Communist Review - Recognizing and developing a socialist-oriented market economy will create a socio-economic premise to abide by the law; inherit and develop the principle of “power to the people” to inevitably lead to the limit of state power; recognizing, respecting, protecting and ensuring human rights and citizen’s rights according to the Constitution and law. From centralization to decentralization, coordination and control among state agencies in the exercise of legislative, executive, and judicial powers are the process of realizing and developing values of the rule of law in Vietnam after nearly 35 years of reform.

The rule of law thought was born very early in Vietnam. In early 1919, in France, there was a document widely circulated like the revolutionary leaflets, named the Claims of the Annamite People sent to the Paris Peace Conference (Versailles). After that, this document was translated into Vietnamese by Nguyen Ai Quoc in the form of Lục Bát (six-eight) and popularized in Vietnam under the title The song of Vietnam requests. The document includes 8 claims, one of which is “Replacement of the regime of arbitrary decrees by a regime of law” ⁽¹⁾.

In early 20^th century, Nguyen Ai Quoc raised the rule of law thought in Vietnam. That thought was expressed deeply in the general guidance in making the Constitution in the “hang by a single hair” situation after the August Revolution in 1945 and in entire the 1946 Constitution. However, shortly after approving the 1946 Constitution, the Anti-French Resistance War broke out and following by Resistance War Against America, under the division of the world between socialist and capitalist countries, the rule of law thought of President Ho Chi Minh thus had no conditions to fully be implemented in the process of building new state. In 1986, the Communist Party of Vietnam initiated and led the Renovation process in order to renovate the country. Looking back at nearly 35 years of the Renovation, it can be seen that theoretical thinking in general, especially theoretical thinking on building a socialist rule of law, and the outstanding values ​of the Party and State’s rule of law have inherited and developed strongly.

1- Recognizing and developing a socialist-oriented market economy, creating a socio-economic premise to abide by law in building a socialist rule of law state in Vietnam.

From a centrally planned economy, the Constitution as well as the law were born and existed mainly from the need of state management. Therefore, the constitutional and legislative thoughts are very poor. There is only a little need for people to use laws. In the market economy, the Constitution and laws was born, existed and developed, first and foremost from the requirements of economic relations, from the needs to protect economic relations. Thus, the constitutional and legislative thoughts are quite rich and diverse. The need of the people and society in general for using the Constitution and laws to protect their legitimate interests has increased. Stemming from that objective requirement, for the first time in the history of the country, the Constitution stated: “The State develops a multi-sector commodity economy under the State-controlled market mechanism, in accordance to the socialist orientation” (Article 15, the 1992 Constitution) and “The Vietnamese economy is a socialist-oriented market economy with varied forms of ownership and economic sectors; the state economy plays the dominant role” (Clause 1, Article 51, the 2013 Constitution); “Individual economic entities, small-holders and the private capitalist economic sector are allowed to choose their forms of production and business, have the right to set up business without any limitations as to their scale of activities in branches and trades which are beneficial to the well-being of the nation and its people. The development of household economy is encouraged.” (Article 21, the 1992 Constitution); “Production and business establishments is the various economic sectors have to fulfil all obligations before the State, and are equal before the law; their legal capital and property shall be protected by the State. Enterprises in the various economic sectors may enter joint ventures with individuals or economic organisations inside or outside the country as provided for by the law” (Article 22, the 1992 Constitution); “All economic sectors are important components of the national economy. Entities in different economic sectors are equal before law and shall cooperate and compete with one another in accordance with law.” (Clause 2, Article 51, the 2013 constitution); “The legal property of individual or organisations shall not be nationalised” (Article 23, the 1992 Constitution and Clause 3, Article 51, the 2013 Constitution). Based on those foundational regulations, a number of new laws on economics - civil - labor were born.

2-  The inheritance and development in nature of the principle of “state power belongs to the people” - inevitably leads to the limit of state power and uphold the Constitution and obey the  law.

In President Ho Chi Minh's numerous theoretical treasures about the State, the thought of power to the people, expressed in the 1946 Constitution, is an extremely important contribution to the history of our country's constitution building.

Firstly, the 1946 Constitution affirmed that the subjects of the constitutional power are people. The constitutional power is the right to fully exercise the power to the people. The preamble of the 1946 Constitution solemnly declared: “Entrusted by all the citizens with the task of drawing up the first constitution of the Democratic Republic of Vietnam, the National Assembly recognizes that...” According to the 1946 Constitution, there was a distinction between constitutional and legislative powers. The preamble of the 1946 Constitution used the term “National Assembly”. In the chapter 3 of the Constitution, the term “People's Parliament” was used. It is no coincidence that there are such different uses of the term. This is the distinction between the Constituent Assembly and the Legislative Assembly. The "National Assembly" in the preamble implied that the Assembly made the constitution and the "People's Parliament" in Chapter III made laws. Therefore, Article 23 of the 1946 Constitution regulated the duties and powers of the People's Parliament: “The People's Parliament decides all questions of national interest, approves the budget and ratifies treaties signed by the government”. According to this regulation, the People's Parliament had only the legislative power. The constitutional power was not stipulated in the 1946 Constitution. The National Assembly was formed on January 6, 1946, after the General Election, which was the “Constitutional Assembly”. It was empowered to draft and ratify the 1946 Constitution. After the 1946 Constitution was passed by the National Assembly and approved by the entire people, the “Constitutional Assembly” completed its duties and self-dissolved. On the basis of the 1946 Constitution, the Legislative Assembly would be elected. However, the  resistance war against France broke out, the Constitutional National Assembly became the first National Assembly, exercising the legislative power.

Regarding the amendment of the Constitution, according to the 1946 Constitution, there was no any state agency allowed to unilaterally amend the Constitution. Article 70 of the 1946 Constitution stipulated the process of amendment of the Constitution: “at least two-thirds of the total membership of the National Assembly may request an amendment; the National Assembly appoints a commission to draft the amendment. The amendments to the Constitution will be voted by the National Assembly and submitted to popular ratification by means of a referendum.” So it means that the power of the people is higher than the power of the “Constitutional Assembly”. Thus, the Constitution was conceived as a method to establish legal limits on state power. This concept was associated with constitutional thought throughout all Nguyen Ai Quoc's works before gaining power.

One day after reading the Declaration of Independence to the public, in the first session of the new Government, President Ho Chi Minh laid out six urgent tasks of the Democratic Republic of Vietnam. In which, the third task was that “Before we were governed by an absolute monarchy and then followed by French colonial regime which was an as authoriarian as the former, thus, our country had no constitution. Our people did not have freedom and democracy. We must have democratic constitution.”(2) Therefore, the 1946 Constitution was a Constitution that was promulgated according to one of the three principles set out in the Preamble, “guarantee democratic liberties” by making a constitution  which based on civil rights ideals, against the totalitarian regime.

Secondly, the principle of the 1946 Constitution was "All national powers belong to the entire Vietnamese people ". President Ho Chi Minh repeatedly emphasized that: “Vietnam is a democratic country ... All powers belongs to the people.” Institutionalizing this point of view, the 1946 Constitution in Article 1 stressed: “All national powers belong to the entire Vietnamese people regardless of race, gender, economic conditions, social class, and religion”. The government under the 1946 Constitution was a democratic government: The people elect the People's Parliament and the People's Parliament forms the Government. Although the 1946 Constitution did not specify the principle of decentralization, the assignment of state power was very clear and transparent. “The People's Parliament is the legislative body that decides all questions of national interest, approves the budget and ratifies treaties signed by the government.” (Article 23); The government was the highest administrative body of the country (Article 43); The Court was the judiciary body (Article 63). The government was not the executive body of the People's Parliament. Thus, the 1946 Constitution established the principle "All national powers belong to the entire Vietnamese people" (people mastery); the division of powers between the three power branches; the control of state power; judicial independence. These were the basic principles to limit state power. State power was placed under the people mastery and limited by the people mastery.

The principle of state power belongs to the people in the 1946 Constitution was inherited in the next Constitutions. But the inheritance in the 2013 Constitution was different in nature from those in the 1959, 1980 and 1992 Constitutions, especially the 1980 Constitution - which showed the most fully characteristics of the Soviet socialism model.

Firstly, the principle of “all the state power belongs to the People” is the fundamental provision that indicating the origin, nature, purpose and strength of our State are from the people. This principle was also inherited in the 1959, 1980, 1992 Constitutions, but this inheritance in the 2013 Constitution is complete, consistent and different in nature from the previous Constitutions. The previous Constitutions, unlike the 1946 Constitution, affirmed that the people were subjects of constitutional power; constitutional power was higher than the legislative power, the people used the constitutional power to distribute their state power to the legislative, executive and judiciary branches to the National Assembly, the Government and the Court. The 2013 Constitution inherited this view of the 1946 Constitution, solemnly declared in its Preamble that: “The Vietnamese people build, execute and defend this Constitution”.

Secondly, the 2013 Constitution fully implemented the forms people use state power. Previous Constitutions, especially the 1980 Constitution also set the principle of “all the state power belongs to the People”, but it was implemented together with the principle of centralization. Therefore, all state power belongs to the people, but centralized on the National Assembly, with the perception that the people are the subjects of state power. However, because they cannot exercise their state power alone and directly so they should give all their state power to the National Assembly. The National Assembly under the 1980 Constitution and the 1992 Constitution was identified as a powerful institution. Therefore, these Constitutions only stipulateed that the people exercise the state power through “the National Assembly and People's Councils at all levels”. In contrast, the 2013 Constitution stipulated that people not only use state power through the National Assembly and People's Councils at all levels, but also in the forms of direct democracy (Article 6), by voting when the State organizes referendum, including referendum on the Constitution (Articles 29 and 120). The institutions that construct the political system are also implemented new powers and responsibilities.

Thirdly, the 2013 Constitution added a new principle on the organization of state power. It is “State power is limited by the Constitution”. This is the principle derived from the deep perception that state power belongs to the people, through their constitutional power, the people empower state agencies. But after empowerment, state power tends to lose their power. That means that the power of the people is transferred to a handful of empowered individuals. This calls the corruption of state power. Therefore, state power is unified among the people, concentrated in the Constitution, but must have transparent assignment to control, prevent and fight against its corruption. This transparent assignment is the basis  based on that people can control and evaluate the performance of the state agencies. Inheriting and developing the principle: “All state power belongs to the people”, defending the Constitution is to protect the people mastery, protect the integrity of state power, demanding: “The National Assembly and its agencies, the President, the Government, People’s Courts, People’s Procuracies, other agencies of the State and all the People shall defend the Constitution. The mechanism to defend the Constitution shall be prescribed by a law” (Clause 2, Article 119 of the 2013 Constitution)

3-  Human rights are recognized, respected and protected; Ensuring human rights, citizen's rights according to the Constitution and law is a profound change of political-legal theoretical thinking in building a socialist rule of law.

Human rights have become an officially recognized term in documents of our Party in the Renovation period. It was also solemnly recognized in the 1992 Constitution, the 2013 Constitution and in the laws. For the first time in our country's constitutional history, the 1992 Constitution won a provision on human rights: In the Socialist Republic of Vietnam, human rights in all respects, political, civic, economic, cultural and social are respected, find their expression in the rights of citizens and are provided for by the Constitution and the law (Article 50). Human rights and citizen’s rights become the name of a chapter and throughout the entire content of Chapter II of the 2013 Constitution. It can be seen as a breakthrough in thinking, demonstrating the profound inheritance of the progressive values ​​of humanity and Ho Chi Minh's thought.

The 2013 Constitution is a fundamental change in the perception of human rights and citizen’s rights. It is a legal basis for continuing to build and perfect the legal system that upholds the rule of law in our country. It is demonstrated in the following aspects:

Firstly, the 1992 Constitution recognized the term human rights, which did not identify human rights with citizen’s rights, but has not yet distinguished human rights from fundamental rights of citizens in the provisions of the Constitution. To overcome that shortcoming, the 2013 Constitution not only supplemented the name of a chapter but also made a distinction between “human rights” and “citizen’s rights”. Accordingly, human rights are conceived as a natural right; citizen’s rights are first also human rights, but they are associated with nationality, that is, with the legal position of citizens in relations with the state, protected by the state. Only citizens with nationality just can enjoy citizenship of that country, such as the right to vote, to stand for candidate, to participate in the state management. To clarify this difference, referring to international conventions on human rights and the Constitutions of other countries, the Constitution 2013 used the word “everyone” and “nobody” when expressing human rights and the word “citizen” when defining citizen’s rights.

Secondly, the State's responsibility to recognize, respect, protect and ensure human rights and citizen’s rights is highly appreciated and reflected throughout the Constitution. In addition to regulation into principles: “In the Socialist Republic of Vietnam, human rights and citizens’ rights in the political, civil, economic, cultural and social fields shall be recognized, respected, protected and guaranteed in accordance with the Constitution and law” (Clause 1, Article 14). In most articles of the Constitution, there are regulations on the responsibilities and guarantees of the State as in Article 17: “Vietnamese citizens living abroad shall be protected by the State of the Socialist Republic of Vietnam”. Clause 2, Article 28: “The State shall create the conditions for citizens to participate in the management of the State and society; and shall publicly and transparently receive and respond to the opinions and petitions of citizens”. And especially in Chapter III: Economy, Social affairs, Culture, education, science, technology and environment, the chapter has regulated the State's policies and responsibilities in the exercise of socio-economic rights. For example, Article 59, Clause 2 stipulated: “The State shall create equal opportunities for citizens to enjoy social welfare, develop the social security system, and adopt policies to support elderly people, people with disabilities, poor people, and other disadvantaged people”. According to the 2013 Constitution, rights of each individual are recognized, respected, protected by the State. The State cannot arbitrarily “give” or “recall” .

Thirdly, for the first time the limitation of rights was stipulated in the Constitution. According to the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social and Cultural Rights, some rights may be restricted for the sake of protecting national security, social order, health, social morality, the rights or reputations of people. The 2013 Constitution, based on the spirit of the international conventions that have established principles in Article 14: “Human rights and citizens’ rights may not be limited unless prescribed by a law solely in case of necessity for reasons of national defense, national security, social order and safety, social morality and community well-being”. Accordingly, henceforth, no one is allowed to arbitrarily undercut or restrict rights, except in necessary cases as mentioned above by law.

Fourthly, a number of newly added rights represent a new step forward in the expansion and development of rights, reflecting the results of the Renovation process of nearly 35 years in our country. Those are: “Everyone has the right to live in a clean environment and has the obligation to protect the environment” (Article 43); “Everyone has the right to enjoy and access cultural values, participate in cultural life, and use cultural facilities” (Article 41); “Citizens have the right to social security” (Article 34); “The right to private ownership and the right to inheritance shall be protected by law” (Clause 2, Article 32); “In case of extreme necessity for national defense or security reasons or in the national interest, in a state of emergency or in response to a natural disaster, the State may compulsorily purchase or requisition the property of organizations or individuals and pay compensation at market price” (Clause 3, Article 32). These are new rights that did not exist in the previous Constitutions. In a socialist-oriented market economy, those rights are inevitable for citizens. Because the implementation of these rights is closely associated to the responsibility of the State and upholds the responsibility of the State.

4- From centralization to the assignment, coordination and control between state agencies in the exercise of legislative, executive and judicial powers - a fundamental change of the principle of organization and operation of state power in the socialist rule of law in our country.

Institutionalizing the National Construction Platform in the period of transition to socialism (supplemented and developed in 2011), the 2013 Constitution added a new principle on the organization and operation of the state apparatus. That is:  “The state power is unified and delegated to state agencies which coordinate with and control one another in the exercise of the legislative, executive and judicial powers” (Clause 3, Article 2).

Firstly, state power is unified

According to the content and spirit of the 2013 Constitution, the unifying state power rests with the people. The concept of unifying state power is in the people, reflected in the principle: “All state power belongs to the people”. Previously, the Constitution also provided that “All state power belongs to the people” but it was implemented by the principle of  centralization. Therefore, state power belongs to the people but is concentrated in the National Assembly. This principle in the new condition has revealed many limitations. That is the lack of demarcation in the scope of state power assigned by the people, thus failing to uphold the responsibility of the legislative, executive and judicial powers, the lack of direct management of the people, and lack of control of state power among state agencies. Furthermore, this principle negates the relative independence of rights, constrain the dynamics, effectiveness and responsibility of each right. The people and society have no basis to evaluate the quality of state power performance of state agencies. Therefore, under the conditions of democracy and socialist rule of law, centralization is incompatible with fully upholding the role of state power which belongs to the people, potentially risking state power abuse in state agencies.

Realizing the shortcomings of the principle of centralization in new conditions, the National Construction Platform in the transitional Period (supplementation and development in 2011), the Constitution of 2013 affirmed: The state power is unified and delegated to state agencies which coordinate with and control one another in the exercise of the legislative, executive and judicial powers (Article 2). State power belongs to the people, which is perceived by the Constitution as the ultimate subject of state power, by the constitutional power to assign their state power to the National Assembly, the Government and to the judiciary. Although the legislative, executive and judicial powers have different functions, duties and powers, they all agree on the common political goal of building “a state that shall guarantee and promote the People’s right to mastery; recognize, respect, protect and guarantee human rights and citizens’ rights; and pursue the goal of a prosperous people and a strong, democratic, equitable and civilized country, in which all people enjoy an abundant, free and happy life and are given conditions for their comprehensive development” (Article 3 of the 2013 Constitution).

The concept of state power as mentioned above in the 2013 Constitution is the way the state power organization upholds the responsibility of the State to the people, and restricts reliance on exercising rights and duties authorized by the people. Based on that, extremist, opposition and irresponsible factors in the relationship between the rights, especially between legislative and executive powers are eliminated. At the same time, it is also a condition to form a mechanism to control and evaluate the quality and effectiveness of the performance of rights from within state agencies as well as from the people.

Second, on assignment, coordination and control among state agencies in the exercise of legislative, executive and judicial powers.

In democracies and socialist rule of law, state power is not an inherent power, but authorized by the people and delegated by the people. Therefore, there is a legitimate and natural requirement to control state power. On the other hand, when authorizing the State, state power often moves towards the tendency of self-denial, contrast to the initial objective. C. Marx called this phenomenon the corruption of state power. Furthermore, state power is the power of people which empowered to state agencies. But man is “always influenced by emotions and desires for his actions. It sometimes make the rationality invisible”(3). With that feature, it is impossible to ensure that the assignees always do the right things and complete all the duties that the people authorized. Therefore, the control of state power is an objective need from assigners towards assignees. Moreover, state power is not a parameter that can be exactly measured because it is the unity as mentioned above. Therefore, the state power is required to be controlled more and more to ensure the effectiveness of state power.

Stemming from the above objective requirements, state power is often quantified by the provisions of the Constitution to define the duties and powers of the legislative, executive and judicial powers. This quantification is intended to be assigned to various state agencies on behalf of the people. Such measures are to avoid power abuse by law enforcement agencies. By doing so, the people can control and evaluate the effectiveness and efficiency of their assigned rights. At the same time, it is also good for the respective agencies to be given the right to uphold their responsibilities in the exercise of state power and to self-examine the exercise of state power assigned to them. Accordingly, the 2013 Constitution has made a new step in the assignment of state power. For the first time in our country's Constitution, it is specified that the National Assembly exercises the right to make constitution (no longer the only one with constitutional power like the 1992 Constitution), the legislative power (Article 69); The government exercises executive power (Article 94); The People's Courts exercise judicial power (Article 102). The certification of different agencies to exercise the legislative, executive and judicial powers is an important change, facilitating the clarification of the positions, roles, duties and powers of each right.

Third, judicial power is the jurisdiction of the Court in the name of the State, assigned by the people.

During a trial, the Judges and Assessors are independent and shall obey only the law. Agencies, organizations or individuals are prohibited from interfering in a trial by Judges and Assessors. (Clause 2, Article 103). This is the essential right to protect the common will of the country by adjudicating behaviors that violating the Constitution and the law. Therefore, The People’s Courts have the duty to safeguard justice, human rights, citizens’ rights, the socialist regime, the interests of the State, and the lawful rights and interests of organizations and individuals. (Clause 3, Article 102). All agencies, organizations and individuals have the obligation to respect, preserve and protect the rule of law and justice in court judgments and decisions.

Thus, starting from the characteristics of state power, the division into those three powers is an objective need. Today, the trend of clear division of these three powers is increasingly important in the organization of state power. Because, the more the society develops, the more specialized the division of labor must be to promote efficiency. At the same time, the practice of building a socialist rule of law in our country shows that the coherent division of the three powers is the best way to uphold the role of the State in the process of building and developing the country.

However, as mentioned above, in our State, the state power is unified. It is a unity of common political goal. Therefore, the division of state power does not cover the division of the general political objective of state power. Therefore, although there is a separation of three powers, all three legislative, executive and judiciary powers are not completely separate from each other, but be bound together. They must be coordinated smoothly on the basis of doing right things and the tasks and powers assigned by the people, stipulated in the Constitution - the original law of the State and society. The purpose of the assignment of state power is to control state power, ensure the rule of law and promote socialist democracy, not to compromise or divide between powers. Practice proves that the strength and prosperity of a nation, as well as its ability to face difficulties and challenges are mainly determined by the strength of institutions, the commitment of the branches of power state. That is as important as other factors such as natural resources, climate, or geographic location of a country. Countries that can maintain socio-economic and political development in long term are those obey the spirit of the rule of law. The meaning of the assignment of state power is to distinguish the tasks and powers of state agencies. The power of the people and the rule of law have been increasingly appreciated, respected and protected./.

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(1) Ho Chi Minh: Complete Works, National Political Publishing House, Hanoi, 2011, Vol.1, pp. 473

(2) Ho Chi Minh: Complete Works, Vol.4, pp. 7

(3) John Mills: Argument for Free Speech, National Political Publishing House, Hanoi, 2005, pp. 131

This article was published in the Communist Review, No. 940 (April 2020)