife are essential for marriage” (Article 76) or “marriage shall be null and void if both spouses do not agree or either spouse does not agree.”[10]
Similarly, the right to divorce was defined in a new spirit that every divorce must be decided by a court judgment, aiming to protect the women’s right against the husbands’ arbitrary divorce as under feudal law.
Both the Tonkin Civil Law (Article 117) and Central Civil Code (Article 116) provided: “Either or both spouses can apply for divorce. After the divorce, the wife can remarry” or both spouses may agree to divorce after two years (Article 121 of the Tonkin Civil Law) or five years (Article 120 of the Central Civil Code) of their marriage.
Women’s property rights were recognized by law
The laws during this period recognized women’s private ownership of property as a basic right of every individual and protected by law. Like boys, girls aged 21 or older were fully entitled to own, use and dispose of their own property, and to enter into contracts independently, once they were no longer under parental care.
Under the Tonkin Civil Law (Article 112), the Central Civil Code (Article 110) and even the case law of Cochin-China, divorced women were fully entitled to possess their jewels and ornaments, and keep their own property in kind, as well as half of the common property.
Girls had equal inheritance rights as boys. Under the Tonkin Civil Law and the Central Civil Code, all children in family were the first-rank heirs and given equal portions of heritance if their parents died without leaving a will. For the first time, daughters, children of concubines and out-of-wedlock children were officially recognized as equal heirs.
In a nutshell, it can be said that the ideology of gender equality was institutionalized by the legislators in this period in order to protect women’s rights in various aspects. They selectively integrated traditional Vietnamese cultural, political and legal elements with French civil laws. Equality. especially gender equality, became an important legal principle, embodied in the fundamental rights granted to women in Vietnamese law during the French colonial period.-
[1] Dang thi Huong Lien, the French colonialists’ cultural policies in Vietnam, in the 1858-1945 period, Culture and Art magazine, Issue 414, December 2018.
[2] Hoang Viet Trung Ky Ho Luat, extracts from Huynh Cong Ba appendix, civil law institutions during the French colonial domination, Thuan Hoa publishing house, 2021, p. 1175, Dan Luat Bac Ky 1031, p. 31.
[3] Article 9 of Dan Luat Bac Ky and Hoang Viet Trung Ky Ho Luat.
[4] Article 27, Hoang Viet Hinh Luat, Nha Nam Publishing House, 2021, p. 29.
[5] Huynh Cong Ba, civil law institutions during the French colonial time, Thuan Hoa Publishing House, p. 380
[6] Hoang Viet Hinh Luat, Ibid, pp.137-138.
[7] Ibid, p. 131.
[8] Ibid, p. 142.
[9] Western women see Vietnamese women 100 years before, Saigon ,1955, p. 4.
[10] Huynh Cong Ba, Ibid, p.518.
