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2011 Recognising customary law in Vietnam: legal pluralism and human rights Nhat Thanh Phan University of Wollongong
Recommended Citation Phan, Nhat Thanh, Recognising customary law in Vietnam: legal pluralism and human rights, Doctor of Philosophy thesis, Faculty of Law, University of Wollongong, 2011. http://ro.uow.edu.au/theses/3455
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RECOGNISING CUSTOMARY LAW IN VIETNAM: LEGAL PLURALISM AND HUMAN RIGHTS
The thesis submitted in fulfilment of the requirements for the award of the degree of
DOCTOR OF PHILOSOPHY
from
UNIVERSITY OF WOLLONGONG
By
PHAN, NHAT THANH LLB, Hochiminh City University of Law (Vietnam) LLM, Transnational Law and Business University (South Korea)
FACULTY OF LAW
2011 CERTIFICATION
I, Phan Nhat Thanh, declare that this thesis, submitted in fulfilment of the requirements for the award of Doctor of Philosophy, in the Faculty of Law,
University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution.
Phan Nhat Thanh
19 July 2011
ABSTRACT
This thesis examines whether customary law should be more effectively recognised in Vietnam. By exploring how customary law is treated in different parts in the world, the thesis provides a survey overview of the position of customary law in a number of legal systems. Customary law is regarded as law, infra state law, or non- law depending on social circumstances and the attitude of the state. Legal pluralism and human rights are considered as key arguments for the recognition of customary law. However, by approaching via the various paradigms of law (including legal centralism and legal pluralism) the evidence reveals that customary law has some advantages and disadvantages. A serious examination of the impacts of recognition of customary law is needed if this position is ever to be adopted. Customary law may also have positive or negative impacts on human rights. On the one hand, it may be the best instrument for protecting and developing human rights for minority groups and Indigenous people. On the other, it may also cause violations of human rights because it provides different laws for people in regard to the same issues or disputes with such differentiation generally based on the ethnicity of the persons concerned.
Via an examination of the Vietnamese legal system and the country‘s social circumstances, this thesis considers: whether customary law could enjoy more effective recognition; what might be the drawbacks of such a plan; and how could implementation benefit the country‘s development?
i
ACKNOWLEDGEMENTS
The thesis would not been possible without the help and support of many individuals and organisations. The greatest thanks go to my supervisor, Professor Luke
McNamara, for providing me with his expert guidance and meaningful criticisms.
His intelligence, enthusiasm and sense of responsibility have created the cornerstone of my research and academic life. Secondly, I am heartily thankful to my co- supervisor, Dr Nadirsyah Hosen, for helping me study, research and complete the thesis.
Also, many thanks to Professor Greg Rose and Professor Warwick Gullett, of the
University of Wollongong, and Professor Mai Hong Quy, Chancellor of Hochiminh
City University of Law, for their advice and support during the course.
I owe my deepest grateful thanks to Vietnam Ministry of Education and Training
(Project 322), Hochiminh City University of Law, University of Wollongong, and the Faculty of Law, University of Wollongong for their financial, academic and technical support, which created favourable conditions for my study.
I also would like to show my gratitude to Ms Mary Sparks, Student Resident
Manager for offering me great help, both materially and psychologically. Thank you also to the staff members of the Faculty of Law, University of Wollongong, for their continuous help and encouragement.
I would like to express my special thanks and gratitude to Ms Elaine Newby for editing my thesis. As language is a relative barrier for non-native English students, I unavoidably made a number of grammatical errors. Her editing services were highly appreciated.
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I am especially indebted to my family for their love and sacrifice. The great love of my deceased Mother, the sacrifices made by my wife, and the images of my children bring belief and hope into my life. I also would like to make a special reference to
Mr and Mrs Samaras, Long–Chi Family, Mr Adrian White, and my PhD colleague
Badar Alanazi, who have made available their support in a number of ways.
Lastly, I offer my regards and blessings to all of those who supported me in any respect during the completion of the thesis.
For Nhat Mai, Nhat Nam
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TABLE OF CONTENTS
ABSTRACT ...... i ACKNOWLEDGEMENTS ...... ii TABLE OF CONTENTS ...... iv LIST OF FIGURES ...... ix LIST OF TABLES ...... x 1 INTRODUCTION ...... 1 1. 1 Background ...... 1 1. 2 Statement of the Problems ...... 6 1.2.1 Source of law...... 6 1.2.2 The problem of the multi-ethnic and multi-religion nature of Vietnam .. 7 1.2.3 The shortcomings of the current Vietnamese legal system ...... 17 1. 3 Existing Literature in Vietnam ...... 18 1. 4 Research Questions ...... 26 1. 5 Scope and Methodology ...... 27 1. 6 Contributions of the Thesis ...... 28 1. 7 Synopsis of the thesis ...... 30
PART 1 CUSTOMARY LAW LEGAL PLURALISM AND HUMAN RIGHTS WORLDWIDE
2 SURVEY OVERVIEW OF HOW CUSTOMARY LAW IS TREATED IN DIFFERENT PARTS OF THE WORLD ...... 33 2. 1 Introduction ...... 33 2. 2 Custom vs. Customary Law ...... 36 2. 3 Customary law: Law vs. Non-law ...... 41 2.3.1 Customary law itself is law ...... 43 2.3.2 Customary law is law that relies on recognition by the state ...... 47 2.3.3 Customary law is regarded as infra state-law ...... 53 2.3.4 Customary law is regarded as non-state law ...... 55 iv
2. 4 Mode and Criteria for a Custom to be Customary Law ...... 62 2.4.1 Mode of recognition ...... 63 2.4.2 Criteria for recognition ...... 66 2. 5 Advantages of Customary Law in Application ...... 70 2.5.1 Particularity ...... 70 2.5.2 Jurisdiction ...... 71 2.5.3 Customary courts and procedures ...... 72 2. 6 Disadvantages of Customary Law ...... 73 2.6.1 Particularity ...... 74 2.6.2 Jurisdiction ...... 76 2.6.3 Customary courts and procedures ...... 78 2. 7 Conclusion ...... 79 3 WHY COUNTRIES SHOULD RECOGNISE CUSTOMARY LAW AS A SOURCE OF LAW: LEGAL PLURALISM ...... 83 3. 1 Introduction ...... 83 3. 2 The Concept of Legal Pluralism ...... 85 3.2.1 Approaching the concept of legal pluralism through the prism of sociology ...... 87 3.2.2 Approaching the concept of legal pluralism through a legal prism ...... 91 3. 3 Concept of law: Legal Centralism and Legal Pluralism ...... 98 3.3.1 Centralist paradigm of law (legal centralism) ...... 99 3.3.2 Pluralist paradigm of law (legal pluralism) ...... 103 3. 4 Why Countries should Recognise Customary Law as Source of Law..... 110 3.4.1 Nature and limits of law: What people think law is ...... 111 3.4.2 Harmonising state law with other normative orders ...... 113 3. 5 General Comments on Legal Pluralism ...... 118 4 WHY COUNTRIES SHOULD RECOGNISE CUSTOMARY LAW: HUMAN RIGHTS ...... 125 4. 1 Human Rights Overview ...... 125 4.1.1 Western theories and ‗Asian values‘ ...... 127 4.1.2 ‗Asian values‘: real values or sophism...... 135 4.1.3 Human rights and national sovereignty ...... 141 4. 2 Human Rights in Relation to Customary Law ...... 143
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4.2.1 Group rights vs. individual rights ...... 143 4.2.2 Why countries should recognise customary law: human rights ...... 164 4.2.3 The obstacles of customary law to human rights ...... 174 4. 3 General Comments on the Relationship between Human Rights and Customary Law ...... 178 4.3.1 The social and cultural aspects involved in the recognition of customary law ...... 179 4.3.2 The implementation of international human rights conventions regarding the recognition of customary law ...... 180 4. 4 Conclusion ...... 186
PART 2 VIETNAM AND THE RECOGNITION OF CUSTOMARY LAW
5 THE VIETNAMESE LEGAL SYSTEM...... 189 5. 1 Overview of the Vietnamese Legal System ...... 189 5.1.1 Legal structural system ...... 190 5.1.2 Normative legal documents system ...... 193 5. 2 General Evaluation of the Vietnamese Legal System ...... 196 5.2.1 Merits of the Vietnamese legal system ...... 196 5.2.2 Shortcomings of the Vietnamese legal system...... 199 5. 3 Benefits of Recognising Customary in Vietnam ...... 224 5.3.1 To cope with the circumstances of ethnic peoples and social changes 224 5.3.2 To solve the problem of both supernumerary and the deficiencies of normative legal documents ...... 225 5.3.3 To improve the relationship between state law and customary law..... 226 5. 4 Conclusion ...... 227 6 HISTORY OF CUSTOMARY LAW RECOGNITION IN VIETNAM ...... 228 6. 1 Introduction ...... 228 6. 2 The First Period: from the 6th Century BC to 1945...... 228 6. 3 The Second Period: from 1945 to 1975 ...... 241 6. 4 The Third Period: from 1975 to the present ...... 243 6. 5 Conclusion ...... 259
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7 VIETNAM AND THE ISSUE OF CUSTOMARY LAW ...... 260 7. 1 Vietnam‘s Viewpoint on Legal Pluralism ...... 260 7.1.1 Centralist paradigm of law ...... 260 7.1.2 Political influence on the sources of law ...... 262 7.1.3 Positive view of normative legal documents and negative outlook on customary law ...... 263 7. 2 Overview of Human Rights and Ethnic Policies in Vietnam ...... 268 7.2.1 Vietnam‘s perspective on human rights ...... 269 7.2.2 International human rights conventions and international treaties relating to human rights that Vietnam has ratified ...... 274 7.2.3 Human rights of ethnic communities in Vietnam ...... 278 7.2.4 The limits of Vietnam‘s approach to human rights ...... 282 7.2.5 Reasons for Vietnam to recognise customary law ...... 284 7. 3 Conclusion ...... 286 8 PROPOSALS FOR MORE EFFECTIVE RECOGNITION OF CUSTOMARY LAW IN VIETNAM ...... 288 8. 1 Introduction ...... 288 8. 2 Findings in Regard to the Recognition of Customary Law ...... 289 8.2.1 Legal centralism and legal pluralism: Vietnamese perspectives...... 289 8.2.2 The relationship between customary law and human rights: What does Vietnamese expect? What should Vietnam do? ...... 293 8. 3 Proposed Legal Framework for the Recognition of Customary Law in Vietnam ...... 298 8.3.1 Defining the concept and the notion of recognition ...... 298 8.3.2 Mode of recognition ...... 300 8.3.3 Criteria to define a custom for transformation into customary law ..... 303 8. 4 Other Issues Related to the Recognition of Customary Law ...... 305 8.4.1 Rules that should govern the solution of conflicts between customs... 305 8.4.2 Subject matter for the recognition by customary law ...... 306 8.4.3 Customary Code ...... 307 8.4.4 Customary courts ...... 308 8.4.5 The role of village leaders ...... 311 8. 5 Conclusion ...... 312
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9 CONCLUSION ...... 313 REFERENCES ...... 321
viii
LIST OF FIGURES
Figure 1: A Map of Vietnam Showing the Distribution of the 54 Ethnic Communities ……………………………………………………. 9 Figure 2: Structure of the State …………………………………………….. 220 Figure 3: Court Hierarchy………………………………………………….. 221
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LIST OF TABLES
Table 1: Ethnic Communities Population Statistics for Vietnam (2009)…….. 10 Table 2: Comparison between Custom, Customary Law and Village Convention………………………………………………………….. 21 Table 3: Normative Legal Document System in Vietnam……………………. 193
x
1 INTRODUCTION
1. 1 Background
Vietnam is a developing country and has had numerous complex and rapid changes in socio-economic and political fields over the last few decades. These changes have not only helped Vietnam to develop but also gradually integrate into the international community, both economically and socially. The reasons for these changes are related to the country‘s economic and legal foundations.
Arguably the most important of these changes is the economic one. Since 1986, the
Doi Moi (renovation) Policy1 has secured remarkable achievements in economic growth, reducing poverty2 and improving the state economy (in what Mallon and
Arkadie called a transition success).3 It has changed the Vietnamese economy from a centrally planned economy based on the two tiers of the state and co-operative sectors into a multi-sectored economy4 following what the Vietnam Government calls a ‗socialist oriented market economy‘.5 According to the Resolution of the
1 Van Kien Dai Hoi Dai Bieu Toan Quoc Lan Thu Sau 1986 (Dang Cong San Viet Nam) 55–9 [Trans: Documents of the 6th National Congress 1986 (Communist Party of Vietnam)]. 2 Brian Van Arkadie and Raymond Mallon, Vietnam: A Transition Tiger? (Asia Pacific Press, 2003) 1. 3 Ibid 6. 4 Hien Phap Nuoc Cong Hoa Xa Hoi Chu Nghia Viet Nam 1992, sua doi bo sung nam 2001 theo Nghi Quyet 51/2001/QH10, art 15 [Trans: Constitution of the Socialist Republic of Vietnam 1992, amended by Resolution 51/2001/QH10 (National Assembly)] (hereafter Constitution of the Socialist Republic of Vietnam 1992); see also Vinh Thang Thai, 'Su Ra Doi va Phat Trien Cua Nen Lap Phap Viet Nam' in Vinh Thang Thai and Hong Anh Vu (eds), Giao Trinh Luat Hien Phap Viet Nam (Nha Xuat Ban Tu Phap, 2006) 73, 117–9 [Trans: Vinh Thang Thai, ‗The Establishment and Improvement of Vietnam Legislation‘ in Vinh Thang Thao and Hong Anh Vu (eds), Textbook on Vietnam Constitutional Law (Judicial Publishing House, 2006)]; Minh Tam Le, 'Cac Chuc Nang Co Ban Cua Nha Nuoc Xa Hoi Chu Nghia' in Minh Tam Le (ed), Giao Trinh Ly Luan Nha Nuoc Va Phap Luat (Nha Xuat Ban Tu Phap, 2006) 229, 236 [Trans: Minh Tam Le, ‗Basic Functions of Socialist States‘, Textbook on Theory of State and Law (Judicial Publishing House, 2006)]. 5 John Gillespie, Transplanting Commercial Law Reform: Developing a "Rule of Law" in Vietnam (Ashgate, 2006) 64. 1
Seventh National Congress of the Communist Party of Vietnam in 1991,6 the socialist oriented market economy consists of many economic sectors including state-owned enterprises, collective economic sectors, individual economic sectors, private capitalist economic sectors and state capitalist economic sectors. The greater diversity of economic sectors has not only changed the state economy and the nation‘s social life but has also led to changes in Vietnam‘s legal system in order to meet the requirements of socio-economic renovation.
The changes of economic policies have brought about equally important changes in the legal system. According to Vietnamese legal scholars, ‗law‘ is ‗state law‘; and others, such as customary law, are ‗social norms‘. Law (state law) is significantly influenced by economic and social conditions. Thus, theoretically, the economic foundations of a society and their inter-relation, growth and change are the direct reasons for the appearance of laws because law are created in a society when the economic and social conditions develop to a certain level and when a state able to create a legal frame and administer law is established.7 It can be said that the state‘s economic foundation not only plays a decisive role in law appearing but also in the nature and development of its content, and forms, and the frameworks of law that are created.8
6 Van Kien Dai Hoi Dai Bieu Toan Quoc Lan Thu Bay 1991 (Dang Cong San Viet Nam) 471 [Trans: Documents of the 7th National Congress 1991 (Communist Party of Vietnam)]. 7 Minh Tam Le, 'Nguon Goc Nha Nuoc va Phap Luat' in Minh Tam Le (ed), Giao Trinh Ly Luan Nha Nuoc va Phap Luat (Nha Xuat Ban Tu Phap, 2006) 27, 42–4 [Trans: Minh Tam Le, ‗Origin of State and Law‘ in Minh Tam Le (ed), Textbook on Theory of State and Law (Judicial Publishing House, 2006)]. 8 Nhu Phat Nguyen and Tri Uc Dao, 'Khai Niem va Nhung Moi Lien He cua Phap Luat' in Tri Uc Dao (ed), Nhung Van De Ly Luan Co Ban ve Nha Nuoc va Phap Luat (Nha Xuat Ban Chinh Tri Quoc Gia, 1995) 120, 138–44 [Trans: Nhu Phat Nguyen and Tri Uc Dao, ‗Concept and the Relationships between Law and Other Norms‘ in Tri Uc Dao, Basic Theoretical Issues on State and Law (National Political Publishing House, 1995)]. 2
Legal reform has been one of the issues to have attracted considerable attention from the Vietnamese State. Over the last few decades, law has become the main management instrument of the state9 because it has created legal frameworks and foundations for economic, cultural and social activities. Furthermore, the legal system has made an important contribution where Vietnam has built into its Socialist
State a rule of law that also contributes to integration into the nation‘s international community.
In Vietnam, normative legal documents (state law) are fundamentally recognised and applied widely to regulate all social relations. Other sources of law, such as precedents and customary law, have long been disregarded. Since the 1990s, customary law has attracted some slight attention from the government in a few social fields (such as marriage and family and civil fields). However, it has not been more generally applied because there is no legal framework provided for its recognition. Thus, it seems there is no room for sources of law other than the normative legal documents (such as Decrees, Constitutions, Regulations and so forth).
Vietnam has undertaken several legal reforms, including improving the quality and number of normative legal documents. Despite these positive changes to the legal system in terms of the growth of the normative legal document system, there still exist a number of shortcomings and weaknesses, such as the meagreness of the legal
9 Inter-Agency Steering Committee of Vietnam Government, 'Report on Comprehensive Needs Assessment for the Development of Vietnam's Legal System to the Year 2010' (Vietnam Government, 2002) 9. 3
system,10 and the uncoordinated and overlapping nature of current normative legal documents,11 and the existence of some limits in the law making process.12
This study will examine the sources of law in Vietnam and discuss whether customary law could be more effectively recognised. It will consider the drawbacks of such a plan but also indicate how the implementation of such a proposal could benefit the country‘s development.
To address these issues, the thesis will explore how customary law is treated in different parts in the world, particularly considering the mode and criteria for a custom to be transformed into customary law, and also the advantages and disadvantages of the recognition of customary law. The next part of the thesis will question why countries should recognise customary law as a source of law.
Justifications based on legal pluralism and respect for human rights will be examined. Vietnam considers its central paradigm of law, that is, one in which only state law is law, and others ‗laws‘ such as customary law and moral rules, are regarded as social norms.13 The country may benefit if the research reveals that the
10 Ibid 24–32. In the Vietnamese legal system, state law is the main source of law in Vietnam. Other sources such as precedents and customary law are disregarded; According to the Report, the Government should explore the potential application of customary law. There is a need for researching and collecting customary rules of ethnic minorities in order to apply appropriate to certain situations and specific fields such as civil, marriage and family and administrative cases. 11 Ibid 15–6; see also Carol V Rose, 'The "New" Law and Development Movement in the Post-Cold War Era: A Vietnam Case Study' (1998) 32(1) Law and Society Review 93, 102–3; Huy Cuong Ngo, Gop Phan Ban Ve Cai Cach Phap Luat O Viet Nam Hien Nay (Nha Xuat Ban Tu Phap, 2006) 44 [Trans: Huy Cuong Ngo, Discussing about Legal Reform in Vietnam Today (Judicial Publishing House, 2006)]; Minh Tam Le, Xay Dung va Hoan Thien He Thong Phap Luat Viet Nam - Nhung Van De Ly Luan va Thuc Tien (Nha Xuat Ban Cong An Nhan Dan, 2003) 143–6 [Trans: Minh Tam Le, Building up and Improving the Vietnamese Legal System – Theoretical and Practical Issues (The People‘ Public Security Publishing House, 2003)]. 12 Nhung Le, 'Khong Lam Luat Kieu "Xep Gach Dat Cho"', Vietnam Net 2009
recognition of customary law could bring about significant and positive change in the implementation of law in practice, if such a change could demonstrated to be desirable.
As for human rights, there is scope for positive and negative impacts of customary law in relation to such rights. It may be open to question whether customary law may be the best instrument for protecting and developing human rights, particularly for minority groups and Indigenous people. On the one hand, customary rights may accord, for cultural preservation, minority or Indigenous people‘s rights to important social practices and patterns, such as access to customary hunting or fishing grounds necessary for their economic and even physical survival, which otherwise might be appropriated by others. Similar observations may be made in relation to the appropriation of culture heritage (for example, traditional pharmaceutical knowledge, plant harvest rights, patterns on fabric, art, dance and so forth) to the significant benefit of others and the detriment of the Indigenous people. On the other hand, it may be argued that a recognition of customary rights sometimes leads to the violation of human rights because it provides different laws for people with regard to the same issues or disputes.14 Examples may include land ownership or rules of inheritance, the prescription of different punishments or sanctions for the same crime, different provisions for social norms that often vary according to ethnicity and/or faith (marriage, divorce, and adoption, for example). In addition, age-old customs, such as early marriage polygamy and the use of drugs in religious ritual, can involve an abuse of human rights. The interface of state and customary law,
14 Lona N Laymon, 'Valid-Where-Consummated: The Intersection of Customary Law Marriages and Formal Adjudication' (2001) 10(2) Southern California Interdisciplinary Law Journal 353, 380; see also Sue Farran, 'Is Legal Pluralism an Obstacle to Human Rights? Consideration from the South Pacific' (2006) 52 Journal of Legal Pluralism and Unofficial Law 77, 95. 5
particularly where possible conflicting meanings and application may occur, also provides a topic for examination.
The thesis also examines the Vietnamese legal system, and includes a history of customary law recognition, and consideration of Vietnam‘s point of view on legal pluralism and human rights. Based on these evaluations, proposals for a more effective recognition of customary law will be offered in order to diversify the sources of law in Vietnam.
Vietnam is on the way to improving its legal system. The thesis aims to make a humble contribution to Vietnam‘s development, for the benefit of both individuals and society generally.
1. 2 Statement of the Problems
1.2.1 Source of law
In many countries in the world, along with written law, (such as the Constitution, laws, regulations, and ordinances), customary law is also regarded as a source of law.15 However, Vietnam has applied only written law (normative legal documents)16 and disregarded customary law as an official legal source. Many people argue that
Vietnam should recognise only normative legal documents (as the source of law presently applicable in Vietnam) to ensure the supremacy of legislation and its unity,
15Theodore F T Plucknett, A Concise History of the Common Law (Butterworth, 5th ed, 1956) 307–14; see also Christian Dadomo and Susan Farran, The French Legal System (Sweet & Maxwell, 1993) 37; Denis Keenan, English Law (Longman, 9th ed, 1989) 11; Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge University Press, 1999) 3–4; James Dunbar-Brunton, The Law and the Individual (Macmillan Press, 1973) 75. 16 Constitution of the Socialist Republic of Vietnam 1992 (Vietnam) art 12; Luat Ban Hanh Van Ban Quy Pham Phap Luat 2008 (Viet Nam), art 1 [Trans: Law on Promulgation of Legal Documents 2008 (Vietnam)]. 6
and the unanimity of its application.17 However, in light of the recent emphasis given to improving the Vietnamese legal system and integrating international legal and other trends, the debate about Vietnam recognising customary law is particularly significant. By adopting customary law as a source of law, not only would Vietnam better deal with human rights protection and cultural preservation for minority groups and Indigenous people, but more importantly, Vietnam would solve a number of the shortcomings of its current legal system.
1.2.2 The problem of the multi-ethnic and multi-religion nature of Vietnam
Lying on the Indochinese peninsula and having been subject to many waves of migration as well as conquest, modern Vietnam is a multi-ethnic country with one major group numbering some 73.6 million (Kinh or Việt): 75,7 per cent) and many smaller populations totalling some 12.3 million (14,3 per cent),18 and with many religions19 and a population of almost eighty-six million.20 Approximately 70 per cent of the population live in rural areas, where the vast majority live in self- contained autonomous villages. The country has 54 ethnic groups with differences in language, lifestyle and religion. According to the Committee for Ethnic Minorities,
Vietnamese people speak dialects and languages from eight different linguistic
17 Minh Tam Le, 'Hinh Thuc Phap Luat Xa Hoi Chu Nghia' in Minh Tam Le (ed), Giao Trinh Ly Luan Nha Nuoc va Phap Luat (Nha Xuat Ban Tu Phap, 2006) 353, 355 [Trans: Minh Tam Le, ‗Socialist Legal Form‘ in Minh Tam Le (ed), Textbook on Theory of State and Law (Judicial Publishing House, 2006)]. 18 According to the official statistic in 2009, Kinh people equals 73,594 million people (account for 85.7%) while other groups are 12,253 million people (14.3%). See General Statistics Office of Vietnam, ‗The 2009 Population and Housing Census: Dissemination of Completed Census Results‘ (Media Release, 21 July 2010)
groups.21 The diversity of language, culture and religion, on the one hand, helps
Vietnam to be a colourful multicultural nation; on the other hand, this same diversity causes many problems of social management and law implementation regarding ethnic minorities, religions and human rights because ethnic groups tend to live in accordance with their own culture and customary law and ignore the state law.
The extent of this diversity is illustrated by Figure 1 (a map of Vietnam showing the distribution of the 54 ethnic communities) and Table 1 (showing ethnic community population statistics for Vietnam (2009)), below. These present a general image of
Vietnam in terms of ethnic community distribution and population.
21 Hoang Nam, Hinh Anh Cong Dong 54 Dan Toc Viet Nam (12 August 2008)
Figure 1: A Map of Vietnam Showing the Distribution of the 54 Ethnic Communities 1. Viet 2. Muong 3. Tho 4. Chut 5. Tay 6. Nung 7. San Chay 8. Giay 9. Bo Y 10. San Diu 11. Ngai 12. La Chi 13. Co Lao 14. Pu Peo 15. Hmong 16. Dao 17. Pa Then 18. Lo Lo 19. Thai 20. Lao 21. Lu 22. Kho-mu 23. Xinh-mun 24. Khang 25. Mang 26. O-du 27. La-ha 28. Ha Nhi 29. Phu La 30. La Hu 31. Cong 32. Si La 33. Bru-Van Kieu 34. Co-tu 35. Ta-oi 36. Ba-na 37. Xo-dang 38. Hre 39. Co 40. Gie-Trieng 41. Ro-mam 42. Brau 43. E-de 44. Gia-rai 45. Mnong 46. Co-ho 47. Xtieng 48. Ma 49. Cho-ro 50. Cham 51. Ra-glai 52. Ch-ru 53. Khmer 54. Hoa
Source: Highland Education Development Organisation, ‗Map Showing Distribution of Vietnamese Ethnic Groups‘, http://hedo-vietnam.tripod.com/ethnic_groups.htm, April 2011. 9
Table 1: Ethnic Community Population Statistics for Vietnam (2009)
(According to Decision 121-TCTK/PPCD dated 2 March 1979 on the List of Vietnamese Ethnic Groups)22
No. Race Ethnic Name Other Names Population23
1 Ba na Ba Na BơNâm, Roh, Kon Kđe, 227.716 Ala Kông, Kpang Kông 2 Bố y Bố Y Chủng Chá, Trọng 2.273 Gia... 3 Brâu Brao 397 4 Bru - Vân Kiều Bru Bru, Vân Kiều 74.506 5 Chăm (chàm) Chàm, Chiêm, Chiêm 161.729 thành, Chăm Pa, Hời... 6 Chơ ro Châu Ro, Dơ Ro, Chro, 26.855 Thƣợng 7 Chu ru Chơ Ru, Kru, Thƣợng 19.314 8 Chứt Chứt Rục, Arem, Sách. 6.022 9 Co Cor, Col Cua, Trầu 33.817 10 Cống Xám Khống, Phuy A 2.029 11 Cơ ho Cơ Ho 166.112 12 Cơ Lao Cờ Lao Tứ Đƣ, Ho Ki, Voa Đề. 2.636 13 Cơ tu Cơ Tu Ca Tu, Ka Tu 61.588 14 Dao Kìm Miền, Kìm Mùn Mán 751.067 15 Ê đê Anăk Ê Đê Anăk Ê Đê, Ra Đê, Ê 331.194 Đê-Êgar, Đê 16 Giáy Giáy 58.617 17 Gia rai Gia Rai Giơ Ray, Chơ Ray 411.275 18 Giẻ - Triêng Gié, Triêng, Ve, 50.962 Bnoong 19 Hà nhì Hà Nhì Già Cà Tang, Giang Rẫy 21.725 20 Hoa (Hán) Khách, Hán, Tàu 823.071
22 Quyet Dinh So 121-TCTK/PPCĐ Ngay 02/03/1979 ve Danh Muc Cac Dan Toc Viet Nam (Tong Cuc Thong Ke, Vietnam) [Trans: Decision 121-TCTK/PPCD dated 2 March 1979 on the List of Vietnamese Race Groups (Vietnam General Statistics Office)]; see also Hoang Nam, Hinh Anh Cong Dong 54 Dan Toc Viet Nam (12 August 2008)
21 H‘rê Hrê Chăm Rê, Chom, 127.420 Thƣợng Ba Tơ, Luỹ, Sơn Phòng, Đá Vách, Chăm Quảng Ngãi, Chòm, Rê, Man Thạch Bích. 22 Hmông (Mèo) Hmông, Na miẻo Mẹo, Mèo, Miếu Ha, 1.068.189 Mán Trắng 23 Kinh (Việt) Kinh 73.594.427 24 Kháng Mơ Kháng Háng, Brển, Xá 13.840 25 Khmer Khmer Cur, Cul, Cu, Thổ, Việt 1.260.640 gốc Miên, Khmer K'rôm 26 Khơ mú Kmụ, Kƣm Mụ Xá Cẩu, Khạ Klẩu, 72.929 Măng Cẩu, Tày Hạy, Mứn Xen, Pu Thềnh, Tềnh 27 La chí Cù Tê Thổ Đen, Mán, Xá 13.158 28 La ha La Ha, Klá Plạo Xá Cha, Xá Bung, Xá 8.177 Khao, Xá Táu Nhạ, Xá Poọng, Xá Uống, Bủ Hả, Pụa 29 La hủ La Hủ Xá lá vàng, Cò Xung, 9.651 Khù Sung, Kha Quy, Cọ Sọ, Nê Thú 30 Lào Thay, Thay Duồn, Phu Thay, Phu Lào 14.928 Thay Nhuồn 31 Lô lô Lô Lô Mùn Di, Di, Màn Di, La 4.541 Ha, Qua La, Ô man, Lu Lộc Màn 32 Lự Lừ, Thay, Thay Lừ. Phù Lừ, Nhuồn, Duồn 5.601 33 Mạ Mạ Châu Mạ, Chô Mạ, Chê 41.405 Mạ 34 Mảng Mảng Mảng Ƣ, Xá Mảng, 3.700 Niểng O, Xá Bá O 35 Mƣờng Mol (Mon, Moan, 1.268.963 Mual)
11
36 Mnông Mnông 102.741 37 Ngái Sán Ngải Ngái Hắc Cá, Ngái Lầu 1.035 Mần, Hẹ, Sín, Đản, Lê, Xuyến 38 Nùng Nồng 968.800 39 Ơ đu Ơ Đu, I Đu Tày Hạt 376 40 Pà thẻn Pà Hƣng Mèo Lài, Mèo Hoa, 6.811 Mèo Đỏ, Bát tiên tộc... 41 Phù lá Lao Va Xơ, Bồ Khô Xá Phó, Cần Thin 10.944 Pạ, Phù Lá 42 Pu Péo Kabeo La Quả, Penti Lô Lô 687 43 Raglay 122.245 44 Rơ măm 436 45 Sán chay (Cao lan- Sán Chay Hờn Bán, Chùng, Trại 169.410 Sán chỉ) 46 Sán dìu San Déo Nhín ( Sơn Trại, Trại Đất, Mán 146.821 Dao Nhân) Quần Cộc, Mán Váy xẻ 47 Si la Cù Dề Sừ Kha Pẻ 709 48 Tày Thổ 1.626.392 49 Tà ôi Tôi Ôi, Pa Cô, Tà Uốt, 43.886 Kan Tua, Pa Hi 50 Thái Tay, Thay Tay Thanh, Man Thanh, 1.550.423 Tay Mƣời, Tay Mƣờng, Hàng Tổng, Tay Dọ, Thổ 51 Thổ Thổ Ngƣời Nhà làng. 74.458 Mƣờng, Con Kha, Xá Lá Vàng 52 Xinh mun Xinh Mun Puộc, Xá, Pnạ 23.278 53 Xê đăng Xơ Teng, Tơ Đrá, Xê Đăng, Kmrâng, Con 169.501 Mnâm, Ca Dong, Ha Lan, Brila. Lăng, Tà Trĩ., Châu
54 X‘tiêng Xa Điêng, Xa Bù Lơ, Bù Đek (Bù 85.436 Chiêng Đêh), Bù Biêk.
12
The prevalence of numerous ethnic minorities is problematic for a number of reasons. Vietnam is an agricultural country with approximately 73 per cent of the population living in rural areas24 where they form nearly autonomous villages with their own rules. In addition, most rural dwellers may be part of a minority ethnic group, and live in remote areas where economic conditions are poor, broader cultural opportunities few, education attainment low and legal awareness limited.
Consequently, it is very difficult for state law to regulate all social relations in such areas in particular. Customary law could much more influential in solving individual and community disputes. In practice, customary law and village conventions have a significant capacity for dispute settlement, not only among individuals, families, and clans but also across communities and even the country at large.25 It can be said that customary law in Vietnam plays a very important role in regulating social relations.
Both villages‘ rules and customary law commonly contain regulations in common to help manage social relationships occurring ‗on the periphery‘ of mainstream, modern urban Vietnam, that is, in villages or minority communities. Originating from the villages or communities, customary law has considerable practical value in maintaining and stabilising social order in communities as well as in building up the state‘s range of law for society.
In addition, Vietnam is also a country of many religions. This too can be problematic. There are 54 ethnic groups living in Vietnam, and many diverse religions, yet all these ethnic groups share a common belief in people being free to
24 Tong Cuc Thong Ke, Dan So va Lao Dong (9 August 2008)
worship.26 This right is also guaranteed by the state and the Communist Party of
Vietnam.27 Basically, there are six main religions and many others characteristic of various ethnic minorities.28 Resulting from the ups and downs of history as well as by reason of war, Vietnam has been strongly affected by various religious ideologies such as Buddhism, Confucianism, Taoism, Catholicism, Protestantism, Islam, Cao
Dai, and Hoa Hao Buddhism.29 Confucian and Taoist religious and legal doctrines have been absorbed from the Chinese during the more than one thousand years of their domination (to 938 AD). Portuguese and later French Catholic missionaries first found their way to Vietnam in the 16th century and exposed Vietnamese to Catholic dogmas and practices. Invasion and occupation by the French (mid-19th century to mid-20th century)30 increased the country‘s exposure to Catholicism.31 Contact with
Americans, especially in the South (in the 19th and 20th centuries) exposed Vietnam to other Christian denominations and their beliefs. Cao Dai and Hoa Hao Buddhism were established during Vietnam‘s Civil War in the 20th century.32
In general, the chief principle of many religions is to guide people to the true, the good and the beautiful, as each religion conceives them to be. For instance,
26 Government Committee for Religious Affairs, above n 19, 7. 27 Constitution of the Socialist Republic of Vietnam 1992 (Vietnam) art 70; see also 2004 Ordinance on Religion and Belief and supplemental Decrees in 2005. In the 10 years to 2009 the number of people indicating religious faith in the census rose by 932.000 to15.672 million or about 18% of the population: General Statistics Office of Vietnam, ‗The 2009 Population and Housing Census: Dissemination of Completed Census Results‘ (Media Release, 21 July 2010)
Buddhism mainly teaches people how to be a good and merciful, Confucianism focuses on Five Moral Obligations (Ngu luan) and Five Constant Virtues (Ngu thuong). The Five Moral Obligations are essentially relational: king and subject (vua
– toi), father and child (cha – con), husband and wife (chong – vo), brothers and sisters (anh – em), between friends (ban – be) and the Five Constant Virtues comprise benevolence (nhan), ritual (le), righteousness (nghia), knowledge (tri) and sincerity (tin).33 Religious beliefs are expressed in community activities and may become customs through long-standing folk festivals or ‗interwoven with indigenous animist spirit cults and rituals‘.34 In Vietnam, there are community traditions for rituals of Buddha worship, such as Buddha‘s Birthday Festival, and Tet Nguyen Tieu
(full moon in January of lunar calendar), and etiquette for festivals which are related to agricultural production such as rice sowing festival (Le Ba Coc), rice transplanting completion festival (Le Len Dong), and ripening rice festival (Le Com Moi).35 Many religious festivals and activities have become customs and customary laws,36 and it is hard to distinguish which one is ‗religion‘ and which one is ‗customary law‘. It is because the appearance and existence of religion not only reveal the function of spiritual belief37 but also its plentiful and profound contributions to everyday life.38
33 Gillespie, Transplanting Commercial Law Reform, above n 5, 43; see also Chinh Thong Vi, Nho Giao Voi Trung Quoc Ngay Nay (Nha Xuan Ban Chinh Tri Quoc Gia, 1996), 144–5 [Trans: Chinh Thong Vi, Confucianism in China Today (National Publishing House, 1996)]. 34 Gillespie, above n 5, 43. 35 Xuan Dinh Bui, Huong Uoc va Quan Ly Lang Xa (Nha Xuat Ban Khoa Hoc Xa Hoi, 1998) [Trans: Xuan Dinh Bui, Village Conventions and Village Management (Social Sciences Publishing House 1998] 132–7. 36 Huu Son Tran, above n 25, 42. 37 Nghi Quyet 25–NQ/TW Ngày 12/03/2003 ve Cong tac Ton Giao (Ban Chap Hanh Trung Uong Dang) [Trans: Resolution 25-NQ/TW dated 12 March 2003 on Religious Mission (Central Executive Committee of the Communist Party of Vietnam)]; see also Van Dung Nguyen, 'Mot So Van De Ly Luan va Thuc Tien cua Qua Trinh Cai Cach—Doi Moi Trong Ton Giao Phuong Dong' in Quang Hung Do (ed), Buoc Dau Tim Hieu Ve Moi Quan He Giua Nha Nuoc va Giao Hoi (Nha Xuat Ban Ton Giao, 2003) 219, 220 [Trans: Van Dung Nguyen, ‗Some Theoretical and Practical Issues of Orient Religions Reform and Renovation Process‘ In Quang Hung Do (ed), Initial Step to Study on the Relationship between State and Religion (Religious Publishing House 2003)]. 38 Huu Son Tran, above n 25, 42. 15
They are a means of linking those within particular ethnic groups but also between ethnic groups that are otherwise divided, and, more importantly, they contribute to the regulation of social relations of all in a manner that, at its core, it involves the pursuit of the good, the true and the beautiful.
There is no doubt that legal system reform and socio-economic change have had a direct effect on ethnic minorities in terms of ‗clarification of rights and the establishment of cultural and political autonomy‘.39 The State of Vietnam has done its utmost to ensure the protection of human rights,40 particularly in relation to ethnic and religious issues, including the relation to ethnic communities, by building up and improving the legal system. Article 5 of the 1992 Constitution provides:
The State carries out a policy of equality, solidarity and mutual assistance among all nationalities, and forbids all acts of national discrimination and division. Every nationality has the right to use its own language and system of writing, to preserve its national identity, and to promote its fine customs, habits, traditions and culture. The State carries out a policy of comprehensive development and gradually raises the material and spiritual living conditions of the national minorities.
Although Vietnam has a number of ethnic policies, such as cultural preservation for particular areas inhabited by numerous ethnic groups in order to improve socio- economic development and human rights protection, it should more effectively accommodate customary law as an essential tool which could play an important role in terms of protecting and promoting human rights, contributing to a continuance of
‗demystifying the subjects of human rights‘.41
39 Tom G Svensson, 'Indigenous Rights and Customary Law Discourse: Comparing the Nisga'A and the Sami' (2002) 47 Journal of Legal Pluralism 1, 1. 40 Ministry of Foreign Affairs, Viet Nam‘s Achievements in the Protection and Promotion of Human Rights (2008) 4. 41 Bill Tweddell, 'Opening Speech' (Paper presented at the Vietnam and the International Human Rights Treaties, Hanoi, Vietnam, 22 January 2007). 16
1.2.3 The shortcomings of the current Vietnamese legal system
Despite its many remarkable achievements, Vietnam‘s legal system has a number of shortcomings. It can be seen that, the legal system, firstly, does not meet the practical requirements for settling the conflicts created by new social relations. In many important social fields such as, the issues of marriage and family, and civil transactions in regard to ethnic minorities, it is clear that there is a lack of law for such matters or only some provisions which are promulgated in subordinate laws.
Secondly, there is a lack of coordination within the legal system caused by the overlap of normative legal documents. In the current legal system, there still exist a number of outdated or inappropriate normative legal documents but these have not been modified or supplemented. Finally, the law making process is irrational and inflexible because of the method of drafting legal documents.42 The drafting of legal documents is done at a number of levels: major legislation is formulated at the national level but each province or district is able, under delegated authority, to then write their own interpretation of that law for application in their individual circumstances. Consequently, there can be many inconsistencies between how the same law is interpreted and applied not only at different levels but in different localities.
Evaluating and reforming the sources of law is necessary to further improve the
Vietnamese legal system. This will improve the role and the capacity of the law to regulate social relations. It must also meet international standards in order to assist with the task of Vietnam‘s international integration.43
42 Minh Tam Le, above n 11, 143–4. 43 Inter-Agency Steering Committee of Vietnam Government, above n 9, 25. 17
1. 3 Existing Literature in Vietnam
In recent years, customary law has attracted considerable attention from the State and scholars. Since the late 1990s, after the adoption of the Doi Moi Policy for the economy and law in Vietnam, customary laws of several ethnic groups have been studied, such as the customary law of the Ede (11 chapters, 236 articles), the Mnong
(8 chapters, 215 articles), the Xre (9 chapters, 92 articles), the Ma (13 chapters, 68 articles), the Stieng (4 chapters) and the Jrai (15 chapters).44
Studies of customary law have contributed to the understanding of customary law in terms of cultural preservation and the history of ethnic communities to some extent.
In general, customary law studies are mainly focussed on the concept, values and the relationship between state law and customary law.
Firstly, many Vietnamese scholars have tried to define the concept of customary law because it is understood in many senses. Conventionally, the term ‗customary law‘ which is widely used in the legal field, refers to customs that are recognised by the
State and regarded as law.45 On the contrary, Ngo Duc Thinh,46 a leading researcher in the folk cultural field, argues that customary law is a form of Indigenous
44 The chapters and articles in customary law of these ethnic minorities are arranged and named by the collectors. 45 Minh Tam Le, 'Ban Chat, Dac Trung, Vai Tro, Cac Kieu va Hinh Thuc Phap Luat' in Minh Tam Le (ed), Giao Trinh Ly Luan Nha Nuoc va Phap Luat (Nha Xuat Ban Tu Phap, 2006) 63, 81–2 [Trans: Minh Tam Le, ‗Nature, Roles and Forms of Law‘ in Minh Tam Le, Textbook on Theory of State and Law (Judicial Publishing House 2006)]; Nhu Phat Nguyen and Tri Uc Dao, 'Khai Niem va Nhung Moi Quan He Cua Phap Luat' in Tri Uc Dao and Ngoc Vuong Dinh (eds), Nhung Van de Ly Luan co Ban ve Nha Nuoc va Phap Luat (Nha Xuat Ban Chinh Tri Quoc Gia, 1995) 120, 135 [Trans: Nhu Phat Nguyen and Tri Uc Dao, ‗Concept and the Relationship between Law and Other Norms‘ in Tri Uc Dao and Ngoc Vuong Dinh, Basic Theoretical Issues on State and Law (National Political Publishing House, 1995)]. 46 Duc Thinh Ngo, 'Cac Gia Tri Cua Luat Tuc O Tay Nguyen' Van Hoa Hoc (online)
knowledge which has been established in societies throughout human history by means of behavioural experiences with society and the natural environment, which are transferred across generations by social and productive practices. Customary law is accepted and implemented by all members of the community and as a result, it creates unity and equality in the community about matters of conduct, obligation and belief.
Tran Huu Son‘s distinction is akin to that of Ngo Duc Thinh.47 By comparing the concepts of ‗custom‘ and ‗customary law‘, he argues that ‗custom‘ refers to long- standing habits in a certain community. However, it lacks a strong coercive characteristic. ‗Customary law‘, in contrast, refers to common compulsory rules adopted and maintained within a certain community.48 It is a model of conduct based on the standards of ethics, politics and aesthetics of the community. Unlike custom, customary law has a high component of coercion because, besides promulgating conduct rules, customary law also provides punishment which may be applied to those who break its provisions.
Being understood as customary law in the literal meaning (that is, compulsory rules with sanction in place), village conventions are considered as agreements providing the principal rules for the administrative and social management at the village, hamlet and clan level.49 Village conventions originate in local customs, which are selected to become principal rules for village, hamlet and clan activities. However, for a custom to be transformed into village convention, it should be agreed upon by a majority of community members. Village conventions, so-called ‗local laws‘, contain
47 Huu Son Tran, above n 25, 36. 48 Ibid 36–8. 49 Ibid 38. 19
customary rules to regulate social and communal relations, including the primary framework of the village organisation (such as family council and election of village mayor), dispute settlement, security, education, marriage, food and agricultural products protection, and social activities. Basically, a village convention is a self- governing agreement to preserve village and minority group traditions. It should, nevertheless, also be in accordance with the state law in order to uphold and maintain national customs and traditions, and hence unity, while respecting ethnic diversity.50
Theoretically, there are four different concepts relating to customary law according to the Vietnamese viewpoint. The following table (Table 2) summarises the similarities and differences between these concepts.
50 Thong Tu Lien Tich So 03/2000/TTLT/BTP-BVHTT-BTTUBTUMTTQVN Ngay 31/03/2000 Ve Viec Huong Dan Viec Xay Dung va Thuc Hien Huong Uoc, Quy Uoc Cua Lang, Ban, Thon, Ap, Cum Dan Cu [Trans: Joint Circular No.03/2000/TTLT/BTP-BVHTT-BTTUBTUMTTQVN dated 31 March 2000 on Directions of Building and Implementing Village Conventions of Communal Subdivisions, and Inhabitants Groups (Ministry of Justice, Ministry of Culture and Information, and Standing Committee of Central Committee for Vietnamese Fatherland Front)]. 20
Table 2: Comparison between Custom, Customary Law and Village Convention
Custom Customary law Village convention Customary law (as local law) (as State law) - Habits (they may - Originating from - Common rules of - Customary law is or may not contain custom, customary the village. recognised by the the validity in terms law is local law state, regarded as of ethics, aesthetics because it has normative legal and reason). binding force for document and every community safeguarded by the member. State.
- Customs are - The scope applied - The scope applied is - Broadest scope common conduct of is narrower than that narrower. A village applied across the members of the of customs because convention is limited entire country. community. only some customs to a certain may be transformed community. into customary law. It is applied for certain cases in the locality. The State seems not to interfere with customary law unless it is contrary to the state law.
- Non-compulsion - High compulsion in - High compulsion in - High compulsion (though normally the locality. the locality because it is regarded the subject is forced as the state law. to obey the custom because of the pressure of public opinion)
21
Secondly, the value and roles of customary law have also been considered. Many scholars have pointed out the value of customary law with regard to the legal system,51 and the role of customary law in regulating social relations.52 Customary law not only plays an important role in traditional and modern ethnic minorities‘ activities but also in cultural preservation and the implementation of grassroots democracy.53 Customary law reflects the authentic society of ethnic communities.54
Finally, many remarkable studies have addressed the relationship between state law and customary law. In a number of legal fields, such as family and marriage, civil, criminal, and administrative fields, there is a presence of customary law along with state law in regulating such social relations although it is not widely recognised.55
Thus, scholars advising the government should more effectively recognise its use and provide guidance on how to define customary law and ensure it aligns with the national culture and with state law. For example, a study on ‗Indigenous Norms in
51 Viet Huong Nguyen, 'Gia Tri Cua Luat Tuc Nhin Tu Goc Do Phap Ly' (2000) 4 Tap Chi Nha Nuoc Va Phap Luat 22, 22–45 [Trans: Viet Huong Nguyen, ‗Values of Customary Law Regarding to Legal View‘ (2000) 4 State and Law Review]. 52Vuong Long Le, 'Phap Luat Va Tap Quan Trong Dieu Chinh Quan He Xa Hoi' (2001) 2 Tap Chi Luat Hoc 27, 27–32 [Trans: Vuong Long Le, ‗State Law and Customary Law in Regulating Social Relations‘ (2001) 2 Law Review]. 53 Dang Nhat Phan, 'Vai Tro Cua Luat Tuc Tay Nguyen Trong Viec Ban Ve Ban Sac Van Hoa Dan Toc va Thuc Hien Dan Chu Co So' (2003) 4(180) Tap Chi Nha Nuoc Va Phap Luat 10, 13 [Trans: Dang Nhat Phan, ‗The Roles of Highland Customary Law in National Cultural Preservation and Democratic Performance at Grassroots Level‘ (2003) 4(180) State and Law Review]. 54 Duc Thinh Ngo, above n 46. 55 Vien Nghien Cuu Khoa Hoc Phap Ly, Chuyen De ve Luat Tuc (Vien Nghien Cuu Khoa Hoc Phap Ly, Bo Tu Phap, 1999) [Trans: Institute of Law Research, Symposium of Customary Law (Institute of Law Research, Ministry of Justice, 1999)]; Vien Nghien Cuu Khoa Hoc Phap Ly, Chuyen De Moi Quan He Giua Tap Tuc va Phap Luat (Vien Nghien Cuu Khoa Hoc Phap Ly, Bo Tu Phap, 1997) [Trans: Institute of Law Research, Symposium of the Relationship between State Law and Customary Law (Institute of Law Research, Ministry of Justice, 1997)]. Two symposiums are collected papers from number of scholars relating to customary law studies in Vietnam; see also So Tu Phap Tinh Kon Tum, 'Tham Luan cua So Tu Phap Tinh Kon Tum' (Paper presented at the Moi Quan He Giua Luat Tuc, Huong Uoc va Phap Luat Hien Hanh, Dak Lak 1997) 115-22 [Trans: Justice of Department of Kon Tum Province, ‗Presentation of Justice of Department of Kon Tum Province‘ (Paper presented at the Relationship between Customary Law, Village Conventions and State Law, Dak Lak Province, 1997)]; So Tu Phap Tinh Gia Lai, 'Tham Luan cua So Tu Phap Tinh Gia Lai' (Paper presented at the Moi Quan He Giua Luat Tuc, Huong Uoc va Phap Luat Hien Hanh, Dak Lak, 1997) 91-114 [Trans: Justice of Department of Gia Lai Province, ‗Presentation of Justice of Department of Gia Lai Province‘ (Paper presented at the Relationship between Customary Law, Village Conventions and State Law, Dak Lak Province, 1997)]. 22
Relation to Vietnamese Civil Law‘ in 2000 was conducted by the Cooperation
Program between LERES (Centre for Legal Research and Services, Vietnam
National University, Hanoi) and CALS (Centre for Asia Law Studies – University of
British Columbia). It focused on the feasibility of applying Article 14 of the Civil
Code 1995 (now Article 3 of the Civil Code 2005) for two large ethnic groups, the
Ede and the Mnong. This project made some significant proposals for the recognition of customary law in accordance with the state law. However, such studies tend to just offer general ideas about customary law, but do not supply any particular reason as to why customary law should be recognised and nor how to define custom and customary law, nor do they propose particular legal regimes for recognising customary law.
The return of customary law since the late 1990s has awoken in many Vietnamese law scholars the desire to examine the relationship between state law and customary law.56 Customary law to some extent influences the state law both positively and negatively.57 However, the role of customary law in social life is undeniable. Some
56 Dai Doan Phan and Xuan Dinh Bui, Luat Tuc va Su Phat Trien Nong Thon Hien Nay (Nha Xuat Ban Chinh Tri Quoc Gia, 2000) 124 [Trans: Dai Doan Phan and Xuan Dinh Bui, Customary Law with the Development of Rural Areas Today (National Political Publishing House 2000)]; Xuan Duc Bui, 'Huong Uoc Moi: Nhung Van De Dieu Chinh cua Phap Luat' (2003) 4(19) Tap Chi Khoa Hoc Phap Ly 3, 3–5 [Trans: Xuan Duc Bui, ‗New Village Conventions: Issues of Law Adjustment‘ (2003) 4(19) Legal Sciences Journal]. Customary law was recognised in Vietnam in the 15th century. However, after 1945, customary laws were abolished. From the end of the year 1980 to the beginning of 1990, village conventions gradually and spontaneously reappeared in some villages. From 1993 up to now, customary law is slightly recognised in few normative legal documents. In practice, it seems to be poorly applied. 57 Chi Dung Nguyen, above n 46, 5–9. The author has summarised the content of Conference ‗Customary Law in State Law Implementation‘ held by the Legislative Research Journal and the Faculty of Law, University of Da Lat. A number of proposals have been made for improving the relationship between state law and customary law. 23
scholars suggest that the state should recognise customary law and provide a customary code in order to make customary law align with the state law.58
Together with domestic research, a number of foreign researchers have also been interested in customary law issues in Vietnam. Regarding to historical aspect, many foreign researchers have noted that Vietnamese society has been influenced by other states (such as China and France) that have dominated Vietnam in the past.59 In their domination, they wished to apply their rules to the Vietnamese people but they failed because the local people wanted to keep their ‗type of lives‘60 (customs and habits).
The French, when dominating Vietnam, recognized customs embedded in the lives of
Vietnamese people as ‗traditions‘.61
Whit more has noted the ―combination of moral ideology and bureaucratic administration‖62 in Vietnam, and that moral rules have interfered in the rules of
Confucianism, Islam and Theravada Buddhism. However, the rigidity of religious rules and Confucian dogmas may cause conflict with the flexibilities of Indigenous cultural systems,63 particularly in family and kinship relations. There is no doubt that that moral, religious rules and Confucian dogmas cannot be effectively ‗active‘ in ethnic communities.
58 Minh Doan Nguyen, 'Tap Tuc Voi Phap Luat' (2003) 12(35) Nghien Cuu Lap Phap 26, 30–1 [Trans: Minh Doan Nguyen, ‗Customary Law and State Law‘ (2003) 12 (35) Journal of Legal Studies]. 59 Ta Van Tai, ‗Vietnam‘s Code of the Le Dynasty (1428-1788)‘ (1982) 30(3) American Journal of Comparative Law 523, 525. 60 Peter Frederic Baugher, The Contradiction of Colonialism: The French Experience in Indochina, 1860-1940, University of Wisconsion-Madison, 1980, 8. 61 Neil L Jamieson, ‗Understanding Vietnam‘ (1994) 99(4) American Historical Review, 14. 62 John K Whitmore, ‗Social Organisation and Confucian Thought in Vietnam‘ (1984) 15(2) Journal of Southeast Asian Studies 296, 298. 63 Ibid. 24
A related focus of scholarships has been the provision for the self-government of ethnic minorities in the 1946 Constitution (Art. 92-96).64 According to Fall, this was an ‗innovation‘.65 The 1946 Constitution recognized the right of self-government for a number of ethnic communities; that is, the rights to control and manage their social, cultural and economic development to ‗suit local conditions‘.66
It can be seen that the majority of studies have mainly concentrated on the study of the particularities of customary law. The values, the roles of customary law in society and the relationships between state law and customary law have been widely considered. However, there are a number of shortcomings in the above studies, including:
(i) The absence of comparison between various models that exist in
different parts of the world where customary law is recognised;
(ii) The absence of research on legal pluralism, particularly the centralist
paradigm of law and the pluralist paradigm of law;
(iii) The lack of discussion in regard to human rights in the recognition of
customary law;
(iv) The absence of a precise agreed definition of customary law and criteria
for custom to be transformed into customary law;
64 Bernard B Fall, ‗Constitution-Writing in a Communist State: The New Constitution of North Viet- Nam‘ (1960) 6 Howard Law Journal 158, 165. 65 Ibid. 66 Ibid 166. 25
(v) The lack of attention paid to the fact that even in the absence of official
recognition (in state law), customary law is still applied in practice;
(vi) The failure to articulate rules and parameters to govern the application of
customs, where this occurs as a matter of practice.
1. 4 Research Questions
The following questions are central to this study:
1) Should customary law be recognised as an official source of law in the
Vietnamese legal system?
2) How should customary law be recognised as an official source of law in
the Vietnamese legal system?
Seeking answers for these questions, the thesis shall: survey and provide an overview of how customary law is treated in different parts in the world; examine how legal pluralism and human rights impact on customary law; review and assess the
Vietnamese legal system, both what is positive in relation to this issue and what is negative; and evaluate the value and role of customary law as a whole.
To address the above issues, eight sub-questions will be considered:
1) How is customary law treated in different parts in the world?
2) Why should countries recognise customary law as a source of law: Legal
pluralism?
3) Why should countries recognise customary law as a source of law: Human
rights? 26
4) What rules and procedures exist under Vietnamese legislation for the
recognition of customary law?
5) What criteria should be used to define customs, particularly in the case of
unwritten customs?
6) What norms and rules should govern the resolution of conflict between state
law and customary law?
7) By what process is custom transformed into customary law in the Vietnamese
legal system?
1. 5 Scope and Methodology
In Vietnam, for historical and political reasons, customary law has been disregarded for a long period. However, the Vietnamese legal system has significantly changed in order to contribute to and facilitate the country‘s development. In this context, customary law is gradually being recognised as an essential tool in regulating social relations and nation management.67 Nevertheless, issues such as legal pluralism and human rights are almost never considered. This thesis will focus on these issues in order to bring about a deeper awareness of their relevance to the debate over customary law.
To address these issues, the following methods will be employed:
(i) Review of the history of customary law in Vietnam by analysing the
secondary literature;
67 Inter-Agency Steering Committee of Vietnam Government, above n 9, 24. 27
(ii) Collection of statistical data on minority ethnic groups in Vietnam, focussing
on selected representative minority groups (among the 53 minority groups).
(iii) Collection, examination and analysis of relevant cases in which customary
laws are applied in practice. The selected cases may include both court
decisions and practices which happen ‗spontaneously‘ due to a lack of
coverage by legislation and regulation. Customary law is not generally seen
as an issue in Vietnam; therefore, Vietnam only has a small number of
normative legal documents (state law) related to customary law. If a
customary law related case occurs in the scope of state law regulation (which
indicates that the state does recognise that customary law could be treated as
law), the case would result in a court decision. In contrast, if a customary law
is not recognised under state law, a case related to such a customary law may
be an issue for law executors. The aim of the thesis is to make proposals for
recognising customary laws which are outside of the state‘s recognition.
(iv) Relevant supreme court cases will be selected and collected from 1986
(from the Doi Moi Policy) up to December 2010, and, if possible, some
typical cases at the provincial level courts. Nevertheless, such cases would be
very rare because customary law is hardly ever applied in Vietnam.
(v) Examination and comparative analysis of the approach to customary law
adopted in different parts in the world.
1. 6 Contributions of the Thesis
The main contribution of this thesis is to provide a general understanding of customary law and also to analyse the advantages and disadvantages of the
28
recognition of customary law. The thesis will contribute enhanced understanding of issues relating to customary law, about which there have been few studies undertaken in Vietnam. First, value will be found in thesis, examination of legal pluralism, where customary law is considered a source of law, and of how customary law is treated in countries (such as Vietnam) where the centralist paradigm of law holds sway. Second, the thesis‘ consideration of the relationship between customary law and human rights will be important for Vietnam because the area has not attracted much attention from the state and scholars. Finally, the thesis may make significant contribution to improving the Vietnamese legal system by proposing essential requirements for the recognition of customary law, including the mode of recognition, criteria for a custom to be transformed into customary law, and rules that should govern the solution of conflicts between state law and customary law.
Recognition of customary law in Vietnam will advance human rights for ethnic communities. Civil, economic and cultural rights will be significantly improved. The recognition of customary law not only expands the rights for ethnic communities but also complies with human rights international conventions (such as the International
Covenant on Civil and Political Rights (ICCPR) 1966, and the International
Covenant on Economic, Social and Cultural Rights (ICESCR) 1966).
Recognition of customary law will have a positive impact on the enjoyment of economic rights, particularly property rights. Ethnic communities will benefit if allowed to conduct economic transactions according to customary law. They will easily more settle disputes and implement judgments or decisions.
The recognition of ‗communal‘ civil and political rights will allow ethnic peoples to use their own ‗law‘. The can use their ‗voice‘ in the community‘s management and 29
in the establishment of the community‘s activities. More importantly, the recognition of customary law will bring about enhanced respect for the rights of religion, residence and equality between communities.
1. 7 Synopsis of the thesis
The thesis consists of nine chapters. Following the Introduction, Chapter 2 will conduct a ‗Survey Overview of How Customary Law is Treated in Different Parts in the World‘. This survey will illustrate the existence of customary law, in that customary law is regarded as law or as non-law by a number of legal systems in the world. This chapter will also provide mode and criteria for a custom to be transformed into customary law.
In Chapter 3 ‗Why Should Countries Recognise Customary Law as a Source of Law:
Legal Pluralism‘, the thesis will examine the concept of legal pluralism and what people think law is. Centralist paradigm of law and pluralist paradigm of law will also be considered.
The next chapter will study ‗Why Should Countries Recognise Customary Law as a
Source of Law: Human Rights‘, focussing on the relationship between human rights and customary law. The question of whether the recognition and application of customary law as a source of law in the national legal system would have positive or negative impacts on human rights will be examined in this chapter.
Chapter 5 will introduce ‗The Vietnamese Legal System‘. A general evaluation of the Vietnamese legal system will answer the question whether the recognition of customary law as an official source of law in the legal system would benefit the country‘s development.
30
The next chapter ‗History of Customary Law Recognition in Vietnam‘ will examine the history of Vietnamese legislation in regard to customary law. The history of
Vietnamese customary law can be divided into there basic periods: from 6th B.C. to
1945; from 1945 to 1975 (Democratic Republic of Vietnam in the North and
Republic of Vietnam in the South). In this period, the application of French law is also considered; and from 1975 up to present. With this review, the thesis will provide information about the existence of customary law throughout the Vietnamese legislative history.
Chapter 7 ‗Vietnam and the Issue of Customary Law‘ will focus on Vietnam‘s viewpoint of legal pluralism, particularly the attitude of Vietnam towards sources of law. This chapter will also consider human rights of ethnic communities in Vietnam in order to give reasons for Vietnam should recognise customary law.
The following chapter will propose a recognition of customary law in Vietnam. This chapter centers two issues: 1) legal centralism and legal pluralism, what does
Vietnam think? What should Vietnam do? And 2) the relationship between customary law and human rights, what does Vietnam expect? What should Vietnam do? The chapter will also propose a legal framework for a recognition of customary law in Vietnam.
The thesis concludes with Chapter 9, ‗Conclusion‘, which summaries what the thesis has been done and gives some comments for further studies such as rules that should govern the solution of conflicts between customs, customary code, customary courts and the role of village leaders when applying customary law.
31
PART 1: CUSTOMARY LAW LEGAL PLURALISM AND HUMAN RIGHTS WORLDWIDE
32
2 SURVEY OVERVIEW OF HOW CUSTOMARY LAW IS TREATED IN DIFFERENT PARTS OF THE WORLD
2. 1 Introduction
Customs have existed throughout human history and have played an important role in people‘s lives. Customs are normally seen as the oldest institution in the world because they have been the source of all societal regulation since the earliest periods of civilisation.68 ‗Customs‘ operated as ‗rules of behaviour‘69 and were (many would argue, are) an essential tool in controlling societies and regulating individual behaviours in particular communities. Consequently, individual and group disputes alike were solved by customary law and other social norms, such as ethical and religious norms, though the norms and customs themselves differed from one place to another. Behaviour likewise was adjusted by customary law or against these other norms.
When states were established, customary law did not disappeared, though its roles may have shrunk, multiplied or changed.70 In Europe, for example, ‗tribe became state [and] so custom became law‘ as a number of customary laws were absorbed into the body of law by judicial recognition71 (thus comprising what is now widely known as the Common Law). Yet, ‗Common Law‘, as generally understood, is that customary law that has became widely accepted and its nature determined via
68 William Graham Sumner, Folkways (Ginn and Company, 1906) 55. 69 René David and John EC Brierley, Major Legal System in the World Today (Stevens & Sons, 1985) 38 70 ‗Shrunk‘ is one believes that customary law by definition ceases when it is embodied in legislation; ‗altered‘ if one does not and sees the embodiment as accurate and entire; ‗multiplied‘ if one sees legislated and unlegislated versions running in parallel or as multilayer. 71 Leon Sheleff, The Future of Tradition: Customary Law, Common Law and Legal Pluralism (Frank Cass, 1999) 5. 33
judicial decision on a jurisdiction wide (national) level; and contrasts somewhat to customs and customary laws that survive on a more local level.72 In medieval law, for example, customary law was recognised as the primary law,73 from which all other law – including written law (lex scripta or statute) as well as unwritten law (lex non scripta both common law and local custom) – flowed.
Customary laws ‗that had existed from time immemorial‘74 were also absorbed into state law through codification in legislation.75 Many, however, were not recognised as ‗written law‘ (either because they were deemed unsuitable or because they violated what the state had determined to adopt as state law),76 yet they often continued to play a role as an official source of law alongside statute law (in
Common Law countries) or within the broader legal system and local societal practices in Civil Code countries.77 Customary practices (and customary laws) operated in the ‗interstices of society‘.78 In modern nations across the world, customs seem to be present at the root of almost all of their legal systems (be they Common
Law or Civil Code Law) and, along with other sources of law, continue to contribute to the regulation of social relations, especially where the subject is not regulated
72 Sir William Blackstone, Commentaries on the Laws of England (1765–69) vol 1, Introduction, s 3 (for text, see LONANG website
under Statute or similar provision79 (at or between the ‗outermost branches‘, to continue the analogy).
However, the recognition of customary law has to contend with difficulties caused by a lack of concern for its existence or by underestimation of it continuing role in the society. Additionally, in those countries where a firm legal centralism paradigm is applied, only state law is recognised as law in the legal system. In Vietnam, for example, there is no ‗judge made law‘; law is entirely statutory based, which cases determined by interpretation of the Statute without recourse to precedents. This lack of recognition of a ‗common law‘ and ‗customary law‘ reflects Vietnam‘s French colonial heritage of the Napoleonic civil code and its later adoption of centralist
Soviet-inspired approaches to law.
The chapter will start by examining the conceptual difference between ‗custom‘ and
‗customary law‘, and then explore how customary law is treated in different parts of the world; whether, indeed, customary law is ‗law‘ or ‗non-law‘. If custom is law, the question must be then asked whether it can be law in its own right, or whether its status is reliant upon recognition by the state.
The mode and criteria for a custom to be transformed into customary law is presented below. In addition, the advantages and disadvantages of customary law, and the special and complicated relationship between state law and customary law are also considered so as to lay the groundwork for consideration (in later chapters) of how customary should be recognised in Vietnam.
79 P K Bandyopadhyay, 'Importance of Customary Law' (1994) 7(1) Central India Law Quarterly 91, 92–3. 35
2. 2 Custom vs. Customary Law
An exploration of the definition of ‗custom‘ as identical to or different from
‗customary law‘ is required because of the degree of confusion that has been generated by the varying use of the concepts and terms as they appear in the works of a number of writers and researchers.
Many scholars, for example Poulter, argue that ‗custom‘ refers to habit or a usage without that behaviour being regarded as binding.80 A ‗custom‘ is purely a ‗social norm‘, but normally non-legal and therefore not obligatory,81 that is, ‗[i[f the custom is not followed, certain desired legal consequences will not be brought about‘.82 For such scholars, customs are social norms or established informal usages (see below), and, as they are not legally or customarily enforced via a system of sanctions, they cannot be termed ‗binding‘ and therefore do not comprise ‗customary law‘. In contrast to this use of the term, Starke uses the term ‗usage‘ where others commonly use ‗custom‘. For example, ‗a custom…is such a usage that has obtained the force of law‘.83 Here again ‗custom‘ is used where others would use ‗customary law‘. In the culture of many ethnic peoples celebrating the harvest festival is considered customary (usual practice, not rule). Participating in the festival is not compulsory.
So this is custom not customary law. However, parents who do not teach their
80 S M Poulter, English Law and Ethnic Minority Customs (Butterworths, 1986) 3. 81 Sir Carleton Kemp Allen, Law in the Making (Clarendon Press, 7th ed, 1964) 69. 82 Ibid 68. 83 As cited in John B Saunders (ed), Words and Phrases Legally Defined (Butterworths, 2nd ed, 1969) vol 1 A–C, 393: taken from Starke‘s International Law (Butterworths, 6th ed, 1967) 34. 36
children the festival will be considered to have broken customary law. It is customarily punishable by spearing. Thus it is customary law not custom.84
The story of Hal and Ruth (first told by Harod J Berman about himself and his wife) was later employed by Bederman and is just one illustration of the problem of diverse terminology employed for the same concepts involved.85
Hal was married to Ruth for sixty-six years before he passed away. According to Hal, every Sunday for those sixty six years, Hal would prepare a brunch for Ruth (provided they weren‘t travelling away from home). By any measure of consistency (―every Sunday‖) and duration (sixty-six years), this was an established usage and practice of a particular community—the Berman household. But, (…) is this a binding custom? What if, Hal mused, one Sunday morning he just didn‘t feel like making brunch, or (in a fit of pique) he was angry with Ruth and wanted to withhold a meal? Could Ruth sue him for specific performance? Had an informal usage ripened into a legally-binding custom?
Berman‘s use of the term ‗established usage‘ equates to what other authors term
‗custom‘, and his ‗legally binding custom‘ to what others term ‗customary law‘, or what Bederman also refers to as ‗binding usage‘.86
Again, for those writing in a Common Law context, ‗custom‘ may be viewed as
‗local common law‘ while Common Law itself is seen as derived from more universally (nationally) accepted customs.87 For those writing in a Civil Code context, ‗custom‘ may be view as local usages. Custom is considered as a source of the court‘s decision (custom confirmed by the court decision).88
84 Duc Thinh Ngo and Thai Son Chu, Luat Tuc ÊĐê (Nha Xuat Ban Chinh Tri Quoc Gia, 1995) art 23 [Trans: Duc Thinh Ngo and Thai Son Chu, Customary Law of ÊĐê (National Political Publishing House, 1995)]. 85 David J Bederman, 'The Customary Law of Hal and Ruth' (2008) 57 Emory Law Journal 1399, 1401. 86 Ibid. 87 Hammerton v Honey (1876) 24 WR 603 (Jessel MR) at 603. 88 René David and Henry P de Vries, The French Legal System: An Introduction to Civil Law System (Oceana Publications, 1958) 105. 37
Different from ‗custom‘ (when understood as customary usage), ‗customary law‘ can also be habit, usual practice or a common way of acting, as well as a behaviour essentially derived from religious doctrine89 and/or cultural tradition,90 but the these habits and practices have been established by the community in which these behaviour patterns91 and rights are negotiated, expressed and enforced within a social group.92 In other words, ‗customary law‘, in this definition, exists where the usual way of behaving or acting93 has become accepted as legally required within a community or comprise obligatory rules of conduct that necessarily involve enforcement.94
A report of the New Zealand Law Commission raise another dimension: ‗Custom is what people of a particular cultural community habitually do; customary law is what they consider they are bound to do or not to do, because of the community‘s values or for fear of some unwelcome consequence‘.95 This raises the question of perception and the role of community values (a meaning framework for behaviours) with or without an associated threat of enforcement and its application when persons are in breach of a particular expected standard. Here ‗habitual action‘ is contrasted with an accepted ethical framework rather than simply a threat of punishment.
89 Some writers consider religious law — be it the local, national or supranationally applicable canon law or similar of various Christian denominations (particularly the Catholic and Anglican traditions) or the Shari‘a of national, provincial or local recognition in states recognising Islam (even in part) as the State faith and the Qur‘an as a legal source, if not the primary legal source — as a source of law, in addition to statute, common or customary law 90 Poulter, above n 80, 3. 91 Edward Sapir, 'Custom' in Edwin R A Seligman and Alvin Johnson (eds), Encyclopaedia of Social Sciences (Macmillan Company, 1954) vol 3, 658. 92 M D Olson, 'Articulating Custom: The Politics and Poetics of Social Transformations in Samoa' (2000) 45 Journal of Legal Pluralism 19, 21. 93 R E Allen, Oxford Dictionary of Current English (Oxford University Press, 1985) 179. 94 Bryan A Garner et al, Black's Law Dictionary (West Group 7th ed, 1999) 391. 95 New Zealand Law Commission, Converging Currents: Custom and Human Rights in the Pacific (New Zealand Law Commission, 2006) 47. 38
To some other scholars, the term ‗custom‘ is used as other would the term
‗customary law‘. In their writing, the term custom can also mean customary law.
According to Ibbetson, ‗custom‘ is not purely ‗habitual usage‘; it is a pattern of behaviour that has become a common compulsory standard. Others would argue that here Ibbetson uses the term ‗custom‘ where others would insist on ‗customary law, as for Ibbetson, ‗custom‘ exists when habit has become law (and is normative) because it contains two principal antitheses: habit (mos) and legislative (lex) (that is, when habit has acquired the power of law even when unwritten).96 As Ibbetson notes, the process does not stop there.
Unlike habits, customs are not merely acquired [learned as opposed to innate behaviour], but learned social behaviour, and, although unreflective [that is, lacking conscious deliberation in their acquisition], they are to a degree accessible to explicit attention and even to adjustment upon reflection.97
Custom reflects norms and values of a society.98 Far from being unchanging, though its origins may be ancient (‗from time immemorial‘), custom can admit change; it can develop, both due to reflection and social changes. Custom reflects not only social life but, more importantly, it mirrors social order and its development.
The order of the community (or its customs) seems to be obvious, being recognised and followed voluntarily by all members of community. Complying with custom is acquiescing to social demand. It is an intrinsic part of a social and economic system.99 According to many jurists, custom comprises not only the indispensable rules of the community, but also is ‗the only genuinely democratic mode of law
96 David Ibbetson, 'Custom in Medieval Law' in Amanda Perreau-Saussine and James Bernard Murphy (eds), The Nature of Customary Law (Cambridge University Press, 2007) 151, 156. 97 Gerald J Postema, 'Custom in International Law: A Normative Practice Account' in Amanda Perreau-Saussine and James Bernard Murphy (eds), The Nature of Customary Law (Cambridge University Press, 2007) 279, 284. 98 Bandyopadhyay, above n 79, 91. 99 Garner, above n 94, 391. 39
making, reflecting the actual convictions of the ordinary people who practise them, people who vote by consenting to those customs‘ and embodying them in their conduct.100
In the Vietnamese context, ‗custom‘ and ‗customary law‘ are quite different concepts. According to Tran Huu Son, ‗custom‘ refers to ‗habits‘, behaviours repeated by a certain group over a long time (for example, the Vietnamese custom of showing respect for teachers). Customs are standards that people should follow, not that they shall/must follow. People perform in the generally expected or customary manner or perform specific customary acts due to public opinion or social pressure.101 These behaviours are referred to as ‗customs‘.
‗Customary laws‘, in contrast, are compulsory regulations that apply to every member in a certain community. They are binding patterns that clearly delineate what people shall/shall not do and which people shall do what action. For instance, the customary law of the Thai forbids women to enter a Thai place of worship.102 If they do so, they will be punished for breaking customary law.
Given the various and sometimes interchangeable use of the terms of ‗custom‘ and
‗customary law‘, a consistent approach has been adopted in this thesis, one that clearly distinguishes the two. The term ‗customary law‘ will refer to binding rules of the community while the term ‗custom‘ will refer to habits without binding of the
100 Amanda Perreau-Saussine and James Bernard Murphy, 'The Character of Customary Law: An Introduction' in Amanda Perreau-Saussine and James Bernard Murphy (eds), The Nature of Customary Law: Legal, Historical and Philosophical Perspectives (Cambridge University Press, 2007) 1, 2. 101 Van Chuc Doan, Xa Hoi Hoc Van Hoa (Nha Xuat Ban Van Hoa, 1997) [Trans: Van Chuc Doan Cultural Sociology (Cultural Publishing House, 1997)], cited in Huu Son Tran, above n 25, 35–6. 102 Huu Son Tran, above n 25, 36. 40
community. The aim of the thesis, accordingly, is to propose the recognition of customary law as an official source of law in the Vietnamese legal system.
2. 3 Customary law: Law vs. Non-law
In the light of legal pluralism and legal centralism, the recognition of customary law as ‗law‘ or ‗non-law‘ is controversial. According to legal centralism (and also legal positivism), ‗law‘ is ‗state law‘. It means law can only exist in a society where the state itself exists, a state that contains a national power to which every citizen or entity, including the state, is subject, and for whom such law is compulsory.
Accordingly, customary law is ‗not law‘. Customary law becomes law when it is legally recognised by the sovereign or his agent (as in the early imperial periods of
Vietnamese history) or by the state in a non-monarchical system, be it democratic or socialist. Where this does occur, the section of customary law adopted or recognised then resembles an act of legislation.103 Legislation can ‗enclose‘ areas of custom that once were the province of customary law only, and make them subject to state intervention.104 Customary law is generally regarded as subordinate to (and of lesser power than) state legislation as the state and its legislation has the power to acknowledge or extinguish105 customary law and its practice.106 In centralist states,
‗customary law‘ officially ceases to exist without such recognition.
103 H L A Hart, The Concept of Law (Clarendon Press, 1961) 44. 104 Examples may include marriage laws (where rites may become compulsory, or marriageable age set), initiation (where certain acts may be rendered illegal) or funerary rites (where some may be recognised and others not). 105 New Zealand Law Commission, above 95, 17. 106 Hart, The Concept of Law, above n 103, 98. Hart argues that ‗custom and precedent are subordinate to legislation since customary and common law rules may be deprived of their status as law by statute‘. 41
Legal pluralists, on the other hand, argue that laws are regulations having the ability to control society, and include statutory law, moral norms and customary laws.107
According to this view, state law is one of the forms of law that exist in the legal system as a whole. In other words, customary law is one of the sources of law.108
This is more likely to be the case where a state has absorbed more than one tradition in its foundation or in colonies where both coloniser and colonised exist in (a sometimes uneasy) concert (see further below).109
However, where ‗customary law‘ is seen as ‗official law‘, there are two conceptions of it:
1) where customary law in and of itself is official law. Customary law is not laid down by a legislator but plays a very important role in the normative legal system.
With legal criteria defined, it is regarded as already lawful;110 and
2) where customary law is recognised by the state as official law.
Hence, in such arguments ‗customary law‘ may refer to ‗state law‘, or ‗infra-state law‘, or non-state law, according to the proponents‘ different viewpoint on the legal
107 Jacqueline Martin, The English Legal System (Hodder Education, 2008) 1. According to Martin, there are 4 suggestions for the definition of ‗law‘: they are ―1) Law is a set of rules that plays an important part in the creation and maintenance of social order; 2) …Law as a command issued from a Sovereign power to an inferior and enforced by coercion[John Austin]; 3) …Law as…‗the body of principles recognized and applied by the state in the administration of justice‘[Sir John Salmond]; 4) ‗Law is a formal mechanism for controlling society, but it is not the only mechanism; less formal rules of morality and custom also play a part‘. 108 Michael Zander, The Law-Making Process (Cambridge University Press, 6th ed, 2004) 448. 109 For the co-existence of coloniser and colonised law, see M B Hooker, Legal Pluralism: An Introduction to Colonial and Neo-colonial Laws (Clarendon Press, 1975) 6; see also Dorothy H Bracey, Exploring Law and Culture (Waveland Press, 2006) 36–7; Jean Besson, 'Folk Law and Legal Pluralism in Jamaica: A View from the Plantation-Peasant Interface' (1999) 43 Journal of Legal Pluralism 31, 31-51. Illustrated by society of Jamaica, Besson argues legal pluralism in plantation societies. He focuses on the interaction and impact on different legal systems in the countries where has ‗colonially-derive legal system‘ as well as the issue on the interplay folk law and official legal codes. According to him, customary law has significant impact on shaping state law. 110 James Bernard Murphy, 'Habit and Convention at the Foundation of Custom' in Amanda Perreau- Saussine and James Bernard Murphy (eds), The Nature of Customary Law: Legal, Historical and Philosophical Perspective (Cambridge University Press, 2007) 53, 77. 42
status of customary law. In addition, the issues involved in the various relationships between the state law and non-state law — particularly those that relate to hegemony, antagonism, complementarity and symbiosis occur in regard to the legal system where legal pluralism exists111 — make discussing the role and position of customary law in a legal system more problematic.
2.3.1 Customary law itself is law112
The concept that customary law itself is official law is most likely to be expressed in colonised nations. These normally have dual systems of law, and include the legal system imported from the homeland of the colonial power (‗coloniser‘) and the colonised country‘s legal system, that is the system/s of law which existed prior to their arrival of the colonisers. To colonisers, their own legal rules and legislation were the orthodox law to be applied in their colonies, while any pre-colonial domestic law was regarded as ‗customary law‘. Thus, a value hierarchy was generally clearly established. To the colonised, however, the law of the coloniser was the ‗outside law‘,113 devised in a foreign land to meet the needs of a foreign people often many thousands of miles distant in terms of geography and very culturally different, whereas their own law (or their ‗customary law‘ as the coloniser viewed it)
111 Upendra Baxi, 'Discipline, Repression and Legal Pluralism' (Paper presented at the Legal Pluralism: Proceedings of the Canberra Law Workshop VII, Canberra, July 1985) 51–2. 112 According to International Council on Human Rights Policy, Indigenous Peoples‘ legal orders are recognised as laws in the regions (such as Latin America, Scandinavia, South Asia) and countries (Canada, the United States, Australia and New Zealand) where there are large Indigenous populations are recognized as law: International Council on Human Rights Policy (ICHRP), 'When Legal Worlds Overlap: Human Rights, State and Non-State Law' (2009) 3. 113 Martin Chanock, 'Neither Customary Law Nor Legal: African Customary Law in an Era of Family Law Reform' (1989) 3 International Journal of Law and the Family 72, 73–4. 43
was the ‗real‘ law because it was linked to and reflective of the traditions and expectations of the local peoples.114
The people are not merely conscious of their law, but they live their law, they act and conduct themselves according to it, and this living according to law is not a mere form of manifestation but also a means of cognition of customary law. Customary law therefore is both a rule of conduct and a norm for decision.115
Vietnam, for example, was a French colony from 1858 to 1945. During this colonial period, a dual legal system existed: French Civil Code Law became the official law whilst Vietnam‘s existing laws were transformed into ‗customary law‘.116 French law was widely applied by the French rulers but customary law was allowed to apply in some parts of Vietnam.117
Considered as a French territory, Vietnam had no constitution; French law its law.
Official law (state law or France‘s law) consisted of the decrees of the French
President (regulating political regulations and the powers of Governor General of
Indochina (Gouverneur-général de l'Indochine Française)) and decrees by the
Indochina Governor-General (for issues not regulated in the French President‘s decrees). Customary law was composed of the Vietnamese King‘s laws, village conventions and local laws.118 Thus, customary law survived in parallel to the French law at the national level with Royal laws but much customary law was often
114 Dolores A Donovan and Getachew Assefa, 'Homicide in Ethiopia: Human Rights, Federalism, and Legal Pluralism' (2003) 15 American Journal of Comparative Law 505, 507. 115 Eugen Ehrlich, Fundamental Principles of the Sociology of Law (Walter L Moll trans, Arno Press, 1936) 449. 116 Tri Uc Dao, 'Khai Quat ve Lich Su Phap Luat Viet Nam' in Tri Uc Dao (ed), Nhung Van De Ly Luan Co Ban ve Nha Nuoc va Phap Luat (Nha Xuat Ban Chinh Tri Quoc Gia, 1995) 362, 363 [Trans: Tri Uc Dao, ‗Overview of the Vietnamese Legal History‘ in Tri Uc Dao, Basic Theoretical Issues on State and Law (National Political Publishing House, 1995)]. 117 Tri Uc Dao, 'Basic Information of Legal Research - A Case Study of Vietnam' (Project of Doing Legal Research in Asian Countries: China, India, Malaysia, Philippines, Thailand and Vietnam, conducted by the Institute of Developing Economies (IDE-JETRO), Japan, 2003) 196. 118 Dao, ‗Khai Quat ve Lich Su Phap Luat Viet Nam‘, above n 116, 377–80. 44
restricted to certain areas, both geographical and in terms of subject matter.
Customary law survived in a weakened form and at the discretion of the colonial power.
Once the colonial power is removed, however, a former colony — now a nation state in its own right — decides what it shall keep and what it shall discard of the colonisers‘ legislative, judicial and other arrangements.119 The new post-colonial government may find it faces its own challenges in terms of minority ethnic groups, whose needs and desires and practices may not entirely match those of the majority ethnic group or ruling political party (not necessarily one and the same in many post colonial states).
Following reunification, Vietnam continued to maintain a one-party socialist state in the post colonialist era. In common with other post colonialist states, customary law in Vietnam was no longer the ‗any law other than that of the colonialist government‘, rather it was the customary law retained and practised, generally by the new nation state‘s minority ethnic groups. It was not expressed in the legislation created by the state, and as such, officially, it was no law at all. In post colonial socialist states, the social and legislative inspiration was often the product of the integration of socialist theory rather than the majority ethnic group‘s customary law.120
In a nation-state, both state law and the customary law of ethnic groups exist. The state may or may not recognise customary law as official law but to the community, customary law is law regardless of its recognition or non-recognition by the state. In several countries such as Vietnam, although customary law is not widely recognised,
119 See, eg, adoption of Common Law in post-colonial Pacific nations: New Zealand Law Commission, above 95, 38 [3.7]. 120 This also fostered new supra-international commonalities among the new socialist states. 45
there is still a blend of state law and customary law in the legal system. However, the expression of ethnic customs is poor due to the severely weakened political, social and cultural integrity of these ethnic groups, particularly the more minor ethnic groups,121 in the face of culturally different state imposed patterns (for example, socialist ideology) and also the pressure of increasing urbanisation and exposure to other lifestyles and so forth.122
Whether customary law persists or declines during the period of colonisation and again thereafter is an issue.123 In both instances, within their country as colonised entity and as a nation state, ethnic groups expect to be able to apply custom rather than state law, while governors (national and provincial) wish to control customary law to some degree for political motives and for reasons of sovereign and state unity.
To illustrate this theoretical point, Benda-Beckmann takes as an example the
Minangkabau ethnic group (also known as Minang or Padang), an indigenous people of the highlands of West Sumatra (Indonesia). The Minangkabau strongly prefer to apply long-standing customs even though those customs (adat) differ from state law, and even more rigorously in regard to land matters as they particularly do not wish to comply with state law in this instance, and so have ‗resuscitated‘ an older version of adapt than is applied in more contemporary times.124 The state, in contrast, is concerned that recognising the local legal system may lead to conflict between state law and customary law.125 To address this issue, some states may seek to integrate
121 Raja Devasish Roy, 'Traditional Customary Laws and Indigenous Peoples in Asia' (2005) 20. 122 New Zealand Law Commission, above 95, 89 [7.22]. 123 Roy, above n 121, 20. 124 Franz von Benda-Beckmann, 'Scape-Goat and Magic Charm: Law in Development Theory and Practice' (1989) 28 Journal of Legal Pluralism 129, 137–8. He also notes that there is a degree of inconsistency depending in practice where the very person who lauds the application of adapt may, where it suits his own purposes, seek refuge in the application of state law: at 139–40. 125 Ibid 140. 46
customary law into the state‘s legal system126 or apply customary law as subordinate to that state‘s written law. According to Roy, where such conflict exists, generally statutes are more legally valid than customary law.127
2.3.2 Customary law is law that relies on recognition by the state
In terms of legal history, many scholars argue that in the legal system, sources of law include custom (or consuetudo which has been treated as the first source of law), statute and juristic law. They are social phenomenon and are present in the popular consciousness.128
Customary law is an important source of law for all legal systems,129 both domestic and international.130 In Common Law systems, customary laws are a source of law and can be understood in several ways: as the original source of Common Law; as a description of conventional trade or business usage; and as a description of local custom which is considered law and applied in a particular locality.131
A custom is a particular rule which has existed either actually or presumptively from time immemorial, and has obtained the force of law in particular locality (…). Custom is unwritten law peculiar to particular localities.132
Sir William Blackstone argued that customary law is unwritten law, properly distinguishable into three kinds: (1) General customs (which is the universal rule of the whole Kingdom, and form the common law, in its stricter and more usual signification); (2) Particular customs (which, for the most part, affect only the
126 Yuksel Sezgin, 'A Comparative Study of Personal Status Systems in Israel, Egypt and India' (International Council on Human Rights Policy, 1999) 1. 127 Roy, above n 121, 6–7. 128 Ehrlich, above n 115, 441–6. 129 Sheleff, above n 71, 85. 130 Posterma, above n 97, 279; see also Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United States (Martinus Nijhoff, 1998) 18. 131 Ronald Walker and Richard Ward, English Legal System (Butterworths, 1994) 8–9. 132 Saunders, above n 77, 392. 47
inhabitants of particular districts); and (3) Certain particular laws (which, by custom, are adopted and used by some particular courts, of pretty general and extensive jurisdiction).133 In a number of Common Law countries, customary law was a major source of law before the development of common law in the 12th century.134
Customary law is basically not only an integral part of modern law135 but also the raw material for legal information. Customary law is normally placed beneath statutes and precedents in terms of status although it is still a primary source of law.
In the Civil Code legal systems, customary law is the second authoritative source of law.136 There are three types of custom recognised in civil law systems: custom which supports the law, custom which predates the law, and custom which is contrary to the law.137 Custom, in this legal system, may be recognised and safeguarded by the state, though that which is contrary to the law of the state is highly unlikely to achieve such status unless a form of separation from the central state and right to degree of self-governance is accorded to the province or area by the central state in which the customary law is to apply (for example, Aceh‘s partial adoption of Shari‘ah and practices that would normally be unacceptable to the government of Republic of Indonesia in other parts of the archipelago), and the persons to whom a certain customary law is to apply (and the circumstances under which it is to apply) must be clearly identified.138
133 Sir William Blackstone and Thomas M Cooley, Commentaries on the Laws of England: in Four Books (Callaghan and Cockroft, 1871) 67. 134 Christopher Enright, Studying Law (Federation Press, 5th ed, 1995) 160. 135Sir Carleton Kemp Allen, above n 81, 129. 136 Dadomo and Farran, above n 15, 37–8. 137 Ibid 39. 138 Law Reform Commission, Report 96 (2000) — Sentencing: Aboriginal Offenders (6 May 2011)
The position and role of sources of law in the legal system have changed over time, due to changing historical and economic conditions, as well domestic and international legal fluctuations. In modern nations, law is normally fundamentally established by legislation (by passing statutes) or adjudication (by judges deciding cases). To some extent, law is also formed from the informal usages and understandings. In other words, informal usages and understandings may institute law and they have the legal features of law.139 In common law systems, for instance, customary law plays an important role in their legal history. Its role is basic to an understanding of the development of the common law140 because common law embodies a set of insider‘s customs (essentially British customs).141 The customs of
Indigenous peoples in various parts of the British Empire were accepted not on their own terms, but within the context of customs as these were perceived within a positivistic framework.
In a number of other Asian countries (such as Korea, China, Indonesia, and India);142 and African countries (Kenya and Sudan), customary law is also considered as a source of law. In the Autonomous Government of Southern Sudan (Sudan),143 there are over fifty tribes and most have their own customary law system. Customary law is an official source of law in the Southern Sudanese legal system. Over 90 per cent of criminal and civil cases are executed under the jurisdiction of customary law.144
139 Bederman, above n 85, 1399. 140 Sheleff, above n 71, 79. 141 Perreau-Saussine and Murphy, above 100, 3. 142 For customary law in Asian countries, see M B Hooker, 'Chinese Customary Law in Contemporary Malaysia and Singapore' (1999) 1 Asian Law 34, 34–54; Marie Seong-Hak Kim, 'Customary Law and Colonial Jurisprudence in Korea' (2009) 57 American Journal of Comparative Law 205, 205–47. 143 Aleu Akechak Jok, Robert A Leitch and Carrie Vandewint, 'A Study of Customary Law in Contemporary Southern Sudan' (World Vision International, August 2004) 1–56. 144 Ibid 6. 49
Besides acting as a source of law, customary law also plays a significant role as a source of information for law.145 In other words, customary law can be the raw material for a legislature or a court in legislation or adjudication.146 As Murphy has noted, law rarely creates new forms of human activity but normally tends to modify on-going customary human enterprises.147 Historically, pre-legal normative practices were used as the basis for legal norms in formal law.148
Acts of legislation come out of the mores. In low civilization all societal regulations are customs and taboos, the origin of which is unknown. Positive laws are impossible until the stage of verification, reflection, and criticism is reached. Until that point is reached there is only customary law, or common law. The customary law may be codified and systematized with respect to some philosophical principles, and yet remain customary.149
Nevertheless, not every customary law is the source of law or a basis for legal norms.
Customary law constitutes law and sometimes, it just is the obligatory behaviour in a particular ethnic community.150 Customary law itself is derived from social practices which the community concerned accepts as obligatory.151 Obligatory behaviour could be seen as the initial stage of customary law because customary law was a behaviour pattern in the pre-state period. Since states were established, state law has become the main instrument in social management. Some customary laws became subordinate law while others remained in the role of customs.
Although traditional law is rooted in custom and tradition, it is not the same as custom and tradition. First, not all custom is law; only some customs meet the legal test of being backed by force sanctioned by society. Second, traditional
145 Sheleff, above n 71, 4. 146 Perreau-Saussine and Marphy, above 100, 6; see also Frederick Schauer, 'Pitfalls in the Interpretation of Customary Law' in Amanda Perreau-Saussine and James Bernard Murphy (eds), The Nature of Customary Law: Legal, Historical and Philosophical Perspective (Cambridge University Press, 2007) 13, 17. 147 Murphy, above n 110, 68–9. 148 Schauer, above n 146, 18. 149 Sumner, above n 68, 55. 150 Sheleff, above n 71, 12. 151 T W Bennett, Customary Law in South Africa (Juta and Company, 2004) 1. 50
law resembles other types of law in that it is constantly being interpreted as it is applied to changing times and novel situations.152
Customary law sometime may impact upon or obstruct state law. On the one hand, the state supports useful customary law because it benefits the country‘s development and society‘s management. The state may modify/reform state law to suit it to customary law or adjust customary law in order to make it conform to state law. If customary law is seen as social conduct, and expressing a long-standing behaviour of Indigenous peoples, state law may be made in accordance with that social conduct. If the state considers public interest, state sovereignty or social management far more than customary law, the state may adjust customary law to align with state law.153
However, on the other hand, the state may ignore or abolish customary law.
Customary laws that are inappropriate or a possible source of potential risk to national interests and state sovereignty may be abolished. Other customary laws that do not affect the existence of the state may be allowed to exist in the interface between formal law and popular practices.154
Several scholars (such as Tamanaha and Chiba) propose a solution for the relationship between state law and customary law. Chiba155 proposes a theoretical model of a ‗three-level structure of law‘ to define the relationship between state law and customary law. According to Chiba, state law should not simply be understood as pure state law but in addition to state law, may be considered to also include other
152 Bracey, above n 109, 70. 153 Nhat Thanh Phan, 'Van De Lua Chon va Ap Dung Tap Quan Phap De Bao Dam Quyen Con Nguoi Cho Cong Dong Dan Toc Thieu So' (2011) 1(62) Tap Chi Khoa Hoc Phap Ly 9, 15– 7 [Trans: Nhat Thanh Phan, ‗On the Choice and Application of Custom in Protection of Human Rights of Ethnic Minorities‘ (2011) 1 (62) Journal of Legal Sciences]. 154 Ibbetson, above n 96, 158. 155 Masaji Chiba, Asian Indigenous Law in Interaction with Received Law (KPI, 1986) 5–7. 51
kinds of official law, such as religious law or tribal law.156 In this instance, ‗state law‘ and ‗customary law‘ are both termed ‗official law‘.157
Nevertheless, considering the possible existence of a hierarchy, the state law may not be equivalent to customary law because if they were legally valid, then which one should be chosen in case of conflict between the two? Some countries such as the
USA, the United Kingdom (both Common Law systems) and France (Civil Code law system) consider customary law as ‗the second authoritative source of law‘,158 where
‗second‘ has the meaning of second in rank.
Other countries (such as Sri Lanka and Southern Sudan) tend to recognise the synchronicity of intermediate variables in the system of the official law because it may be important to balance the rights and benefits accorded by the law as well as responsibility it imposes among communities in the whole territorial domain. This means that it is much better if, besides state law, other norms exist, such as
Indigenous law (at least to some extent). For example, Sri Lanka‘s legal system consists of ‗official law‘ and ‗unofficial law‘ or else both Indigenous law and
‗transplanted law‘.159 It should be noted that the term ‗transplanted law‘ (used here for the first time in this thesis) is a one used for both ‗outsider law‘ imposed during the phase of colonisation and also to law from elsewhere that is actively selected by a government from among foreign models for adoption in domestic legislation, usually for reasons of efficiency, to address specific situations. Varying degrees of success have attended such efforts). In Sri Lanka, the highly successful adoption of the dual
156 Masaji Chiba, 'Legal Pluralism in Sri Lankan Society: Toward a General Theory of Non-Western Law' (1993) 33 Journal of Legal Pluralism 197, 199. 157 Chiba, Asian Indigenous Law, above n 155, 5. 158 Walker and Ward, above n 131, 8–9; see also Dadomo and Farran, above n 15, 37–8. 159 Chiba, ‗Legal Pluralism in Sri Lankan Society‘, above n 156, 208. 52
system gives evidence of a system of legal pluralism originating from Indigenous laws and transplanted law that function well.160 In Southern Sudan, local customary courts are highly appreciated for their adjudicatory activity.161
However, there are some limitations and negative effects to the adoption of customary law in a state. Such laws may be locally applicable and thus justice appear to differ from one area to another of the same state,162 unchangeable or inflexible and unable to take account of changing situations, and ‗backward‘ when compared to the official norms. Applying a plurality of legal norms may have its advantages but, to some extent, it also has a number of disadvantages. The disadvantages of legal pluralism may include a number of pitfalls that have troubled states where it has been adopted,163 including that official concepts may be ignored or swept aside, while the customary law may encourage evasive, unlawful, or even resistant behavioural patterns.164 Hence, the recognition of customary law as an official law should follow close procedures, legally and logically, in order to ensure the effectiveness of not only customary law but also the whole legal system.
2.3.3 Customary law is regarded as infra state-law
Regarding customary law as infra-state law, it is necessary to mention the existence of a legal hierarchy in order to examine which rung customary law occupies in it.
160 Ibid 210. 161 Tiernan Mennen, 'Lessons from Yambio: Legal Pluralism and Customary Justice Reform in Southern Sudan' (2010) 2 Hague Journal on the Rule of Law 218, 219; see also Tiernan Mennen, 'Legal Pluralism in Southern Sudan: Can the Rest of Africa Show the Way?' (2007) 3 Africa Policy Journal 49, 50. 162 For example, the minimum age for marriage, according to the customary law of a number of ethnic groups in Vietnam, is different from that provided in the state law (aged 14 – 16 in ethnic groups; aged 18 for girls and 20 for boys in the state law). 163 Mennen, ‗Legal Pluralism in Southern Sudan‘, above n 161, 50. 164 Masaji Chiba, 'The Intermediate Variable of Legal Concepts' (1998) 41 Journal of Legal Pluralism 131, 139. 53
Santos argues that ‗there are forms of infra-state laws, most of them informal, unofficial, more or less customary‘.165 Customary law plays a supplementary role to the state law to operate in cases where state law is unable to meet all the requirements of regulating social relations that may unavoidably occur. However, the interaction of customary law as infra-state law and as state law may have both positive and negative effects. On the one hand, the effect may be positive if they are uniform or work in unison to regulate social relations, in which case they have the same purpose and support each other. State law may contribute to the reinforcement of customary system or, alternatively, characteristics of customary may have been
‗incorporated into law‘166 or transformed into state law.167 In this instance, there is great interactivity:
Custom supports law, but law transforms the elements of custom that is appropriates into its own image and likeness. Law, in turn, supports other social forms, but becomes in the process part of the other forms.168
Evidently, customary law can also play an important role in the shaping of state law and official legal process of nation building.169
On the other hand, state law and customary law may also come into conflict and contradict, even oppose, each other in regulating social relations because they may have different subjects, objects, purposes and more importantly, different forms of benefits. To solve this conflict, the hierarchy and legal validity of sources in the legal system should be defined. According to legal pluralism scholars, customary law
165 Boaventura De Sousa Santos, 'Law: A Map of Misreading — Toward a Postmodern Conception of Law' (1987) 14(3) Journal of Law and Society 279, 287. 166 P Fitzpatrick, 'Custom, Law and Resistance' (Paper presented at the Legal Pluralism: Proceedings of the Canberra Law Workshop VII, Canberra, July 1985) 67. 167 Besson, above n 109, 48–9. 168 Gunther Teubner, 'The Two Faces of Janus: Rethinking Legal Pluralism' (1992) 13 Cardozo Law Review 1443, 1452–3. 169 Besson, above n 109, 51. 54
when it is considered as infra state-law, is an example of ‗weak‘ legal pluralism.170
Customary law is governed by state law and it is the result of recognition by the state.
Hooker argues that in any nation, the state law system is the ‗politically superior‘ and ‗dominant‘ law while Indigenous (‗customary‘) systems are ‗servant‘ laws. The lesser laws in this instance are generally described as ‗customary‘ or ‗primitive‘.171
Whatever the practice in any particular state, there are three features which can be generally be distinguished. First, the national legal system is politically superior, to the extent of being able to abolish the indigenous system(s). Second, where there is a clash of obligation the rules of the national system will prevail and any allowance made for the indigenous system will be made on the premises and in the forms required by the national system. Third, in any description and analysis of indigenous systems the classifications used will be those of the national system.
Though considered as official law, customary law is secondary to the state law. State law plays the decision-making role whereas customary law is subordinate to state law and only supports state law in regulating social relation, thereby contributing stability to communities in particular and society in general.
2.3.4 Customary law is regarded as non-state law172
Research on legal pluralism reveals that state law is not the sole legal order for human life, especially for dispute resolution.173 Many scholars agree that law consists
170 John Griffiths, 'What is Legal Pluralism?' (1986) 4(24) Journal of Legal Pluralism 1, 5; see also Gordon R Woodman, 'The Idea of Legal Pluralism' in Baudouin Dupret, Maurits Berger and Laila Al- Zwaini (eds), Legal Pluralism in the Arab World (Kluwer Law International, 1999) 3, 5; and Yuksel Sezgin, 'Theorizing Formal Pluralism: Quantification of Legal Pluralism for Spatio-Temporal Analysis' (2004) 50 Journal of Legal Pluralism 101, 140. 171 Hooker, Legal Pluralism, above n 109, 4–7. 172 To some extend, research on legal pluralism lacks a criterion for distinguishing non-state law from other social norms such as religion, morality or social practice. A term for non-state law is sometime controversial. See Brian Z Tamanaha, 'The Folly of the "Social Scientific" Concept of Legal Pluralism' (1993) 20(2) Journal of Law and Society 192, 210–16; see also Martha-Marie Kleinhans and Roderick A Macdonald, 'What is a Critical Legal Pluralism?' (1997) 12 Canadian Journal of Law and Society 25, 32. 55
of state law and non-state174 and the legal nature of customary law is one of the forms of non-state law.175 Thus, legal pluralism must be studied in order to propose that other legal normative systems (non-state laws including customary law), be recognised so that they can exist and operate alongside state law.176 Such a proposal is based on the existence of customary law as an historical and legal phenomenon;177 and as a legal order, co-existing with other legal orders, such as state law and religious rules in a social field.178
According to Woodman, various kinds of law exist in many social fields with in the state.179 This illustrates the social phenomenon: legal pluralism,180 but the question arising here is how to define the hierarchy in which they operate in any given social field. The big difference between state law and other forms of normative social ordering is the way they express the state power.181 Legal norms are broadly mandatory and coercive from the state while social norms are the rules of certain social groups (not dealing with the scope of national territory). Thus, customary law generally applies to a specific locality or defined localities. As a local law, customary
173 International Council on Human Rights Policy, above n 112, 7. 174 This point of view is recognized by a huge number of researchers such as Gilssen, Vanderline, Hooker, Moore, Griffiths, Merry and Tamanaha. All of them use the term law to refer to non-state normative orders. 175 Gordon R Woodman, 'Ideological Combat and Social Observation: Recent Debate about Legal Pluralism' (1998) 42 Journal of Legal Pluralism 21, 23–4. 176 Ibid 41. 177 John Gilissen, Le Pluralisme Juridique (Université de Bruxelles, 1972) cited in John Griffiths, 'What is Legal Pluralism?' (1986) 4(24) Journal of Legal Pluralism 1, 10. Gilissen is the editor. 178 John Griffiths, 'What is Legal Pluralism?', above n 170, 38; see also Werner Menski, Comparative Law in a Global Context: The Legal System of Asia and Africa (Cambridge University Press, 2006), 113; Sally Falk Moore, Law as Process: An Anthropological Approach (Rutledge & Kegan Paul, 1978) 75–8. 179 Woodman, 'Ideological Combat and Social Observation‘, above n 167, 25. By critically analysing ‗Le pluralisme juridique: essai de synthèse' of Jacques Vanderline and ‗Le Pluralisme juridique‘ of John Gilissen, Woodman points out that there are various kinds of law. 180 Hooker, Legal Pluralism, above n 109, 6. 181 Sally Engle Merry, 'Legal Pluralism' (1988) 22(5) Law and Society Review 869, 879–80; see also Woodman, 'Ideological Combat and Social Observation‘, above n 175, 42. 56
law is present in an unadulterated form in the rural, mono-ethnic regions182 and applied in a certain domain. For example, according to the research which has done in some countries of the Pacific region (such as Tuvalu and Vanuatu),183 customary law is applied for adjudicatory activity in the locality.184
Concerning the role of customary law, customary law has been applied in anticipation of conflict and for dispute resolution in communities, as Santos has noted:
For the local communities the customary law was local law, a large-scale legality wee adapted to prevent and settle local dispute. For the state the customary law was part of a broader network of social facts that included the consolidation of the state, the unity of the state legal order, political socialisation, and so on.185
Chiba takes it a further step and gives the term ‗unofficial law‘ to this level of law in the legal hierarchy. As one of three elements of Chiba‘s legal structure, ‗unofficial law‘ seems to refer to customary law as a form of non-state law, and reveals the relationship between state law, customary law and other normative ordering norms.186
According to some scholars, the differences between state law (as official law) and customary law (as non-state law) are related to the establishment and scope of regulation of each entity and the relationship between them and political matters.
182 Mennen, ‗Legal Pluralism in Southern Sudan‘, above n 161, 51. 183 Farran, above n 14, 78. 184 However, in Pacific region, ―the terms ‗custom‘ and ‗customary law‘ are often used interchangeably and without clear definition. While custom may be a practice of usage without compulsion of sanction, it may also be a practice or usage which is required to be done or observed and failure to do so may result in sanction or punishment. See Farran, above n 14, 100. 185 Sousa Santos, 'Law: A Map of Misreading‘, above n 165, 289. 186 Chiba, Asian Indigenous Law, above n 155, 6. 57
With the view that customary law is not law, the state‘s view differs from that of the minority ethnic groups. According to Bohannan, state law and customary law are conspicuously different although they are both ways to regulate the behaviour or conduct of human beings.187 Customary law exists with its inherent attributes whereas state law is a product of the state.
Bohannan uses the terms ‗legal institutions‘ and ‗non-legal institutions‘ to distinguish law and other norms. According to this, the primary essential particularity of law (and legal institutions) is that they are specific, able to handle trouble, and able to transform non-legal institutions into legal institutions. Another particularity
(what Bohannan calls secondary criteria) is that law is a uni-centric political unit.
Other norms, including customary law, may have these particularities but not fully.188
In fact, Bohannan‘s point of view is that the legal pluralism debate is a question of whether state law and customary law are law (legal pluralism) or whether state law is law and customary law is social norms (legal centralism). By distinguishing ‗legal institutions and ‗non-legal institutions‘, Bohannan supports the paradigm of legal centralism.
Arguably, customary laws are not products of the state. They are unwritten social contracts,189 not law. According to Austin, laws or rules are established by many political powers such as political superiors, sovereigns or governments of sovereign
187 Jes Bjarup, 'Social Interaction: The Foundation of Customary Law' in The Role of Customary Law in Sustainable Development (Cambridge University Press, 2005) 89, 89. 188 Paul Bohannan, 'The Differing Realms of the Law' (1965) 67(6) American Anthropologist 33, 35– 8. 189 Bruce L Benson, 'Customary Law with Private Means of Resolving Disputes and Dispensing Justice: A Description of a Modern System of Law and Order without State Coercion' (1990) 9(2) Journal of Libertarian Studies 25, 26. 58
states, and non-political powers such as ethnic communities. Customary law is the
190 product of an ethnic community and the state may control them.
They are thought to oblige legally (independently of the sovereign or state), because the citizens or subjects have observed or kept them. Agreeably to this opinion, they are not the creatures of the sovereign or state, although the sovereign or state may abolish them at pleasure. Agreeably to this opinion, they are positive law (or law, strictly so called), inasmuch as they are enforced by the courts of justice: But, that notwithstanding, they exist as positive law by the spontaneous adoption of the governed, and not by position or establishment on the part of political superiors. Consequently, customary laws, considered as positive law, are not commands. And, consequently, customary laws, considered as positive law, are not laws or rules properly so called.
Sharing the same point of view, Murphy claims that customary law is not law and sometimes, it is seen as natural instinct because it appears to operate spontaneously, automatically, and tacitly. The only difference is that it is established in a particular social context. Customary laws are informal agreements of a social, local or communal character. These unwritten social contracts are established spontaneously, and not by abiding to any procedures or rules therefore, its ethos is easy and reflexive.191
Although customary law and state law are different due to the manner of their establishment, they are still similar because they exist in the same social field and both regulate human behaviours. Many scholars question whether customary law are consistent with state law in regulating human behaviours or whether customary law and state law are contrary to each other (in terms of purpose, subjects and scope to regulate). Seeking the answer to this question, Murphy examines from different points of view the relationship between customary and state law, as well the debates regarding legal pluralism. He suggests that opinion on the validity of customary law
190 John Austin, The Province of Jurisprudence Determined (Cambridge University Press, 1995) 34. 191 Murphy, above n 110, 54–9. 59
is divided into two schools: one argues that customary law is one of the sources of law; another (and generally those jurists of the historical school) asserts ‗all law is custom‘.192
Custom is not simply one of the sources of law from which selections may be made and converted into law by the independent and arbitrary fiat of a legislature or a court, but that law, with the narrow exception of legislation, is custom, and like custom, self-existing and irrepealable.193
Carter made that statement because he considers that social conduct governs human conduct. Thus, he assures the reader that customary law and state law originate from customs.194 Custom here is more than the raw material for establishing law and law, in turn, gives custom legal validity. The growth of law means growth in the empowerment of custom.195
Another reason for customary law not being recognised as law is the difference between customary laws from community to community. Customary law is impossible to apply homogenously at a national level.196 Law is generally considered as a national response and is issued at the state‘s command. In substance, law should be a system with ‗normative closure, structural determination and dynamic stability‘.197 ‗Normative closure‘ sets out a limitation to the scope of the law defining those who are to conduct themselves according to its text. ‗Overdoing‘ (or giving greater scope to the given regulations) is illegal.198 (This characteristic of state law is similar to customary law because they both are normative but the scope of regulation
192 James Coolidge Carter, Law: Its Origin Growth and Function (Knickerbocher Press, 1907) 173. 193 Ibid. 194 Ibid. 195 Murphy, above n 110, 66–7. 196 Miranda Forsyth, A Bird That Flies With Two Wings: KasTom and State Justice System in Vanuatu (ANU E Press, 2009) 146. 197 Gunther Teubner, 'The King's Many Bodies: The Self-Deconstruction of Law's Hierarchy' (1997) 31(4) Law and Society Review 763, 764. 198 Minh Tam Le, 'Ban Chat, Dac Trung, Vai Tro, Cac Kieu va Hinh Thuc Phap Luat', above n 45, 71. 60
differs. State law is normally national, particularly in a centralist socialist state or at the federal level of a federation, while customary law has a much more limited geographical (or ethnographical) scope. Furthermore, law is a structural system,199 dividing into branches, institutions and articles based on the scope of regulation.
Customary law, in contrast, typically does not distinguish between social relations that are criminal and those that are civil.200
As for ‗dynamic stability‘, it can be seen that law is relatively stable, concisely and clearly set out for all the country‘s citizens because it is written whereas almost customary laws are unwritten. More importantly, law (state law) possesses the power of the state because it is promulgated by the state. Again, customary law lacks this character because it comes from a community.201
In order to regulate society and ensure equality for all people, the state should strictly follow the principle that everybody is equal before the law.202 The state, by its privileged position of power, is able to unify different legal orders so as to create a uniform legal system.203 Hence, state law is conspicuously distinguishable from other social phenomena and also affect these social norms.204
From the political viewpoint, law may be closely related to politics. Consequently, the definition of law has political colour. Law is an instrument for political power,205
199 Kleinhans and Macdonald, above n 172, 27–8. 200 Vietnam may be a good example for this case. Customary law has no any categorizations of social relations. 201 Minh Tam Le, 'Ban Chat, Dac Trung, Vai Tro, Cac Kieu va Hinh Thuc Phap Luat', above n 45, 71. 202 Particularly for all parties who are signatories to International Covenant on Civil and Political Rights. 203 H Patrick Glenn, 'Persuasive Authority' (1987) 32(2) McGill Law Journal 261, 279. 204 Gordon R Woodman, Customary Law in Common Law System (18 May 2010)
therefore what is outside the legitimating hierarchy is non-legal.206 Non-legal orders, such as customs, usages, contractual obligations, and intra-organisational or inter- organisational agreements are social norms but never law.207 In the case where customary law is considered as a law of the nation, it sometimes is used as a political instrument.208 However, political leaders are typically very concerned about the adoption of customary law, particularly because its application might be inconsistent with state law.209 In addition, ethnicity may pose a threat to state integrity if customary law is used as a basic for claiming the right to self-determination, and this be translated into a declaration of independence.210
Nevertheless, it is undeniable in practical terms that the interaction between state and ethnic groups (in both colonial and non-colonial countries) obviously includes both the possibility of peaceful coexistence and the threat of unrest or dissolution. This threat to coexistence is not to the existence of the state per se, but to the nature of the state.211 Thus, the state, in protecting its sovereignty, needs to comprehend and solve amicably any difficulties arising in the relationship between the state and groups of people and the people as a whole because people (including ethnic groups) make up the state.
2. 4 Mode and Criteria for a Custom to be Customary Law
As mentioned earlier, customary law may be viewed as: (1) law or; (2) law if and only if it is recognized by the state. In the latter instance, customary law should
206 Friedrich Karl Von Savigny, System of the Roman Law (Higginbotham, 1867) 12 [Trans of: System des Heutigen Römischen Rechts (1840)] cited in Teubner, 'The King's Many Bodies‘, above n 197, 768. 207 Teubner, 'The King's Many Bodies‘, above n 197, 768. 208 Sheleff, above n 71, 21. 209 Ibid 23. 210 Ibid 55–6. 211 Ibid 56. 62
satisfy certain criteria set forth by state (or by courts) so as to be recognised as a legally valid norm or to be seen as a possible source of law.
Theoretically, customary law must be reasonable, legitimate, and consistent with public policy or with sound morals.212 Practically, customary law needs to be recognised by the state or authorities to enjoy legal status. The legislators or judges impress customary laws with the character of law. With this recognition, customary law becomes law and is applied as state law.213 However, in studying customary law, legislators have had to contend with difficulties identifying the nature of the additional features required to justify the transformation of custom into law.214
2.4.1 Mode of recognition
According to Woodman, there are two modes of recognition: institutional recognition (for instance, customary chiefs become administrative officials or judges of the state) and normative recognition. Institutional recognition is typically granted through legislation. Normative recognition is granted by recognising the operation of a combination of state law and customary law in adjudication. If the case is under customary law jurisdiction, customary law shall be applied.215
Recognition by legislation
The recognition of customary law may be expressed in a nation‘s constitution and other legal documents (such as Acts and decrees), providing a legal status for
212 Marphy, above n 110, 76–7. 213 Woodman, Customary Law in Common Law System, above n 196. 214 Alan Watson, 'An Approach to Customary Law' (1984) (3) University of Illinois Law Review 561, 561. 215 Woodman, Customary Law in Common Law System, above n 204. 63
customary law at a national level.216 This recognition is the legal foundation for its inclusion in other Acts and in its application in subordinate laws and regulations.
Recognition by the judiciary
For most countries that follow a Common Law system (such as the United Kingdom,
USA, Australia and several states in Africa), the process of recognition is basically accorded by judicial decisions.217 Custom is qualified as law only after it is applied by a judge to settle a dispute. According to KJ Rustomiji,218 only custom, which is of normative character, can be so used. It means that custom should be law, that is
‗customary law‘ (not those habits or informal usages and understandings that are considered not to be legally binding)219 of a minority group before it receives judicial recognition to obtain legal validity as state law. Based on the normative character, courts, representative of state power, transmute a custom (customary law) into a legal rule.220
The doctrine of opinio necessitatis seems similarly applicable in examining customs to see whether they are qualified to become a source of law.221 If a custom is seen to
216 Jennifer Corrin Care, 'Customary Law and Human Rights in Solomon Islands: A Commentary on Remisio Pusi v James Leni and Others' (1999) 43 Journal of Legal Pluralism 135, 137–9; see also Jennifer Corrin Care, 'Customary Law and Women's Rights in Solomon Islands' (2000) 51 Development Bulletin 20, 15–6. For example, in the Solomon Islands, the Constitution provides customary law as a source of law within the formal system. 217 David Lefkowitz, 'Customary Law and the Case for Incorporationism' (2005) 11(4) Legal Theory 405, 409. 218 K J Rustomiji, A Treatise on the Customary Law in Punjab (Allahabad, 1949) 3–4 cited in P K Bandyopadhyay, 'Importance of Customary Law' (1994) 7(1) Central India Law Quarterly 91, 92. 219 Bederman, above n 85, 1400. 220 John Austin, above n 190, 35. 221 Watson, above n 214, 563. 64
be more than simply habit but deemed an obligation to act in a certain manner then it could be implemented by the court as a binding rule.222
According to common law systems, judges can be law-makers. Judges are able to evaluate the customary practices of the inhabitants of the realm or country, and examine the nature and reality of existing customs to prove that a particular custom is recognised in social practice.223 The court only requires that the custom is expressed traditionally by mutual consent, with ‗neither writing, nor consideration, nor witnesses…[being] required‘.224 After conducting such an examination, the judge will decide whether or not the customary practice is to be applied in the adjudication.225
The co-existence of state law and customary law may lead to different results if a choice is made between applying each form of law to the same type of event. The state, before permitting the application of customary law, thus clearly defines jurisdiction, subject matters (and whether the matter is to be heard in a state court or tribal court).226 In some states, depending on the degree and nature of social relations, the state will divide customary law (as state law) into that applying to (i) local customs (used in a specific locality within the country); (ii) international customs (used in relation between one country and another or other countries); (iii) class customs (that is, customary law applicable to a specific class of persons, for
222 Peter Ørebech, 'How Custom Becomes Law in Norway' in The Role of Customary Law in Sustainable Development (Cambridge University Press, 2005) 224, 226. 223 Sir Carleton Kemp Allen, above n 81, 129. 224 Robert D Cooter and Wolfgang Fikentscher, 'Indian Common Law: The Role of Custom in American Indian Tribal (Part II of II)' (1998) 46 American Journal of Comparative Law 509, 548. 225 Sheleff, above n 71, 79. 226 Cooter and Fikentscher, 'Indian Common Law: The Role of Custom in American Indian Tribal (Part II of II)', above n 224, 558–9. 65
example, professions, trades and the like); and (iv) family customs (dealing with particular family issues, such as marriage, divorce, naming).227
2.4.2 Criteria for recognition
As a pioneer in providing criteria for the recognition of customary law, Blackstone notes that ‗the rules relating to particular customs regard either the proof of their existence; their legality when proved; or their usual method of allowance‘.228 With proof, all customs must be particularly related to and pleaded for in issues of conflict.
Legality requires that custom must have certain characteristics. As to the allowance of customs, customs must be construed and pursued strictly. Many scholars (such as
Walker and Ward) when studying common law, completely support Blackstone‘s viewpoint and synthesise criteria for custom to become customary law.229 Those criteria commonly include the following:
Antiquity: Antiquity requires that custom have been used so long that ‗the memory of man runneth not to the contrary‘.230 This characteristic is highly agreed upon by mutual consent of customary law researchers. Custom should be the immemorial practice or long-standing231 or long-standing usage232 of people in a particular
227 Bandyopadhyay, above n 79, 96. 228 Blackstone and Cooley, above n 133, 75. 229 Ibid 75–8; see also Walker and Ward, above n 131, 8–10. 230 Blackstone and Cooley, above n 133, 76. 231 Ibbetson, above n 96, 152. 232 Sheleff, above n 71, 84; see also Watson, above n 214, 562. 66
context or place233 from the time of legal memory.234 Existence of such a timespan must be verified by the oldest available local inhabitant as a witness.235
Continuity: Custom must have been repeatedly and constantly followed by the individuals concerned, not being interrupted for any period of time.236
Peaceable enjoyment: Custom is not subject to contention and dispute. This may come from departure from customary law. According to Murphy and Perreau-
Saussine, customary law is established by the community; therefore, every member in the community is voluntarily bound by it.237 Custom exists by common sense, and is expressed by the common behaviour of Indigenous people. Persons voluntarily follow custom, not by force or threat of other persons beyond the culture groups.
Reasonability: According to Sir William Blackstone, customs must be reasonable.
That is, able to ‗be understood of every unlearned man‘s reason‘.238 It can also be readily understood based on the awareness and behaviour of the community, which conducts or behaviour comply with customs and are therefore acceptable.
Certainty: custom must be certain. The courts, through the adjudicatory process, would identify three aspects of certainty; that is, practice, geographic area and population.239 Certainty of practice requires the subject of the custom (the matter involved in the custom) to be clearly defined and limited; certainty of locale desires a
233 Ross Harrison, 'The Moral Role of Conventions' in Amanda Perreau-Saussine and James Bernard Murphy (eds), The Nature of Customary Law: Legal, Historical and Philosophical Perspective (Cambridge University Press, 2007) 35, 37. 234 David Callies, 'How Custom Becomes Law in England' in The Role of Customary Law in Sustainable Development (Cambridge University Press, 2005) 158, 166–70. 235 Walker and Ward, above n 131, 9. 236 Catherine Elliott and Catherine Vernon, French Legal System (Longman, 2000) 53. 237 Perreau-Saussine and Murphy, above 100, 2. 238 Blackstone and Cooley, above n 133, 67. 239 Callies, above n 234, 190–209. 67
custom to be confined to a particular place or locale; certainty of person desires that it is applied to particular descriptions of persons. These requirements are similar to conditions of state law for a case to be adjudicated. Customary law would be applied if it could be so defined as to apply to a certain behaviour for a certain person/s and locality (right person, right locality, and right nature of the case).
Obligatory force: Custom must be normative, being a rule of behaviour. As law, custom has compulsory obligations and applies generally for every member of the community. Custom must be viewed as to be followed by members in the community.
Consistency: Customs in the community must be consistent and equal in their interaction with each other because they are of equal antiquity, and established by mutual consent. However, it is not compulsory that customs in different communities are consistent; and they may conflict.240
Other criteria: Besides the above, some other researchers (such as Bandyopadhyay,
Ørebech and Sheleff below) wish to supplement these criteria if custom is to be recognised as customary law, adding characteristics such as consistency in matters of public policy, unchangeable character, opinio juris necessitates, and passivity.
- Consistency in matters of public policy: Custom should not be opposed to public policy and it should not be in conflict with state law.241
- Unchangeable character: This character has relationship to the nature of
Constinuity. Customs, almost by definition, generally do not change and cannot be
240 Ibid 205. 241 Bandyopadhyay, above n 79, 97–8. 68
changed one recognised. If they are unacceptable to the dominant culture, their fate is usually eradication rather than alteration.242 As Sheleff writes, perception of custom as a ‗relic‘ of an unsophisticated past leads to ‗certain inescapable consequences‘ including the belief that
…customs can only be recognized if they are of long-standing usage, and once recognized, cannot be changed; or alternatively that they are not acceptable by the standards of the dominant culture and thus must be totally eradicated; or where several such customs exist, that the whole system must be rejected, without any opportunity to respond dynamically to the changing environment, including those changes which are triggered by the impact of another culture, which may also well be the dominant culture.243
In other words, Sheleff believes (contrary to the view of some) that customary law has the capacity to change as the opinions of the community in which it operates and from whom it is derived change,244 but is seldom accorded the opportunity to so.
This degree of flexibility (see further below) could be the manner in which custom may endure and have its relevance maintained.245
- Opinio juris necessitatis (under a belief that the norm has legal status): This requires that the prolonged practice is not just frequently observed as occurring, and that it is more than a social norm, but rather a norm that has legal status in the community. It is law based on a common belief. The custom is regarded as customary law and applied to a situation if it satisfies the following three conditions:
(i) the normative norm exists (or deducible); (ii) the parties‘ dispute is under the
242 Sheleff, above n 71, 84. 243 Ibid. 244 New Zealand Law Commission, above n 95, 43. 245 Sheleff thinks that tradition can change under circumstance, for example, gradual ‗dying out‘ of polygamy as life gets more expensive. See Sheleff, above n 71, 85. 69
scope of this normative norm; and (iii) customary law should be recognised despite the existence of minor material discrepancies.246
- Passivity: Custom is without actively expressed opposition.247
Historically, Vietnam considered customary law as official law in the legal system but there were no regulations or standards for custom to be transformed into customary law. As Vietnam is in the process of recognising customary law, research on the criteria for recognition of customary law is necessary in order to make recommendations for proposals for such changes in Vietnam.
2. 5 Advantages of Customary Law in Application
In a society in which the state is present, the relationship between state law and customary law is determined by many factors, especially by the nature of state-local relations.248 In order to recognise customary law, the state accepts the need to address any disadvantages that could be caused by such recognition, because even though the co-existence of two legal orders benefits social relations in general, it can also cause conflict in the application of the law.
2.5.1 Particularity
Customary law is flexible and adaptable.249 Though, according to many definitions
‗unchanging‘, its recognition can in and of itself also contribute to major change. To some extent, it gives the rights of self-determination to communities, thus aligning with human rights development. Customary law is a plea for a legal endorsement of
246 Ørebech, above n 222, 235. 247 Ibid 238–40. 248 Olson, above 92, 19. 249 Elliott and Vernon, above n 236, 53. 70
cultural differences,250 in which Indigenous peoples and ethnic groups may be provided the necessary context for the practice of their traditions and observance of their social mores and their interpretation of custom within their community,251 where there is no language barrier nor cultural differences.
Customary law is embedded in Indigenous life, and is an intrinsic part of ethnic communities. However, there may be matters which do not easily align with the modern nation state in which the community operates. Their recognition by the state may be a far more complex process than at first appears. Many matters are under the scope of customary law and, in the event of conflict between state and customary law may be very difficult to change ‗by a stroke of the legislative pen‘.252 For example, customary laws are concerned with deeply entrenched civil matters such as ownership, inheritance and family issues. The local people wish to apply their own rules rather than the rules enacted by the nation state.253
2.5.2 Jurisdiction
Customary law is generally applied in a defined area within a local jurisdiction.254 In most cases, traditional leaders may be involved, and that may make the decision of a case more convincing to people in ethnic communities. In addition, customary law may be applied in the wide range of social relations, including civil, marriage and family, criminal and administrative cases. Regarding judicial activity, customary law
250 D S Koyana, Customary Law and the Role of the Customary Courts Today (14 April 2010)
may support state legal system by dealing with customary cases, thus reducing the burden on the court system.255
In practice, some countries prefer to apply customary law to civil cases only. In some other countries (such as Northern Sudan) customary law also has jurisdiction over a limited number of minor criminal cases relating to children or common assault.256
2.5.3 Customary courts and procedures
Customary courts offer many advantages. They are established in accordance with the expectations of Indigenous peoples and minority groups (‗vary from place to place‘).257 Thus, the decisions are easily reached as mutual consent is rapidly attained because the decisions are based on custom. In many cases, customary law is applied by customary leaders258 or judges who are elected by the local community.259
Therefore, enforcement of decisions is simpler because they are rarely appealed.
Additionally, procedures of customary law courts may be simple, inexpensive, accessible, and speedy. Proceedings are easily understood by users of the system260 and the result of the case is given quickly.261 Customary tribunals can be seen as possessing geographic proximity, familiarity, and relevance. Although state courts need time to reform if they are inappropriate to the task, customary courts are familiar, and the community members have a sense of ownership, and the courts
255 Forsyth, above n 196, 175. 256 Minneh Kane, J Oloka-Onyango and Abdul Tejan-Cole, 'Reassessing Customary Law Systems as a Vehicle for Providing Equitable Access to Justice for the Poor' (Paper presented at the New Frontiers of Social Policy: Development in a Globalizing World, Arusha, Tanzania, 12–15 December 2005), 6– 7. 257 Bennett, above n 151, 166. 258 Jennifer Corrin Care, Tess Newton and Don Paterson, Introduction to South Pacific Law (Cavendish, 1999) 31. 259 Anne Hellum, 'Human Rights and Gender Relations in Postcolonial Africa: Options and Limits for the Subjects of Legal Pluralism' (2000) 25 Law And Social Inquiry 635, 637. 260 Kane, Oloka-Onyango and Tejan-Cole, above n 256, 3. 261 Forsyth, above n 196, 186–9. 72
themselves demonstrate resilience, practice restorative justice and can exercise their powers with a degree of flexibility.262
2. 6 Disadvantages of Customary Law
There is no doubt that conflict between state law and customary law is a widespread phenomenon in the application of law.263 The clash originates from several sources, and in relation to many issues, such as jurisdiction, scope of application and procedures. However, major issues centre on two conflicts: that of state sovereignty and that of judiciary.
The first issue rises out of the conflict between the sovereignty of the state and the right of autonomy. The state seems to share its legislative, executive and judicial powers with the ethnic communities in building state law and applying customary law. However, this share is unequal because the relationship between state and ethnic groups is unequal.264 With the state, law should have a certain political purpose265 while local people consider laws (whether state law or customary law) should be used to empower and protect people rather than to entrench some political aim.266
In addition, customary law may be malleable or vulnerable to capture by powerful groups within communities.267 In this instance, customary law may be abused, or for some reason, applied for powerful purposes, not for justice.
262 Kane, Oloka-Onyango and Tejan-Cole, above n 256, 9–15. 263 Deirdre Evans-Pritchard and Alison Dundes Renteln, 'The Interpretation and Distortion of Culture: A Hmong "Marriage by Capture" Case in Presno, California' (1994) 4(1) Southern California Interdisciplinary Law Journal 1, 2. 264 Roy, above n 121, 21. 265 Antony Allott, 'The Limits of Law: A Reply' (1983) 21 Journal of Legal Pluralism 147, 149–50. 266 Kane, Oloka-Onyango and Tejan-Cole, above n 256, 3. 267 Ibid. 73
Another area of conflict may be judicial. The recognition and application of customary law may not only cause conflict within the legal system, reducing a consistency and unity of legal system across its entire reach but, more importantly, custom would essentially change its nature, losing its value and purpose;268 it would become something that is externally applied via state sanctioned courts and their structures of punishments and so forth and not internalised and administered as per what had been the previously enduring custom.
The application of customary law also represents a real struggle between
‗conservatives‘ and ‗reformists‘, and involve a written code of law and partial reform of state of customary and legal compendia. There will be those who wish to see the rigid imposition of almost pre-colonial customs, while others would prefer the application of customs that have been altered to meet the demands of the society in which the community now exists but without significant compromise of the ‗spirit‘ of the custom.269 The application of customary law may also cause confusion in jurisdiction and procedures as well difficulties in enforcement of processes and judgments of Indigenous courts.270
2.6.1 Particularity
To some extent, customary law may be ‗inconsistent, unpredictable and discriminatory‘.271 For example, equal access to the law (irrespective of age or gender) may not be an embedded principle.
268 Forsyth, above n 196, 147. 269 For example, a behaviour may remain subject to sanction but the nature of the sanction may change from a physical beating to a monetary fine or imprisonment. 270 Roy, above n 121, 23–5. 271 Kane, Oloka-Onyango and Tejan-Cole, above n 256, 3. 74
State law exists as a chain of activities and, therefore, it is not possible to maintain an entirely stable identity.272 It usually (in socialist and democratic states) takes the form of legislation submitted to the elected government, and subject to later amendment or even subsequent repeal. In the courts, decisions are made, appealed, overturned or upheld and the understanding of the law evolves.
Customary law, on the contrary, is a purely empirical phenomenon. The application of customary law is based on rules that have been established over a long period and have existed for a long time in the community‘s life;273 they are generally stable in nature and hard to change.
The recognition of customary law would highlight cultural distinctiveness. This would represent a powerful recognition of the community as a distinct entity and one entitled to observe its traditions. While this is empowering to the community, it may pose a number of problems within the contemporary multi-ethnic society in which the community operates. It also empowers traditional customary law, which may pose problems for those within the particular community who no longer recognise what has been ‗since time immemorial‘ the customary law of that community.
Customary laws come from mores, values and traditions of Indigenous ethnic groups.
They are also influenced by religious dogmas and national policies.274 Many people argue that ‗much of the application of customary laws in practice consists of the repetition of principles and rules which have now become ‗ancient‘‘.275 This observation, to some extent, is true. Several customs, such as polygamy and early
272 Teubner, 'The King's Many Bodies‘, above n 197, 764. 273 Susan W Brenner, Precedent Inflation (New Brunswick, 1992) 114. 274 Kane, Oloka-Onyango and Tejan-Cole, above n 256, 5–6. 275 Allott, above n 265, 149. 75
marriage may not be appropriate to current situations and social development. The recognition of customary law would mean that the legal system would have to contend with some unwanted quid pro quo issues because some contentious matters
(such as early marriage (in breach of the United Nations Convention on the Rights of the Child to which a country may be a signatory), polygamy in marriage, use of drugs in religious ritual) often exist in customs and they can be guaranteed in terms of the preservation of order in specified regions of a country.276 Indeed, aligning ethnic practices to regions in itself overlooks the obvious point that in increasingly urbanised modern states a person may live in an area where the practices of one majority culture are sanctioned but those of their minority culture are not. This raises yet another difficulty if the jurisdiction of customary law is understood geographically rather than in terms of a cultural specificity and membership.
2.6.2 Jurisdiction
Though customary law may regulate different social fields (marriage, child raising practices, adoption), it is very local and partial. Thus, custom is limited in its application (it is only for a particular class or place).277 Additionally, it is hard to define which system should deal with which types of cases, whether it should apply for (as mentioned earlier) civil cases (Zimbabwe, Tanzania) or both civil and criminal cases (Papua New Guinea278 and Northern Sudan279).
The co-existence of various legal orders may be problematic when justice is to be applied. Different level of courts may make different decisions in the same case. For
276 Sheleff, above n 71, 123. 277 Allen, above n 81, 130. 278 Village Courts Act 1989 (Independent State of Papua New Guinea) art 36; see also George D Westermark, 'When the Alternative Fails' (1996) 36 Journal of Legal Pluralism 183, 184. 279 Aleu Akechak Jok, Robert A Leitch and Carrie Vandewint, 'A Study of Customary Law in Contemporary Southern Sudan' (World Vision International, August 2004) 13. 76
example, in Indonesia (particularly Batak), where an individual is subject to more than one legal system (normally state law and customary law), he/she is able to choose the law which is most advantageous to him/her. Citizens also have the right to use customary law and state law in turn.280 There are two instances. Firstly, if the case has been settled by customary law, it may be difficult to apply state law because the persons concerned are not willing to apply to another system if they would be at a disadvantage in that court. Conversely, if citizens have had a sanction applied under state law, they will not accept that a customary sanction should also be applied because they would argue that their behaviour has been punished once already.
An ambiguous distinction between civil and criminal cases is one of customary law‘s shortcomings. When the courts do not distinguish clearly between civil and criminal cases, it may lead to a situation that criminalises activity in a civil case.281 To avoid this situation, many countries prefer to apply customary law in civil cases only with very strict regulations. Firstly, the local courts usually resolve civil disputes within the territory it controls.282 Secondly, the application of customary law for civil cases must follow certain procedures and operate in situations in which civil transactions are regulated by custom and intended by the parties or which justice requires.283 In the states where a dual legal system exists (such as in Zimbabwe), customary law is applied in civil cases when the case is related to ethnic origin or race, life style, the place where property is situated, the nature of the property in dispute, the place
280 Sulistyowati Irianto, 'Competition and Interaction Between State Law and Customary Law in the Court Room: A Study of Inheritance Case in Indonesia' (2004) 49 Journal of Legal Pluralism 91, 108–9. 281 Koyana, above n 250. 282 Robert D Cooter and Wolfgang Fikentscher, 'Indian Common Law: The Role of Custom in American Indian Tribal Courts (Part I of II)' (1998) 46 American Journal of Comparative Law 287, 305. 283 Care, Newton and Paterson, above n 258, 31. 77
where the cause of action arose, and the form of transaction.284 Similarly, Tanzania will use customary law for civil matters if the parties (or one of the parties) are members of a community in which rules of customary law relevant to the matter are established and accepted.285
2.6.3 Customary courts and procedures
It is a fact that customary law is often not recorded and therefore, difficult in appeal.
A combination of judges and representatives of communities (leaders) is required for the adjudication of a case, for giving the decision and sentencing. Hence, choosing and deciding upon the members of the judiciary are both very important and difficult.
It is also only common sense that any citizen would wish to have the law applied and mode of law implemented that is mode favourable for them. Accordingly, if the decision of the state law or customary law application is advantageous to them, they do not want to apply to another legal system for the appeal procedure.
Another concern is about the difference between areas and localities. If the persons concerns with the action are from more than one ethnic community, the state should have mechanisms to regulate jurisdiction, and the role of the panel appointed should be to avoid contradictory discrimination and transcommunity issues (when dealing with parties from different communities and with conflict among communities).286
284 T W Bennett, 'Conflict of Laws — The Application of Customary Law and the Common Law in Zimbabwe' (1981) 30 International and Comparative Law Quarterly 59, 70–9. 285 Judicature and Application of Laws Act 1961 (Tanzania), art 11(1)(a). 286 Kane, Oloka-Onyango and Tejan-Cole, above n 256, 9–15. 78
2. 7 Conclusion
This survey of how customary law is treated in different parts of the world has vividly illustrated the existence of customary law, in that customary law as law (or non-law) has been widely recognised by a number of legal systems in the world.
As a universal and important feature of society, customary law has long been studied and still attracts significant attention in contemporary society. Scholars have a serious interest in customary law not purely because it is an interesting topic but because it has intrinsic value for human beings. To the author of this thesis, studying customary law is considered a way of making a humble contribution to the status of customary law in the hope that there will be greater recognition of customary law and its true worth to society.
An enduring viability of customary law over the legal history of humankind has demonstrated its true value: in regulating human behaviour in society. Customary law is an essential feature of the community. The existence of customary law is the expression of the existence of community. It is unfair for customary law to be characterised seen as merely local and ‗backward‘ rules; the true worth of customary law is as the law of Indigenous peoples and ethnic communities. If there is a respect for Indigenous people and ethnic groups, such respect should also be directed to their culture, customs and laws.
The most salient feature of customary law is its normative character. Whether in the pre-state or post-state period, and whether capitalist or socialistic politics prevail, customary law is considered as law by many people. When talking about customary law, many people may think of ethnic community law or Indigenous law. This means
79
that customary law, with its long-standing values, has created legal character for itself; it has not been created by recognition by the state.
The debate on whether customary law is law or non-law tends to define its position in a legal system of a state. The expression of customary law in the legal system may express an interrelationship between the state and ethnic groups within that state. If customary law is recognised, it can be said that the state shares some power
(particularly legislative power) for ethnic groups with those groups. On the contrary, if customary law is considered as non-law, the state may limit the legislative power of ethnic groups to the lowest level. In this instance, state law is placed in the highest and unique position and as a result, other norms may be ignored in the legal system.
However, the non-recognition of customary law is more theoretical than practical because customary law still exists in the binding rules of a community. However, this does not mean that the recognition of the state is insignificant. If the state recognises customary law, customary law‘s legal position may then be far different from the position that is spontaneous allocated it by the community.
Some countries, to some extent, use customary law as a supporting instrument for state law. This application should be acknowledged as positive feature of the dynamic involving the state and customary law. Nevertheless, there seems to be a lack of an agreement about the ‗owner‘ of customary law. Indigenous people and ethnic groups may not control (and have no rights to control) the state when it uses their law. The state may prefer to apply customary law as infra state-law to fit the gaps of law rather than to uphold the values of customary law or to benefit
Indigenous or ethnic communities. In cases where the state really make concessions to ethnic minorities in the recognition of customary law, if a conflict then arises 80
between state law and customary law, the right to negotiate should be given to ethnic minorities in order to find a proper resolution for both.
The legal position of customary law may be seen from many angles, as law or non- law, as legal normative orders or social norms. The value of customary law in social life is undeniable. It needs to be regarded as law in the true meaning of the word law.
Another concern highlighted by the survey presented in this chapter is the transformation of custom into customary law. It can be seen that the process of custom gaining a legal character is not simply and completely based on the will of the state. Custom will be strictly chosen (by legislation or by the court) before becoming customary law. However, it may be a shortcoming if the process of recognition lacks the involvement of ethnic community members and traditional leaders. Why does only the state have the right to choose and evaluate customs but ethnic communities do not have such a right, yet the customs are their products not the state‘s products? Their participation in the process of recognising customary law may contribute to the correct identification of customs, a more accurate estimate of the length of time that the custom has existed and lead to a true understanding of the values of customs to the community.
Relating to criteria for a custom being transformed into customary law, the author of the thesis wonders these criteria are based on scholars‘ subjectivism or based on surveys of ethnic groups‘ opinion. This question raises because some criteria such as consistency in matters of public policy and opinio juris necessitatis cannot be supplied by ethnic communities. They may come from legislators. It would be better if in regard to the process of defining how custom is to become customary law,
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traditional leaders and representatives of ethnic groups of customs under consideration are involved.
Some scholars consider customary law‘s limitations in jurisdiction and procedures.
However, other sources of law such as state law and precedents have the same problems. Thus, customary law should be accommodated so that it can be applied appropriately rather than simply abolished. In addition, its advantages and disadvantages should be evaluated by the community. The assessment by the communities allows them to give their opinion about which customs accord with their life and which customs are not longer suitable. The state, based on their assessment, could make appropriate proposals for the recognition or non-recognition of such customs.
In short, customary law is an historical, social and legal phenomenon. It has been regarded as source of law in a number of countries in the world. The recognition of customary law is universal and enduring, not a temporary curiosity. The impact of customary law on society, particularly ethnic communities, is undeniable.
Vietnam, with a desire to recognise customary law in the legal system, should have positive outlook on customary law. The recognition of customary law should be considered as a natural social phenomenon because customary law itself is social phenomenon. Customary law, whether the state recognises it or not, will continue to endure as it always has.
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3 WHY COUNTRIES SHOULD RECOGNISE CUSTOMARY LAW AS A
SOURCE OF LAW: LEGAL PLURALISM
3. 1 Introduction
The story of legal pluralism began in the 1930s with fundamental premises concerning the nature of law.287 Since the 1970s the term has come into common use with pioneers such as M. B. Hooker (1975),288 Sally Falk Moore (1978),289 John
Griffiths (1986),290 Masaji Chiba (1986),291 William Twining (2000)292 and many others, who have brought this issue to the forefront as a major theme of social-legal research.293
The purpose of legal pluralism study is not to impose limitations on some forms of law and intensify the status of others but to explore the status of both, where different kinds of law cooperate, and investigate how to apply them effectively in society.294
The main contents of legal pluralism research are the study on plurality of legal orders, the coexistence of state law and other normative orderings.295 According to
287 Ehrlich, above n 115, chs I, II, IV, VII, and XIX. The contribution of Eugen Ehrlich is very important to the study of the concept of legal pluralism and includes study on the concept of law; the law of nature as non-state law and the dependence of law on the state and courts (ch I). He also sets forth the methods of studying the living law (chs XX and XXI) as well as a ‗scientific conception of law‘; see also Baudouin Dupret, 'Legal Pluralism, Plurality of Laws, and Legal Practices: Theories, Critiques, and Praxiological Re-specification' (2007) 1(1) European Journal of legal Studies 1, 2. 288 Hooker, Legal Pluralism, above n 109. 289 Moore, Law as Process, above n 179. 290 John Griffiths, 'What is Legal Pluralism?', above n 170. 291 Chiba, Asian Indigenous Law, above n 155. 292 William Twining, Globalization and Legal Theory (Butterworths, 2000). 293 Dupret, above n 279, 1; see also Menski, above n 179, 82. 294 Peter Sack, 'Legal Pluralism' (Paper presented at the Legal Pluralism: Proceedings of Canberra Law Workshop VII, Canberra, July 1985) 3. 295 Ralf Michaels, 'Global Legal Pluralism' (2009) 5 Annual Review of Law and Social Science 243, 243. 83
Merry,296 while the initial studies of legal pluralism were centred around the relationship between normative orders in colonial and post-colonial societies (what she called ‗classical legal pluralism‘), scholars have — from the end of 1970s — moved in the direction of studying legal pluralism of non-colonised societies (what she calls ‗new legal pluralism‘).
Recently, the issue of legal pluralism has been largely developed, in terms of
‗International Legal Pluralism‘297 or ‗Global Legal Pluralism‘.298 For instance, at the
International Conference on Legal Pluralism (held in 2009 in Zurich, Switzerland), a huge number of participating scholars discussed the ‗Legal Pluralist Perspective on
Development and Cultural Diversity‘.299 This reveals that the study of legal pluralism is concerned about general legal science issues, such as the relationship between law and society; the recognition of customary law as an official source of law of the national legal system; and the independent coexistence of state law and Indigenous norms.300 Moreover, for multi-ethnic countries in Asia, Africa, Latin America and in
Europe‘s former colonies, legal pluralism involves specific issues concerning the relation between colonial laws and post-colonial laws; the recognition of ethnic customary law and religion; and the positive and negative impacts of social norms on state law. Legal pluralism has become an issue attracting special attention from anthropologists, scientific societies, and, more importantly, legal studies
296 Merry, 'Legal Pluralism', above n 181, 827. 297 Brian Z Tamanaha, 'Understanding Legal Pluralism: Past to Present, Local to Global' (2008) 30 Sydney Law Review 375, 387. 298 Michaels, above 295, 243–62; see also Paul Schiff Berman, 'Global Legal Pluralism' (2006-2007) 80 Southern California Law Review 1155, 1155–1237; Paul Schiff Berman, 'The New Legal Pluralism' (2009) 5 Annual Review of Law and Social Science 225, 225–42. 299 University of Zurich, 'Legal Pluralist Perspectives on Development and Cultural Diversity' (Paper presented at the International Conference: "Legal Pluralist Perspectives on Development and Cultural Diversity", Zurich, Switzerland, 31 August to 3 September 2009) 15–95. 300 Tamanaha, 'Understanding Legal Pluralism‘, above n 297, 390. 84
researchers301 as it may change an entire legal system or the whole arrangement and scope of a legal system and its components. Recognition or non-recognition of the plurality of law may lead to a change in a legal system. (In Vietnam, for example, legal centralism has existed for a long period, and if legal pluralism is recognised, the country‘s sources of law will include customary law as well as state law).
However, scholars have different motivations and purposes in approaching the concepts, nature and values of legal pluralism. Studying the concepts, and their nature, and analysing the legal pluralism phenomenon presents a challenge for this writer because this area (and the debate associated with it) has been largely ignored by Vietnamese legal scholars. However, the thesis should, therefore, be all the more valuable because it may contribute to improving the Vietnamese legal system, which must confront a number of drawbacks to its existing system, including the meagreness of the sources of law, uncoordinated and overlapping legal system and shortcomings in the law–making process.
3. 2 The Concept of Legal Pluralism
Considered as a diffusion phenomenon,302 the conception of legal pluralism emerges when other legal systems of law were exposed as operating with the state law, whether in harmony or in conflict,303 whether as incorporated within the (state) law or separate from and different to the (state) law.304 Legal pluralism exists in every society, and it is expressed in the variety of their normative orders that are recognised
301 Yuksel Sezgin, 'A New Theory of Legal Pluralism: The Case of Israeli Religious Courts' (Paper presented at the Religion, Ethnicity, and the Court in Israel, San Diego, CA, 27–29 April 2003) 6. 302 Legal pluralism is considered as a disseminated phenomenon because in society there are different rules for different situations; See Woodman, 'Ideological Combat and Social Observation‘, above n 167, 54; Tamanaha, 'Understanding Legal Pluralism‘, above n 297, 375. 303 Masaji Chiba, Legal Pluralism: Towards a General Theory through Japanese Legal Culture (Tokai University Press, 1989) 1–2. 304 Bracey, above n 109, 36. 85
by the community, though not by the state.305 Legal pluralism is also considered as a result of the process of transfer that has occurred between different legal systems which have been forced to interact (for example, during a period of colonisation).306
Hence, studying legal pluralism is the study of the existence of different normative orders in a social field and the role of the state in such a society, in order to evaluate how the state manages these normative orders.
Generally, most legal pluralism studies focus on two basic issues: the concepts and the approach to the concepts; and the coexistence of state law with other normative orders.307
Considered as one of the dominant notions in the field of legal anthropology,308 the concept of legal pluralism normally is studied from two perspectives: that of social field and that of legal order. Such studies attempt to comprehend a social-legal phenomenon that exists in practice where different normative orders coexist in a social field.309 Though scholars concentrate their research on the same issue, the initial studies of legal pluralism have indirectly approached the subject by observing the concept of legal pluralism through a prism of sociology. Shortly thereafter, the concept was examined more directly and concretely through a legal prism.310 Despite these differences of perspective and methodology, the studies all share the same purpose: to provide the most logical explanation of the phenomenon of legal
305 Anne Griffiths, 'Legal Pluralism' in Reza Banakar and Max Travers (eds), An Introduction to Law and Social Theory (Hart Publishing, 2002) 289, 302. 306 Hooker, Legal Pluralism, above n 109, 6. 307 Simon Roberts, 'Against Legal Pluralism: Some Reflections on the Contemporary Enlargement of the Legal Domain' (1998) 42 Journal of Legal Pluralism 95, 95–7. 308 Tamanaha, 'The Folly of the 'Social Scientific' Concept of Legal Pluralism', above n 172, 192. 309 Farran, above n 14, 77. 310 John Griffiths, 'What is Legal Pluralism?', above n 170, 2. 86
pluralism in the light of expectations of recognising other normative orders, especially customary law, together with state law.
3.2.1 Approaching the concept of legal pluralism through the prism of sociology
Early legal pluralism, scholars focussed mainly on the distinction between law and custom and between state laws and Indigenous ‗traditions‘.311 Montesquieu, writing in the mid 1700s, presented what is often regarded as the initial concept of legal pluralism when he acknowledged that law is one of the elements in the social- political system.312 He also drew attention to the varying customs of different countries.313 Gilissen, working along the same lines, has emphasised the variety of the sources of law in society, and notes that the existence of customary law as a source of law is a legal historical phenomenon.314 Pospisil, by analysing whether law is that which has been considered as the property of a society as a whole,315 comes to the conclusion that when society has not established itself as a political organisation or entity, law has not been born either. As a result, law has been conceived as social property only when the political affiliation has been established.316 He proposes a model of ‗legal levels‘ as evidence of the existence of legal pluralism, in that for
311 In this sense, law is considered as one of components of culture therefore, law may be interpreted in cultural terms to some extend. See Carol J Greenhouse and Fons Strijbosch, 'Legal Pluralism in Industrialized Societies' (1993) 33 Journal of Legal Pluralism 1, 2–3; see also Naomi Mezey, 'Law as Culture' in Austin Sarat and Jonathan Simon (eds), Cultural Analysis, Cultural Studies, and the Law (Duke University Press, 2003) 37, 37–8. 312 Baron De Montesquieu, The Spirit of Laws (Thomas Nugent trans, Colonial Press, 1900) 298–300; see also Norbert Rouland, Legal Anthropology (Philippe G Planel trans, Athlone Press, 1994) 20 cited in Menski, above n 178, 86. 313 J M Kelly, A Short History of Western Legal Theory (Oxford University Press, 1992) 273. 314 Gilissen, Le Pluralisme Juridique, above n 177, cited in John Griffiths, 'What is Legal Pluralism?' (1986) 4(24) Journal of Legal Pluralism 1, 10. 315 Leopold Pospisil, 'Legal Levels and Multiplicity of Legal Systems in Human Societies' (1967) 11(1) Journal of Conflict Resolution 2, 3. 316 The point of view in Vietnam regarding the establishment of law is the same. Most Vietnamese jurists argue that law comes into being when and only when there is the existence of the state (political organisation). Law is established or recognised (from social norms) by the state. The essential task of law is to serve for the person or organisation (state) that is in power and to contribute to social stability. 87
‗every functioning group‘ (which includes groups at every level, such as family, clan, ethnic community, or political body) there are different levels operating either separately or together.317 The legal system of the state essentially represents the leading (most powerful) functioning group but, just as the state represents the whole nation, so state law comes to be that of the entire national community, and therefore, embraces all other legal levels and is applied to every member in society.318
As to the ‗sociological framework of law‘,319 Smith argues that in society ‗there are many sociological frameworks of law‘.320 These sociological frameworks cooperate to create the environment for political activities and government is defined in terms of functionality – government is seen as ‗the regulation of public affairs‘.321 Public here is understood by Smith as
an enduring, presumably perpetual group with determinate boundaries and membership, having an internal organization and a unitary set of external relations, an exclusive body of common affairs, and autonomy and procedures adequate to regulate them.322
For Smith these groups or publics are not loose amalgamations or casual associations
(that may in themselves be part of one or more ‗public‘), rather they are corporate bodies, essentially forming a single body governed by a set of rules and relations.323
Indeed ‗[a]s units which are each defined by an exclusive universitas juris, corporations provide the frameworks of law and authoritative regulation for the societies that they constitute‘.
317 Leopold Pospisil, The Anthropology of Law: A Comparative Theory of Law (Harper and Row, 1971) 107. 318 Pospisil, 'Legal Levels‘, above n 307, 8–9; See also John Griffiths, 'What is Legal Pluralism?', above n 170, 10. 319 Michael Garfield Smith, Corporation and Society (Duckworth, 1974) 107–131. 320 Ibid 108. 321 Ibid 93. 322 Ibid 94. 323 Ibid 116–17. 88
After analysing Smith‘s concepts of ‗cooperation‘, ‗sociological framework‘ and
‗framework of law‘, Griffiths comments:324
Legal pluralism is, it follows, a necessary concomitant of cultural, social and structural pluralism. Description of a situation of legal pluralism consists of a description of the various corporate groups, of their internal regulatory activity, and of their external corporate relationships with each other.
Approaching the concept of legal pluralism from the point of view of sociology and studying ‗the legal system as part of a wider social milieu‘, Moore claims that the social structure is an intermingled form, in that ‗there is an intimate relation between law and society, … law is part of social life in general and must be treated analytically as such‘.325 She creates the concept of the ‗semi-autonomous social field‘326 to indicate a variety of groups (whether corporate or not) that deal with each other both separately and together with a structure of rules that they have themselves generated and with which they must comply, and for which sanction may exists.327
The semi-autonomous social field is defined and its boundaries identified not by its organization (it may be a corporate group, it may not) but by a processual characteristic, the fact that it can generate rules and coerce or induce compliance to them. Thus an arena in which a number of corporate groups deal with each other may be a semi-autonomous social field.328
According to Moore,329 values and norms are ceaselessly originated and accumulated from the process of the activities and transactions of men. These norms may become laws by way of a state‘s legislation, or develop coercive methods through
324 John Griffiths, 'What is Legal Pluralism?', above n 170, 20. 325 Moore, Law as Process, above n 170, 218; see alo Menski, above n 178, 105. 326 Moore, Law as Process, above n 178, 57. 327 Sally Falk Moore, 'Law and Social Change: The Semi-autonomous Social Field as an Appropriate Subject of Study' (1973) 7 Law and Society Review 719, as cited in Franz von Benda-Beckmann and Keebet von Benda-Beckmann, 'Transnationalisation of Law, Globalisation and Legal Pluralism: A Legal Anthropological Perspective' in Christoph Antons and Volmar Gessner (eds), Globalisation and Resistance: Law Reform in Asia sine the Crisis (Hart Publishing, 2007) 53, 61–2, n 34. 328 Moore, Law as Process, above n 178, 57. 329 Ibid 58. 89
administrative and judicial decisions, or change into the regulations of private agencies. Changes in norms definitely impact on semi-autonomous social fields where many rules and customs naturally exist. Legislative activities also impinge on semi-autonomous social fields. Although the state is able to control society in part
(though it may attempt to try to do so fully), something unexpected still occurs in the society because a social field inherently has its own rules and principles that coexist with the state law. In reality, ‗the social arrangements are often effectively stronger than the new laws‘.330 The state, thus, should actively concern itself with the connection between law and the norms of the semi-autonomous social fields because the ‗areas of autonomy and modes of self-regulation have importance not only inside the social fields in which they exist, but are useful in showing the way these are connected with the larger social setting‘.331
Overall, this approach highlights that law is one of elements in the social-political system. Scholars not only make a contribution by examining the concept of law to some extent, but more importantly, in recognising the variety of sources of norms and that will be a premise to study legal pluralism because the aim of the study of legal pluralism is to recognise other ‗laws‘ along with state law. All norms may be considered as ‗law‘ (Pospisil) or divided into two kinds (Moore): one is created by state legislation and another arises ‗spontaneously‘ from society. The state refers to the law recognised by the state as ‗state law‘ and believing it to be synchronous with social norms. On the contrary, anthropologists refer to all norms in society as law, and include among those norms ‗state law‘.
330 Ibid. 331 Ibid 78. 90
3.2.2 Approaching the concept of legal pluralism through a legal prism
In contrast to the sociological approach, many other scholars directly used the concept of law to study legal pluralism. From 1950s to 1970s legal pluralism was studied as a feature of colonial and post-colonial countries. Following this period, study moved to concentrate on (i) the role of the state in the recognition of these various legal orders or orderings; and (ii) people‘s conceptualisations and application of law in society; as well as (iii) the distinction of state law and non-state law.332
3.2.2.1 Legal pluralism as a legal feature of colonial and post-colonial societies
Hooker, one of the leading researchers in the field of legal pluralism in the period from the 1950s to the 1970s, indicates that legal pluralism is considered as a feature of colonial and post-colonial countries. According to Hooker, ‗the term ‗legal pluralism‘ refers to the situation in which two or more laws interact‘.333 The ‗laws‘ which are mentioned should be understood in the light of the nature of social structure. Legal systems typically comprise in themselves norms, doctrines and principles that have originated from a variety of sources and a variety of levels.334
Legal pluralism is often seen as the result of the transfer to legal system (including specific Acts as well as systemic arrangements) from the colonising power to the colonised state, as the intermingling of laws instituted by the colonising power, with such laws and institutions (despite their colonial origins) often retaining a degree of influence after independence. Legal pluralism is also seen as the interfere of domestic laws with laws imported from other countries (often after independence) in order to modernise the legal system. The reasons for this interfusion are related to
332 Greenhouse and Strijbosch, above n 311, 2–3. 333 Hooker, Legal Pluralism, above n 109, 6. 334 Ibid 1. 91
internal and external alterations in colonial countries. On the one hand, during the time of colonisation, the colonising power would force its own legal system upon the countries it had colonised and their Indigenous peoples. On the other hand, after gaining independence, much of the legal system that has been absorbed during the period of colonisation persists in the former colonial countries,335 though there may be a degree to which state law is affected by customary law, as Besson argues.336 In many ‗plantation societies‘337 with their ‗colonially-derived legal systems‘338 (of which societies Jamaica is an example), the phenomenon of legal pluralism is widespread. It can be seen that in such colonially-derived societies the interaction between legal systems - particularly the interplay between customary law and official legal codes - is obvious. Given this interaction, the relative legal positions of customary law and state law are often studied, as are possible solutions/suggestions for the relationship between them. Furthermore, the impacts of the plurality of law on state and society are also a subject of concern and widely studied.
Although not directly studying the interactive relation between laws of colonisers and post-colonial laws, Chiba gives an image of the reciprocal influence of received law and Indigenous law.339 It should be noted that ‗received law‘ refers to the law that is received by a country from one or more foreign countries (another term used is ‗transplanted‘ law); whereas ‗Indigenous law‘ indicates the law that has originated
335 Bracey, above n 109, 36–7. 336 Besson, above n 109, 31–51. 337 That is, societies which were essentially settled as plantations to produce 338 Besson, above n 109, 31–51. Besson illustrates his point using the Jamaica as an example of the legal pluralism common in plantation societies. He focuses on the interaction and impact on different legal systems in the countries where a ‗colonially-derived legal system‘ exists. He also explores the issue of the interplay of folk law and official legal codes. According to him, customary law has significant impact on shaping state law. 339 Chiba, Asian Indigenous Law, above n 155, 7. 92
in the native culture of a people.340 In terms of the cultural viewpoint, the structure of law (particularly the structure of law in non-Western countries) is shaped from a mutual interaction between received law and Indigenous law. However, it is often difficult to identify the pure Indigenous law because of the acculturation process that has occurred during a period of colonisation. According to Chiba,341 ‗official law‘ originates from Indigenous law or received law (which is then acculturated into domestic law) whereas ‗unofficial law‘ is mostly derived from Indigenous law.
Generally, the study of legal pluralism in the period of from the 1950s to the 1970s has centred on the existence of other legal systems alongside state law. The main purpose of these studies is to recognise other legal systems, especially customary law. It can be seen that in many countries, whether they were colonised or not, legal systems called ‗customary or religious law‘, or ‗native courts‘ are still beside the legal system of the state.342 In former colonial countries, there is a dual system comprising the state legal system with its combination of received and domestically originated law and the enduring legal system of the colonised peoples that has survived from pre-colonial times to post-colonial times. Hence, if legal pluralism is considered as the presence of more than one legal order in a social field, legal pluralism exists in colonial countries during the period of colonisation and afterward.
In post-colonial countries, legal pluralism may be a result of the co-existence of modern law with traditional law in a national legal system, or a dual structure of state law and law created by ethnic minorities;343 or co-existence between the laws already present in the country and customary law. Further adding to the complexity, such
340 Chiba, ‗Legal Pluralism in Sri Lankan Society‘, above n 156, 203. 341 Chiba, Asian Indigenous Law, above n 155, 8. 342 Tamanaha, 'Understanding Legal Pluralism‘, above n 297, 382. 343 Masaji Chiba, 'Other Phases of Legal Pluralism in the Contemporary World' (1998) 11(3) Ratio Juris 228, 231. 93
customary law is not just that which has survived the period of colonisation but that which has been brought by immigrants and refugees when they have travelled to a new country.344 According to Tamanaha, if a plurality of laws exists in the same political system, the state needs to define the relationship between the sources of law and define the role and jurisdiction of local leaders in managing society and maintaining state power. 345
3.2.2.2 The presence in a social field of more than one legal order346
Since the 1980s, the flows of legal pluralism studies have been on the presence in a social field of more than one legal order. This was a period when the study of legal pluralism flourished. Many famous scholars such as Griffiths and Merry were seeking the answer to the question ‗What is law?‘ in order to expound on the issue of legal pluralism. Focussing on whether laws are only those recognised by the state or whether laws include non-state laws and normative orders, scholars have studied the role of the state in the recognition of different legal systems as well as people‘s conceptualisations and application of law in society, and on the legal validity of state law and non-state law.347
Regarding the presence in a social field of more than one legal order,348 or more than a social – political space,349 legal pluralism is researched as an attribute of social life,
344 Alison Dundes Renteln, The Cultural Defense (Oxford University Press, 2004) 14. 345 Brian Z Tamanaha, 'A Proposal for the Development of A System of Indigenous Jurisprudence in the Federated States of Micronesia' (1989) 13(1) Hastings International and Comparative Law Review 71, 74–107. 346 The sub-title is borrowed from Moore‘s statement. 347 Greenhouse and Strijbosch, above n 311, 2–3. 348 Menski, above n 170, 113; Moore, Law as Process, above n 170, 57–8; John Griffiths, 'What is Legal Pluralism?', above n 170, 38. 349 Franz von Benda-Beckmann, 'Who's Afraid of Legal Pluralism' (2002) 47 Journal of Legal Pluralism 37, 37. 94
not a characteristic of law or legal system.350 In society, a person can be a subject or member of many different groups and be part of the many different social relationships (for example, a member of a family, a clan, a political group, a trade union, and ethnic group). Individuals may be affected or regulated by different legal orders. It is common sense that if more than one legal order operates in a social field that this constitutes legal pluralism.351
John Griffiths,352 the leading scholar in the field of legal pluralism, has built the concept of legal pluralism on the basis of the analyses of previous researchers. He defines ―legal pluralism‘ as that state of affairs, for any social field, in which behaviour pursuant to more than one legal order occurs‘.353 Furthermore, he writes that:
Legal pluralism is a concomitant of social pluralism: The legal organization of society is congruent with its social organization. ‗Legal Pluralism‘ refers to the normative heterogeneity attendant upon the fact that social action always takes place in a context of multiple, overlapping ‗semi-autonomous social fields‘, which, it may be added, is in practice a dynamic condition.354
Seeking answers to the questions of whether there is a basic difference between state law and non-state law, and between non-state law and other elements of social ordering, scholars have put forward many terms to distinguish the nature of the various binary relationships. When state law is just one among many normative orderings in society (that is, there is more one legal order operating in a society (and its social fields that there exist), and even if these legal orders are inconsistent with
350 John Griffiths, 'What is Legal Pluralism?', above n 170, 38. 351 Jacques Vanderlinden, 'Return to Legal Pluralism: Twenty Years Later' (1989) 28 Journal of Legal Pluralism 149, 151–2. 352 By studying the legal pluralism of John Gilissen, Jacques Vanderlinden, Hooker, and the research of Pospisil (1971) on the theory of ‗legal levels‘, Smith (1974) on ‗corporations‘, Ehrlich (1936) on ‗living law‘ and Moore (1978) on the concept of ‗semi-autonomous social fields‘, John Griffiths proposes a concept of legal pluralism. 353 John Griffiths, 'What is Legal Pluralism?', above n 170, 2. 354 Ibid 38. 95
each other), such as when local or regional law delegated under state law may not entirely consistent, and in addition customary law is operating independently
(without state recognition and often inconsistent with state and regional law),355 this phenomenon is called ‗strong‘ legal pluralism,356 or ‗deep legal pluralism‘,357 or
‗informal plurality‘ (‗informal‘ as customary law is not ‗officially‘ recognised by the state).358 Alternatively, when there is an ordered co-existence of normative orders in a society and its social fields, where law operates in a recognised hierarchy with state law occupying the decisive role and other normative orders (including local or regional legislation and customary laws) are considered as sub-type of law, this phenomenon is called ‗weak‘ legal pluralism,359 or ‗state legal pluralism‘,360 or
‗formal plurality‘, for although customary law and other levels of law are operating,
355 I agree that different normative orders in society exist; however, in order to distinguish these orders, they need have their names clearly defined and used consistently. I find the number and varying use of the current terms very confusing as scholars used terms such as social norms, normative orders, legal orders, laws, and so on, often with different definitions applying. I suppose that many scholars are swimming or even, drowning in defining the term for each type of norm, a situation that creates a degree of confusion for reader and researcher alike. 356 John Griffiths, 'What is Legal Pluralism?', above n 170, 5. 357 Woodman, 'The Idea of Legal Pluralism', above n 170, 5. In the coexistence of state law with other norms, Woodman says: The many instances of legal pluralism given in these works fall into two general categories. The fist consists of those instances in which there are two bodies of norms within the law of a state. An example is the laws of many Africa states which provide for Africans to be governed by African customary law, and Europeans by a body of received law. This will be referred to as state legal pluralism. The second category consists of instances in which the elements are, respectively, the law of the state, and normative orders not directly associated with the state. Such is, for example, the case given by Vanderlinden of the normative order of a group of separatists at war of the state. This will be referred to as deep legal pluralism. 358 Sezgin, 'Theorizing Formal Pluralism‘, above n 170, 140. The author raises new terms formal and informal plurality which can be respectively seen as ‗weak‘ and ‗strong‘ versions of state law pluralism. The concept of ‗formal plurality‘ refers to the façade of state law pluralism, whereas ‗informal plurality‘ indicates the stronger versions of state law pluralism which can be found in grey areas of the normative universe where the jurisdiction of non-state norms and institutions are subsequently acquiesced in by the state without a formal acknowledgement such as recognition or incorporation. 359 John Griffiths, 'What is Legal Pluralism?', above n 170, 5. 360 Woodman, ‗The Idea of Legal Pluralism‘, above n 170, 5. 96
they do so by the acknowledgement (or permission) of the state with their scope and application often defined by the state.361
It can be said that, together with other scholars, Chiba has made a great contribution to the study of legal pluralism. According to Chiba, legal pluralism is
the coexisting structure of different legal systems under the identity postulate of a legal culture in which three combinations of official law and unofficial law, indigenous law and transplanted law, and legal rules and legal postulates are conglomerated into a whole by the choice of a socio-legal entity.362
The whole structure of law in the nation is not only limited to a monistic system of state law, but must also be considered as a part of the culture of all people (and peoples) in a society. This culture includes the rules which the people believe are their own laws, in accordance with their cultural traditions, though these are obviously different from state law. Hence, the whole structure of law is pluralistic not monistic, and comprises different legal systems interfacing with one another harmoniously or in conflict363 in a relationship that may be fluid (or in flux) across time and depending on the subject or social field involved.
This overview showsthat legal pluralism — both historically and presently, theoretically and practically, and legally and culturally — simultaneously recognises issues that are ‗social norms and legal rules, law and society, formal and informal, rule-oriented and spontaneous‘.364 Regarding the legal aspect, therefore, legal pluralism should be seen as involving all elements of law, including
361 Sezgin, 'Theorizing Formal Pluralism‘, above n 170, 140. 362 Chiba, 'Other Phases of Legal Pluralism‘, above n 343, 242. 363 Chiba, Legal Pluralism, above n 155, 4. 364 Teubner, 'The Two Faces of Janus', above n 168, 1443. 97
‗conceptualisations of legally constructed situation images, to standards of relevance and to consequences‘.365 Legal pluralism studies have made people aware that
legal pluralism makes law more responsive to society, not by increasing specific social and economic knowledge of law, but by using the synchronicity of legal social operations as the law‘s tacit knowledge.366
For Teubner, plurality of law is not merely a ‗side by side‘ co-evolutionary existence, but involves interaction via ‗linkage institutions‘367 creating a new level of societal responsiveness, a whole new dynamic. Even with their own individual institutional systems and interior linkage sets of norms are able to act within the same social field in a manner that is essentially ‗non legalistic, non-hierarchical, and non institutional‘.368
3. 3 Concept of law: Legal Centralism and Legal Pluralism
The question ‗What is law?‘ lies at the heart of one of the most vital debates about legal pluralism. Some scholars have focussed on the term legal in legal pluralism as a reason for seeking to determine the boundary of law (law and non-law).369
However, as different scholars have attempted to devise a general concept for their particular point of view, and for the phenomena they observe, considerable difficulties and disagreement have resulted.370 The differences in the concepts of legal pluralism result from the distinctions and antithetical approaches taken to the
365 Benda-Beckmann, 'Who's Afraid of Legal Pluralism', above n 349, 61. Legal consequences, for example, of a particular action may differ markedly depending upon which law is taken to apply when both state and customary law may be taken to apply (eg, unlawful killing/murder – suspended sentence, imprisonment, or death sentence; fine to family or death sentence). Inheritance may be a particularly contested issue: at 67. 366 Teubner, 'The Two Faces of Janus', above n 168, 1448. 367 Ibid. 368 Ibid. 369 Ibid 1451; see also Roberts, above n 307, 99. 370 Roberts, above n 307, 98. 98
concept and the various theories of law.371 Depending on the questions posed in their studies, scholars arrive at different answers regarding a theory of law; therefore, the question ‗What is law?‘ has never been resolved.372
A sociological approach defines law as ‗social norm‘.373 Law may arise from pre- existing social norms and/or in turn seek to reinforce those norms or create new norms for a society (for example, in a post revolutionary society). From a political viewpoint where the state occupies the supreme position, law is defined as ‗state law‘, and accorded recognition and status by the official legal system. In either setting, minority groups, Indigenous people and non-state subjects, whether accepting state law or not, argue that their customs and their rules are law on their own terms.
When looking for the answer to the question ‗What is law?‘, a researcher will encounter two basic schools: Legal centralism which argues that law is state law, that is, that law which is made and recognised by the state; and alternatively, Legal pluralism which asserts that laws consist of state law and non-state law.
3.3.1 Centralist paradigm of law (legal centralism)
Supporting a monist approach to law, the school of legal centralism favours state law on the basis of three criteria: 1) the state law is the only real law; 2) the state law is the best way of achieving social goods; and 3) the state law occupies the supreme
371 Jean-Guy Belley, 'Law as Terra Incognita: Constructing Legal Pluralism' (1997) 12(2) Canadian Journal of Law and Society 17, 20. 372 Tamanaha, 'Understanding Legal Pluralism‘, above n 297, 391. 373 E Adamson Hoebel, The Law of Primitive Man: A Study in Comparative Legal Dynamics (Harvard University Press, 2006) 28. According to Hoebel, law is defined as a social norm: ‗A social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force by an individual or group possessing the socially recognized privilege of so acting‘. 99
position in the hierarchy of norms, with other normative orders subordinate to state law.374
According to legal centralists, it is generally recognised that laws are considered as norms recognised and endorsed by the state.375 Formal law or state law is ‗real‘ law and all else is non-law or law-like rules.376 Only laws emanate from and are recognised by the state, whereas customs, conventions, or understandings are not shaped by the state and may be found elsewhere.377
Under this conceptualisation advanced by legal sociologists and anthropologists, law
— with its basic features: closed structure; understanding, application to various subjects; concrete procedures of promulgation; and ability to reorder human behaviours — ‗is the most organized, comprehensive, institutionalized and sophisticated agency of social control‘.378 Yet, according to Kleihans and
Macdonald, such a viewpoint ‗is no [longer] … sustainable as an intellectual framework‘ because ‗features of legal normativity‘ are different ‗between various modes of interpreting social organisation such as the political, the economic and the legal‘.379 Therefore, while laws, in the eyes of many, surpass any other norms, the view is not unanimous. It is not by accident, however, that many scholars support the
374 D J Galligan, Law in Modern Society (Oxford University Press, 2007) 173–4; see also Jonh Griffiths, 'Legal Pluralism and the Theory of Legislation: With Special Reference to the Regulation of Euthanasia' in Hanne Petersen and Henrik Zahle (eds), Legal Polycentricity: Consequences of Pluralism in Law (Dartmouth, 1995) 201, 206. 375 According to Santos, there are some of the reflective changes in the legal field spreading from the 19th century (the period of liberal capitalism) to the end of 1960s (the period of disorganised capitalism. In the legal–political modernity, state law is regarded as a central position in the normative ordering system. See Boaventura De Sousa Santos, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (Routledge, 1995) 71–90; see also Prakash Shah, Legal Pluralism in Conflict: Copying with Cultural Diversity in Law (Cavendish, 2005) 2. 376 H W Arthurs, "Without the Law": Administrative Justice and Legal Pluralism in Nineteenth- Century England (University of Toronto Press, 1935) 3. 377 Ibid. 378 Kleinhans and Macdonald, above n 172, 27–8. 379 Ibid 28. 100
centralist paradigm of law. They mainly concentrate on the effectiveness of such law, its uses as coercion and of sanctions, and, more importantly, the common and united application on a nationally autonomous scale. Legal centralists consider that the nature of law is a collective sign, a declarative of a volition accepted and expressed in law by the leaders in control of a state, concerning which behaviours or activities are to be regarded as acceptable or not in a specific case by a specific person or class of persons, who in the case in question are, or are assumed to be, the subject of the central power.380 In this case, law is viewed as the command of a ruling state (rather as in a monarchy, law is viewed as the command of the ruler). According to legal centralists, law should be a perfect normative order system with its hierarchy, its unifying power and exclusiveness emanating from the state.381 The effectiveness of law - as a part of social life, economy and politics – is maximised only through the state and under the control of the state. The state organises an operating system (legal organs and other authorities)382 to ensure the effectiveness of law and also has legal responsibility for the consequences that may occur as the result of law‘s application.
On this view, law should be formal, made and administered by the state.383
Endorsing the position that the only law is state law does not necessarily mean that other norms are totally ignored. If many anthropologists384 claim that customary law
380 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Printed for W Pickering, 1823) 30 cited in Leslie Basil Curzon, Jurisprudence (Cavendish, 1995) 61. 381 John Griffiths, 'What is Legal Pluralism?', above n 170, 3; see also Sally Falk Moore, 'Certain Undone: Fifty Turbulent Years of Legal Anthropology, 1949–1999' (2001) 7 Royal Anthropological Institute 95, 106. 382 In most cases, the court is a representative of the state and is to solve the cases which are related to the laws of the state. Eg, Salmon argues that ‗all law, however made, is recognized by the Courts, and no rules are recognized by the Courts which are not rules of law‘; see John Salmon, Jurisprudence (Sweet & Maxwell, 10th ed, 1947) 60. Michael Zander has also discussed the role of the courts in making law and in deciding cases. See Zander, above n 108, 389–90. 383 Arthurs, above n 376, 1. 384 Much of the research on customary laws has been conducted by anthropologists. See Heather McRae et al, Indigenous Legal Issues: Commentary and Materials (Thomson Reuters Australia, 4th ed, 2009) 71. 101
has practically no significance in state legal systems,385 other scholars assert that, in reality, customary law is flexible, fluid, and capable of being used in different ways at different times.386
Within the school of legal centralism, there are also some scholars who tend to accept the existence of legal pluralism, in the sense of a plurality of norms controlled by the nation.387 In this instance, state law will play a vital role, being the supreme source of validity for all such laws; other laws such as the informal and local quasi- laws are seen as supplementary to the state legal system,388 and dependant upon it.
State law should occupy the highest position in the normative hierarchy to avoid any risk of offering opportunities for the abuse of law and legal processes when building a system that recognises legal pluralism.389 Legal pluralism, assuming that it can be so considered in this instance, should be regarded as describing a system of co- existence of legal orders authorised by official law. That is legal pluralism in its
‗weak sense‘,390 (rather akin to the ‗weak legal pluralism‘, ‗state legal pluralism‘ or
‗formal plurality‘ referred to earlier) where the state retains its central role at the hierarchical apex of the system of law. Although legal pluralism can also be more
385 Niels Petersen, 'Customary Law without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation' (2008) 23(2) American University International Law Review 275, 276. 386 Jean G Zorn, 'Making Law in Papua New Guinea: The Influence of Customary Law on the Common Law' (1991) 14(4) Journal of Pacific Studies 1, 24; see also Ndulo, above n 73, 343. 387 Mitra Sharafi, 'Justice in Many Rooms since Galanter: De-Romanticizing Legal Pluralism through the Cultural Defense' (2008) 71 Law and Contemporary Problems 139, 142. Mitra Sharafi bases his statement on the research undertaken by Hooker. Considering legal pluralism as ‗the cultural defense‘, he tends towards to address the issue as one of ‗[j]ustice in many rooms‘. He also comments on two shifts in the understanding of legal pluralism that are seen as having arisen: ‗The first was shift from the understanding of legal pluralism as a plurality of norms administered by the state – the model embodied by Hooker‘s classic study – to an understanding of a plurality existing beyond the state; The second was attempt to get beyond Hooker in a geographical sense‘. (What Sally Merry called ‗new legal pluralism‘). 388 Teubner, 'The Two Faces of Janus', above n 168, 1443. 389 Ulrike Schmid, 'Legal Pluralism as a Source of Conflict in Multi-Ethnic Society: The Case of Ghana' (2001) 46 Journal of Legal Pluralism 1, 41. 390 John Griffiths, 'What is Legal Pluralism?', above n 170, 5. 102
broadly ‗equated with the notion of ‗social field‘, or even ‗cultural difference‘, this is not here considered. The pluralist (‗strong legal pluralism‘) paradigm will be explored further below.391
3.3.2 Pluralist paradigm of law (legal pluralism)
Whereas legal centralism locates the state in its central, pivotal role, representing the politico-legal corollary of state power and the special privileged role enjoyed by state law in the legal system, legal pluralism emphasises the co-existence of different types of law ‗rather than with the coexistence of politically distinct legal systems‘.392
While legal centralists suppose that the state has a monopoly on legal formation393 and that law should be regarded in ‗the dogmatic sense‘,394 research on legal pluralism indicates a far more complex relationship between law and society, since there is not one single law.395 In legal pluralism, different forms of law may have different ranges of functions and the rules that have been ‗constituted by the interaction, mutual influence and use of state and non-state legal orders‘ may be seen as ‗operative in different semi-autonomous social fields‘.396 While the different aspects of law do not have to be integrated, in theory or practice, in a systematic way, state law is, however, in this view often seen not as ‗semi-autonomous…but as…autonomous, as forming but not as being formed‘.397 However, Eckert notes that
‗state law‘ may be affected by rules that come into being when state law is being put
391 Greenhouse and Strijbosch, above n 311, 5. The authors believe both conceptions of legal pluralism fail to do justice to ‗the distinctions between social and legal processes‘. 392 Sack, above n 294, 2. 393 Sousa Santos, 'Law: A Map of Misreading‘, above n 165, 281. 394 S Jorgensen, 'What is Law?' (Paper presented at the Legal Pluralism: Proceedings of the Canberra Law Workshop VII, Canberra, July 1985) 17. 395 Sousa Santos, 'Law: A Map of Misreading‘, above n 165, 281; See also John Griffiths, 'What is Legal Pluralism?', above n 170, 1. 396 Julia Eckert, 'Urban Governance and Emergent Forms of Legal Pluralism in Mumbai' (2004) 50 Journal of Legal Pluralism 29, 54. 397 Ibid. 103
into practice,398 thus ‗forming‘ part of the nature of state legal order if not formally part of state law. The state never obtained a monopoly over law399 because law is never a sole phenomenon but a (more or less systematic) heterogeneous (more or less diverse) phenomenon.400
Considering law as having ‗many rooms‘,401 the pluralist paradigm of law gains noticeable support from jurists and anthropologists, especially in the context where law is regarded from a global perspective where the expansion of law impacts on between states and municipal legal systems.402
Legal pluralists also have to contend with difficulties in defining the concept of law because, from every point of view, in every context and culture, the concept of law can be understood in a number of different senses (although the notion of law should be specified, precise and straightforward, not general, abstract and metaphorical).403
To analyse the issue of legal pluralism thoroughly it is necessary to know the context in which law is studied. According to Benda-Beckmann, ‗most studies in legal or normative pluralism, whatever their definition of law may be, still tend to recognize only a limited number of contexts in which the reproduction of elements from the legal system is really a legal process‘.404
398 Ibid. 399 Sousa Santos, Toward a New Common Sense, above n 374, 95. 400 Sack, above n 294, 1–2. 401 Ibid 5–8. 402 William Twining, 'Diffusion and Globalization Discourse' (2006) 47(2) Harvard International Law Journal 507, 509. 403 Carol J Greenhouse, 'Legal Pluralism and Cultural Difference: What Is the Difference?' (1998) 42 Journal of Legal Pluralism 61, 65. Carol J. Greenhouse notes that ‗there is no still consensus on the question of whether ―law‖ can be used metaphorically to refer to all social orders and their criteria of difference – or, indeed, whether such usages are metaphorical. Until that question is resolved, any distinction between legal centralism or pluralism is moot from an ethnographic point of view since both involve repertoires of cultural practice constitutive of both ―law‖ and ―difference‘‖. 404 Franz Von Benda-Beckmann, 'Comment on Merry' (1988) 22(5) Law and Society Review 897, 897. 104
Legal pluralism scholars concentrate on the ‗social field‘, or ‗cultural difference‘ aspects of normative orders, because law and society are seen as mutually constitutive.405 Thus with regard to the concepts of ‗legal levels‘, ‗semi-autonomous social field‘, or ‗cooperation‘ and ‗living law‘, scholars (mostly anthropologists) indicate that legal pluralism connotes customary and traditional law, and state law is only one normative mode operating within legal pluralism.406 Hence, the term law includes not only state law but other laws, such as customary law and traditional law and so on. It can be said that law exists in different forms, different contexts and comes from various sources407 and all of these sources are ‗more or less legal‘.408
On the question of how to define the relationship between legal orders, Moore409 suggests that it may be of importance to recognise all rules at all levels but the sources of rules should be distinguished in order to identify their role and legal status. Merry argues that the all rules should be called ‗ordering law‘ because ‗the literature in this field has not yet clearly demarcated a boundary between normative orders that can and cannot be called law‘.410
Nevertheless, Tamanaha argues that norms should be defined by their own hierarchies. Legal norms as law are established through the authority of the state authority whereas other norms exist by virtue of being a part of social life of a certain
405 Sousa Santos, 'Law: A Map of Misreading‘, above n 165, 282. 406 Greenhouse, 'Legal Pluralism and Cultural Difference‘, above n 403, 63–4. 407 Benda-Beckmann, 'Who's Afraid of Legal Pluralism', above n 349, 66. According to Franz Von Benda-Beckmann, there is a variation on the ‗existences‘ of law‘: 1) law may be embodied in written and spoken texts; 2) law can exist in the knowledge of people; 3) law may be inscribed into the statuses of persons, resources and organisations as well as into social relationships and institutions, giving them a legal status, usually with wide-ranging legal consequences; 4) law may be involved in social processes/social interaction. 408 John Griffiths, 'What is Legal Pluralism?', above n 170, 39. 409 Moore, 'Law and Social Change‘, above n 327; see also Moore, Law as Process, above n 178, 81. 410 Merry, 'Legal Pluralism', above n 181, 878–9. 105
individual group, not by the recognition of the state.411 To distinguish them,
Tamanaha refers to norms recognised by the state as law and others as social arenas.412
Where more than one normative ordering system exists in a society, two things can occur. Firstly, the system may overlap because the norms in the different systems may point an individual‘s conduct or behaviours in the same direction and for the same purpose. Secondly, conflict may occur because there are differences in the norms in relation to their subject and scope as well as the purposes for which the behaviour or conduct of the individual is being directed or adjusted. A conflict of norms for actions or behaviours can occur between those promulgated and upheld by the state (‗state laws‘) and other norms, such as customary law, moral norms and religious norms and regulations; or there can be conflict among normative ordering systems themselves. For example, according to the Vietnamese Civil Code, there are two forms of contract: verbal or written (in which case the contract must be expressed in writing, and approved by a notary).413 However, many customary laws of minority ethnic groups in relation to civil transactions have but one form verbal
411 Tamanaha, 'Understanding Legal Pluralism‘, above n 297, 397–9. 412 According to Tamanaha, social arenas includes: 1) official legal systems; 2) customary/cultural normative systems; 3) religious/cultural normative systems; 4) economic/capitalist normative systems; 5) functional normative systems; 6) community/cultural normative systems. 413 Bo Luat Dan Su 2005 (Vietnam) art 124 [Trans: Civil Code 2005 (Vietnam)]. According to Article 124 of the Civil Code 2005 ‗Forms of civil transactions‘: ‗A civil transaction shall be expressed verbally, in writing, or specific acts…In cases where it is provided for by law that a civil transaction must be expressed in writing, notarized, authenticated, registered or permitted, such provisions must be complied with‘. In addition, Article 401 provides more details of civil contracts in that ‗A civil contract can be made orally, in writing or by specific acts, unless a specific form for such type of contract is provide for by law. In cases where it is provided for by law that a contract must be expressed in writing with notarization or authentication, must be registered or permitted, such provisions shall be complied with‘. 106
and the members of those ethnic groups do not know, and they do not want to know, the regulations imposed by state law.414
Conflicts between normative ordering systems have two main causes. Firstly, there may be a conflict in terms of benefits, rights or social position between one order and another. A leader or a group of leaders may want to protect their normative ordering system (which accords them — and others within their system — power and positions and benefits)415 and limit or reject others. Secondly, individuals or social groups may want to apply the rules which are profitable for their private purposes.416
Moral or religious norms may also conflict with social or state norms. Such conflict may indeed stem from power plays between groups (as above) or within them; however, there may also be a conflict involving an individual or group‘s profound belief in ‗rich action‘ in a particular circumstance, of little or no benefit to the person or group (particularly in the short term) but one that an internalised belief structure
(or norm) commands that the individual or group obey or suffer a ‗loss of personal integrity‘ (or wholeness), leaving only a damaged identity. Examples in this field may include, equally, pacifists, non-violent protesters as well as revolutionary freedom fighters in the face of violent oppression; and those who, in the past,
414 Duc Thinh Ngo, Luat Tuc M'Nông (Nha Xuat Ban Chinh Tri Quoc Gia, 1998) [Trans: Duc Thinh Ngo, Customary Law of M‘Nong (National Political Publishing House 1998)]; So Van Hoa Thong Tin DakLak, 'Luat Tuc va Van Hoa Dan Toc' (Paper presented at the Moi Quan He Giua Luat Tuc, Huong Uoc va Phap Luat Hien Hanh, DakLak, 1997) 42 [Trans: Culture and Information Department of Dak Lak Province, ‗Customary Law and National Culture‘ (Paper presented at Relationship between Customary Law, Village Conventions and State Law (1997)]. 415 Which may include family, clan, or even members of a group who adhere to the same belief system. 416 Tamanaha, 'Understanding Legal Pluralism‘, above n 297, 400. 107
persisted in worshipping or practising their religion when their sect or denomination, or part thereof, was banned.417
However, official legal (state ‗supremacy‘) norms still maintain the supreme position among the many systems because they have the role of managing social stability in general. That conflict between normative ordering systems exists is an obvious; the question is how to resolve conflict in order to ensure social order with equality, justice and reason in so far as is possible.
The state is, arguably, in the best position to do so, given its status in the hierarchy of social orderings. For example, in relation to the overlap and sometimes conflict that can occur between state norms/law and religious/moral norms (and between various religious norms) referred to above, both the Constitution and the laws of Vietnam provide for freedom of religion, but this is tempered by a desire to maintain social cohesion. The state‘s increasingly progressive legislation in relation to religious freedom allows such freedom of worship, registers denominations and places of worship and generally sanctions their activities, unless such activities are viewed as contrary to state order and of an essentially political nature. The generally successful
417 Since 1999 and more recently 2004, for example, conditions for formerly unrecognised religions (for example, Baha‘i, Cao Dai, some evangelical Christian denominations, Jehovah‘s Witnesses) in Vietnam has significantly improved, with more liberal registration available, and increased religious freedom. See 2004 Ordinance on Religion and Belief, the Implementation Decree No 22 of 2005, and the 2005 Instruction on Protestantism. Denominations such as the Jehovah‘s Witnesses and other Protestant groups are now registered and able to operate far more freely. Hoa Hao self-immolation in 2005 may be seen as an example of individual self-sacrifice to achieve groups ends (recognition) but in terms of the individual surely the only argument is for the individual, the failure to act in such a manner would destroy that person‘s sense of self (rather like a Jehovah‘s Witness who in past years may have been compelled to have a blood transfusion against their wishes and against their conscience in ‗the West‘). See also US State Department, Bureau of Democracy, Human Rights and Labour, Vietnam – International Religious Freedom Report (2006)
coexistence of many faiths and diverse religious practices is evidence of the success of Vietnam‘s approach.418
It can be seen that the different approaches to law bring distinctive analyses of legal pluralism. When one approaches legal pluralism through the prism of sociology, law and customary law are a part of a social milieu and the products of culture, and have an effect upon individual conduct.419 Alternatively, when one approaches legal pluralism through the prism of law, state law and customary law are legal orders, although their level of validity differs.
The issue of legal pluralism remains problematic without a widely accepted definition,420 and given the existence of a contested series of definitions, the increasing breadth of which would appear to call ‗law‘ all orderings of human interactions ‗from the vaguest from of informal social control‘421 to formal state law.
Such a conceptualisation would leave us ‗swimming, or drowning, in legal pluralism‘
(as Tamanaha observes)422 unless scholars achieve resolution and consensus. Such an outcome would appear unlikely, however. Even renowned theorist such as Griffiths appear to have viewed their theories (and their use of terminology) differently over recent years (with Griffiths, for example, now ‗agree[ing]…that what he had
418 Though reports of some, particularly local, abuses of power have been observed as recently as 2010, and such events could be seen as evidence of perceived group power struggles within particular localities which would fall into the earlier two categories of sources of conflict. For reports, see US State Department, Bureau of Democracy, Human Rights and Labour, Vietnam – International Religious Freedom Report (2010) < http://www.state.gov/g/drl/rls/irf/2010/148903.htm> at 29 April 2011. 419 Kjell A Modéer, 'Mixed Legal Systems and Coloniality: Parts of the Construct of A Global Culture' (Paper presented at the Asia—Europe and Global Processes, National University of Singapore, 14–16 March 2001) 4. 420 Chiba, 'Other Phases of Legal Pluralism‘, above n 343, 228. 421 Woodman, 'Ideological Combat and Social Observation‘, above n 175, 45; and cited in Brian Z Tamanaha, 'Understanding Legal Pluralism: Past to Present, Local to Global' (2008) 30 Sydney Law Review 375, 393. See also his citing of Griffiths (John Griffiths, ‗What is Legal Pluralism?‘ (1986) 24 Journal of Legal Pluralism and Unofficial Law 1, 39) and of Berman (Paul Schiff Berman, ‗The Globalization of Jurisdiction‘ (2002–2003) 151 University of Pennsylvania Law Review 311, 505). 422 Tamanaha, 'Understanding Legal Pluralism‘, above n 297, 393. 109
previously identified as ―legal pluralism‖ is better conceptualised as ―normative pluralism‖‘).423 This indicates the degree of difficulty in attempting to define the concepts involved clearly and ‗scientifically‘.
Tamanaha, for one, however, notes that ‗the notion of legal pluralism‘ remains
‗irresistible, despite its…conceptual problems…[as]…diverse, competing and overlapping legal order in different types and forms appear to be everywhere and multiplying‘, ‗Legal pluralism‘ remains, he says, a fact, ‗wherever social actors identify more than one source of ―law‖ within a social arena‘.424 While initially describing its conceptualisation problems as ‗irresolvable‘, Tamanaha then attempts to construct a sixfold system of normative orderings as a framework for legal pluralism.425 Whatever the outcome in terms of conceptualisation, the issue remains as to whether and how customary law should be recognised as a source of law.
3. 4 Why Countries should Recognise Customary Law as Source of Law
In the light of legal centralism, law is considered as a unified structure of valid rules and principles contained within a single institutional framework. Only state law is law. In contrast, some proponents of legal pluralism argue that laws are nothing more than societal rules, originating with the society, their degree of complexity reflecting that society, with state law a codification of those rules, customs and rituals, and accompanied by beliefs, compliance and sanctions.426 Social rules are naturally
423 Ibid 395–6. 424 Ibid 396. 425 Ibid 396–400. 426 Caren Wicliffe, Kahui Maranui and Paul Meredith, Access to Customary Law: New Zealand Issues (20 May 2010)
plural and as a result, there is multiplicity in legal practice and legal theory.427
Griffiths argues that state law represents a single legal order consequently; legal pluralism can be located where state law and non-state law co-exist. Hence, the study of legal pluralism has often concentrated on the need to recognise of non-state law,428 and including proposals that the state should recognise social normative orders as a part of official law.429
3.4.1 Nature and limits of law: What people think law is
The question of recognition needs to address the issue of the nature and limits of law.
Many people argue that the nature of law is plural and therefore, customary law should be seen as law. Several researchers, even though they agree that law is institutionalised and state-derived law, also note that such law is not autonomous; rather they see it as interacting with other forms of law (derived from customary law at its very origins, for example, or continuing to act with it in the common law).430
They agree that, practically, customs are the very foundation of law.431 The ‗strong‘ legal pluralist view sees multiple co-existing types of law (state, international, customary, religious and so forth) and, at least theoretically, non-hierarchical organisation, and normative competition in some situations or fields (social, economic, moral, and political). According to legal pluralists, the major limit of legal centralism is its concept of law, with that concept based on an essentially political view in which law is expressed as the product of the state, tied to a territory with
427 Margaret Davies, 'The Ethos of Pluralism' (2005) 27 Sydney Law Review 87, 87–8. 428 Anne Griffiths, 'Legal Pluralism', above n 305, 297. 429 Menski, above n 178, 116. 430 Davies, above n 427, 101. 431 Svensson, above n 39, 4. 111
fixed boundaries.432 Legal centralists believe that the power of the state may be at risk if other norms are recognised because such norms (such as customary law) are the product of the community, not the state. With the recognition of customary law, the state may consider that it must then share power with the ethnic groups (in which the customary law has historically developed) and that recognition of their ethnicity based customary law may result in a request from them for fuller autonomy, if not independence (if the ethnic group is geographically concentrated).433
The recognition of customary law is also a way to re-evaluate what we think law is, and how it relates to the social and political fields in particular.434 It is also a way of understanding ‗what people name as law, and why people do so‘.435 Nowadays, ‗the recognition of legal multiplicity has been regarded as urgent in many areas‘436 due to the merging of some areas and diverse peoples (as in the European Union)437 or social change (such as commercial exploitation by domestic, state or foreign entities of resources — physical and intellectual — considered of Indigenous ‗ownership‘ or subject to Indigenous custom).438 For example, according to Davies, ‗the European
432 Davies, above n 427, 101–2. 433 One only has to look at the Province of Aceh in Indonesia to think of a situation where the issues of recognition of customary law and autonomy may be linked: though here semi-autonomy has been granted and additional recognition of customary (religious) law in order to stave off calls for full autonomy or independence: See, eg, Rodd McGibbon, ‗Secessionist Challenges in Aceh and Papua: Is Special Autonomy the Solution?‘ (2004) 10 Policy Studies vii–viii, 1ff. 16–17, also (re Islam) 6, 10, 31–3, also (re customary law) 84, 88–9. 434 Davies, above n 427, 89. 435 Kirsty Gover, 'Legal Pluralism and State-Indigenous Relations in Western Settler Societies' (International Council on Human Rights Policy, 1999) 7. 436 Davies, above n 419, 104. 437 Another area of contention is that involving international law, where compliance across national boundaries or in relation to specific groups within a state‘s borders may be involved. 438 Antony Taubman and Matthais Leistner, 'Analysis of Different Areas of Indigenous Resources' in Silke von Lewinski (ed), Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore (Kluwer Law International, 2nd ed, 2008) 59, 89. 112
Union brings together diverse national system, regional conflicts and allegiances‘.439
In this instance, state law is challenged by customs and traditional values.
In Vietnam, rapid changes in society have revealed shortcomings in the Vietnamese legal system and, as a result, a realisation of the need to recognise customary law in order to fill the emerging gaps (for detail, see Chapter 5, ‗The Current Vietnamese
Legal System‘). Many scholars have pointed out that acknowledging the presence of customary law can help to bolster the legitimacy and the effectiveness of the state because it is seen to exercise its authority in a fair way.440 Several countries in the world (including Vietnam) are in the process of recognising customary law, making customary law an official source of law along with state law in order improve their legal systems.441
3.4.2 Harmonising state law with other normative orders
The recognition of customary law involves the harmonisation of other normative orders with state law. There are different reasons for such harmonisation and different extents to which it may be possible to be achieved without damage to the nation‘s broader social fabric that the centralist (and, it is likely, the vast majority of a nation‘s other citizens) would wish to maintain.
According to Anne Griffiths, a national legal system can be examined from an ‗actor oriented, ethnographic‘ study from a ‗strong legal pluralism perspective‘ in three ways that ‗more adequately [take] account of the global and local dimensions of
439 Davies, above n 427, 104. 440 Gover, 'Legal Pluralism and State-Indigenous Relations‘, above n 435, 5. 441 Svensson, above n 39, 5. 113
law‘.442 Law may be viewed as (i) a system of representation that creates meaning within a system of state power; (ii) part of the mobilization of law at a local, national and international level; and (iii) shaped by other normative orders.443
If law is seen as a system of representation that creates meaning within a system of state power, it will be examined in terms of its origin, nature and content as well in terms of the relationship between development of law and civilization. Such a study would examine ‗the processes of law as a sign of cultural identity‘ (both national and of minority ethnic groups) and its affects on the scope and sovereignty of a country, as well as the implications this has for ethnic or minority group rights which may or may not align with state territoriality.444 In this respect, law is a part of sovereign nation as a whole. A centralist would posit that while law may develop at all levels and in different areas and from different sources, its ultimate structure and relative important depends upon the crucial recognition by the legal-political entity of greatest power: the state. The state is the critical body which either recognises in its law (by ratification, and compliance) or fails to acknowledge the claims of international law (covenants, treaties and so on), and embody those provisions for its domestic population. Likewise in the area of customary law, the state‘s acknowledgement, or failure to acknowledge, the claims of customary law, causes that law essentially to be a part of state law either, able to apply to the relevant parties within the state, or leaves it ‗outside, in the cold‘ with a reduced level of validity and little or no official assent to its forms or practices. (For Griffiths, the value of such an ethnographic study is in the resulting increased understanding of
442 Anne Griffiths, 'Customary Law in a Transnational World: Legal Pluralism Revisited' (Paper presented at the Conference on Customary Law, Polynesia, 12 October 2004) 22. 443 Ibid 22–4. 444 Ibid 22. 114
ethnonationalist movements and of the growth of both minority and supranationalist ties and their contested relationship with national sovereignty.)445
Alternatively, the value of law may be seen as its mobilisation at a local, national and international level, allowing Indigenous and local people to seek to gain the support of the international community for the exercise of their human rights (as internationally determined and constructed), that is, their self-determination, including cultural rights and right to their own social management. From this strongly pluralistic viewpoint, state law may be viewed as required to further develop and for the legal system to improve in order to nurture human rights. At the same time, this approach requests a challenge for a state which seeks continued social stability. For Griffiths, the value of this approach is in the increased knowledge of: the construction claims (local, domestic and the influence of international law); the role of state law in constraining rights; and the shifting power constructs that may encourage changes in law (for example, in regard to Indigenous resource management).
The area of study she proposes is state law as shaped by other normative orders, which would centre on the role of other normative orders in shaping state law. A close analysis of plurality and diversity within legal fields would reveal more fully the processes of the law‘s development and its degree of ‗institutionalisation and mandatoriness‘.446 This would involve the examination and evaluation of the legal system through the shape of state law, the effectiveness of the relationship between state law and other normative orders, as well the attitude of Indigenous people or minority groups to this cooperation. For Griffiths, one value of such a study is to
445 Ibid. 446 Ibid 23. 115
ensure that ‗legal pluralism and cultural pluralism do not simply become equated with one another in ways that map the cultural self-legitimations of nation-states‘.447
In society, there are many different groups such as families, village communities, ethnic groups, religious groups, occupational groups, and national groups.448 Each group has it own rules (or laws) and therefore, state law is not an autonomous system as it interacts with other legal and social orderings.449 Borrows and Bhandar, based on the theory of sui generis, argue that the state should create a sphere for legal orders to live in harmony with each other in order to make a unified system. Bhandar requires that legal order systems encounter each other, which facilitates transformation of different legal knowledges to make the system be more unified.450
Anne Griffiths‘ distinction is akin to Borrows and Bhandar‘s idea. She argues that recognition/non-recognition ranges along a continuum. At one hand, if the state accepts (weak) legal pluralism, then the state should have regulations for the recognition of customary law. At the other is a ‗more far reaching and open-ended concept of law‘ (elsewhere referred to as ‗strong‘ legal pluralism) where customary law or other legal orderings do not rely on the recognition of the state for their validity.451 Under a centralist system, given the very central role accorded state law, the state may not recognise customary law, or may tend to accord customary law only limited space. However, in less centralised systems of law, a degree of
447 Ibid 24. 448 Alison Dundes Renteln and Alan Dundes, 'What is Folk Law?' in Alison Dundes Renteln (ed), Folk Law: Essay in the Theory and Practice of Lex Non Scripta (Garland Publishing, 1994) 1, 2. 449 GCJJ Van Den Bergh, 'The Concept of Folk Law in Historical Context: A Brief outline' in Alison Dundes Renteln and Alan Dundas (eds), Folk Law: Essay in the Theory and Practice of Lex Non Cripta (Garland Publishing, 1994) vol 1, 5, 17. 450 Brenna Bhandar, 'Re-Covering the Limits of Recognition: The Politics of Difference and Decolonization in John Borrows's Recovering Canada: The Resurgence of Indigenous Law' (2007) 27 Australian Feminist Law Journal 125, 151. 451 Anne Griffiths, 'Customary Law in a Transnational World‘, above n 442, 4–5. 116
pluralism may allow the possibility of an increased degree of self-validation, not depending on state law for its validity, and in some instances displacing state as the applicable source of law.452 Griffths takes one case from Australia and another from
New Zealand (NZ) to illustrate that the desired outcome (in terms of Indigenous rights) could be achieved via two very different options: recognition of customary law within the state national legal system, or recognition of it outside the system. In the 1992 Australian Mabo case,453 it was demonstrated that customary law could be recognised within the state legal system; customary law was accommodated by the
Common Law.454 The 1840 Treaty of Waitangi (between the colonial power and the
Indigenous people of NZ), rather than intellectual property law, was invoked in an
New Zealand intellectual property case.455
Just as it is possible for native title to be recognised, so too it is possible for customary law to exist within the national legal system. For example, Kenya recognises customary law application within the state national legal system by recognising it in the national constitution.456 There are also cases where customary law is recognised outside the legal system, and utilises institutions or authorities outside of the formal national legal system. For instance, India, Pakistan and Niger legally recognise customary law as a system outside of the formal legal system to be
452 Ibid 5. 453 Mabo v Queensland (1992) 66 ALJR 408. 454 Anne Griffiths, 'Customary Law in a Transnational World‘, above n 442, 5–6; See also Mabo v Queensland (1992) 66 ALJR 408. 455 The Treaty of Waitangi was signed by representative of the British Crown and 540 Maori chiefs on the 6th February 19840 at Waitangi to recognise Maori‘s rights of lands and other properties. However, the Crown breached the treaty by applying some intellectual property law instruments without getting an agreement with Maori. See New Zealand History Online, The Treaty in Brief (13 July 2011)
used to mediate and settle disputes.457 Customary law is there and elsewhere recognised as a ‗non-state legal order‘ or as a quasi judicial entity.458
3. 5 General Comments on Legal Pluralism
By examining different concepts of law, this thesis highlights ideas of legal pluralism in its social aspects and from a legal perspective. Customary law, in the light of legal pluralism, is a source of law. Customary law is considered as an existing and also potentially more important source of law in a legal system and should be recognised.
Nevertheless, legal centralism opposes the above idea. As noted earlier, law, according to legal centralists, is state law and all other orderings, whether ‗legal‘ or not, only are social norms.
Legal pluralism has attracted significant attention from many scholars with diverse views. There are those which strongly support legal pluralism and those who do not support legal pluralism, as well as those whose view are eclectic and strike a compromise between the two extremes.
The viewpoint of the author of this thesis is one of support for legal pluralism rather than legal centralism. The reasons for this support will now be outlined.
3.5.1 Legal pluralism: the social and cultural aspects
Legal pluralism should be considered as a social phenomenon; virtually a natural social phenomenon.459 This means the presence of legal pluralism occurs naturally.
457 Kirsty Gover, 'Research Project on Plural Legal Orders and Human Rights' (International Council on Human Rights Policy, June 2008) 6. For India, see, eg lok adalat (quasi-judicial dispute resolution mechanism established by Act of Parliament) of panchayats (village bodies with some judicial powers); the Pathan riwaj (customary law system) and jirgas in Pakistan: International Council on Human Rights Policy, above n 112, 3, 8. 458 International Council on Human Rights Policy, above n 112, iii–iv. 118
In any nation there exist a number of different ethnic groups. Such groups may be shaped by the process of the establishment of the state,460 or by emigration, or by intermixing to create a new social group. This occurs naturally over time, although it is, more or less, influenced by economic and social circumstances.
Persisting into modern times, many ethnic groups have their own law and such law is preserved by the community and every member is bound by it. The prevalence of numerous ethnic groups has created a variety of laws in many societies, particularly given the multiple directions of emigration over centuries. Thus, the presence of legal pluralism, as a ‗naturally occurring‘, social phenomenon, is hard to deny.
If law (state law and customary law) is considered as an expression of culture, the recognition of legal pluralism also contributes to recognition of such cultures. If there are multible ethnicities in a social field, there may accordingly be cultural differences. Indeed, every ethnic group wishes other communities to respect their culture therefore; this expectation promotes reciprocal respect and recognition.
The phenomenon of cultural pluralism leads to the phenomenon of legal pluralism.
Customary law is considered as a part of culture and impacts on society.461 The recognition of customary law is not a request for an ethnic minority to apply its customary law to other communities but only within the group. The recognition of customary law within a defined community is rational because it needs not affect other communities. Hence, if considering legal pluralism in its social and cultural
459 Griffiths argues that Legal pluralism should be studied as a feature of social life rather than a feature of the legal system, see John Griffiths, 'What is Legal Pluralism?', above n 170, 38. 460 For example, Italians were formerly citizens of numerous city states (Lombards, Venetians, Sicilians etc) without a commonly recognised identity, such an identity flowered after the unification of Italy, just as occurred in Germany where previous borders tended to separate rather than unite the German speakers of the region (Prussian, Bavarian etc). In Vietnam, re-unification has re-emphasised national identity. 461 Svensson, above n 39, 5. 119
aspects, the question of whether customary law should be recognised or not is not a political issue. Admittedly, the issue can only become fraught when situations occur which involve members of more than one ‗law grouping‘.462
If legal pluralism is regarded as a political and legal issue, the state will play a decisive role in the recognition, particularly how the state handles the relationship between state law and other legal orders. The issues that arise involve whether the recognition of legal pluralism may have a negative impact on state power, creating political instability and the potential risk of establishing autonomous areas.
3.5.2 Legal pluralism: the political and legal aspects
This thesis adopts the viewpoint of Greenhouse and Strijbosch when they argue that law has ‗many rooms‘.463 To exclude customary law from the definition of ‗law‘, and to reserve it for state law only is an imposition because ethnic communities are dispossessed of the right to call their norms ‗law‘.
The exercise of distinguishing legal norms (state law) and social norms (religious rites and customary laws) is a political one. That is, distinction between state law and other (often unrecognised) legal norms is a political choice rather than a natural social phenomenon. It is related to the maintenance and protection of the sphere of political power. Some states go to extremes: they absolutely deny that other legal orders exist and maintain that the only law is ‗state law‘ and all others are social norms.464 However, the denial of other legal norms may be impossible unless all
462 For example, when a tribal youth is knocked over by an intoxicated member of another ‗law grouping‘ and dies as a result. In such an instance the sanctions may be quite different for such a crime. Similar situations arise where members of different groups may wish to marry and form a new family, where one or both groups may ban such a union. 463 Greenhouse and Strijbosch, above n 311, 5–8. 464 Arthurs, above n 376, 3. 120
ethnic groups disappear. As an embedded social phenomenon legal pluralism is resistant to politically motivated extinguishment.
Where the existence of multiple legal orders in society is accepted, attention typically shifts to how such orders can obtain the recognition of the state. However, in the view of the author of this thesis, legal pluralism is a natural social phenomenon; and, therefore, it is not necessary to wait for the state to offer to recognise it and grant it a position in the legal hierarchy in order to confirm whether it exists (or does not exist). The existence of customary legal orders is not conditional. If the state has the right to define and name a natural social phenomenon, one can only ask whether such a right is given to the state (and if so by whom?) or whether the state takes that right for itself?
The state should not use its power to bluntly recognise (or not recognise) legal orders. Rather, the state should use its power to establish relative legal positions for legal orders. This is because recognition by the state may sometimes brings negative impacts on other citizens in the society. So it is reasonable that the state should carefully allocate ‗spaces‘ in which customary law is permitted to continue to operate, while examining circumstances where state law may need to intervene to maintain a just outcome.
If customary law is not recognised by the state, it nevertheless still exists, and more importantly, ethnic groups still apply their customary laws without the coordination that recognition supervision by the state can provide. In the absence of recognition, the state may have to contend with difficulties in influencing the ethnic community, and its continued participation in the larger society. In contrast, if flexible policies
121
are adopted, the state not only has influence over ethnic groups but also accommodates customs which may benefit the nation.
By defining legal positions for legal orders, the state, on the one hand, may assure the legal position of the state law, as expected and intended by the state. On the other hand, other legal norms such as customary law may gain suitable positions in the legal system as expectedly ethnic communities.
The author of the thesis argues that whether law includes or excludes customary law depends on the will of the ruler (rulers), not the will of whole society. The state, by its power, denies other legal orders a position in the legal system because the state desires to assure and continue to be the national controlling power (via legislative, administrative and judicial arms of government), and maintain national stability and unity. However, the state should accept that customary law exists in practice and contributes to social life as a natural phenomenon, and that unity can be maintained by a state while recognising a level of diversity of custom and practice.
The line between the paradigms of legal centralism and legal pluralism is not absolutely clear because legal orders interact with each other. The legal structure in the state is plural because it intermixes legal orders. For example, to countries that are former colonies, the legal system consists of an admixture or combination of the legal ideologies of the colonial power and colonised country. With regard to multi- ethnic countries, each ethnic group already has its own legal ideology. The establishment of customary law and village conventions expresses their existing legal ideology or belief. Hence, the aim of the establishment and existence of customary law is not as a foundation for autonomy threatening the sovereignty and integrity of the state as several scholars have argued. The existence of a desire for recognition of 122
customary law is a manifestation of a social reality rather than the assertion of a political claim.
The assertion that the state needs a single unified unitary legal system for social control and stability, and therefore, only state law should be regarded as law, does not reflect reality. The state may be reluctant to adopt a more plural approach because of concerns for social stability. But social stability not only depends on law but on other factors, such as the ability of the state to manage society, social justice and economic development. The state needs law for the nation, and, as a matter of course, ethnic communities also need law for their communities. The state defines legal characteristics to prove that state law is superior (which, as Teubner or
Kleinhans and Macdonald have noted include that law is well-organised, comprehensive, institutionalised and sophisticated).465 However, other normative orders, such as customary law, also demonstrate the same features. The state gives itself the right to establish what rules are law, and to force every citizen to accept that. Similarly, ethnic groups may argue that their rules are law and wish others to agree with them. The difference is found not in the characteristics of state law and customary law, but the persons or entities who make law and customary law and to whom such law applies.
To some extent, due to economic, social and educational conditions, a number of unsound customs are still present in society. Careful recognition of customary law can have an educative function: the state may change awareness of inappropriate customs in the community. Prohibition by punishment and non-recognition by power of the state may cause ethnic groups and Indigenous people to fear the state, but not
465 Teubner, 'The King's Many Bodies‘, above n 197, 764; see also Kleinhans and Macdonald, above n 172, 27–8. 123
lead them to understanding why some customs are unsound and thus convince them to avoid applying them. A preferable course of action is to create the circumstances in which they themselves may abolish unsound customs when they consider such customs are no longer appropriate to their community and modern society.
In conclusion, recognising legal pluralism is recognising a natural social phenomenon. The state should not regard legal pluralism as a negative because, in many respects, it has a positive impact on the authority and the existence of the state.
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4 WHY COUNTRIES SHOULD RECOGNISE CUSTOMARY LAW:
HUMAN RIGHTS
4. 1 Human Rights Overview
Human rights — ‗the rights of man‘ — are very sensitive and controversial issues in the field of legal and political studies. They are sensitive because they are directly related to international relations, national sovereignty and the rights of members in society. There is a difference in awareness between the West and the East, and even among countries in the same geographic area, about the notion of human rights.
Though it is recognised commonly through international documents — such as the
Charter of the United Nations (1945), the Universal Declaration of Human Rights
(1948), the International Covenant on Civil and Political Rights (1966), the
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities (1993), the Vienna Declaration on Human rights (1993), and the Bangkok Declaration (1993) — that human rights are the values of humankind,466 it is very hard to impose particular standards of human rights on a particular nation (or suggest such standards for that country) because there are differences in historical, economic, cultural and social backgrounds between nations worldwide. Although it is generally provisionally accepted that human rights standards are universal for a specific country such as Vietnam (or other Asian nations
466 Human rights are considered as the values of humankind because they are for ‗the dignity and worth of the human person‘ as declared in the Preamble of the Charter of the United Nations (1945) and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (1993). The Universal Declaration of Human Rights (1948) also provides: ‗All human beings are born free and equal in dignity and rights‘ (Article 1). The Preamble of the International Covenant on Civil and Political Rights (1966) and the Vienna Declaration on Human Rights (1993) affirm: ‗Human rights derive from the dignity and worth inherent in the human person‘. 125
and a number of Islamic nations), the issue of human rights and the nature of those rights cannot be separated from cultural, political and social factors.
The question of whether the recognition and application of customary law as a source of law in the national legal system would have positive or negative impacts on human rights is highly problematic and controversial. Answers generated by such a question appear far more complex than the single answer suggested by the simple dichotomy presented in the question (‗positive or negative‘).
From one perspective, it is argued that customary law may be the best instrument for dealing with conflict within a given community (it can be within the Indigenous community and between it and the broader community or other ethnic communities)467 and, more importantly, for protecting and developing human rights for minority groups and Indigenous people.468 Customary law is also considered as an instrument for cultural preservation, bringing about respect for cultural identity and democracy for ethnic peoples.469 In addition, its recognition may contribute to the solution to the differences and any conflict between state law and Indigenous laws.
A counter-view is that customary law sometimes leads to violation of human rights because it provides different laws for people with regard to the same issues or disputes.470 A paradox appears to exist: on the one hand, human rights, individual rights and equal rights mainly refer to individuals and their relationship with each other; but, on the other hand, human rights also refer to ‗group rights‘, the rights of
467 Eg, conflicts of civil transactions or marriage and family issues. 468 Eg, for self-government, at least in the legal field. 469 Eg, culture, language and customs can be preserved by customary law. 470 International Council on Human Rights Policy, above n 112, 73. 126
Indigenous people and minority groups. On this view the state should not give any special privileges to any subject or citizen (or groups of subjects or citizens) in order to protect equality in society, particularly equality before the law.471
This chapter will explore the differences in Western and Asian human rights perspectives, focusing on the universality and particularity of human rights to seek the answer to what constitutes the genuine value of human rights. On this point, the thesis will examine how customary law should be recognised so that it is in harmony with human rights protection. In particular it will explore: whether human rights norms could impact on customary law; what the obstructions of customary law to human rights might be; and how such a complex relationship could be settled to benefit Vietnam‘s development.
4.1.1 Western theories and ‗Asian values‘
Human rights ideology has a long history in the West. According to this ideology, human rights are equal rights, inalienable rights, and universal rights.472 In the East, these concepts have arrived more recently, as the result of the influence of the notion of human rights from the West. This is the reason that many Asian countries consider human rights as a ‗so-called Western model‘473 because ‗the principles enshrined in the Universal Declaration reflect Western values and not their own‘.474 The Latin maxim ‗Ex oriente lux, ex-occidente lex‘ reflects this division, and indicates that
471 Eg, if the state applies an incentive tax for some ethnic groups in certain areas (for example Vietnam), it may be unfair for other investors who invest in the same field of business. 472 Jack Donnelly, Universal Human Rights in Theory and Practice (Cornell University Press, 2003) 10. 473 Bonny Lbhawoh, 'Cultural Tradition and National Human Rights Standards in Conflict' in Kirsten Hastrup (ed), Legal Cultures and Human Rights: The Challenge of Diversity (Kluwer Law International, 2001) 85, 85. 474 Christina M Cerna, 'Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts' (1994) 16(4) Human Rights Quarterly 740, 740. 127
while ‗light‘ (illumination, often associated with truth, philosophy, religion) comes from the East, from the West comes the ‗law‘ — generally conceived as associated with a more rigid475 legislative (written) based framework as well as, some would argue, a rights-based culture.476 These different ways of thinking survive and have prompted debate and controversy in relation to human rights for decades, particularly where these rights have been expressed as or associated with political struggles.477
Many Western scholars, when debating human rights, mainly focus on individual rights, whereas African, Asian (and a number of Western) scholars pay more attention to group rights, especially in relation to national sovereignty.478 In contrast to the universality of human rights of Western countries,479 and based on an acceptance of cultural relativism (that is, in this instance, a recognition that the
West‘s understanding is linked to its individualistic culture and not that of Asian collectivism), Asian human rights require a balance to be struck between individual rights, collective rights and national power.480 Harmony should be achieved, in which human rights must accord with national history, culture and tradition as well as a country‘s political evolution and current status.481 From an Asian point of view,
475 And some colonisers may have inserted ‗more correct‘ or ‗civilised‘ regime, due to its written form and their view of the content of their own law, and despite what may now be viewed as its often harsh punitive nature. 476 Asbjørn Eide, 'Cultural Rights and Minorities: On Human Rights and Group Accommodation' in Kirsten Hastrup (ed), Legal Cultures and Human Rights: The Challenge Diversity (Kluwer Law International, 2001) 25, 25. 477 Jack Donnelly, 'Human Rights and Asian Values: A Defense of "Western" Universalism' in Joanne R. Bauer and Daniel A. Bell (eds), The East Asian Challenge for Human Rights (Cambridge University Press, 1999) 60, 63. 478 Joseph Chan, 'Thick and Thin Accounts of Human Rights: Lessons from the Asian Values Debate' in Ole Bruun and Michael Jacobsen (eds), Human Rights and Asian Values: Contesting National Identities and Culture Representation in Asia (Curzon, 2000) 59, 69. He argues that ‗ideological opposition to perception of human rights cuts across East and West‘. 479 Ole Bruun and Michael Jacobsen, 'Introduction' in Ole Bruun and Michael Jacobsen (eds), Human Rights and Asian Values: Contesting National Identities and Cultural Representation in Asia (Curzon Press, 2000) 1, 1. 480 Ibid 4. 481 Donald K Emmerson, 'Singapore and the "Asian Values" Debate' (1995) 6(4) Journal of Democracy 95, 95–105. 128
much of the current concept of human rights is Western and many of the rights articulated in international treaties reflect Western values and are, therefore, not necessary applicable to Eastern countries because they are inappropriate for their cultures and societies.482
Several scholars consider that the major difference between the West and the East is the dichotomy of thought concerning human rights: greater attention is paid to individual rights in the West, whereas a number of Asian states focus on a communitarian approach to rights.483 As a result, some Western countries wish to apply universal standards of human rights in Asia,484 whilst many Asian states argue that universality is not uniformity.485 As Friedman wrote: ‗It seems strange that
Westerners hear human rights as individual rights‘,486 whereas while Easterners hear human rights as individual rights, these rights must be a part of the whole society, and are unable to be separated from issues of state, state power and national sovereignty.
A number of Asian countries use the term ‗Asian values‘ as the basis for challenging the applicability of universal standards of human rights. The term ‗Asian values‘ was used during the United Nations World Conference on Human Rights held on 14–25
482 Karen Engle, 'Culture and Human Rights: The Asian Values Debate in Context' (2000) 32 International Law and Politics 291, 311. 483 Joanne R Bauer and Daniel A Bell, 'Introduction' in Joanne R Bauer and Daniel A Bell (eds), The East Asian Challenge for Human Rights (Cambridge University Press, 1999) 3, 6; see also Michel Rosenfeld, 'Can Human Rights Bridge the Gap between Universalism and Cultural Relativism? A Pluralist Assessment Based on the Rights of Minorities' (1998–1999) 30 Columbia Human Rights Law Review 249, 251. 484 Michael C Davis, 'Human Rights in Asia: China and the Bangkok Declaration' (1995–1996) 2 Buffalo Journal of International Law 215, 215–30. 485 Bilahari Kim Hee P S Kausikan, 'An East Asian Approach to Human Rights' (1995–1996) 2 Buffalo Journal of International Law 263, 265. 486 Edward Friedman, 'Since There Is No East and There Is No West, How Could Either Be the Best?' in Ole Bruun and Michael Jacobsen (eds), Human Rights and Asian Values: Contesting National Identities and Culture Representation in Asia (Curzon Press, 2000) 21, 27. 129
June in 1993 in Vienna.487 According to Bruun and Jacobsen, four reasons were given for the difference in the perception of human rights in Asian countries. These included the ‗cultural‘ argument, the ‗collective‘ argument, the ‗disciplinary‘ argument and, the ‗organic‘ argument.488
The ‗cultural‘ argument is based on cultural relativism in that the applicability of human rights should be in line with the right to national self-determination in a manner appropriate to the country‘s cultural background.489 Because rights are the product of culture490 and cultural rights are a part of human rights,491 human rights are thus culturally specific and not separate from the cultural particularity of the nation. As it is undeniable that cultural diversity is a reality,492 variation in human rights priorities and interpretations is an authentic outcome.
In the Report of the Regional Meeting for Asia of the World Conference on Human
Rights 1993 (the ‗Bangkok Declaration‘), the United Nations stressed that those constructing human rights instruments and attempting to resolve human rights issues should pay attention to regional historical, cultural, and religious particularity.493
Asian countries, though supportive of the universality of human rights, have clearly and definitely rejected the imposition of incompatible values. Asian voices have been raised against the notion that culture is ‗theoretical‘. They do so because ‗cultures‘
487 Vienna Declaration and Programme of Action ('Vienna Declaration'), opened for signature 25 June 1993, UNTS Doc A/CONF.157/23 (entered into force 25 June 1993). 488 Bruun and Jacobsen, above 479, 3. 489 Jack Donnelly, 'Cultural Relativism and Universal Human Rights' (1984) 6 Human Rights Quarterly 400, 400–11. 490 Eide, above n 476, 25. 491 Ibid 26. 492 Kausikan, above n 485, 263. 493 United Nations, 'Declaration of the Ministers and Representatives of Asia Nations, Report of the Regional Meeting for Asia of the World Conference on Human Rights' (A/CONF 57/ASRM/8 A/CONF 57/PC/59, Bangkok, 29 March–2 April 1993) (‗Bangkok Declaration‘) [8]. 130
are not ‗things‘ to pick up or examine494 and on that basis question whether separate and different overarching ‗Asian values‘ exist as such?495 The Bangkok Declaration text is clear:
…[W]hile human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.496
The ‗collective‘ argument is a plea for communalism. While Western common conceptions of human rights are inclined towards individual freedom, and advocating the values of liberal democracy,497 the Eastern concept is, on the contrary, based on communalism. Given their acceptance of the tenet that social stability and unity bring about economic development, many Asian states consider the interests of societies and nations more important than individual rights.498 This belief also aligns with traditional cultural beliefs in most, if not all, Asian societies, where family and societal collectivism (and stability) are highly valued. Asian values, therefore, are placed on the shoulders of society, community, family and individual respectively. In these countries, the family, not the individual, is the core cell of society, with an overarching loyalty to the broader community (epitomised by the State or leader) also expected. As Bruun and Jacobsen observe:
494 Michael Freeman, 'Universal Rights and Particular Cultures' in Ole Bruun and Michael Jacobsen (eds), Human Rights and Asian Values: Contesting National Identities and Culture Representation in Asia (Curzon, 2000) 43, 45. 495 Diane K Mauzy, 'The Human Rights and "Asian Values" Debate in Southeast Asia: Trying to Clarify the Key Issues' (1997) 10(2) Pacific Review 210, 215–19. 496 Bangkok Declaration [8]. 497 Mauzy, above n 495, 211. 498 Developing countries ‗do not and cannot hold to an individualistic approach towards human rights for we cannot disregard the interests of our societies and nations‘, cited in Statement by His Excellency Mr. Ali Alatas, Minister for Foreign Affairs and Head of the Delegation for the Republic of Indonesia, Conference on Human Rights, Vienna 14 June 1993; see also Melanne Andromecca Civic, 'A Comparative Analysis of International and Chinese Human Rights Law — Universality versus Cultural Relativism' (1995–1996) 2 Buffalo Journal of International Law 285, 314. 131
Asian values differ from Western ones by being communitarian in spirit, with family and community obligations being the score of social life as opposed to Western individualism and an atomistic perception of society … since the community takes precedence over individual, individual rights are destructive to the social order and the harmonious function of society.499
In addition, conflict does arise between individual and group rights in society.500
Asian nations feel very cautious about applying ‗Western‘ human rights because such a move is controversial, both in the notion of human rights and in more human rights protection being accorded to citizens. In common Asian thoughts, individual interests give way to group interests in order to ensure a broad consensus in the community.
The ‗disciplinary‘ argument favours economic factors rather than political and civil elements. Instead of giving prominence to civil and political rights as the Western doctrine of human rights does, the Asian argument is that economic development is of greatest importance and civil and political rights thus become subordinate.501
Indeed, it could be said that the Western capitalist model of economic development has become the sole model of development in the modern world and one in which the
East wants not just to participate and survive, but to excel; and to succeed in this economic environment, some values generally deemed characteristically Western, have been sacrificed or at least deemed of lesser importance.502 The Western concentration on civil and political rights seems to be at best biased or at worst even
‗frivolous‘ because besides these civil and political rights, economic rights (without
499 Bruun and Jacobsen, above 479, 3. 500 Rosenfeld, above n 483, 254–8. 501 Herman Joseph S Kraft, 'Human Rights, ASEAN and Constructivism: Revisiting the "Asian Values" Discourse' (2001) 22(45) Philippine Political Science Journal 33, 34; see also Bangkok Declaration art 18. 502 And not just in the East. See, eg, loss of freedom of assembly and union rights for collective bargaining in the US: although one could argue that this is one of the few collectivist values seen as among human rights: see Vox Populi, Outage: Union Workers Revolt Across Country (14 May 2011)
which no other right — including the right to food and shelter — can be exercised or flourish), and cultural and social rights are also crucially important for individuals.
Indeed, political, civil, economic, social and cultural rights are precisely provided for in two international covenants created in 1966 — the International Covenant on
Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights. In the Preamble of both of these covenants, those rights ‗derive from the inherent dignity of the human person‘. In addition, Article 1 of two covenants recognises that ‗All peoples (…) freely determine their political status and freely pursue their economic, social and cultural development‘. Nevertheless, there are no any articles that maintain that these economic, social and cultural rights are more important than political and civil rights, nor that the latter are more important than the former. Article 5(1) of the two covenants further provides that members of covenants shall not interpret Articles to limit or extend the contents provided in the covenants.503 Accordingly, the ‗disciplinary‘ argument for Asian values thus, seems to be weak.
Finally, the ‗organic‘ argument supports the maintenance of social structure.
According to the Asian conception, the State should rule (create legislation and so forth) for the common good of everyone and the community. State and society are to function and be regarded as essentially a single entity and, accordingly, the political
503 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 1 and 5; see also International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 5. 133
leadership is assigned ‗to handle the benefits of the entire society and criticism against it is [therefore regarded as] a challenge to state power‘.504
The Asian values argument has been used by a number of Asian countries against accusations of human rights violations raised by some Western states. These accusations tend to be in the limited areas of restrictions on freedom of expression,505 illegal arrest and unfair judicial process for citizens, a lack of democracy and religious repression.506 Whereas ‗there is not generally a negative reaction in Asia about Americans and Europeans values and ideals‘,507 several Western and European scholars have reacted negatively to Asian values. According to Koh, such negative responses generally are related to three causes, namely the domination of the West over the Asian, Western intellectual hegemony, and a number of negative impacts on
Asia democracy caused by some political leaders.508
Historically, many Asian countries had been dominated by the West for more than two hundred years (for example, Philippines under Spain (1565–1898), British occupation (1762–1763), and then America period).509 Koh argues that many
Westerners have not changed their opinion of Asia and Asians are still regarded as inferior. In addition, the West‘s leadership in economic, technical, military and intellectual fields reinforces that sense of superiority despite the rapid rise of Asian economies. Indeed, in some uneducated quarters, their rapid rise prompts a more
504 Bruun and Jacobsen, above 479, 3. 505 Human Rights Watch Report 1995, Indonesia and East Timor (10 May 2011)
defensive approach. Over recent decades, the remarkable development by Asia countries in all fields has caused a degree of concern in the West that Asia may ‗pose a challenge to Western intellectual hegemony‘.510 However, negative actions — such as corruption, collusion and nepotism — involving several Asian leaders and impacting negatively on their respective societies have undermined perceptions of
Asian nations as successful, progressive and modern. Such leaders misuse the term
‗in the name of Asian values‘, utilising it to excuse their behaviour, but this reflects an abuse of the concept by those with political power,511 rather than a true expression of those values.
Both West and the East are becoming increasingly aware of the conceptual differences in their understanding of individual and social values in relation to human rights.512 For example, Koh argues that in relation to personal values, Asians focus on learning, honesty and self-discipline whereas Americans stress ‗success in life, personal achievement and helping others‘.513 As for social values, including the importance of an orderly society, importance of personal freedom, and importance of individual rights, the West and the East are also far different from each other.514
4.1.2 ‗Asian values‘: real values or sophism
Many states have signed and ratified international human rights treaties, including the International Bill of Human Rights (namely, the Universal Declaration of Human
510 Koh, 'Asian Values Reconsidered', above n 499, 132. 511 Ibid. 512 Koh, 'Differences in Asian and European Values', above n 499, 7. Koh shows the differences between Americans and Asians using some date collected on concepts viewed as important. These statistics are as follows: the importance of orderly society: Asians 71%, Americans 11%; the importance of personal freedom: Asians 32%, Americans 82%; and the importance of individual rights: Asians 29%, Americans 78%. 513 Koh, 'Asian Values Reconsidered', above n 507, 133. 514 Koh, 'Differences in Asian and European Values', above n 507, 7. 135
Rights 1948 (UDHR), the International Covenant on Civil and Political Rights 1966
(ICCPR), and the International Covenant on Economic, Social and Cultural Rights
1966 (ICESCR)). When agreeing to participate in such treaties, states commit to taking seriously their responsibility for human rights protection. Treaties ratification often involves a reporting requirement, the fulfilment of which may prove problematic or at least contentious. A number of countries also register Reservations to particular sections of a Treaty or Convention, effectively ‗opting out‘ of sections with which they do not agree.515
Nevertheless, some countries and regions in the world create their own standards based on the ‗particularity‘ of human rights. For example, Africa has its references to
‗African Traditions‘516 some of which, with their ‗rejection of individualism‘ echo
Asian values.517 To some extent, these countries and regions provide examples of the particularity of human rights, based on economic, cultural and social conditions
(which may include the point of view of the ruler, whether individual (as in some kingdoms)518 or the state (parliament or parliamentary leader in other countries)).519
If the universality of human rights refers to universal values, including basic human
515 For example, Australia‘s reservation to Article 4 of the Convention on the Elimination of Racial Discrimination (International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1966, 660 UNTS 195 (entered into force 4 January 1969)) in relation to criminalising the dissemination of racist hate speech and propaganda. (‗Australia is not at present in a position specifically to treat as offences all the matters covered by article 4(a) of the Convention. Acts of the kind there mentioned are punishable only to the extent provided by the existing criminal law dealing with such matters as the maintenance of public order, public mischief, assault, riot, criminal libel, conspiracy and attempts. It is the intention of the Australian Government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of article 4(a)). See Ryan Goodman, 'Human Rights Treaties, Invalid Reservations and State Consent' 96 American Journal of International Law 531, 550. 516 African [Banjul] Charter on Human and Peoples' Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) (entered into force 21 October 1986). 517 Kam Por Yu, The Alleged Asian values and Their Implication for Bioethnics (14 May 2011)
rights without any limitation of space and time, race, religion, political regime and even social nature,520 the particularity of those human rights refers to their specific cultural and national features. The acceptance of the particularity of human rights is not to deny the universality of human rights but requires that human rights protection takes into account and expresses or embodies the differences in cultural and social backgrounds of countries, and any such protection should be based on the situation of particular groups, such as children, women and ethnic people within those societies, not as opposed to them.
Several scholars argue that it would be superficial to deny that differences exist in human rights between areas, but that it would be wrong if some countries, based on their particular cultural foundations or heritage, persisted in limiting or obstructing the unfettered expression of human rights.521 Moreover, some states rely on recourse to their traditional, religious and cultural values to defend their arguments for not significantly fulfilling their obligations in regard to the rights provided in
International Covenant on Civil and Political Rights.522 Some scholars wonder why
520 Van Tuan Chu, 'Tinh Pho Bien va Tinh Dac Thu cua Quyen Con Nguoi Tu Phuong Dien Triet Hoc' (Paper presented at the Tinh Pho Bien va Tinh Dac Thu cua Quyen Con Nguoi, Hanoi, Vietnam, 16– 17 March 2010) 6 [Trans: Van Tuan Chu, ‗Universality and Speciality of Human Rights from Philosophical Aspects‘ (Paper presented at the Universality of Speciality of Human Rights, Hanoi, Vietnam, 16–17 March 2010)]. 521 Eckart Klein, 'Mot So Nhan Xet Ve Tinh Pho Bien cua Quyen Con Nguoi' (Paper presented at the Tinh Pho Bien va Tinh Dac Thu cua Quyen Con Nguoi, Hanoi, Vietnam, 16–17 March 2010) 6 [Trans: Eckart Klein, ‗Universality of Human Rights and Philosophical Background‘ (Paper presented at the Universality and Speciality of Human Rights, Hanoi, Vietnam 16–17 March 2010)]. 522 Eg Pakistan‘s reservations on Articles 3 (equal right of men and women), 6 (right to life), 7 (torture, cruel punishment), 18 (freedom of thought, conscience and religion) and 19 (freedom of opinion) because these articles of ICCPR, to some extent, are repugnant to the Constitution of Pakistan and the Sharia laws, see Democracy Reporting International, Pakistan's Reservations to the International Covenant on Civil and Political Rights (Briefing Paper 4) (15 May 2011)
the rights presented in international human rights treaties appear so difficult to harmonise with religious, cultural and traditional values.523 For instance, Article 6
(regarding the inherent right to life and/or abolishing the death penalty), and Article
9 (regarding the right to liberty and security of person) of the International Covenant on Civil and Political Rights are not contrary to the culture and tradition of some countries but those same countries, for reasons of national security, public interest and collective benefits (not individual benefits), deny the universality of this right and instead try to defend their position by appealing to the concept of the particularity of human rights.
According to Donnelly, Asian values are something contrary to international human rights.524 Many Asian states (relying on the doctrine of cultural relativism) request a respect for cultural differences; indeed, Donnelly argues that ‗[t]he norms of the
Universal Declaration are presented as having no normative force in the face of divergent cultural traditions‘.525 The doctrine of cultural relativism may, with its emphasis on culturally relevant perspectives, unintentionally run the risk of reducing the scope of a ‗right‘ to only what is acknowledged to be in agreement with that which is held to be ‗traditional‘ at this specific time, transmute a particular nation of what is regarded as ‗good‘ (under a human rights convention) in relation to a particular action or behaviour to what would then be viewed as ‗bad‘ (and visa versa), and what is ‗obligatory‘ to merely ‗habitual‘ (a term that lacks moral
Human Rights Convention: Views, Concluding Remarks and Follow-up Procedures under the International Covenant on Civil and Political Rights (15 May 2011)
force).526 This is because individual rights are to ‗match‘ their culture. Moreover, the notion of what constitutes ‗culture‘ is vague527 and often deeply misguided as ‗the typical account of culture as coherent, homogeneous, consensual, and static largely ignored cultural contingency, contestation, and change‘.528
Langlois, in contrast, claims that Asian values are genuine values, and include local religious and cultural beliefs.529 Such cultural and religious beliefs vary in terms of geographic distinction and social groupings and, accordingly, the idea that human rights could be identical across these vastly differing areas and groups is unsupportable; these countries are not identical. Human rights discourse, therefore, becomes complex, particularly regarding its universality.530 In addition, Langlois considers that, besides cultural and social values, Asian values also include their various political institutions,531 thus making ‗the issue of cultural authenticity … profoundly political‘.532 ‗Asian values‘ therefore are not exclusive as the concept. It includes the political dimension which type of value may be common across Western and Eastern cultures or societies. A number of values such as the ‗special role of the family‘ are also shared to a greater extent and, as Langlois notes, the notion of abandoning ‗Eurocentrism‘ (as the author and the sole source of human rights
526 Ibid 295. 527 Peter Malanczuk, 'The Universality of Human Rights and Differences in Asian and European Values from the Perspective of International Law' (Paper presented at the Second Informal ASEM Seminar on Human Rights, Beijing, 1999) 11. 528 Donnelly, 'The Relative Universality of Human Rights', above n 524, 296. 529 Anthony J Langlois, The Politics of Justice and Human Rights: Southeast Asian and Universalist Theory (Cambridge University Press, 2001) 5. 530 Ibid. 531 Ibid 12. 532 Ibid 26. 139
knowledge and values) has quietly gained acceptance.533 Likewise, he calls for the
West to reassess its own identity.534
The Asian Financial Crisis of 1997 had a great impact on Asian values. It made many Asia countries re-examine their legal systems and Asian values more closely.
The Asian Financial Crisis began in Thailand and Korea with foreign debt and plunging currencies. Loans extended with scant regard to payment capacity forced the collapse of many large financial and non-financial institutions. Shortly after,
Thailand and Korea, and then a series of countries (such as Indonesia, Malaysia and
Philippine) experienced the same situation. The crisis significantly affected the legal systems of Asian countries, particularly in regard to how to deal with loans that lacked a capacity for repayment. Some scholars claim that the Asian states, after the
1997 financial crisis and its subsequent political ramifications, also considered the notion of Asian values more critically.535
Human rights, whether in relation to any aspect or value, are concerned with protecting the basic rights of human beings. The economic, cultural and political circumstances of a particular country may affect human rights but they are not decisive elements. A country‘s decision as to whether to embrace human rights or not depends on the thinking of people in that country. The debate regarding universality and particularity of human rights may result in some positive outcomes but also negative outlooks; however, the most important thing is how the countries, by their economic and technical and social management abilities, contribute to the greater equality and development of that society.
533 Ibid 25; see also Gerd Langguth, 'Asian Values Revisited' (2003) 1 Asia Europe Journal 25, 25. 534 Langlois, above n 529, 41. 535 Kraft, above n 502, 33. 140
For nearly 20 years after the Bangkok Declaration, the term ‗Asian values‘ has been subject to debate. Several Asian countries no longer use the term regularly, but the examination of the idea of the universality of human rights has not ceased. The issues of human rights and sovereignty continue to attract considerable attention in several regions. However, human rights today seem to be regarded more positively in Asia as countries wish to improve the relationship between individual rights, group rights and national sovereignty so that these rights exist more harmoniously.536 To decide whether human rights are truly universal or express particular values, states should have open discussions, and be willing to welcome international organisations in explaining and implementing human rights appropriately.537 In other words, any country wishing to further implement human rights should establish and maintain dialogue on the issue with any other countries whom they regard as having achieved desirable outcomes so that lessons can be learned.538 Such countries may then hear the same voices on human rights issues. As Kuçuradi writes, ‗Our human dignity is at stake not by what we suffer, but by what ourselves do‘.539
4.1.3 Human rights and national sovereignty
The issue of human rights vs. sovereignty or human rights and sovereignty typically is seen as a situation where the power of the state and the rights of individuals are fundamentally opposed. The nature of the issues involved is contested, arguably
536 Donnelly, 'Human Rights and Asian Values‘ above n 477, 87. 537 Klein, above n 521, 9. 538 Edward Friedman, 'Asian as a Fount of Universal Human Rights' in Peter Van Ness (ed), Debating Human Rights (Routledge, 1999) 56, 70. 539 Ioanna Kuçuradi, The Question of "Universality Versus Particularity?" in the Light of Epistemological Knowledge of Norms (28 January 2011)
because they have a close relation to politics,540 and are indicative of state - society relations, in that they are relevant to responsibilities and limits of political authority.
541 While human rights appear to have gained the status of universal values, national sovereignty is also considered ‗as at the peak of values protected by United
Nations‘.542 In the event that human rights are paid more attention than sovereignty, it may cause a negative impact on national sovereignty.543 Human rights are inseparable from national sovereignty because individuals must be, after all, a member of a particular national state. Individuals become subject to international law only through the action of their state or an agency of that state; therefore, a connection of individuals to international society depends on the conduct of the state.544 In addition, human rights accorded under international legislation (be it a treaty, convention or declaration) are unable to be guaranteed if there is a lack of recognition and support by the state. Every reference to human rights protection may be insignificant if the government of a state party does not ‗take action‘.545 Human rights and national sovereignty is a pair of parallel categories and, as a result, every action in which collective autonomy or Indigenous priority is given may cause conflict with a state‘s obligations to provide universal protection of fundamental
540 Regina Kreide, 'Power and Powerlessness of Human Rights — The International Discourse on Human Rights and Its Critics' (2008) (3) Journal for Contemporary Philosophy (Krisis) 3, 10. Relating to the function of human rights, the author argues: ‗First, human rights formulate political goals for the development of all society…. Second, moral human rights apply limits to the constitutions of state and to their internal social regulations, as well as to international organizations…Third, human rights are a measure that can give information as to the legitimacy of the political order of a state and beyond that, of the international system of regulations...Fourth, human rights formulate a concern that can be understood in its universality by all humans, regardless of the culture they belong to…for they speak the language of the oppressed…‘ 541 Mauzy, above n 495, 210. 542 Charter of the United Nations, opened for signature 26 June 1945, UNTS (entered into force 24 October 1945) art 2(1). 543 Civic, above n 498, 291. 544 RJ Vincent, Human Rights and International Relations (Cambridge University Press, 1986) 113– 18; see also Philip J Eldridge, The Politics of Human Rights in Southeast Asia (Routledge, 2003) 17. 545 Bill Barker, 'Getting Government to Listen' in Sam Garkawe, Loretta Kelly and Warwick Fisher (eds), Indigenous Human Rights (Sydney Institute of Criminology, 2001) 215, 216. 142
individual rights.546 The issue of the misuse of human rights as an instrument of political pressure and the need to respect national sovereignty should be considered when implementing human rights.547 This is the case for every country in the world.
4. 2 Human Rights in Relation to Customary Law
4.2.1 Group rights vs. individual rights
One thing that seems to be paradoxical is that human rights protection is a plea for equal rights for every subject (both citizens and residents) in society, whereas the recognition of customary law obviously gives privileges to Indigenous people and ethnic communities. Can it therefore be said that human rights protection conflicts with the recognition of customary law? Differing views on that proposition have been presented earlier.548 The key question in the relationship between human rights and customary is: ‗How does the state apply customary law in order to assure that the interests of individuals and collectives, the nation as a whole and each ethnic group in particular, exist in harmony? This is necessary because an individual cannot be separated from their specific community, nor is there a community without individual members. Moreover, each citizen is a member of overlapping communities — local, ethnic, religious, national, supranational and so forth. This is what the people and the state face. It can be viewed as a complexity of inter- relationships that the state desires to weave in harmony rather than actual or potential conflicts that the state wishes to resolve. As the 2006 New Zealand Law Commission found, in its report on custom and human rights in the Pacific, despite the (at times
546 Rosenfeld, above n 483, 256. 547 Bangkok Declaration art 5. 548 Views supporting this proposition and in opposition to it, the discussions and debates on this issue have already been mentioned in the section ‗Human rights and customary law‘ in this chapter. 143
exaggerated) perceptions of conflicts between human rights and customary law, the rights and the obligations of members both within and between communities may often be related or share overarching commonalities in terms of values to which all may aspire.549 Contrasting and exaggerating differences and seeking to ‗impose‘ human rights are seen as counterproductive.550 The Law Commission emphasised the potential for harmonisation and accommodation.551 However, it is admitted that such goals will take some time to achieve.552
According to Jim Ife, there are three ‗generations‘ of human rights.553 The first generation (from the 18th century, and associated with Western liberalism) demanded for ‗human rights‘ mainly centred on political and civil rights such as freedom of speech, the right to vote, equality before the law. The second generation (in the 19th century) involved economic, social and cultural rights. The third generation (in the
20th century) focused on collective rights. Studies of human rights in the third generation have focused on the prime concern of Asia: the relationship between human rights and the Asian communitarian tradition. According to the views expressed by most Asian countries, human rights values are expressed in the relationship between individual and collective values and interests. In this relationship, the rights of collective, the society and nation, are essentially of greater importance than those of individuals. This view was, from a Western perspective, seen as of lesser importance than the rights of individuals or smaller Indigenous
549 The ‗dignity of the person‘ is viewed as central to both human rights and Pacific cultural values and customary law. From it all other values flow including ‗respect, love, care and sharing, co- operation, mutuality, humility, generosity and community decision making‘: New Zealand Law Commission, above 95, 75–6. 550 Ibid 73. 551 Ibid ch 6. Specifically cited is the ‗Pacific genius for harmonisation and synthesis‘ (at 74) as well as the ability of customary law ‗to accommodate alternative perspectives‘ (at 75). 552 Ibid 74. 553 Jim Ife, Human Rights and Social Work: Towards Rights-Based Practice (Cambridge University Press, 2008) 30–3. 144
communities, and as in contrast to human rights. Often the relationship was presented as a dichotomy (thesis and antithesis) and one that lacked the power for synthesis.
After these three generations of demands for ever-increasing recognition of human rights, the current (fourth) generation may embody the potential perspective of human rights that embody individual rights, collective rights (including those of the broader community) and the right to community development.554 An harmonious synthesis, based on cooperation and coordination and mutual respect, is a worthy state and community goal in this, the fourth generation of human rights.
Although there are numerous studies on human rights, discussion on the issues related to human rights continue because the issues themselves are not fixed or static but evolving and, therefore, not yet fully defined.555 The reason may also lie in the approaches to law and human rights. Many people argue that customary law is the creation of communities, not individuals;556 therefore, law should give rights to communities rather than individuals. Many others, in contrast, claim that the rules of obligation provided in customary law systems have always focused on individual rights.557 This part will examine whether rights should be given to persons as a group or as individuals. It also explores whether giving rights to a group can be understood as giving rights to the members of that group as individuals, and whether the application of customary law will benefit the group or the individual or both the group and the individual.
554 Ibid 37. 555 Ibid 11. 556 Allen, above n 81, 95. 557 Benson, above 189, 26. 145
4.2.1.1 Group rights
A ‗group‘ here refers to a community having the same culture, religion and language.558 It is a social construction, established and maintained by their members‘ acts of group identification.559 In a liberal context, scholars, when talking about the concept of group rights or collective rights, frequently focus on the multicultural issue and the rights of minority peoples,560 because multi-ethnicity is seen as a species of the genus multicultural and it is present as a feature of groups.561
Group rights have been approached via different concepts.562 ‗Group rights‘ are equated by some with the term ‗minority rights‘ or ‗group-differentiated rights‘, and used to reflect a collectivist or communitarian outlook, rather than the rights of individuals to freedom and equality.563 ‗Group rights‘ may also be used to refer to collective rights564 where collective rights are considered as ‗corporate rights‘ and as distinct from those of the persons composing the group entity.565 In other words, collective rights are granted to a group.566
558 Barbara Oomen, 'Group Rights in Post-Apartheid South Africa: The Case of the Traditional Leaders' (1999) 44 Journal of Legal Pluralism 73, 75. 559 Paul Gilbert, Peoples, Cultures and Nations in Political Philosophy (Georgetown University Press, 2007) 21–3. 560 Michael McDonald, 'Should Communities Have Rights? Reflections on Liberal Individualism' (1991) 4(2) Canadian Journal of Law and Jurisprudence 217, 217. 561 Michael Dunne, 'Postscript: Multiculturalism in Europe and America' in Michael Dunne and Tiziano Bonazzi (eds), Citizenship and Rights in Multicultural Societies (Keele University Press, 1995) 265, 266. According to Dunne, multi-ethnicity may be seen as a species of the genus multicultural and it is present to features of groups. 562 I borrow the term ‗group rights‘ from Joseph Raz and Avishai Margalit, 'National Self- Determination' (1990) 87(9) Journal of Philosophy 439, 442–3. 563 Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Claredon Press, 1995) 34. 564 Rainer Baubock, 'Liberal Justification for Ethnic Group Rights' in Christian Joppke and Steven Lukes (eds), Multicultural Questions (Oxford University Press, 1999) 133, 135. 565 Vernon Van Dyke, 'The Individual, the State, and Ethnic Communities in Political Theory' (1977) 29(3) World Politics 343, 346; see also Vernon Van Dyke, 'Collective Entities and Moral Rights: Problems in Liberal — Democratic Thought' (1982) 44(1) Journal of Politics 21, 22. 566 Oomen, above n 558, 74. 146
The supporters of group rights (such as Kymlicka, Van Dyke, Margalit, Maz and
Svensson)567 variously claim that the term ‗collective rights‘ connotes nations, the population of political dependencies and sovereign states (Van Dyke), national minorities and Indigenous peoples (Kymlicka). For all the above, the state is the most important societal group because it is a historical community with defined sovereignty, sharing a distinct language and culture.568
The state is a unified entity, encompassing a well-organised structure and people. It has power to control the three major fields in society: the economic, political and ideological. Together with being subject to international law and possessing legal rights in relation to the ratification or rejection of their provisions,569 the state has other powers that have never been given to others. These include the right to organise the apparatus of government, operating through the activities of managers and employees, and the right to manage a population based on administrative units, not based on the political view, occupation or religion and gender of its citizens. In addition, the state is the only entity that has national sovereignty and the power to promulgate law that is compulsory for every citizen. Moreover, the state is also the entity that has the right to regulate and collect taxes across the entire country.570
Regarding minority groups as subjects who need to be given rights and paid considerable attention, Baubock uses four arguments for ethnic groups‘ rights: the existence of historical boundaries (in a limited number of cases where minority
567 Kymlicka, Multicultural Citizenship, above n 563; Van Dyke, 'The Individual, the State, and Ethnic Communities in Political Theory', above n 557, 343–369; Van Dyke, 'Collective Entities and Moral Rights‘, above n 565, 21–40; and also Frances Svensson, 'Liberal Democracy and Group Rights: The Legacy of Individualism and Its Impact on American Indian Tribes' (1979) 27(3) Political Studies 421, 439. 568 Kymlicka, Multicultural Citizenship, above n 563, 11. 569 Van Dyke, 'Collective Entities and Moral Rights‘, above n 565, 24–5. 570 Minh Tam Le, above n 7, 42. 147
group might have their own territorial autonomy) and/or collective disadvantages
(when calls may then be made for compensatory justice because of the lower economic, social, and political position of the minority groups in comparison with that of the majority groups); and the value of membership and the value of diversity
(where the majority should learn to cherish their own cultural traditions but also those of minorities within a society).571
What rights should groups have? According to Dyke, groups have several major rights including that of self-determination; the acceptance of some form of political communalism; cultural reservation and preservation of their identity; with equal rights and human rights being promoted.572
In regard to the right of self-determination, groups may decide their own economic, cultural and political issues in their community. In states that are federal in nature
(such as the United States and Australia), these rights are expressed more clearly than in the single centralist state because such countries have a dual legal system, comprising a federal legal system and a state legal system, reflecting the dual legislative arrangements of those countries. A federation is a combination of a number of states (members). This is similar in nature to a society (or a country) where a number of communities exist. Hence, just as a state has particular rights in its management and operations, communities of a country also wish to have the right to self-control or self government. The right to self-government is an important
571 Baubock, above n 564, 134–52. 572 Van Dyke, 'Collective Entities and Moral Rights‘, above n 565, 36–7. 148
human right. In the single state context, such as that of China and Korea, for political reasons, these rights are limited and under the control of the state.573
Together with possessing the right of self-determination, a group — as a component part of a nation — has the right to participate in the legislative, executive and judicial organs. Participation may be direct or indirect (by representatives). By participating in national bodies, a group may have the ability and opportunity to protect and put into effect other rights such as those of cultural preservation and so preserve their identity, their right to equality, and also be able to promote human rights.
Group rights supporters believe that recognising the rights of groups is more logical than granting to them individuals. It is because individual rights arise from communal rights, especially from the community‘s right to self-preservation.574 In terms of human rights, liberal democratic theory mainly focuses on individual rights, and its neglect of communal interests, leads to an imbalance between the claims of individuals and multidimensional communities.575 According to liberal democratic theorists, the fundamental interests of all members of the polity are protected and democratic self-government accounted for by the existence of individual rights.
When individual rights are mentioned, account should be taken of the rights to
573 Socialist states have traditionally been centralist in nature as the people — as expressed in the state — are the owner of the means of production (both the agricultural and industrial) and the state entity is both prime administrator and employer. One central elected (parliamentary representative) body at the apex is one of the norms associated with centralist socialism, as is the existence of a single political party. Such a pattern is, at least theoretically, strongly communitarian in nature, but also often vast and unwieldy (structurally and bureaucratically); in such circumstances it is perhaps understandable that such a state values and desires unity and harmony among its many members. 574 Van Dyke, 'The Individual, the State, and Ethnic Communities in Political Theory', above n 565, 345. 575 Frances Svensson, above n 567, 438. 149
democratic self-government of both the minority groups and the broader state. The fundamental interests of all members of the polity should be considered.576
Others maintain, however, that giving rights to groups is not contradictory to human rights. Rather, it is consistent with basic liberal principles of individual freedom and social justice.577 Privileging group rights or granting privileges to particular groups can be a way to redress an imbalance and accommodate greater equality in a society.
It can be seen that the accommodation of differences is also an expression of justice,578 and serves to facilitate more productive and peaceful relations.579 Justice is not only expressed in treating everyone the same, but sometimes by using various methods and involving different scopes. Minority groups receiving some additional assistance as a priority due to pre-existing socio-economic or educational disadvantage is one way of addressing an imbalance and helping create a more equitable society; one where, finally, people will perhaps be able to be ‗treated equally‘. At certain times ‗unequal‘ treatment is required to attain a desired degree of equality. Such a priority may also ensure minority groups have the opportunity to maintain their distinct culture, whose heritage might otherwise be lost to the broader community as well, impoverishing a country‘s rich diversity and sources of knowledge. The possibility of extra assistance and a promise of greater recognition of minority culture and aspects of customary law (consonant with national law and human rights) might also provide a minority community with the opportunity to examine their cultural heritage and to select which particular aspects of their culture they themselves believe are most worth maintaining and developing.
576 Baubock, above n 564, 135–6. 577 Kymlicka, Multicultural Citizenship, above n 563, 173. 578 Ibid 108. 579 John Borrows, Recovering Canada: The Resurgence of Indigenous Law (University of Toronto Press, 2002) 10; see also Bhandar, above n 450, 132–3. 150
In order to support the possibility of a group developing in the social sphere, the state would have to grant that group a degree of political recognition.580 The recognition of group rights may contribute to creating a national harmony of multiple cultures, particularly in countries where many immigrant communities exist. They expect, and are expected, to participate as members within the mainstream of society and yet they simultaneously wish to be recognised and have their ‗difference[s]‘ accommodated.581
Nevertheless, while stating that group rights are not contradictory to human rights, there are indeed some disadvantages in giving priority to minority groups. According to Kymlicka, the primary concern is the inequality that may be created (rather than redressed) between groups. For example, the equality may occur between groups when the government provides different treatments or policies for different groups in relation to the same issues or dispute.
Decisions by the majority group made for political or economic reasons may cause injury to minority groups. Kymlicka‘s second major concern is ‗the loss of their culture‘ that minority cultures face (see further below).582
The following examples from Vietnam illustrates the complexity of majority/minority relations there and elsewhere, and the difficulty experienced at the intersection of well intentioned measures and their unintended impacts.
Giving priorities, for instance, to some groups may lead to the movement of one group to another in order to obtain the same benefits. This may involve an attempt to
580 Gilbert, above n 559, 27–9. 581 Kymlicka, Multicultural Citizenship, above n 563, 176. 582 Ibid, 108–9. 151
change identity to obtain benefits fraudulently (for example, to that of a minority group or group targeted for additional assistance, as has occurred in some countries); or it may involve a change of residence, where one moves to a place generally identified with the targeted group. For instance, in Vietnam, the introduction of tax incentive policies designed to develop the highland areas and thus raise the level of prosperity in those regions did not directly benefit the existing minority groups, the majority of whom live in such areas. Rather, it more directly benefited those city dwellers who chose to take advantage of the relevant tax incentives by creating businesses in the previously less-favoured regions. Many families from majority groups moved to highland areas to do business there and so receive the benefits of the tax incentive policies (available under Articles 4(5), 13 and 14(1) of the Law on
Enterprise Income Tax 2008; and Articles 27, 28 and Article 33 of the Law on
Investment 2005 provide for tax concessions as an incentive for investment in areas with difficult (or special difficult) socio-economic conditions). However, members of the minority groups who dwelt there were influenced by the majority group‘s culture or behaviours. As a result, the pure culture of the minority group, to some extent, faced assimilation.
Another example of the unintended impacts of measures, this time stemming from a simple administrative measure, is found in the educational system. Primary, secondary, and high schools in Vietnam enrol students according to the students‘ place of residence (based on the Family Register Book).583 This regulation results in parents in rural or highland areas trying to obtain permanent residence in the cities so
583 Family Register Book is a book provided by the local government for a householder who is living in that locality. Family Register Book contains all personal information about members in such household, particularly about their status of residence whether they are permanent or temporary in order to define their rights and obligations in the locality. 152
that they can then send their children to cities to study, hoping that their children will get better educational conditions. However, the flight to the city has a triple impact
— it results in only an ageing remnant of the minority culture remaining in a largely depopulated countryside, while those who move to the city give up their culture and generally adapt themselves to a new urban culture and style of living. Additionally, this phenomenon brings about overloading for city schools and, more importantly, causes unwanted internal migration that is contrary to the government‘s aim of further developing rural areas.584 The enrolment policy is also a measure that is specifically designed to address the need for higher quality education in rural areas and thus retain its people in their traditional areas as well as their distinctive culture.
Loss of a minority culture is possible in such circumstances, as children educated in the city are often reluctant to return to rural communities.
The final concern lies in the risk of social conflict that may arise if one group is seen as being advantaged over another. The state should consider the balance of benefit between groups.585 The given policies for groups should also be appropriate for each group because one policy may suit ones group but not another (such as tax policy, education policy or language policy).
4.2.1.2 Individual rights
Objecting to group rights, scholars such as Tamir, Kukathas and Reaume argue that the term ‗collective‘ in ‗collective rights‘ is too vague because it is hard to define the
584 H Huong and T V Ha, '"Chay" Ho Khau Cho Tre Vao Lop Mot: Phu Huynh Pho Phac, Nha Truong Khon Don', Tuoi Tre (Hochiminh City), 27 May 2009
group‘s boundaries and the group‘s interests.586 To understand ‗collective rights‘, the term should be placed and examined in a collective framework, that is, a socio- political system.
The fact that a right cannot be enjoyed outside the existence of a socio-political system, and that no isolated individual can construct such a system on his own, is no evidence that the rights the system protects are collective ones.587
Opponents of collective rights claim that giving rights to groups is contradictory to human rights for a number of reasons. First, they maintain that it cannot be said that group rights are greater and more important than individual rights. Second, giving rights to a group is very different to giving rights to individuals. A group having a right does not mean its members having an identical right. Indeed, group rights may supplant or limit the rights of individuals within that group.
According to Tamir, group rights supporters wish to retain the communal identity, giving priority to the interests of the community over the rights of individuals. He argues that this is very unsafe because it may open the door for dangerous paternalism, violations of basic human rights and potential political risks.588
However, McDonald (a group rights supporter) counters that protecting community interests through community rights ‗rather than through an individual member‘s exercise of a right‘ is well-based as it is often the case that it is ‗the welfare or interests of the community that is at stake not just the welfare of a given member‘ and those two rights are not always co-located (that is, having the same ‗focus‘ and
586 D Reaume, 'The Group Right to Linguistic Security; Whose Rights? What Duties?' in J Baker (ed), Group Rights (Toronto University Press, 1994) 124 cited in Yael Tamir, 'Against Collective Rights' in Christian Joppke and Steven Lukes (eds), Multicultural Questions (Oxford University Press, 1999) 158, 171. 587 Yael Tamir, 'Against Collective Rights' in Christian Joppke and Steven Lukes (eds), Multicultural Questions (Oxford University Press, 1999) 158, 172–6. 588 Ibid 159. 154
‗intention‘).589 This lack of co-location is a point that both parties concede (see
Tamir above).
McDonald observes that risks to the community increase when individuals execute their rights, particularly without the sanction of the group for such an exercise, and the group‘s rights may be transferred to individual rights under the situation ‗from ours to mine‘.590 He argues that the rights are essentially communal and a matter of
‗stewardship‘ rather than ownership.591 Numerous examples exist of disputes over the transfer of community rights in intellectual property (such as the traditional knowledge of medicines, design, artworks and so forth). These provide evidence that individuals within a given community may be attempting to ‗sell‘ what a community insists is not that party‘s to sell (in some instances more than one community may claim such a right). It may also demonstrate a company‘s attempt to locate and identify an ‗owner‘ and encouragement to assert such ‗ownership‘ in order to facilitate their acquisition of knowledge, rather than simply ‗taking‘ it as from a
‗common‘ pool or unacknowledged source and then registering it and making it the company‘s own through patenting processes, for example.
In terms of status and rights usually associated with the ‗national‘ level, Tamir, however, argues that it would be ludicrous to favour giving priority to the interests of the community over individual members, while individuals belong to and operate within a certain political framework and they believe that a particular right or their rights in general will be best served within such frameworks.592 Hence, the idea that rights usually associated with the national level should be granted to the collective
589 McDonald, above 560, 232. 590 Ibid. 591 Ibid. 592 Tamir, 'Against Collective Rights', above n 587, 172–6. 155
(in this instance a minority community), rather than to individuals is sophistic. These rights should be considered as an individual right because, after all, interests served by membership in a particular political framework is an individual interest, that is to say that the broader communal framework of the State takes precedence over that
‗communal interest‘ which might detract from the state‘s sovereignty and, paradoxically, from the individual rights of its members. The state, in most instances, serves as the best guarantor of the rights of individual subjects. In turn, the nature of the state and its direction is generally determined by the exercise of the individual rights by citizens of the broader society (for example, by political participation as a party member or as an elector).
Furthermore, the idea that a type of nation-like self-determination is able to be realised by (minority group) collectives is not absolutely correct as there are differences in the interests (and limitation as well) between isolated individuals in different communities. Achieving harmonious relations between the state and minority groups and between individuals who operate both inside and outside these groups and between all groups and their members remains the goal of any state.
Recognising groups rights of various minority communities risks creating greater divergence between such groups and between those groups and the state, and also may reduce the individual rights of members that are otherwise recognised by the state. For example, in terms of economic benefits, group rights mean that benefits received are in the name of the collective and not the individual, as ownership of collective goods is non-exclusive both isolated individuals and other members have the right to enjoy such benefits.593 It could be said that such a cooperative or socialist
593 Yael Tamir, 'The Right to National Self-Determination as an Individual Right' (1993) 16(4–6) History of European Ideas 899, 901–3. 156
concept enjoys far less recognition in the individualistic, capitalist market economy in which the modern Vietnam now operates. To some extent, it can be said that individual rights may be limited by an expansion of community rights. Tamir argues that a community right can reduce the individual‘s rights and offers the following illustration:
… [w]hether I have a right to language which I can use or waive at will, or whether the community has a right to language which I cannot waive, or demand on my own. In the first case I am recognized as independent agent who can determine her life plan and pursue it, in the second I am but an organ of a whole I cannot control.594
Kukathas, a leading human rights researcher, believes that the cultural rights of the community, in terms of human rights, are important, but legal rights are fundamental determinants.
Any ethical evaluation must, ultimately, consider how actual individuals have been or might be affected, rather than the interests of the group in the abstract. It is not acceptable to evaluate or choose political institutions or to establish legal rights on the basic claims or interests of cultural communities because those very institutions or rights will profoundly affect the kinds of cultural communities individuals decide to perpetuate or to form.595
Hence, group rights must go together with individual rights because individuals are members of the group. However, in the relationship between group and its members, the rights, the obligations and benefits may be distinct.596 For instance, in the relationship between the state and citizens, citizenship is defined as the legal status of membership in a political community.597 Thus a political relationship is created between the state and citizen. It also raises the rights and obligations of the state to
594 Tamir, 'Against Collective Rights', above n 587, 176. 595 Chandran Kukathas, 'Are There Any Cultural Rights?' (1992) 20 Political Theory 105, 112. 596 Vernon Van Dyke, 'Human Rights and the Rights of Groups' (1974) 18(4) American Journal of Political Science 725, 725. 597 Ayelet Shachar, 'The Paradox of Multicultural Vulnerability: Individual Rights, Identity Groups, and the State' in Christian Joppke and Steven Lukes (eds), Multicultural Questions (Oxford University Press, 1999) 87, 88. 157
citizens and, conversely, citizens are given rights and have obligations to the state.598
In a liberal nation, political equality and freedom of an individual‘s opinion are essential.599
According to Kukathas, giving rights to groups is irrational. Acceptance of group rights may cause a number of problems in a multicultural society. The problems include including isolationism, assimilations of minorities (where group rights of majority culture is advantaged), increased division within the state rather than overarching national unity, weak multiculturalism or strong multiculturalism, and even apartheid.600 The idea that groups are identified or determined by their distinct or separate culture or traditions (rather than as member groups seen as part of the larger whole where group rights are harmonised with national, and individual, interests) may lead to or perpetuate a situation where a group (whether minority or majority) is only interested in how to protect or preserve its established advantages or privileges. Accentuating such division may not only be unhelpful to national unity, it may limit the extent of domestic cultural transformation as a whole, even changes which otherwise might be desired by members of the various minority communities.
Rather, they may feel constrained to match minority community expectation.
On the other hand, the risk of assimilation is high where recognition of majority culture group rights is permitted. This may serve to perpetuate their culture and any advantages they enjoy and overwhelm minority groups. Minority groups may be merged and become a part of major or ruling groups. Another concern is the changing of nature of groups. Society may be exhibit weak or strong
598 Ibid. 599 Albert P Weale, 'Representation, Individualism, and Collectivism' (1981) 91(3) Ethics 457, 458. 600 Chandran Kukathas, Theoretical Foundations of Multiculturalism (11 May 2010)
multiculturalism, with groups encouraged to either to extend a lesser degree of recognition in the former and far greater in the latter. In a theoretical example of the former, recognition may simply extend to making available in schools the minority language as a ‗second language‘ while a stronger multicultural approach may demand that the language be compulsory for teaching all students in an area where the minority group comprise the majority. Another example is a compulsory rather than advisory direction regarding observation of dress conventions of the minority.601
In regards to strong multiculturalism, Kymlicka, for example,
[c]laimed that justice in a multicultural state requires both universal rights that are granted to individuals regardless of group membership, and certain group rights that give special status to minorities … advocate[ing] state protection for, and legal and material support of, distinct cultural communities within a country. [including] … the right of a cultural group to a degree of autonomy and independence.602
However, despite his strong advocacy of ‗group rights‘ for minority cultures, he offers an important qualification: ‗universal human rights ought to be protected within each separate community‘.603 His approach therefore remains, to a great degree, inclusive and embodies a combination of a recognition of cultural identity but separates this from ‗issues of national citizenship and political participation‘.604
601 In regard to strong multiculturalism, one could turn to Indonesia and see the example of Aceh. Here limited autonomy within the state has been granted. The state‘s policy of Pankasila was deemed inadequate. The Acehnese Muslim community is a ‗group‘ who demanded more liberty to practice its particular school of Islam; see International Development Law Organisation, A Brief Account on the Qanun on Education in Aceh (26 May 2011)
The idea that groups are determined by their culture may also be seen as contributing to policies of ‗special‘ and separate development for those communities. An example where this has been applied to a majority — but at that time less politically powerful
— population group is the policy of apartheid practised in South Africa for many years. Here the minority population used the policy to entrench their own socio- economic supremacy.
Elsewhere larger groups may exploit their numerical and hence political strength (if recognised separately from state power — or as equivalent to state power) to take the opportunity to take advantage of minority groups by obtaining greater benefits and use their position to justify burdening others with the relevant costs.605 This could include, for example, mining in situations where, in order to exploit benefits for the nation as a whole, it is necessary to deny a number of rights to Indigenous communities, including any land rights which may otherwise from a basis for negotiations, and ignoring Indigenous cultural beliefs which would prohibit the physical damage to the landscape that mining entails. In such situations, it could be argued that the group rights of the majority culture which would permit such activities are being given preference over those of the minority culture.
Priorities for group rights indicate special characteristics given to such group and thus, such rights cannot be shared with other residents.606
The question of whether giving rights to groups or individuals has any effects on the recognition of customary law remain. Does recognition of customary law form part of recognising and privileging group rights? It seems that giving such group rights
605 Tamir, 'Against Collective Rights', above n 587, 170. 606 Baubock, above n 564, 134. 160
would be appropriate because customary law is the particular group‘s or groups‘ laws. Alternatively, recognising and prioritising individual rights tends towards human rights protection and consequently limit for group rights because groups may not execute their rights in the name of community. Some scholars consider that, in terms of social justice, group rights or individuals as members of a particular group should not be recognised because privileging the rights of any subject may cause negative impacts on other subjects or group of subjects.
Many liberals believe that people‘s interest in cultural membership is adequately protected by the common rights of citizenship … and a system of universal individual rights already accommodates cultural differences, by allowing each person the freedom to associate with others in the pursuit of shared religious or ethnic practices … On this view, giving political recognition or support to particular cultural practices or associations is unnecessary and unfair ... because it subsidizes some people‘s choices at the expense of others.607
Indeed, this approach leads to a consideration of two concepts, human rights and citizenship rights. A citizen is an individual who obtains the nationality of particular state. For example, the person who has Vietnamese nationality is the Vietnamese citizen.608 Subjects, however, can include resident aliens that have not yet been granted citizenship as well as those simply transiting the country. Internationally recognised human rights are accorded by the state where it ratifies and complies with various international treaties and conventions; however, a number of so-called basic human rights might already be recognised by the state, particularly in relation to its citizens. Citizens both are protected and are given rights by the state, including religious and cultural rights. In Vietnam, as in many countries elsewhere (for example, Thailand, China and Indonesia), such rights are to be exercised without a
607 Kymlicka, Multicultural Citizenship, above n 563, 107. 608 Luat Quoc Tich Viet Nam 2008 (Vietnam) [Trans: Law on Nationality of Vietnam 2008 (Vietnam)] art 4. 161
threat to the integrity of the state and harmonious relations. The state therefore, should not prioritise any rights for individuals or groups of any subject or subjects because it may cause inequity for other individuals and groups, and societal disharmony.
However, Kymlicka may not adequately distinguish the difference between the concept of human rights and the notion of citizenship. Human rights are the universal values of humankind and are recognised by most countries in the world whereas citizenship is recognised by particular states and is dependent on the will of the ruler, and the existence of democracy and human rights in such country. Many countries differentiate between rights extended to citizens and those extended to people
(regardless of citizenship) who are within its borders. However, the concept of persons as ‗citizens‘ of the world and thus sharing common yet individual human rights, regardless of national borders and ethnicity or other ‗group‘ membership, has its attractions.
Recognising individual rights in any given country could, to some extent, be considered as giving rights to its citizens. However, in terms of human rights, the rights of individuals certainly have a far broader scope than citizenship rights because they apply not only to citizens but all persons. In addition, some would argue that basic human rights are more ‗natural‘ and exist and arise within communities. In the US Declaration of Independence, for example, (written when that nation was ‗dissolving its bonds‘ with the overarching colonial power of Great
Britain) equality of all is assumed to be ‗self-evident‘ (though in the context of the existence of slavery and the absence of women‘s rights) and as the ‗Laws of Nature
162
and Nature‘s God‘609 intended; and that all persons have ‗God‘-given ‗inalienable rights‘, among which are ‗Life, Liberty, and the pursuit of Happiness‘. These rights are thus viewed as ‗natural‘610 intrinsic to the human condition. Law is an instrument to recognise these rights, not an instrument to grant them to individuals. In contrast, citizenship rights are granted by the state to its citizens.
Nevertheless, the aim of the discussion about giving the group or individual rights is to consider a whole range of regional, cultural and socio-economic differences. In other words, decisions regarding the recognition of group or individual rights should be undertaken in the context of seeking an appropriate solution that achieves social balance rather than one that is evaluated purely in terms of individual benefits.
For Vietnam, the normative argument for recognition of customary law on human rights grounds is based on a respect for collective rights. This is because Vietnam argues that individual rights in cultural, political and economic fields are provided in important normative legal documents, such as the Constitution and legislation.611 In addition, customary law is the law of the community, not individuals (though it obviously applies to them); therefore, the recognition of customary law is for the benefit of those communities.612 Moreover, as noted above, Asian ideas tend to
609 ‗God‘ in this text is the ‗Deity‘ or ‗Nature‘s God‘. Together with the phrase ‗Laws of Nature‘ these terms emphasis the ‗naturalness‘ of such rights: See United States Declaration of Independence 1776 (United States of America). 610 United States Declaration of Independence 1776 (United States of America). The Declaration also holds that the failure of the British government to recognise these rights, and particularly rights of representation and so forth, justifies rebellion and the installation of a separate government by the people. 611 Hien Phap Nuoc Cong Hoa Xa Hoi Chu Nghia Viet Nam 1992 [Trans: Constitution of the Socialist Republic of Vietnam 1992] art 5. 612 Thong Tu Lien Tich So 03/2000/TTLT/BTP-BVHTT-BTTUBTUMTTQVN Ngay 31/03/2000 Ve Viec Huong Dan Viec Xay Dung va Thuc Hien Huong Uoc, Quy Uoc Cua Lang, Ban, Thon, Ap, Cum Dan Cu [Trans: Joint Circular No.03/2000/TTLT/BTP-BVHTT-BTTUBTUMTTQVN dated 31 March 2000 on Directions of Building and Implementing Village Conventions of Communal Subdivisions, and Inhabitants Groups (Ministry of Justice, Ministry of Culture and Information, and Standing Committee of Central Committee for Vietnamese Fatherland Front)]. 163
consider group benefits rather than individual interests. Van Dyke, while recognising the overarching role of the state and clearly recognising the complexities that group rights recognition and privileging members of certain groups can have and have had in a number of settings,613 nevertheless appears to support (minority) group rights.
Otherwise, he notes, to concentrate on individual rights in a democracy would be to serve the majority interests of whichever ethnic or cultural group forms that majority.
Preservation of minority identity and their interests necessarily involves a degree of recognition of group rights or ‗special rights as collective entities‘.614 Thus, there appear to be two areas of ‗collective‘ rights — that of the broader society as embodied in the State (through which the rights, including human rights, of citizens are guaranteed), and that of the (minority) group or minority community, whose distinct cultural identity may fade without the recognition of customary law as a group right. Vietnam considers that members of a group will be provided the rights as the group would be. Hence, group rights are the major concern in any recognition of customary law in Vietnam (given that identification with a particular group could have important ramifications for the individual concerned).
4.2.2 Why countries should recognise customary law: human rights
4.2.2.1 Implement of international human rights treaties
In the international and national contexts, the rights of ethnic communities and
Indigenous people have attracted significant attention from states, international and domestic human rights organisations and people generally. Since 1945, the Charter of the United Nations has stated that among its purposes is ‗promoting and
613 Van Dyke, 'Collective Entities and Moral Rights‘, above n 565, 37–8. 614 Ibid 40. 164
encouraging respect for human rights and for fundamental freedoms for all‘.615 In
1948, the United Nations proclaimed the Universal Declaration of Human Rights.
This provides freedom and equal rights of the individuals of ethnic communities and also states the obligations of the individuals to the community.616
In company with the Charter of United Nations, other international treaties — such as the International Labour Organization (ILO) Convention 107 concerning the
Protection and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries (1957), the International Covenant on Civil and Political Rights (1966), ILO Convention 169 concerning Indigenous and Tribal
Peoples in Independent Countries (1989), the Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities (1992) and many others — also call for the protection of minority peoples and cultures. These treaties mainly focus on two points: they firstly affirm, in terms of cultural traditions and customs, the rights of ethnic groups and Indigenous peoples and secondly, they require states to preserve ethnic minorities‘ cultures, show respect for customs and, to some extent, apply customary law in the adjudication process.617
The benchmarks of human rights are showed by the national legal activities such as through the implementation of international agreements, bilaterally or multilaterally, or by regional instruments (such as the African Charter and Declarations) or case law before regional courts (like the European Court of Human Rights and the Inter-
615 Charter of the United Nations art 3(1); see also arts 13(1)(b); 55 (c); 62(2); 68; 76(c); Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, opened for signature 18 December 1992, 47 UNTS 135 (entered into force18 December 1992) art 4(1). 616 Universal Declaration of Human Rights, opened for signature 10 December 1948, UNTS (entered into force 10 December 1948). 617 United Nations Declaration on the Rights of Indigenous Peoples, opened for signature 13 September 2007, UNTS (entered into force 13 September 2007), art 34; see also ILO No.169, Indigenous and Tribal Peoples Convention, opened for signature 27 June 1989, C169 (entered into force 5 September 1991) art 8. 165
American Court), or judicial processes of the state.618 In other words, human rights are implemented by different legal instruments in the domestic, regional and international legal fora.
However, the recognition of customary law is sometime controversial. This is because the recognition of customary is related to collective rights, the application of law and other legal issues, such as legal pluralism and the paradigms of law. In addition, it is also related to the political-legal issues, not only in the field of legal reform and improvement in almost countries in the world, but also in the scope of international law and relations.619 Legal decision-making processes have impacts on human rights.620 Conversely, human rights obviously influence and are expressed in legal forms created by nations. In reality, when drafting and then promulgating a constitution — a basic Act of the nation — and other laws, the states frequently provide human rights standards and also take into consideration the various cultural and religious inclinations of the people. For this reason, Asian countries argue that human rights in their countries are not treated poorly or neglected (as some writers maintain), but rather that human rights have already been expressed in their legal systems.621
To some extent, the legislative processes of the state are under the influence of international treaties. Criteria such as ‗a common standard of achievement for all peoples and all nations‘622 or ‗cultural rights‘623 are expressed in one way or another in the national legal forms. However, the recognition and application of human rights
618 International Council on Human Rights Policy, above n 112, 27. 619 Luke McNamara, Human Rights Controversies: The Impact of Legal Form (Routledge-Cavendish, 2007) 1. 620 Ibid 18. 621 Lbhawoh, above n 475, 85–6. 622 Universal Declaration of Human Rights, Proclaims of United Nations on Human Rights. 623 Universal Declaration of Human Rights art 22. 166
legislation in domestic law is cautiously approached because the state must consider whether such recognition and application would contribute to or obstruct human rights. The answer is that it may do both, and attempting to comply with various international provisions reveal complex interactions and even contradictions. As
Kumar has noted: ‗Protection to basic human rights, on the one hand, may be interpreted to require some recognition of customary law. On the other hand, conduct called for under customary law may be contrary to the country‘s obligations‘.624
Indeed, the recognition of customary law contributes to human rights protection for communities because it recognises culture and tradition of ethnic groups. The nature of the issue at hand is the recognition of ethnic groups‘ freedom in determining community life, including culture, existence and extent of self-government, and choice of a legal form.
The recognition of customary law may actually cause discrimination and inequality before the law as a result of the different attitudes held by the various cultural/ethnic groups to a number of subjects, as legal pluralism that is based on ethnicity, religion, race or other identifying characteristics provides different standards for people with regard to the same issues or disputes, thus adding to the responsibilities of the state.625 However, stating that recognition of customary law may be contrary to the country‘s responsibility is not quite accurate because it is also consistent with the nation‘s obligations. The state plays an important role in social accommodation and harmonious development. The state must also accommodate various sources of law so that they work effectively and harmoniously.
624 Rekha A Kumar, Customary Law and Human Rights in Botswana (15 December 2009)
4.2.2.2 Cultural preservation
Cultural preservation and respect for cultural identity has consistently attracted considerable attention from almost all states around the world.626 In addition, a number of international treaties also expressly provide for the rights of Indigenous and ethnic groups to enjoy their customs, culture and religion.627 An ethnic group may be considered separately to the indigenous population (for example, the Hmong or Thai in Vietnam; or the Pitjantjatjara in Australia) or they may be considered as an
'ethnic minority' within their own country. Ethnic groups may also be migrant groups that form (i) the majority of a country's population (as is the case with ethnic Chinese in Singapore which has substantial minorities of indigenous Malay and migrant
Indian populations); or (ii) a minority (as is the case of the 'Boers' of Dutch descent in South Africa or that country's distinct Indian community). The states parties are extremely concerned with cultural difference and emphasise the importance of retaining it.628 According to human rights supporters, recognition of customary law is one of the ways to preserve culture. Recognition of customary law not only expresses respect for preserving ethnic cultures and customs, but also involves the principle of distributive or social justice for Indigenous people (for example, distributive or social justice models legitimise laws that apply specifically to Indigenous people).629 This understanding aligns with fundamental rights provided in the Charter of the United
Nations. The protection of ethnic community rights may contribute to social and political stability. It may also promote social development and improvement to the
626ICCPR art 27; see also Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities arts 9, 11, 12; United Nations Declaration on the Rights of Indigenous Peoples arts 3, 11, 13. 627 ICCPR art 27. 628 Laymon, above n 14, 255; see also Sally Engle Merry, 'Global Human Rights and Local Social Movements in a Legally Plural World' (1997) 12(2) Canadian Journal of Law and Society 247, 249. 629 Deidre Howard-Wagner, 'Legislating Away Indigenous Rights' (2008) 12 Law Text Culture 45, 58–9. 168
extent to which democracy is more genuinely enjoyed by minority groups within a country. Stating that such groups are able to enjoy their culture means they have the right to use their own language, the right for their own religion and religious practices to be recognised, as well as the right to live by their own traditions and customs, unless such traditions and customs are contrary to international standards.
Much of the contents of human rights international treaties also regulate the cultural rights of Indigenous people. Under the provisions of a number of treaties, Indigenous people have the right to determine their customs and traditions.630 States should create conditions such that minority groups are able to apply their customary laws to regulate social relations and community management. However, the recognition of customary law may be consistent or inconsistent with public interests, and with the national legal system.631 Where conflict exists between state and customary law, many people argue that customary law should be more concerned with applying state law to the people concerned.632
Nevertheless, responding to the above request that states recognise customary law, the attitude of some states seems to be cautious. If the state accepts the rights of ethnic minorities and their rights to enjoy their culture, the state may face threats to its own integrity (that is, its existence as one entity) as groups ask for progressively greater autonomy as well as the emergence of a number of other political issues
(such as countervailing claims by other groups within the community, and individual appeals from members and others of the particular community). In countries that
630 United Nations Declaration on the Rights of Indigenous Peoples arts 33, 34; See also Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities art 4(2). 631 International Labour Organization Convention 107: Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, opened for signature 1957, UNTS (entered into force 1957). 632 Indigenous and Tribal Peoples Convention, opened for signature 27 June 1989, C169 (entered into force 5 September 1991) art 8. 169
have a huge number of ethnic groups, with their own cultural traditions and customs, recognition is not simple. There is, therefore, a need for a particular legal regime for choosing, maintaining and diffusing cultures as well as settling disputes if they occur.
4.2.2.3 A special consideration for ethnic groups
Human rights instruments require the recognition of customary law as one of the standard human rights. The requirements of: ‗freedom for all‘;633 an ability to ‗enjoy their own culture‘;634 and recognition of ‗the need to ensure even more effective implementation of international human rights instruments with regard to the rights of persons belonging to national or ethnic, religious and linguistic minorities‘635 are directly or indirectly expressed in international treaties. The right for customary law to be recognised is considered among ‗cultural rights‘.636 Where a number of communities exist in a social field, each community may have its own culture expressed in their conduct and customs and recognised as distinct from that of other communities.637 With the aim of upholding communities‘ culture, international
633 Charter of the United Nations art 1. 634 ICCPR art 27. 635 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, Preamble. 636 Universal Declaration of Human Rights, arts 22 and 27. 637 See Indigenous and Tribal Peoples Convention, opened for signature 27 June 1989, C169 (entered into force 5 September 1991), art 1. 1. This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. 2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply. 170
human rights treaties call for special attention to ethnic groups‘ cultural traditions and customs (particularly Indigenous groups), and to ensuring that member countries realise that such groups have ‗the right to maintain, protect and develop their culture‘. State parties should have appropriate mechanisms in recognising these rights, based on respect and understanding between the state and Indigenous people.638
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples‘ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.639
In addition, in regards to communities that are at a less advanced stage of development than others, several international human rights conventions lay down the obligations of governments to act in certain ways to apply customary law to define the rights and obligations for members of the ethnic group involved.
Customary law should be seriously considered by the authorities and courts when dealing with cases relating to Indigenous people in particular. Where customs and customary law may be incompatible with the national legal system, ethnic groups have the rights to remain within the orbit of their customary laws.640 Thus, the spirit of these international conventions is to ensure that Indigenous peoples have the right to the full recognition of their customs and application of customary law as their rights.
3. The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law. 638 United Nations Declaration on the Rights of Indigenous Peoples arts 11and 12. 639 United Nations Declaration on the Rights of Indigenous Peoples art 27. 640 International Labour Organization Convention 107: Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, arts 1, 7 and 8. 171
4.2.2.4 Public concern
In practice, the recognition and application of customary law depend upon the state balancing the needs of the broader public and society as well as the needs of the members of the particular Indigenous or ethnic group.641 The purpose of the application of customary law is fundamentally for the benefit of ethnic and
Indigenous communities and to meet their needs or social requirements. It can also impact on national development. The social requirement here refers to requests for increased self-determination and autonomy in the legal field of ethnic groups. This is naturally involved in any recognition and implementation of customary law within a society. However, it must also be recognised that in multi-ethnic societies, equality between groups is needed. While this may be difficult to develop where there are great discrepancies between the type of organisation, roles and functions of persons within the ethnic or Indigenous groups (and extreme variation in identification of anti-social behaviours and sanctions for such behaviours), in many countries there exists a degree of similarity in the type of organisations employed for the administration of justice at a community level in various ethnic and Indigenous communities, and also a harmony in the identification of ‗wrong actions‘ and their sanctions both in comparison with other ethnic and Indigenous groups and the broader community.
In many villages and hamlets across the world, titles such as ‗village patriarch‘,
‗head of clan‘ and ‗head of family‘ are very special and important because these persons are not only leaders of their respective communities or groups but also judges whose responsibility it is to solve any dispute in the community. In addition
641 Laymon, above n 14, 365. 172
state determined frameworks of organisation and their interactions have surprisingly expressed traditional features of the communities in which they are situated; and they play a vital role in the life of the inhabitants. Religious beliefs and activities have become village etiquette and customs and then customary law has then been an essential base for adjusting an individual‘s conduct in the community. However, every ethnic and Indigenous group has built for its customs and habits over time and there may be minor or significant variations from state law if all such customs, habits and customary law were recognised. Nevertheless, although state law has the supreme value and occupies the supreme or apex position in the legal hierarchy, customary law may sometimes surpass it by being much more practical and applicable than state laws in certain Indigenous communities. The recognition of customary law may then satisfy the social demands of a community.
As for national development, particularly in developing countries, recognition of customary law is necessary. Recognition of customary law may contribute to expanding democracy and protecting human rights for ethnic groups and Indigenous people because they can then be in control of their rules and customs and ensure that they are suited to their own lives. In addition, in the multi-ethnic society, particularly in ethnic minority areas, the rapid change and development of social relations in the fields of economic, social justice and political dimension are grounds for an expectation of the recognition and application of customary law. The social change in Vietnam has been, and continues to be, remarkable, and this indicates a degree of social development; but, in general, it is not equally diffused across the entire country. This causes an imbalance in the socio-economic framework and relations that have existed between different areas, such as between urban and rural, delta and highland. The state, in reviewing laws and legislating to amend such laws and 173
creating new laws, should ensure that such legislation more fully expresses both democracy and human rights,642 fully meeting public interest nationwide. For example, Vietnam is passing through a transitional period with has two basic features: first, many increasing social relations interfere with the old ones, causing complications in social management; second, the Vietnamese legal system is the legal normative document system, so that it is limited in regulating new social relations. For those reasons, the diversification of sources of law, particularly applying customary law, could be a realisable and effective solution and contribute to creating an active and flexible legal system for social relation regulation and state management.
4.2.3 The obstacles of customary law to human rights
As mentioned, plurality of law may be the best instrument in dealing with conflict in the community and protecting and developing human rights for minority groups and
Indigenous people. Nevertheless, it may (to some extent) be the reason for increasing disputes caused by differences between state law and customary law, particularly in multi-ethnic, multi-religious faith countries. It is a fact that if there is more than one legal order in the legal system, an increased risk of legal order conflict can be easily predicted. The conflict may occur between state law and customary law or between customary laws of the various ethnic or Indigenous groups due to the differences in subjects regulated by those legal orders, and those legal orders‘ purpose and scopes.
In addition, customary law tends to take into greater account the interests of traditional customary owners and their clans rather than the interests of others.643
642 Kumar, above n 624, 27. 643 Farran, above n 14, 95. 174
Legal pluralism, particularly involving customary law, thus, may cause some obstacles to human rights.
First, the sole aim of customary law (which is based on customs) is to apply the rules of a specific ethnic group to that group. However, the result is that the recognition of customary law and its enactment for various groups that co-exist within a single nation-state means that different laws are provided for people with regard to the same issues or disputes. In a society, if some priorities or differences are given to subjects who are more broadly considered to have the same rights and duties, this may potentially lead to risks, such as discrimination and inequality before the law,644 as well as resulting in a more highly complex legal system. In terms of group rights or cultural rights in customary law, the question arises as to how to solve the conflict among different ethnic groups in society? The application of the customary law of one group may cause negative impacts on others or may bring about inequality between different groups, leading to difficulties in state and social management. In addition, for members in the state, the law often comes in several different layers: customary law as the closest level governed by local ethnic community, and the national legal system controlled by the state.645 Hence, conflict between the laws is conceivable. In the Solomon Islands, customary law is respected at the national level but human rights are regarded as more important than the recognition of customary law.646 According to Article 15 of the Constitution of the Solomon Islands, in order to prevent discrimination on grounds of race, any law, including customary law that
644 Laymon, above n 14, 380. 645 Ibid. 646 Care, 'Customary Law and Women's Rights in Solomon Islands', above n 216, 14–15. 175
‗is discriminatory either of itself or in its effect‘ or fails to comply with human rights standards will be considered void.647
Secondly, law is for the nation. Moreover, it is created in the public interests and for the interests of the general public; that is, for the society in general, while human rights are more highly related to individuals. Paradoxically, human rights, individual rights and equal rights, on the one hand, are cited as giving prominence to individuals, whereas, rights for Indigenous people or the application of customary law to protect and respect the culture and interests of minority groups, are cited as group or collective rights. Nevertheless the latter may be required for the individuals within that group to be able to fully express their own culture, including many customs, including those related to agricultural, horticultural, hunting or fishing practices, rites of passage, food, dress, and even religious faith. Many scholars argue, however, that the state should not give any special privileges to any subjects and
‗should not grant and protect the rights of some that are not available equally to others‘.648
Thirdly, customary law may provide grounds for class, race and gender discrimination in contrast with state law which expect equality. The conflict between customary law and state law often occurs in the realm of human rights.649 In some countries in the world, particularly in Asian countries which are significantly affected by Confucian doctrines and traditional thoughts, women are regarded as
‗second class‘. As a result, laws or customs, in the main, are defined by men, not
647 Constitution of Solomon Islands 1978 (Solomon Islands) art15(5)(d). 648 Howard-Wagner, above n 629, 56. 649 Jennifer Corrin Care, 'The Status of Customary Law in Fiji Islands after Constitutional Amendment Act 1997' (2000) 4 Journal of South Pacific Law
women, and are also dictated by the upper classes, not lower classes; thus, there is a conflict about whose custom is to be applied in any given situation, especially given that custom is largely unwritten.650 One trend of much research on customary law is for researchers to seek solutions for questions related to whether the government should only apply customs without any discrimination across the group to whom customary law is deemed to apply. A second is whether the lower classes have the right to give opinions, negotiate or make decisions for a particular area of application of the customs and traditions that are most beneficial to them or for the rejection of customary law that is not appropriate for them or limits their continued development in the modern world.
Custom is mostly unwritten and customary law tends to be uncodified, which often generates inconsistent and confusing outcomes when it is applied.651 This is opposed to the criteria of law, in that law should be applied consistently, normatively and uniformly. Laymon652 (based on the research of Alison Renteln and Alan Dundes and many other authors in Folk Law: Essay in the Theory and Practice of Lex Non
Scripta) has offered a summary of distinctions between formal and customary systems of law, according to a set of binary oppositions, using this to point out the limits of customs as compared with the formal legal system. He notes that customary norms are oral, regarded as generally peasant-sourced, old and perhaps out-of-date
(in terms of applicability to contemporary society) and rural; whereas the formal
650 Ibid. 651 International Council on Human Rights Policy, above n 112, 77. 652 Laymon, above n 14, 356. 177
legal system is comprised of written materials and is regarded as ‗noble‘ (the product a highly-educated elite), modern, and urban.653
Although customary law has both positive and negative impacts on human rights, the author of this thesis supports the recognition of customary law. Everything has two sides, therefore; advantages of customary law should be considered and disadvantages should be limited or abolished. As noted above, the recognition of customary law is to implement international human rights treaties and preserve cultures or provide a special consideration for ethnic group. The state will play an important role in improving the advantages and limiting the disadvantages.
4. 3 General Comments on the Relationship between Human Rights and
Customary Law
By studying the relationship between human rights and customary law, the author of this thesis realises that the recognition of customary law may have both negative and positive impacts on human rights. The recognition of customary law offers, on the one hand, the value of cultural preservation and of the recognition of traditional values for ethnic groups. On the other hand, the recognition of customary law may raise in a number of issues in relation to national sovereignty due to a potential risk of autonomy of increasing demands for ethnic groups. It also risks consequences, including inequity due to different laws being applied for relation to identical situations depending upon membership of a particular ethnic or Indigenous group.
Nevertheless, the thesis argues that the recognition of customary law is, on balance, a net contributor to human rights protection, extending democracy for ethnic groups
653 Renteln and Dundes, above n 448, 1–5. 178
in terms of respect for traditional and cultural aspects. This support is based on social and cultural arguments as well as the obligations incurred by governments who are states parties to international human rights conventions and thereby committed to implementing the relevant provisions.
4.3.1 The social and cultural aspects involved in the recognition of customary law
By definition, the population of the ethnic groups in a country with which this thesis is concerned is generally lesser than that of majority groups. This affects their ability to determine the political, economic and legal direction of a country. Though there are significant exceptions where military dictatorships (or well-funded powerful minorities) have installed government by a minority over a majority population, in the longer term, this arrangement is highly unstable.654
Across the world, ethnic and Indigenous minorities are often at a less advanced stage than majority groups in terms of economic and political capacity, and social and economic development as well. They need considerably more input than majority groups in all fields, including consideration of their customs and cultural tradition, in order to achieve a greater degree of equality with the majority population.655
A number of considerations may be taken into account, in relation to both international and domestic activities. The international community may create
654 See, eg, the see-sawing Hutu-Tutsi conflicts in both Burundi and Rwanda in the late 20th century or, more contemporaneously, the kingdom of Bahrain where a Sunni monarchy from the Sunni minority has continued for over 200 years to dominate the majority Shia population: Aryn Baker, ‗Tensions Mount in Bahrain as Friday Protests Get Underway‘ Time, 11 March 2011. (Text at http://globalspin.blogs.time.com/2011/03/11/tensions-mount-in-bahrain-as-friday-protests-get- underway/). 655 Consider the former slave populations of many countries, often disenfranchised for much of their history, or formerly tribal populations who require additional attention and resources to achieve outcomes equal to those of the majority group. In a different category are the non-citizen ethnic minorities in modern States who as transient employees enjoy far fewer rights than the indigenous majority population. 179
international treaties with basic principles designed to protect Indigenous people and ethnic groups. To some extent, international organisations may interfere with human rights protection, particularly ethnic groups, based on the respect for national affairs and the sovereignty of member countries.
In the context of domestic activities, the state‘s considerations for ethnic and
Indigenous groups may be expressed by social, cultural and economic policies to develop all fields of ethnic community participation. Such state policies may improve the lives of community members, increasing the rate of social development and allowing the community to pull level with the standards of the majority population. In addition, the state may also provide a space (be it an economic or political or cultural space) for ethnic community activities. The state should let the ethnic communities apply their law in their own way. To avoid conflict that may occur between communities, the state could play a role as controller, negotiator and dispute settler to assure that the application of customary law occurs in an atmosphere of the good will and mutual respect.
4.3.2 The implementation of international human rights conventions regarding the recognition of customary law
Many international human rights treaties lay down the obligations of member countries in implementing the rights that relate to customary law (for example,
Article 27 of the International Covenant on Civil and Political Rights).
It would be superficial to claim that the recognition of customary law creates sovereignty because it may establish autonomy for ethnic communities; or that it breaches sovereignty when a state permits the development of a degree of autonomy within the state. Indeed, the right to enjoy culture includes lifestyle, customs and
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natural resources in particular areas. ‗Cultural rights‘ are different from the right of self-determination of a nation. Confusing the two concepts may lead to a debate on national sovereignty and the autonomous rights of ethnic groups. The recognition of customary law should be understood as the right of cultural recognition. It does not ask for autonomy, or ask that the group escape from the political control of the state.
Political and cultural rights are defined as separate entities.
If the state does not recognise customary law, the human rights of ethnic groups may suffer negative impacts because the culture of ethnic minorities would not be respected. In addition, the disadvantages of economic and social conditions of ethnic groups may fail to be addressed if customary law and the group rights of that population are not recognised. The considerable attention that they ought to attract and the resources required to become ‗equal‘ may not be allocated to them. Minority ethnic and Indigenous populations need to be treated differently as they are different to the majority in terms of their economic and social backgrounds and the persisting legacies of disadvantages that such a background creates.
Allow me now to come back to the Asian arguments regarding the particularity of human rights. As set out at the beginning of this chapter, Asian countries call for a particularity of human rights that is based on a recognition of the difference in economic, cultural and social backgrounds between the West and the East. Similarly, in the context of a specific state, ethnic communities may also defend their cultural rights, including the right to recognise customary law as an exercise of self- determination in the legal field. If states, particularly Asian countries, could not recognise customary law, they may put them opposition to position taken by the
West, especially in regard to their argument on the particularity of human rights
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(because when they ask for particularity of human rights, ethnic communities in their state also wish to do so). By ‗Asian values‘ argument (namely, ‗culture‘ argument, the ‗collective‘ argument‘, the ‗disciplinary‘ argument and the ‗organic‘ argument),
Asian states argue a particularity of human rights. If the world (with many states) is considered a large picture and a specific state (with many ethnic groups) is a minimised picture, it is can be understandable that the position of Asian states in the large picture is the same position of ethnic groups in the minimised picture. Hence, if
Asian states wish to make a plea for a particularity of human rights, they should do the same with ethnic groups in their own country.
If the state does not recognise customary law, it means that the desires of a number of inhabitants of the country have not been considered. Human rights in this instance should be concerned with whether such a state properly meets the requirements of human rights standards. Serving the majority and ignoring minority interests may cause conflict due to persistent social inequity.
In contrast, the recognition of customary law may be seen as a positive expression, particularly in the aspects of cultural preservation and customary law. By recognising customary law, the state cannot only play a manifestly important role in facilitating the expression of human rights for ethnic communities; it may also play a role as accommodator for the relationship between human rights, customary law and national sovereignty. For instance, by recognising customary law, the state not only could create a legal space for ethnic groups to execute their culture and tradition, but more importantly, the state could uphold human rights for the nation and control its sovereignty through the adoption of harmonious policies for the country‘s development and ethnic minority human rights protection.
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Developing human rights for ethnic groups means developing human rights for the whole nation. The population structure of the nation as a system consists of different groups, where each group is considered as a part of a whole that constitutes the nation. Any changes in the system may accordingly cause changes in parts of the system. Conversely, any change in parts may lead to a change in the whole system.
Hence, it can be noted that the recognition of customary law can be seen as a sign of human rights protection, not only for ethnic groups but also for the whole nation.
Several scholars argue that Indigenous people have all the rights enjoyed by other people and, therefore, it is not necessary to create any unique rights for them. For example, member countries of the International Covenant on Civil and Political
Rights may have different ideas in regard to Article 2 (individual rights in general)
Article 26 (equal rights) and Article 27 (cultural, religious and linguistic rights).
Article 26 points out ‗all persons are equal before the law‘ whereas Article 27 provides for recognition of the rights of minorities. If member countries protect human rights as Article 26 provided, they cannot go further under Article 27 because it distinguishes groups:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.656
Indeed, the rights of Indigenous people are not the same as individual rights in general. For example, Article 26 of the International Covenant on Civil and Political
Rights which provides that ‗all persons are equal before the law and are entitled without any discrimination to the equal protection of the law‘, does not mean that
656 ICCPR art 27. 183
member countries do not need to consider the rights of ethnic groups and Indigenous people as provided in Article 27. The nature of Article 27 is that individual rights are general, while Indigenous people are those supposed to be under disadvantages of economic, social and cultural conditions and thus are a requirement for special attention. The ability to assert the rights of Indigenous people as per Article 27 depends on the groups to which they belong and whether such groups are protected due to requirements for cultural preservation and ethnic customs.
However, the recognition of customary law should consider benefits to the relevant groups and public interests. According to Article 26(2) of the International Covenant on Civil and Political Rights, there is a need for protection of equal rights between minority ethnic groups and other inhabitants when seeking to protect customs and cultural rights of ethnic groups. The state should have appropriate and carefully considered policies in regard to the recognition of customary law because there are many ethnic groups with different customary laws. Some customary laws may be consistent with other but some are not. The state needs to accommodate this relationship, both in terms of how to protect human rights in society in general and how to avoid inequity between groups in particular.
Along with the recognition of customary law for the aim of advancing human rights, the state should also develop customary law so that it is in accordance with human rights principles because several customary laws are contrary to human rights, in areas such as gender discrimination (for example, patriarchy and male chauvinism in
Vietnam). Thus, the recognition of customary law should be consistent with the human rights standards of the whole nation.
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To develop customary law, the state may use economic, educational and political instruments. Economic policies are designed to advance life for ethnic peoples, while education is to improve their knowledge in order to make ethnic peoples adapt to social changes. Many countries such as China and Thailand have adopted realistic policies to narrow the gap between majority and minority population. The Royal
Project in Thailand (1969) for the hill tribes in agricultural development helped tribes to gain a better standard of living.657 The aim of China‘s Western Development
Program of 1999 was to develop economic regions, particularly western regions. But rather than limiting development to the 10 western provinces, China specifically targeted areas where ethnic minorities resided. This does not always, yield the success anticipated as it was observed that the influx of the majority Han population, combined with the position of tighter supervision of the reproductive program for families, could result in increased unrest.658 The intention, however, was to ensure that ethnic groups gained significant benefit from the economic development program, while ecological damage (a consequence of increasing population) was reduced.659 Here too, in common with Vietnam, favourable tax treatment was adopted as a method of developing regional areas.660
Some countries have special policies for self-determination of ethnic groups. For instance, under a policy of regional autonomy for ethnic communities in China, Tibet
657 Natcha Petchdakul, 'The Thai Royal Project Foundation Retail Stores: How and Why the Consumers Buy?' (2010) 7(8) Journal of US-China Public Administration 91, 91. 658 Hongyi Harry Lai, 'China's Western Development Program: Its Rationale, Implementation, and Prospects' (2002) 28(4) Modern China 432, 456, 462. Similar situations of unrest have occurred in Western New Guinea where Indonesian migration from heavily populated islands in the archipelago to Western Papua (formerly Irian Jaya) ash resulted in marginalisation of Papuans and domination of the economy by Indonesian settlers: See Richard Chauvel‘s July-September 2007 Indonesia Today article on demographic change in Papua: http://www.insideindonesia.org/edition-97/genocide-and- demographic-transformation-in-papua. 659 Ibid 432–3. 660 Ibid 457. 185
has been established as a self-governing area661 (although some people would struggle with the self-government of Tibet). In Indonesia, Law No.22 of 1999 on
Legal Government and Law No. 2 of, 1999 on the Balance Central Government and the Regions defined the degree of autonomy to be enjoyed by several cultural groups, thus allowing various areas of the world‘s most populous Muslim country to enjoy varying degrees of autonomy, and demonstrating a willingness to accommodate differences that may yet stave off calls for political independence in such areas.
It is hard to say that developing customary law by economic and educational instruments is (or is not) better than by policies of autonomy because it depends on the specific circumstances of a country‘s economic and political spheres. The state, in the process of recognising customary law, should consider the balance that needs to be struck in regarding democracy, social needs and justice, and ethnic people‘s human rights protection and human rights protection as a whole.
4. 4 Conclusion
This chapter has discussed different points of view on human rights, particularly the universality and particularity of human rights. It has also drawn attention to the relationship between customary law and human rights and has explored the positive or negative impacts of customary law on human rights, and how customary law should be recognized so that it is in harmony with human rights protection.
Vietnam is seeking a solution on the issue of how to foster human rights for ethnic groups by recognising customary law. The following chapters will examine the situation of Vietnam, particularly in relation to human rights and the status of
661 Colin Mackerras, Ethnicity in Asia (Routledge Curzon, 2003) 10. 186
customary law in Vietnam. The culmination of Part 2 of this thesis will be a proposal for how Vietnam should more effectively recognise customary law to comply with international human rights.
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PART 2: VIETNAM AND THE RECOGNITION OF CUSTOMARY LAW
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5 THE VIETNAMESE LEGAL SYSTEM
5. 1 Overview of the Vietnamese Legal System
The Vietnamese legal system is fundamentally based on the nature of the legal system of the socialist nations (especially the former Soviet Union) and inherited characteristics of civil law systems.662 In addition, traditional religious tenets, such as those of Buddhism and Confucianism, also play an important role in Vietnam‘s legal system.663 Such features have contributed to the building of a complex legal system over time. However, since 1945, Vietnam has principally asserted the supreme position of the Constitution and legal normative documents and, as a result, recognised a sole source of law — legislation by the state — and applied this to all social relations which need to be regulated by the government. In recent years, in pursuit of the objective of socio-economic development (and particularly since 1986 when the Doi Moi (Renovation) Policy was implemented, Vietnam has to some extent officially recognised customary law (in civil transactions).664
The Vietnamese legal system is fundamentally based on the Soviet Union‘s system of law665 in that ‗law‘ is ‗state law‘. Law refers to a system of regulation created by
662 Dao, 'Basic Information of Legal Research - A Case Study of Vietnam', above n 117, 206; see also Thi Phuong Hoa Nguyen, Legislative Implementation by Vietnam of Its Obligations under the United Nations Drug Control Conventions (PhD Thesis, University of Wollongong, 2008) 36. 663 Dao, 'Basic Information of Legal Research - A Case Study of Vietnam', above n 117, 200. 664 In Vietnam, customary law is applied by practical adjudication or through the policies of the Communist Party of Vietnam. However, very few cases contain legal nature because the regulations for customary law application are too vague and obscure. Another legal form to be applied is the similar law application and many people argue that this application is similar to precedents. (This will be clearly explained in this chapter). 665 Minh Thong Le, 'He Thong Phap Luat' in Tri Uc Dao (ed), Nhung Van De Ly Luan Co Ban ve Nha Nuoc va Phap Luat (Nha Xuat Ban Chinh Tri Quoc Gia, 1995) 182, 182–3 [Trans: Minh Thong Le, ‗Legal System‘ in Tri Uc Dao, Basic Theoretical Issues on State and Law (National Political Publishing House, 1995)]. 189
state power to regulate all social relations and guaranteed by that power.666 Law refers to state law, not to anything other than state law.
However, the Soviet legislators also mention that there are two concepts which need to be considered and distinguished: legal system and legal document system. The legal system refers to the internal structure of law and the legal document system refers to the external structure of law (normative legal document system).667 Vietnam applies this theory in both its legal structural system and normative legal document system.668
5.1.1 Legal structural system
The legal structural system is the whole of the legal norms which are expressed in legal documents and promulgated by compulsory procedures and jurisdiction. These legal norms have an internal relation and form a coherent whole, being combined to constitute law institutions and law branches.
Legal norms are the smallest unit in the structure of the legal system. Promulgated or recognised by an authority or authorities, legal norms are the rules of conduct that are applied to regulate social relations. Legal norms should be general because they may be applied for every case and every subject but, simultaneously, legal norms should also be specific because they are rules and standards applied for particular cases
666 Vanderlinden, above n 351, 152. 667 Minh Tam Le, Xay Dung va Hoan Thien He Thong Phap Luat Viet Nam, above n 11, 45–51. 668 Minh Thong Le, 'He Thong Phap Luat', above n 665, 184. 190
which are predicted or prepared beforehand. To achieve this end, a legal norm should be presented clearly, exactly and with one meaning.669
Legal institutions are the second element of the legal system, including all legal norms which have the same features and regulate a group of correlative social relations (for example, the legal institution of inheritance, the legal institution of ownership, the legal institution of marriage and family). Having a group feature, the legal institutions are usually defined so as to build an appropriate legal norm system in order to classify social fields to which law may apply.670
Law branches are a system of legal norms (which are classified into legal institutions) to regulate a sort of certain social field such as civil, criminal, administrative or constitutional. At present, according to the popular division of law branches in the legal system, Vietnam has twelve law branches.671
- Branch of Constitutional Law
- Branch of Administrative Law
- Branch of Criminal Law
- Branch of Criminal Procedure Law
- Branch of Civil Law
- Branch of Civil Procedure Law
669 Minh Doan Nguyen, 'Quy Pham Phap Luat' in Minh Tam Le (ed), Giao Trinh Ly Luan Nha Nuoc va Phap Luat (Nha Xuat Ban Tu Phap, 2006) 375, 378–83 [Trans; Minh Doan Nguyen, ‗Legal Norms‘ in Minh Tam Le, Textbook on Theory of State and Law (Judicial Publishing House, 2006)]. 670 Minh Thong Le, 'He Thong Phap Luat', above n 665, 186. 671 Minh Tam Le, 'He Thong Phap Luat Xa Hoi Chu Nghia' in Le Minh Tam (ed), Giao Trinh Ly Luan Nha Nuoc va Phap Luat (Nha Xuat Ban Tu Phap, 2006) 399, 409–13 [Trans: Minh Tam Le, ‗Socialist Legal System‘ in Minh Tam Le, Textbook on Theory of State and Law (Judicial Publishing House, 2006)]. 191
- Branch of Marriage and Family Law
- Branch of Labour Law
- Branch of Economic Law
- Branch of Land Law
- Branch of Financial Law
- Branch of Banking Law
However, the division of law branches is relative because social relations are interlaced and exist in many different fields of life. Thus, a social relation may be a subject regulated by different law branches. Vietnamese law makers normally employ the terms regulated subject and regulated method to classify law branches.
Regulated subject refers to social relations that are of the same sort, belonging to a certain social field and requiring regulation by law. Each law branch may regulate a specific kind of social relation.672 Regulated method is the way to have an effect on social relations, including ‗equal method‘ and ‗compulsory method‘. Equal method673 is the way that two parties in a civil transaction agree to apply for their agreement with the aim of achieving their goals (but their agreement should be in the scope of legal regulations). Compulsory method is applied by authorities for criminal
672 For example, criminals are the subjects to be regulated by criminal law; subjects in civil transactions are the subjects to be regulated by civil law. 673 The main feature of equal method is that the government will not directly interfere in civil transactions of the parties but giving a legal scope for the parties‘ agreement (for their rights and responsibilities in transactions, for dispute settlement and others). In this legal scope, the parties have equal rights and responsibilities. 192
cases or administrative cases. The persons concerned in these cases shall follow the authorities‘ order and comply.674
5.1.2 Normative legal documents system
In the Vietnamese legal system, the system of normative legal documents is the whole body of normative legal documents promulgated by the state or the authorities, such documents complying with a compulsory form, recognised procedure, and also containing the rules of conduct in order to regulate social relations.675
The following table shows the type of normative legal document and authority for issuance.
674 The main feature of the ‗order — compliance‘ method is that one party has the right to order and another party must comply with the order. 675 Luat Ban Hanh Van Ban Quy Pham Phap Luat 2008 (Vietnam) art 1 [Trans: Law on the Promulgation of Legal Documents art 1]. 193
Table 3: Normative Legal Document System in Vietnam (following the order of importance) (According to the Law on the Promulgation of Legal Documents 2008, Article 2)
No. Type of document Authority
1 Constitution, Act, Resolution National Assembly
2 Ordinance, Resolution Standing Committee of the National Assembly
3 Order, Decision National President
4 Decree Government
5 Decision Prime Minister
6 Circular Ministers and Head of ministry-level Bodies
7 Resolution Justice Council of the Supreme People‘s Court
8 Circular Chief Justice of the Supreme People‘s Court; Chief of the Supreme People‘s Prosecutor
9 Decision State Auditor General
10 Joint Circular Issued among Standing Committee of the National Assembly, or between government and central Bodies of Social-Political Organisations
11 Joint Circular Issued collectively by Chief of the Supreme People‘s Court and Chief of the Supreme People‘s Prosecutor; by Minister or Head of ministry-level Bodies and Chief of the Supreme People‘s Court, Chief of the Supreme People‘s Prosecutor; by different Ministers, Head of ministry-level Bodies.
12 Resolution People‘s Council
13 Decision, Directions People‘s Committee
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Normative legal documents are divided into two kinds: law documents (normative legal documents that are issued by the National Assembly such as the Constitution and Acts); and subordinate law documents (normative legal documents that are issued by other bodies or persons in authority, such as Government or Prime
Minister). These normative legal documents are closely co-ordinated. Firstly, they have legal coordination because the legal normative documents are arranged in a particular order of legal value from the highest level to the lowest (with the
Constitution having the highest legal value). Secondly, they also have content coordination because all the normative legal documents are consistent with each other. According to the supreme position of the Constitution, other legal documents are classified in an established hierarchy: Constitution – Acts – ordinances – subordinate law. This system creates normative legal documents that form a well- structured, united and consistent body of law.676
Although Vietnam has improved the legal system to benefit the country‘s development, there remain a number of shortcomings, among them a deficiency in the sources of law and the application and implementation of normative legal documents. Vietnam recognises state law as the official source of law and disregards other sources of law, such as precedents and customary law. The paucity of sources of law in Vietnam (that is, there are few sources of law recognised in Vietnam, with the country recognising only normative legal documents and refusing to recognise other sources of law) may ensure the unity of the legal system but, to some extent, it is accompanied by some difficulties in regulating all social relations, especially social relations related to minority ethnic communities. A general evaluation of the
676 Minh Thong Le, 'He Thong Phap Luat', above n 665, 189. 195
Vietnamese legal system is needed in order to clearly identify the key weaknesses and determine ways in which they can be overcome.
5. 2 General Evaluation of the Vietnamese Legal System
5.2.1 Merits of the Vietnamese legal system
Over sixty years of building, renovation and improvement of the Vietnamese legal system (from 1945 up to the present), Vietnam has made a number of remarkable achievements. During this period, Vietnam issued four constitutions to lay the foundation for the legal system and the country‘s development. The 1946
Constitution was issued when the Democratic Republic of Vietnam had just been established and had the historic missions of territorial protection, independence, and the development of the nation. The 1959 Constitution was issued in a time of war to unify the nation and, simultaneously, to improve government apparatus and develop socio-economic fields. The 1980 Constitution was the constitution that acknowledged national unity after a long period of war against the French and the
Americans (French: 1946–1954; American: 1956–1975). The 1992 Constitution is the most recent one, introduced a after period of significant and considerable changes in Vietnam. The Constitution has provided basic regulations on political and socio- economic policies and national apparatus reform.677
With each new constitution, the legal system has also been changed in order to comply with the relevant constitution. The constitutions and normative legal documents have been creating a legal framework that the state has been applying to manage society by law. Since 1986, when the government decided that the centrally
677 Thai, 'Su Ra Doi va Phat Trien Cua Nen Lap Phap Viet Nam', above n 4, 73–126; see also Vietnamese Constitutions 1946, 1959, 1980 and 1992. 196
planned economy was to give way to a market economy, Vietnam has gradually improved the legal system and established a socialist-oriented market economy.678
Remarkable achievements were made in the legal system with first the enactment of the Law on Legal Normative Document Promulgation 1996, its amendment in 2002, and then its replacement by the Law on Legal Normative Document Promulgation
2008, which regulates all issues concerning the legal system, jurisdiction and procedure for lawmaking. Hence, Vietnam has the foundation and legal framework for the normative legal documents system.
Furthermore, bilateral and international treaties have also attracted considerable attention from the government and become an integral part of Vietnam‘s legal system. For instance, the Vietnam – US Bilateral Trade Agreement 2001 has contributed to a change in the Vietnamese economy.679 Since 1981, Vietnam has become a signatory to more than 15 human rights treaties, such as the International
Covenant on Civil and Political Rights 1966 (which Vietnam ratified 24 September
1982), the International Convention on the Elimination of All Forms of Racial
Discrimination 1965 (which Vietnam ratified 9 June 1981), and the Convention on the Rights of the Child 1989 (which Vietnam ratified 20 February 1990). In the
Vietnamese context, the legal status of these treaties is higher than state law.
International treaties which are ratified by Vietnam shall be applied as a priority
(even if they are inconsistent with state law).680
678 Inter-Agency Steering Committee of Vietnam Government, above n 9, 9. 679 Steve Parker, Quang Vinh Phan and Ngoc Anh Nguyen, 'Has the U.S.-Vietnam Bilateral Trade Agreement Led to Higher FDI into Vietnam?' (2005) 2(2) International Journal of Applied Economics 199, 204. 680 Luat Ky Ket, Gia Nhap và Thuc Hien Dieu Uoc Quoc Te 2005 (Vietnam) art 6 [Trans: Law on Signing, Joining and Implementing International Conventions 2005 (Vietnam)]. 197
Along with amendments to the Constitution, a number of justice and administrative reforms have been also carried out. The aim of such reforms is to improve both the state and society. Administrative reforms in 1990s have attained remarkable achievements in administrative procedures.681 Judicial reforms have tended towards adding grater diversify to the sources of law and improving judicial organs.682 The diversification of sources of law aims to meet the needs of society at a time when social change is being reflected in a proliferation of, and many alterations to, social relations but state law in its current form, and using only its current sources, cannot regulate all of them. The limits of state law in regulating social relations leads
Vietnamese legislators to consider other sources of law, such as precedents and customary law.
In addition, legal professional education and training have importantly contributed to the improvement of the legal system because through these activities better educated legal workforce is able to ensure more accurate transmission of the law to the people.
This, in turn, yields an increase in the people‘s accuracy of perception of the legal requirements applying to them, and hence a greater ease of compliance by the people themselves. The greater knowledge of the law among those charged with its enforcement also supports correct regulatory enforcement by dispelling doubts enforcement in practice.683
However, despite these achievements, the Vietnamese legal system still has a number of shortcomings. The most significant of these will now be examined. These include
681 Van Tham Nguyen, Cai Cach Hanh Chinh o Viet Nam: Thanh Tuu va Nhung Rao Can Hien Nay (9 January 2010)
a paucity of sources of law; a lack of coordination, a lack of appropriate synchronisation, and unnecessary duplication within the legal system, and the perpetuation of an inadequate law making processes.
5.2.2 Shortcomings of the Vietnamese legal system
5.2.2.1 The paucity of sources of law
It is a fact that life (by its very nature) is always changing and frequently changeable.
Whilst law has in its construction by skilful legislators included advantages such as anticipating and foreseeing situation to which it may apply, it is necessarily limited because those same legislators cannot foresee all occasions or exigencies that may emerge over time, and therefore the law cannot and does not stay abreast of changes and movement of society. This is because law itself does not have the ability of self- movement. Thus, law is in a state of quietness while social relations are in a state of change and movement. For this reason, a trend to enhance law‘s capacity for anticipation is the leading concern of law-makers. This involves not only foreseeing and regulating social relations as necessary, but also filling any ‗gaps‘ that may already exist or be revealed in the law. This adaptability cannot be achieved by legislative means alone. It depends on many other elements such as legislative skills, the adaptable capacity of law, law makers‘ abilities and more importantly, political views (such as Vietnam, the Communist Party of Vietnam‘s policies are the very soul of law and provide its foundation). Party‘s policies play a decisive role in the process of building, improving and implementing the legal system. Because of this, law-makers apply (along with prediction) other methods to fill ‗gaps‘ in the law, which such measures as precedents and customary law being contemplated or adopted, at least in part. 199
The Vietnamese legal system is based on the principle of socialist legality684 in that every organisation and everyone should comply with state law and only state law.685
This principle requires ensuring the supreme position of the Constitution and Acts in order to create the unification and consistency of law in the whole country. Other sources of law, such as precedents and customary law, therefore, cannot, in principle, be applied in Vietnam.
The reasons that Vietnam is reluctant to recognise multiple source of law are related to the nature of other sources. Precedents, according to Vietnamese legislators, give too much law making power to judges while the Vietnamese constitution provides that only the National Assembly has legislative power.686 Thus, recognising precedents may cause an abuse of power by judges in the process of adjudication as well as create a degree of arbitrariness within the court system. And more importantly, it violates the Vietnamese Constitution.
The denial of the adoption of precedents in the Vietnamese legal system may arise from the influence of civil law systems. In the civil law systems, ‗rule-making by
684 Socialist legality refers to an adequate and needful legal system to regulate social relations. It will be a legal foundation for a legal order and discipline. It requires that everybody, every organisation (both public and private) in their own activities shall fully perform and comply with the laws. Laws are the rules for organising and operating state apparatus, social and political organisations and people‘s conduct. To ensure the principle of socialist legality, the 1992 Vietnamese Constitution, Article 12 provided: ‗The State exercises the administration of society by means of the law; it shall unceasingly strengthen socialist legality. All State organs, economic and social bodies, units of the people's armed forces, and all citizens must seriously observe the Constitution and the law, strive to prevent and oppose all criminal behaviour and all violations of the Constitution and the law. All infringements of State interests, of the rights and legitimate interests of collectives and individual citizens shall be dealt with in accordance with the law‘. 685 John Griffiths, 'What is Legal Pluralism?', above n 170, 3. According to the legal centralist conception, he argues, ‗law is an exclusive, systematic and unified hierarchical ordering of normative propositions‘. 686 Minh Tam Le, 'Ban Chat, Dac Trung, Vai Tro, Cac Kieu va Hinh Thuc Phap Luat', above n 45, 82. 200
courts in matters of procedure and practice […] is not a judicial function‘.687
Vietnam was a French colony for almost century (1858–1954) and, as a result, the influence of civil law system in the Vietnamese legal system is considerable. In the period of 1945-1975, the Soviet legal system was a major influence in the North of
Vietnam, an influence that arose for historical, economic and political reasons.
As for customary law, Vietnamese legislators consider that customs are characteristic of underdeveloped or primitive (rather than advanced, modern and sophisticated) society or civilisation; hard to change, parochial and ethnocentric.688 Given the nation‘s Socialist (and independence movement) heritage, that emphasises national unity, a reluctance to emphasise that which is perceived as the particular (and potentially if not actually divisive) at the expense of what is perceived as the national communal interest is surely understandable. Vietnam‘s source of law, therefore, remains monotone, reflecting inaccurately the breadth of the populations of which it is comprised and their various needs; and thus many unexpected gaps in the law exist. Changes over time in terms of relevance due to social and economic and other changes have also contributed to gaps. Authorities, when applying laws to subjects, are apprehensive, embarrassed and confused if there is a lack of, or insufficient, normative legal documents to address the particular situation before them.
Vietnam has its own way of facing the above difficulties by employing the similar application of state law.689 Similar application of state law refers to a method by which the authorities apply similarity of given legal norms of state law for the cases
687 David and Vries, above n 88, 34. 688 Ibid 81–2. 689 Minh Doan Nguyen, 'Thuc Hien Phap Luat va Ap Dung Phap Luat' in Minh Tam Le (ed), Giao Trinh Ly Luan Nha Nuoc va Phap Luat (Nha Xuat Ban Tu Phap, 2006) 465, 483 [Trans: Minh Doan Nguyen, ‗Law Implementation and Law Application‘ in Minh Tam Le, Textbook on Theory of State and Law, (Judicial Publishing House, 2006)]. 201
which have not been specifically regulated by any legal norm of state law or in a case where there is a state law to be applied but it is insufficient for the task at hand. The purpose of similar application of state law is to overcome opportunely the gap in law. Similar application of state law includes similar application of legal norms of state law and application of the spirit of state law.690 Similar application of state law is where a similar legal norm of state law is chosen to apply to unforeseeable cases
(cases that have not as yet been regulated by state law). Such cases obviously have similar signs and features to cases that have been regulated or solved by state law.
Application of the spirit of state law is where legal principles and reasoning are applied to solve the cases that have not been regulated or foreseen by state law and there is a lack of similar legal norms of state law that would otherwise be able to be applied.
For example, case A is regulated by a legal norm A of state law; case B has not been regulated by any legal norms but the state considers that a regulation for case B is needed. It is found that the nature of case A and case B are similar. The authorities therefore may apply the legal norm A of state law for case B.
In Vietnam, previously, choi hui691 had not been recognised by state law. Choi hui is an activity where a group of persons (generally consisting of 10 or 20 persons with one leader) contribute funds each month to a central pool, with a duration of game dependant on the number of persons participating. Each month, they gather to decide who will be the person to receive the money contributed. For example, there is a group of 10 persons, which equates to 10 month game. In the first month, each
690 Ibid 483–5. 691 Choi hui was illegal capital contribution before 2005. At present, the Civil Code 2005 regulates this issue. 202
member contributes AUD 100. Total of money is AUD 1000. One month later, they gather and place a bid for getting all such money (they can make a bid AUD 5 or
AUD 10 or AUD 20 depending on their need to receive that money). The recipient will be the person who placed the highest bid. He/she will receive AUD 980 (the total minus AUD 20 for their bid). For next month, every member continues contribute AUD 98 while the previous month‘s winner (in this instance the person who already received AUD 980) has to contribute AUD 100 until the last month and he/she does not allow to place a bid anymore. The game will continue until the last person (in the 10th month) receives money. With this game, the later ones will get more benefit because he/she contributes less but receives more.
Choi hui was an illegal game until 2005 when the Civil Code was enacted. It was illegal because it caused many deleterious social consequences, such as when the winner who, having already received the money, ran away and did not want to contribute any further money anymore (a situation that often occurred). Choi hui was not regulated by state law but if choi hui is broken, members may bring a case to the court to ask for compensation for damages (the sum of money they have contributed but have not received back, including original capital and interest). In this instance, the state may apply the similar application of state law method. The authorities have the right to apply regulations on bank interest to calculate how much money the victim may receive (together, of course, with the original capital).
Similar application of state law shall follow certain rules, including general rules and specific rules. For general rules: 1) the case must be related to public interests, benefit the nation, society or individuals, and need to be settled by the state; and 2) the authorities must clearly prove that the case is a lack of state law to be applied. As
203
to specific rules: 1) the authorities shall define and determine which legal norms or articles of state law will be applied; and 2) the authorities must be assured that there is a lack of state law able to be applied directly to the case and, therefore, similar application of state law shall be applied.692
In practice, Vietnam uses the method of similar application of state law in some social fields, particularly in civil transactions because civil transactions are very complicated, being related to many subjects and social fields. The similar application of state law is a resourceful method utilised to reduce the shortcomings and limitations of the state law. However, this application conceals a risk, that is, the arbitrariness of the authorities who have the right to apply similar application of state law. Furthermore, it may cause damages for the concerned persons because the regulations for the process of similar application of state law are vague and imprecise.
In recent years, the Vietnamese government has been aware of that problem in the legal system. In the Report on Comprehensive Needs Assessment for the
Development of Vietnam Legal System to the year 2010 (2001), the Government made an official proposal to apply precedents and customary law. Thus, scholars are seeking solutions regarding how to more effectively recognise these sources of law in the legal system while significantly controlling changes in the state and society.
692 Minh Doan Nguyen, 'Thuc Hien Phap Luat va Ap Dung Phap Luat', above n 689, 483–6. 204
5.2.2.2 Lack of coordination, lack of appropriate synchronisation, and unnecessary
duplication in the legal system
Vietnam‘s normative legal document system includes the whole body of normative legal documents that regulate all fields of social life, state management and foreign affairs. However, the legal system has been suffered from a lack of coordination, a lack of appropriate synchronisation, and unnecessary duplication. The flaws have emerged because Vietnam has implemented legal reform incomprehensively and inconsistently, which has also led to law ‗inflation‘,693 that is, a huge number of laws has been created but rather than solve problems, they have, in practice, caused difficulties for law application and enforcement.694 They are full of contradictions between and among legal documents, such as when the later legal document is at variance with previous ones. For example, concerning the issue of renting land, Land
Law 2003 and its guiding documents contradict Enterprise Law 2005 and its guiding documents,695 Civil Law 2005, Commercial Law 2005 and Insurance Business Law
2000 overlap on the issue of insurance. In accordance with the general rule, the higher normative legal document supersedes the lower one; in the same issuing body, the later law supersedes the previous one if they regulate the same issue. However, two Acts cannot veto each other if they regulate two different social relations.
The situation is further complicated by the fact that a law may be enacted and has theoretically come into effect but it may be unable to be applied in practice because
693 Rose, above n 11, 102–3. 694 Minh Tam Le, Xay Dung va Hoan Thien He Thong Phap Luat Viet Nam, above n 11, 144. 695 For example, methods used to define land value; regulations on land ownership, land renting, etc. 205
there is a lack of guiding documents.696 For instance, Law No 31/2004/QH11 on the promulgation of legal normative documents of the People‘s Council and People‘s
Committee was issued on 3 December 2004 by National Assembly but it was not until nearly two year later, on 6 September 2006, that the Government issued Decree
No 91/2006/ND-CP guiding implementation of the Law. In another example, the
Housing Law was issued on 29 November 2005 by National Assembly but it was not until 6 September 2006, that the Decree 90/2006/ND-CP was issued by the
Government to guide it implementation.697
Along with the contradictions that may arise between law documents and subordinate law documents, an inconsistency may occur within a single document.698 In addition, most legal normative documents, principles and general regulations are very long.
The subordinate laws (such as decrees or directions), when giving guidance, may copy or rewrite the contents of laws and, consequently, guiding documents are unnecessarily long as they duplicate much of the text of the Act to which they refer.
The reason why the Vietnamese legal system lacks coordination and overlaps in part or is needlessly repetitive is because Vietnam has tried to reform the legal system in order to satisfy the requirements of a developing nation and to manage a changing society. However, the reform has not been executed in a well-coordinated and timely manner and, as a result, many Acts and subordinate laws are inconsistent and render the legal system chaotic.699 This inconsistency is also caused by the lack of a logical co-ordination in (or synchronisation of) the actual issuing of legal documents. Due to
696 Ngoc Ha, 'Nang Cao Chat Luong Van Ban Quy Pham Phap Luat' (2008) 11(155) Tap Chi Cong San
the demands on each ministry or department to regulate social relations in the scope of its authority, they issue legal documents without examining legal documents issued by other organs of the state. There are two related additional factors that hinder the accuracy and relevance of the texts. First, the authorities (particularly
Ministry of Justice) may fail to adequately review or inspect the legal texts following the promulgation and secondly, they may fail to review a particular text at all. This can result in unnecessary conflicts within and between normative legal documents.
Indeed, the issuing of too many normative legal documents is partly caused by a lack of state law to regulate social relations. Regarding state law as the only source of law may cause an embarrassment to the state in the regulation of social relations which are occurring outside of state law. Efforts have been made to overcome shortcomings by enacting more laws and more subordinate laws (such as Acts, ordinances, decrees and so forth) but these do not seem to be a good solution. Although these laws may meet the requirements to regulate social relations to some extent, they may cause correlating disadvantages, such as inconsistency or a degree of chaos within the national legal system. Practically, in regard to social relations in ethnic communities, state law may not be as effective as expected because ethnic groups already often apply their customary laws. Whether customary law should be recognised because the recognition of customary law may help the state to reduce the number of laws and subordinate laws (which are inappropriate to ethnic community‘s behaviours to some extent) continues to be the subject of debate. In addition, the recognition of customary law may assure the effectiveness of the applicable law (ethnic communities prefer to apply their rules rather than other rules (in this case, state law)). Moreover, in some social relations that need special treatment, customary law
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would be the best means because it suits particular economic, social, cultural and local conditions.
5.2.2.3 State law is too vague to apply in practice
The current Vietnamese legal system has a number of laws without specific rules; basically they contain only framework regulations. This leads to the difficulty, even the impossibility, of applying these Acts in practice. In most cases, the government, pursuant to the Acts, promulgates subordinate laws (guiding documents) to give details or guide how to apply these Acts in practice. An Act of the National
Assembly is likely to apply in practice only when the government, ministries or even local governments have received an explanation or guidance document for it.
However, one of the most important and basic principles of the rule of law in the socialist state of Vietnam is the assurance of supreme position of Acts in the legal system. According to this, every regulation of law must be executed directly and instantaneously when it becomes effective. Individuals have the rights to conduct anything in the scope of the law provided, no matter whether or not government agencies or authorities have correlative institutions to control, examine or supervise such individual‘s behaviours.700
It can be said that the asynchronous issuing of laws and relevant subordinate texts by the legal system causes the above situation.701 Additionally, the more imprecise the laws, the more necessary it is to explain or guide the laws to their executors.
Although in Vietnam the 2008 Law on Promulgation of Legislation provided that
700 Van Phong, 'Cai Tien Nang Cao Chat Luong Xay Dung Phap Luat', Binh Duong Daily 2009
when submitting a law project (Act), the submitting agency must enclose a guiding document in order for the National Assembly to consider and pass the Act, the situation remains largely unchanged in the legislative process; there often remains a lack of synchronicity between the proclamation of an Act and the issuing of its guidance document.
Article 8 of the Law on the Promulgation of Legal Documents 2008 provides:
1. The contents of legal documents shall be detailed and specific so that the documents may be effectively enforced as soon as they come into force; in the case that a legal document contains some articles and clauses related to matters of technical process and standards, which are not very stable, those articles and clauses may assign the relevant state agency to provide a document of detailed regulations on such matters. The assigned agency shall not further delegate this job to any others. 2. The latter document of detailed regulations shall provide specific provisions, which do not repeat those in the former document, and shall be promulgated to come into force at the same time with the former document or former articles, clauses and items/paragraphs. 3. An agency that is assigned to provide detailed regulations on several issues of one legal document may promulgate one document of detailed regulations on such issues, except that such detailed regulations should be split into different documents. An agency that is assigned to provide detailed regulations on issues addressed by more than one legal document may promulgate one document of detailed regulations on such issues.
Nevertheless, many national agencies have been overdue (in debt) in issuing guiding documents, or they have even issued guiding documents where such documents were contrary to the laws. In regard to the overdue (in debt) situation, for instance, according to the Report of National Assembly dated 22 November 2005, in 2005 the government had not issued 76 legal documents (which needed to be issue in 2005); the People‘s Procuracy was in debt 4 Decisions, 8 Circulars; the Justice Council: 5
209
Resolutions; the Supreme People‘s Court: 2 Joint Circulars.702 Several years later, the situation was still dire.
According to the Supervision Committee of National Assembly, in 2009 the National
Assembly ratified 63 laws, 18 Ordinances and Resolution but the Government has been ‗in debt‘ 274 guiding documents.703
The National Assembly has traditionally passed around 20 Acts annually but this situation has altered considerably, with the number of pieces of legislation increasing dramatically. The more laws are passed, the more difficulties of issuing guiding documents have to content with law practical application and enforcement. To address this problem, the government has undertaken a number of measures, such as strengthening the Department of Legislation, and increasing its coordination with other state agencies or organisations for drafting subordinate legal documents.
However, the key question still remains how to guarantee timely issue and application of legal normative documents. In a case where customary law applies, the above shortcomings may be overcome to some extent because customs are a ‗ready- made‘ source of law and can be applied easily and promptly in both society and individual‘s life. However, the recognition of customary law needs a particular mechanism to avoid conflicts that may occur in the current legal system and to create favorable conditions for customary law to be applied effectively.
702 Huu Khoi, 'No Van Ban Huong Dan Luat: Rat Dang Lo Ngai', Tuoitre Newspaper (Hochiminh City), 2005
5.2.2.4 Subordinate laws have a tendency to overpower legal documents
There are more than 26 kinds of legal documents which are issued by different subjects.704 This is one of the reasons for the unsynchronised issuance of documents, the lack of coordination and unnecessary duplication of those texts in the legal system as well as in law application and enforcement. According to the Report of
Committee of Social Affairs of National Assembly, there are 600,000 legal normative documents issued yearly.705 In a similar example, but at a more local level, in
Hochiminh City, there were 13 Resolutions issued by the People‘s Council of
Hochiminh City and to execute those Resolutions, the People‘s Committee of
Hochiminh City had to issue 286 other legal documents (with 252 Decisions and 24
Directions).706 Similar resolutions, decisions and so forth would have to be issued by the various local People‘s Committees and People‘s Councils across Vietnam. Thus it is easy to see the level of complexity arising.
The workload nationally is extraordinary, especially in regard to subsidiary material.
According to the statistics of Ministry of Justice, from 1 January 1987 to 30
November 2008, and only in regard to the legal documents that had been issued by
Central Government Agencies, there were 19,126 legal documents including 208
Acts, 192 Ordinances, 2,097 Decrees, 267 Resolutions, 36 Circulars and 1,213 Joints
704 Hung Cuong Ha, 'Hoan Thien He Thong Phap Luat Dap Ung Yeu Cau Xay Dung Nha Nuoc Phap Quyen' (2009) 2+3(139+140) Nghien Cuu Lap Phap 17, 20 [Trans: Hung Cuong Ha, ‗Improving Legal System to Meet the Requirement of Building Rule-of Law State‘ (2009) 2+3 (139=140) Journal of Legal Studies]. 705 Le Anh, '"Me Hon Tran" Van Ban Quy Pham Phap Luat' (2008) Viet Bao
Circulars and others.707 The year 2007 was particularly problematic, with 15,000 normative legal documents issued. Of these just 200 were law documents, the rest were subordinate law documents.708 In 2008, according to date from the Information
Center, Library and Research Area of the Office of the National Assembly, there were 200 law documents, 100 Ordinances but more than 10,000 subordinate legal documents issued (including 1512 Decrees and 202 Resolutions of Government;
2,242 Decisions and 467 Instructions of the Prime Minister; 2,571 Decisions and
2,332 Circulars of ministries).
With the mode of issuing normative legal documents as present, a law document
(Act or Code) issued needs a number of subordinate legal documents to guide those applying the legislation. For instance, the Ordinance on Enforcement of Civil
Sentences 2004 needed 40 different legal documents for the purposes of explanation and guidance. The application of the Land Law 2003 has, in practice, been based on
126 other legal documents. In regard to Environmental Law, there are 300 current effective legal documents. If legal documents issued by local government or local managing agencies were added, the number of legal documents would increase almost exponentially. More seriously, the inconsistency and contradictions in the legal system cannot be avoided because there are too many kinds of legal documents issued by different authorities and at various levels but wholly lacking a consistent and synchronous framework for different legal fields. The labyrinth of legal
707 Hung Cuong Ha, 'Hoan Thien He Thong Phap‘, above n 704, 20–21. 708 Sy Dung Nguyen, 'Thu Ban ve Viec Doi Moi Hoat Dong Lap Phap' (2007) 3(95) Nghien Cuu Lap Phap 12, 12 [Trans: Sy Dung Nguyen, ‗Discussing about the Reform of Legislative Activities‘ (2007) 3 (95) Journal of Legal Studies]. 212
documents is cumbersomeness and may cause shortcomings for the legal system, making law complicated and inefficient.709
As for the hierarchy of legal documents, the Constitution and Acts should have the highest legal position. However, an Act of the National Assembly is very hard to apply immediately after being enacted because it only provides broad principles on the issues. Hence, it needs a decree of government to explain and guide its implementation; and then, as a matter of course, a circular may be a guiding document, providing in detail how to perform the decree. The process of enacting an
Act, and then a decree for guidance, and then a circular for details, requires a very long time; and, obviously, in the interim, the Act is considered ‗invalid‘ because it is unable to be applied. For instance, in the most recent case, Vietnam‘s Road Traffic
Law comes into effect from 1 July 2009; however, until now it lacks the required guiding documents (such as Decree on handling administrative violations in road traffic; Decree on the conditions for transportation business; Decree on regulations for the right hand drive in Vietnam and so forth).710 Consequently, this law is still
‗waiting in the wings‘ because no-one is able to apply it without appropriate guidance documents.
This may cause another consequence in the law implementation process and state management. Other government agencies will land in an embarrassing situation and be confused because of the hiatus between the promulgation of the law and the issue of the relevant guiding documents. Consequently, the administrative bodies as well
709 Hung Cuong Ha, 'Hoan Thien He Thong Phap‘, above n 704, 20–22. 710 Hong Son, 'Luat Giao Thong Duong Bo co Hieu Luc 01/07/2009: Cho Van Ban Huong Dan Moi Phat' (2009) Vietnam Net
as other appropriate authorities, in accordance with their management functions, have to force themselves in the promulgation of subordinate legal documents to adjust social relations in their own fields. This is one of the reasons for the breakdown in the order of management, the destruction of the consistency of the legal system, and the troubles experienced in finding, applying and executing the legal normative documents.
In addition, there is a risk in Vietnam‘s legal system that subordinate laws, intentionally or unintentionally, may transgress laws (Acts), and become the determining factor and predominate both in content and number in comparison with the law documents.711 Accordingly, the guiding documents (subordinate laws) are applied more than law documents and even, take the place of law documents. An issue regulated by an Act (but, as mentioned before, regulations in Act are just
‗principles‘) needs subordinate legal documents to elaborate the content.
Imperceptibly, law has come to depend on subordinate law to exist and be implemented. In addition, almost all normative legal documents have a sentence that states that the legislation is to ‗apply how to accord to the locality‘s circumstance‘ and this leads to the local authorities‘ explanation for the purpose of the benefits of the locality, or similar statements certain other authorities in the process of issuing guiding documents.
To deal with the situation of ‗waiting for guiding documents‘ as well as the problem of too many legal documents issued, the government should consider applying the rules or principles which are already in existence and available (such as customs) to
711 Thanh Duc Truong, 'Nhung Bat Cap Trong Viec Xay Dung Va Ban Hanh Van Ban Quy Pham Phap Luat' (1999) 2(130) Tap Chi Nha Nuoc Va Phap Luat 22, 22-30 [Trans: Thanh Duc Truong, ‗The Shortcomings in Building and Issuing Normative Legal Documents‘ (1999) 2(130), State and Law Review]. 214
reduce the number of shortcomings and deliverance overall improve to the legal system.
5.2.2.5 Law-making process does stay abreast of the needs of society
Law, basically, is issued to regulate existing social relations. In some cases, law predicts social relations that may occur in the future and provides encompassing regulations. In Vietnam, as a developing country, social relations change rapidly and in many different ways. Such changes may lead the laws to be unable to respond to emerging social demands. For instance, the Criminal Code 1999 (still in force now) prohibits ‗Trafficking in women‘ (Article 119) and ‗Trading in, fraudulently exchanging or appropriating children‘ (Article 20) but does not address ‗Trafficking in men‘.712
In the field of marriage and family, customary law seems to be applied more often than state law, particularly within ethnic minorities. For instance, the Cham people apply customary law for both marriage and divorce.713 According to Cham customary law, if there is a divorce but the wife is at fault, the husband is not allowed to ask for a property division, he is just allowed to take back the dowry he gave for her. Where the husband is at fault, he shall compensate his wife with two buffalos. In regard to marriage formalities, Cham people do need to register with state authorities
(as Vietnamese law provides), just bound by a weeding ceremony. When they
712 Minh Duc Nguyen, 'Khac Phuc Nhung Xung Dot La Lo Hong Cua Phap Luat' (2009) 24(161) Nghien Cuu Lap Phap 38, 40–1 [Trans: Minh Duc Nguyen, ‗Overcoming Conflicts and Gaps in the Law‘ (2009) 24 (161) Journal of Legal Studies]. 713 Quoc Anh Tran, 'So Sanh Luat Tuc va Mot So Nganh Luat Hien Hanh Tai Tinh Ninh Thuan' (Paper presented at the Moi Quan He Giua Luat Tap Tuc va Phap Luat, Lao Cai, 1999) 102–5 [Trans: Quoc Anh Tran, ‗Comparing Customary Law and State Law Application in Ninh Thuan Province‘ (Paper presented at the Relationship between State Law and Customary Law, Lao Cai, 1999)]. 215
divorce, village leaders shall adjudicate the case (not the court as Vietnamese law provides).
As for civil fields, there are a number of issues relating to customary law (such as in civil transactions) where the Vietnamese law has to contend with many difficulties.
Legally speaking all civil transactions in Vietnam are based on the Civil Code 2005 and subordinate civil laws. A civil transaction refers to a contract or a unilateral legal conduct which leads to an occurrence, change or termination of civil rights and obligations.714 It means the legality of the civil transaction is needed and it must comply with the law in both its form and content. In practice, however, customary law has been being applied widely and commonly, especially in the civil transactions of people who live in rural and highland areas. Civil transactions among minority ethnic groups are essentially based on and comply with customary law as compulsory standards. These kinds of transaction affect not only daily activities but also the task dispute settlement by the courts. For example, concerning the form of civil contract and the method of dispute settlement of civil contract, Muong, Thai,
Dao, Tai, Tho, and M‘Nong people usually enter a contract (such as trading, loan or exchange contracts) by verbal agreement, not by any written agreement with its documentation. In cases where there is a contract of great value (for example, involving large amounts of money), the parties shall have a witness (or witnesses).
The witness shall tell the village patriarch what happened (the village patriarch in
714 Bo Luat Dan Su 2005 (Vietnam) art 121 [Trans: Civil Code 2005 (Vietnam)]. 216
this case is also the judge).715 This procedure is quite different from the Civil Code
2005716 but that is the way the community involved conduct such business.
Another example is liability to compensate for damage outside contract. Minority ethnic groups normally apply a fine (phat va)717 without any adjudication or a court sentence (that is, where the court hears the case and decides a judgement).
Customary law also applies to other cases, such as livestock disputes, and borrowing on interest disputes.
Many fields of society are lacking law to regulate a number of activities within those fields.718 ‗Waiting‘ for regulations to be derived only from normative legal documents is an unsatisfactory way to improve the Vietnamese legal system because the process of building state law is so slow,719 even perplexing in the process of drafting.720 For example, the development and promulgation of legal documents of the National Assembly and its Standing Committee includes the seven following steps (Articles 22–29 of the Law on the Promulgation of Legal Documents 2008):
715 Duc Thinh Ngo, Luat Tuc M‘Nông, above n 406; see also So Van Hoa Thong Tin Dak Lak, above n 414, 42. 716 According to Article 124 of the Civil Code 2005 ‗Forms of civil transactions‘: ‗A civil transaction shall be expressed verbally, in writing, or specific acts…In cases where it is provided for by law that a civil transaction must be expressed in writing, notarized, authenticated, registered or permitted, such provisions must be complied with‘. In addition, Article 401 provides more details of civil contracts in that ‗A civil contract can be made orally, in writing or by specific acts, unless a specific form for such type of contract is provide for by law. In cases where it is provided for by law that a contract must be expressed in writing with notarization or authentication, must be registered or permitted, such provisions shall be complied with‘. 717 Phat va‘ is the penalty that the person who commits a mistake shall pay to compensate the person who is damaged for something — such penalty may comprise monetary or other penalties, such as a pig and wine. For instance, according to the customary laws of the Thai, Muong, Dao, and Tho ethnic minority peoples, if a son or daughter causes injury to any person, their parents shall be the persons who have responsibility for the fine and must offer an apology to the victim. See also Toa An Nhan Dan Tinh Thanh Hoa, 'Tap Quan va Thuc Tien Xet Xu Trong Moi Quan He Voi He Thong Phap Luat va Thuc Tien Phap Luat o Tinh Thanh Hoa' (Paper presented at the Moi Quan He Giua Tap Tuc va Phap Luat, Lao Cai, 1999) 69 [Trans: People‘s Court of Thanh Hoa Province, ‗Customary Law and Practical Adjudication in Thanh Hoa Province 1999 (Part 4: ‗Liability to compensate for damage outside contract‘)]. 718 Minh Tam Le, Xay Dung va Hoan Thien He Thong Phap Luat Viet Nam, above n 11, 143. 719 Nhung Le, above n 12. 720 L Nhung, above n 703. 217
- Law and ordinance development programmes
- Proposals and recommendations on law/ordinance development
- Verification of proposals and recommendations on law/ordinance
development
- Formulating proposed law/ordinance development programmes
- Process of considering and approving proposed law/ordinance development
programmes
- Implementation of law/ordinance development programmes
- Adjustment of law/ordinance development programmes
As for a Decree of the Government, the procedure shall comply with the following rules:721
- Formulation of the agenda for the development of decrees
- Establishing a Decree Drafting Board
- Collection of comments and ideals as inputs for the preparation of the draft
decree
- Assessment and verification of draft decree
- Improvement and finalisation of draft decrees before submitting them to the
government
721 Luat Ban Hanh Van Ban Quy Pham Phap Luat 2008 (Vietnam) arts 59–66 [Trans: Law on Promulgation of Legal Documents 2008 (Vietnam)]. 218
- Sequential procedures for consideration and approval of draft decrees
As can be seen, the law-making process is very complicated with many phases. At each stage, there are many sub-tasks and sub-steps which need to be conducted. It is unfavourable for circumstances in which social relations need to be regulated in a timely manner.
Vietnam requires clear policies for dealing with the shortcomings in the legal system.
In addition to being aware of the need for greater coordination and appropriate synchronisation of issuing texts, along with checking normative legal documents to delete overlapping and expired legal documents, eliminating duplication or inconsistencies within and between documents, Vietnam would benefit from recognising other sources of law, specifically customary law. This will contribute to effective social dispute resolution and to an overall improvement of the Vietnamese legal system.
5.2.2.6 Function of the courts
The Vietnamese court system consists of the Supreme People‘s Court, Provincial
Municipal courts, District courts, Military courts, and Special courts established by the National Assembly.722
According to the Law on the Organisation of the People‘s Courts 2002, Vietnam has a two tier court system, comprising courts of first instance and courts of appeal. The jurisdiction of district courts (courts of first instance) includes criminal, civil, marriage and family, labour, economic and administrative cases. The provincial
722 Luat To Chuc Toa An Nhan Dan 2002 (Vietnam) art 2 [Trans: Law on Organization of the People's Courts 2002 (Vietnam)]. 219
courts (in several cases, they are also the courts of first instance) and others are courts of appeal.
The major function of courts is adjudicative. Courts, based on legal regulations
(normative legal documents), adjudicate and give a decision for each particular case.
In cases where there is not any law to regulated the particular activity or situation, courts will not be able to handle the case. For instance, the Criminal Code 1999 provides: ‗Only those persons who have committed crimes defined by the criminal code shall be bear the criminal liabilities therefore‘.723
As for the civil field, judges (as the persons who have the right to apply laws) normally have to contend with difficulties in adjudication when the case raises factors beyond the bounds of existing law. In this instance, judges will be very careful in handing down a decision. Lower courts may ask higher courts for advice or use the annual report of adjudication issued by the Judge Committee of Supreme
Court as a guideline for decision making.
If customary law is recognised in Vietnam, the question of the authority of judges to adjudicate on associated disputes with need to be addressed. Given the regulations provided in the Constitution and the Law on the Organisation of the People‘s Court, the state may only define courts‘ jurisdiction in matters under the jurisdiction of state law. Courts will need to be authorised by state law, to handle matters under the jurisdiction of customary law.
723 Bo Luat Hinh Su 1999 (Vietnam) art 2 [Trans: Criminal Code 1999 (Vietnam)]. 220
Figures 2 and 3 provide simplified illustrations of the structure of the state and court hierarchy. These present a general image of court system and its function in the state‘s operation.
221
Figure 2: Structure of the state
National Assembly
(Legislative Body)
President
Supreme People‘s Court Government Supreme People‘s (Judicial Body) (Administrative Body) Prosecution
Provincial People‘s Provincial People‘s Provincial People‘s Provincial People‘s Court Council Committee Prosecution
District People‘s District People‘s District People‘s District People‘s Court Council Committee Prosecution
Commune People‘s Commune People‘s Council Committee
222
Figure 3: Court Hierarchy
Supreme People’s Court (Appellate trials; supervising and reviewing lower courts‘ judgements)
Criminal Civil Court Administrative Economic Labour Court Court Court Court
Appellate Courts Military Tribunal
- Hanoi
- Danang
- TP. Ho Chi Minh
Provincial People’s Court Zoned Military Court (First-instance trials, appellate trials, supervising and reviewing lower courts‘ judgements for criminal, civil, administrative, economic and labour cases)
District People’s Court Local Military Court (First-instance trials for criminal, civil, administrative, economic and labour cases)
223
5. 3 Benefits of Recognising Customary in Vietnam
5.3.1 To cope with the circumstances of ethnic peoples and social changes
Vietnam is an agricultural country where people are organised in groups and divided into villages and hamlets.724 In villages and hamlets, the titles such as village patriarch, head of clan, and head of family are very special and important because they are not only leaders but also judges who solve any disputes arising in the community and clan. In addition, frameworks of organisation and transactions have surprisingly expressed traditional features and play a vital role in inhabitants‘ life.
Customary laws, in such activities, may become an essential means for individual‘s conduct and a community‘s activities because they provide patterns for behaviour.725
Customary law has been binding for generations in the relevant community and fundamentally have become a legal routine of, and the way of life for, the community.726
Along with the Vietnamese village particularity and the multi-ethnic nature of the nation, the rapid change and development of social relations also provide grounds for an expectation of the application of customary law. The breadth and pace of social change is remarkable and marks a degree of social development, but it has also caused an imbalance in the socio-economic framework more generally between different areas (such as, the differences between urban and rural, delta and highland).
724 Vien Nghien Cuu Khoa Hoc Phap Ly Bo Tu Phap, 'Huong Uoc' (Paper presented at the Chuyen De Ve Huong Uoc, Hai Huong, 1995) 82. [Trans: Institute of law Research, Ministry of Justice, Village Conventions, (Paper presented at the Village Conventions in Hai Duong Province 1995)]. According to this paper, ‗Vietnam has about [50,000] villages (mountain villages, highland villages, hamlets…). For instance, Hai Duong Province has 800 traditional villages, Ha Tay and Ha Bac Provinces have from 1.000 to 2.000 communes, Dak Lak has 50.000 E De people, living in 77 highland villages, and Can Tho Province has 600 hamlets…‘ 725 Minh Doan Nguyen, 'Tap Tuc Voi Phap Luat', above n 58, 28. 726 Xuan Dinh Bui, Huong Uoc va Quan Ly Lang Xa, above n 35, 30–1. 224
Vietnam is passing through a transitional period with two basic features. Firstly, many increasing social relations interfere with the old ones, causing a complicated and knotted phenomenon in terms of social management. Secondly, the Vietnamese legal system, based as it is on the legal normative document system, has limitations in regulating new social relations. For those reasons, it is desirable that a diversification of sources of law be examined (and undertaken), particularly in relation to more effectively recognising customary law. This could be a realisable and effective solution that contributes to the creation of an active and flexible legal system for the adjustment of social relations and for the management of the state.
5.3.2 To solve the problem of both supernumerary and the deficiencies of
normative legal documents
According to Vietnamese legislators, the criteria for evaluating normative legal documents are based on their purpose, requirements and quality, and the status of social relations before and after their being regulated by such documents.727 With these criteria, the Vietnamese normative legal document system is supernumerate because the number of normative legal documents is extraordinarily high (about
600.000 normative legal documents are issued yearly). In contrast, it is also deficient, because many social relations in criminal, marriage and family, and civil fields lack adequate legal regulation or even any regulation at all.
By recognising customary law, the shortcomings may be addressed. First, in law making activity, a number of normative legal documents could be replaced by customary laws and as a result, the need for legal documents would be reduced.
727 Minh Doan Nguyen, 'Cac Tieu Chi Danh Gia Tac Dong Cua Van Ban Quy Pham Phap Luat' (2009) 23(160) Nghien Cuu Lap Phap 22, 23–5 [Trans: Minh Doan Nguyen, ‗Criteria for Assessing the Impact of Legal Documents‘ (2009) 23 (160) Journal of Legislative Studies]. 225
Second, in the application and implementation of law, some customary laws could be applied instead of normative legal documents or in cases where legal documents are lacking. Customary law is an important source of law because normative legal systems, however much they are ideal, cannot regulate all social relations, particularly social relations of villages and minority ethnic groups, whose social situations are not covered by national laws. National laws, although theoretically applicable to all peoples, necessarily reflect the majority ethnic group‘s views rather than the views and values of the various ethnic minorities. Customary law may complement the gaps left by state law in many specific cases.728
5.3.3 To improve the relationship between state law and customary law
From a positive perspective, the recognition of customary law may create favourable conditions for the state in regulating social relations.729 Customary law not only regulates social relations in ethnic communities but also accommodates social relations that lack laws to regulate them.
In the relationship between state law and customary law, state law tends to concentrate on the control of society and limiting the autonomy of ethnic groups.
State law‘s tendency is towards a united legal space whereas customary law desires to establish a closed legal room, separate from state law and other customary laws.
Recognition of customary law is where the state creates a legal framework for
728 Minh Thong Le, Luat Nuoc va Huong Uoc Le lang Trong Doi Song Phap Ly Cua Cac Cong Dong Lang Xa (11 January 2011)
customary law, within which the state is able to accommodate customary law while maintaining the supremacy of the national legal order.
In addition, recognising customary law also contributes to the preservation and upholding of traditional cultural values. Recognition can also be a social catalyst and opportunity for communities, clans and families to improve their relationships,730 not only with each other but with the broader community and the state.
5. 4 Conclusion
By assessing the Vietnamese legal system and presenting the benefits of recognising customary law, it can be seen that the recognition of customary law is a reasonable and valuable proposal for Vietnam today. Although state law has advantages,731 it still has certain drawbacks. More sources of law are needed to support and improve the legal system. The diversification of sources of law, in particular the recognition of customary law, is vital for improving the nation‘s legal system. By using custom as a source of law, not only will Vietnam be better placed to address the drawbacks of the current Vietnamese legal system, but, more importantly, Vietnam will meet the requirements for addressing new social relations that are increasingly generated — and ever more rapidly — in Vietnam‘s contemporary society.
730 Minh Thong Le, Luat Nuoc va Huong Uoc Le lang Trong Doi Song Phap Ly Cua Cac Cong Dong Lang Xa, above n 720. 731 Vietnamese law makers consider that state law are effective, flexible and easy to promulgate and abrogate while customary law is backward and hard to change, and precedents may cause abuse of power of judges in the process of adjudication as well as arbitrariness of the court system. 227
6 HISTORY OF CUSTOMARY LAW RECOGNITION IN VIETNAM
6. 1 Introduction
The history of Vietnam can be divided into three basic periods: (i) the first period which extended from the 6th Century BC (the emergence of the Vietnamese State) to
1945, during which the various feudal states within the area now known as traversed periods of growth and contraction, occupation and independence; (ii) the second period, from 1945 to 1975, during which Vietnam was divided into two regions (the
Democratic Republic of Vietnam in the North and the Republic of Vietnam in the
South) due to war. (The period of French domination (1862-1945) is also considered to illustrate that French law and Vietnamese law were simultaneously applied) ; and
(iii) the third period from 1975 up to the present, during which Vietnam has become an independent, united country, and begun building and developing the nation.
This chapter will not going to delve deeply into history but will focus on the existence of customary law during the evolution of the Vietnamese legislative process across those many centuries. The aim is not so much to comment on the merits or otherwise of recognising customary law, but rather to provide evidence demonstrating that customary law has been ‗alive‘ and recognised during
Vietnamese history.
6. 2 The First Period: from the 6th Century BC to 1945
The Vietnamese feudal state was established about the 6th Century BC. In about 179
BC, Chinese invaded the region and ruled Vietnam. After over 1,000 years under
Chinese domination, Vietnam was again independent during the dynasties of Ngo, 228
Dinh, Le, Ly, Tran, Le, and Nguyen, although that period of independence came to a close in 1883 when Vietnam became a French colony.732
In common with other countries around the world, Vietnam built a legal system to manage society and protect the ruling regime when first it established itself as a nation (Van Lang – around the 7th Century BC).733 However, it is very difficult to locate legal documents from this period because they were either unwritten or, when written, not well preserved. Significantly, however, recent research has shown that the main source of law in this period was customary law.734 Customary law comprised rules and regulations used before the state was established and chosen by the rulers who did emerge to support and sustain their role as rulers and for their benefit. In addition, the cultural communes — a form or a unit of community organisation in time before the emergence of the pre-nation, with their own private and distinct village rules — have directly affected the legal system because ‗an agricultural commune was not only a social-economic foundation but also an autonomous organisation. It, therefore, had a very special role in social-economic life in this time‘.735
732 Ngoc Thuan Nguyen, Tuan Anh Le and Thi Kim Anh Tran, Mot So Van Ban Dien Che va Phap Luat Viet Nam Tu The Ky XV Den XVIII (Nha Xuat Ban Khoa Hoc Xa Hoi, 2006) 9 [Trans: Ngoc Thuan Nguyen, Tuan Anh Le and Thi Kim Anh Tran, Some Legal Documents and Vietnamese Law from Century XV to Century XVII, volume 1 (Social Sciences Publishing House 2006)]; see also Ronald J Cima, Vietnam: A Country Study (24 March 2009)
In the period of Chinese domination (179 BC – 939 AD),736 customary law was recognised as an official source of law, co-existing with the dominant Chinese legal system. Indeed even royal decrees issued by Chinese rulers contained a number of ancient customs.737 The Chinese law applied in urban centres while customary law applied in villages and communes738 as language barriers prevented most Vietnamese people, particularly villagers, ‗from gaining a deep understanding of Chinese culture‘.739 Being unable to apply Chinese laws in rural areas of Vietnam, the
Chinese rulers had to accept Vietnamese village rules as a legal form which was appropriate for the Vietnamese native people they sought to rule. Customary law in this period had a similar form to the Vietnamese customary law which emerged from the Hung Vuong dynasty (2879 BC – 258 BC),740 and it was applied widely in a number of social transactions in the region‘s communes and villages.741
After driving out the Chinese, Vietnam was again independent. The rulers still followed the spirit of Chinese law, although it might conflict with customary law.742
Nevertheless, some scholars argue that the Vietnamese feudal laws also significantly considered habits and customs.743 According to Samuel Baron, Vietnamese kings of
736 Ngoc Thuan Nguyen, Tuan Anh Le and Thi Kim Anh Tran, above n 732, 10. 737 Samuel Baron, 'A Description of the Kingdom of Tonqueen' in Awnsham Churchill (ed), A Collection of Voyages and Travels (London, 1704–1732) vol 6, cited in Insun Yu, Law and Society in Seventeenth and Eighteenth Century Vietnam (Korea University, 1990) 50. 738 Gillespie, above n 5, 40–1. 739 Gillespie, above n 5, 41. 740 Cima, above n 732. 741 Thi Nga Vu, 'Qua Trinh Hinh Thanh Nha Nuoc Dau Tien O Viet Nam‘, above n 735, 37. The region under control included much of Southern China and Northern Vietnam. 742 Insun Yu, Law and Society in Seventeenth and Eighteenth Century Vietnam (Korea University, 1990) 3. 743 Van Mau Vu, Co Luat Viet Nam Luoc Khao (Saigon, 1970) 12 [Trans: Van Mau Vu, Overview of the Vietnamese Ancient Law (Saigon, 1970)]. 230
the late 17th century appreciated customary laws, applying them to regulate the conduct of both nobility and the common people.744
During the feudal period of Vietnam (939 – 1945), customary law played a vital role in the Vietnamese legal system. Customary law mainly consisted of village conventions and political customs. The political customary laws were created during the process of state building and management. In the feudal system, the kings often followed the mode of ruling of their predecessors. Therefore, many political customary laws were created and customary law became the key source of law.745
Unfortunately, it appears that no written legal customary law documents survive from the period prior to the 15th century (the Le Dynasty). However, records do exist from the period that refers to such documents (referring, for example, to the Hinh
Thu of the Ly Dynasty (1010–1225) and Hinh Thu of the Tran Dynasty (1226–
1400)). Since the 15th century, customary law was recognised in the Hong Duc Code and Hong Duc Chinh Thien Thu (the Le Dynasty, King Le Thanh Tong 1470–
1497).746 The regulations in the Hong Duc Code and Hong Duc Chinh Thien Thu established legal foundations on which villagers could build and apply customary law or create rules for their own locality, so called local law or private law.
The 15th century Hong Duc Code (Quoc Trieu Hinh Luat), Hong Duc Chinh Thien
Thu and Gia Long Code (Hoang Trieu Luat Le) of 1815 can be considered as the
744 Baron, above n 737, 50. 745 Lan Phuong Ha, 'Nha Nuoc va Phap Luat Trong Nen Quan Chu Chuyen Che Trieu Nguyen 1802- 1884' in Minh Tam Le and Thi Nga Vu (eds), Giao Trinh Lich Su Nha Nuoc va Phap Luat Viet Nam (Nha Xuat Ban Cong An Nhan Dan, 2006) 355 [Trans: Lan Phuong Ha, ‗State and Law in Obsolute Monarchy of Nguyen‘s Dynasty 1802-1884‘ in Minh Tam Le and Thi Nga Vu (eds), Textbook on History of the Vietnamese State and Law (People‘s Public Security Publishing House, 2006)]. 746 Luat Hong Duc (1440–1442) (Vietnam) [Trans: Hong Duc Code (1440-1442)(Vietnam). Article 40 provides that customary law should be applied when disputes occur between Indigenous peoples. A dispute that occurred between Indigenous people and non-indigenous people should, however, be settled by state law. 231
earliest and the most important codes in Vietnam, especially the Hong Duc Code.
The Hong Duc Code was issued about the beginning of the 15th century and then amended several times during the Le dynasty. The Code contained Vietnamese customary laws, and had a number of characteristic features (see below).
Firstly, Le Dynasty laws expressed their reliance on traditions and customary laws.747
In other words, state law, particularly the regulation of ethics and family matters,748 depended on customs, traditional moral standards and village rules to enable the law to be absorbed into the social life of the communities.749 For instance, worship is an important custom in Vietnam‘s society. The Vietnamese people utilise worship in the commemoration of their ancestors, reminding them to follow traditional social and family rules, mores and morality.750 To create conditions for worship, laws provided regulations for the establishment and preservation of worship (Article 389 of the
Hong Duc Code). Based on traditional ethics (including Confucianism, Buddhism, and the Vietnamese ethics), the laws also required children to be respectful and dutiful to parents. Another example is the teacher and student relationship, where a student is required to show deep respect for the teacher; those showing disrespect were to be punished by criminal law (Article 96 of the Hong Duc Chinh Thien Thu).
747 Yu, above n 734, 42; see also Ta Van Tai, above n 59, 525. 748 Thi Nga Vu, 'Tu Tuong Duc Tri va Phap Tri Trong Quoc Trieu Hinh Luat' in Thi Son Le (ed), Quoc Trieu Hinh Luat: Lich Su Hinh Thanh, Noi Dung va Gia Tri (Nha Xuat Ban Khoa Hoc Xa Hoi, 2004) 73, 99–100 [Trans: Thi Nga Vu, Thoughts of Legalism and Governmental Morality in Hong Duc Code‘ in Thi Son Le, Hong Duc Code: History, Contents and Values (Social Science Publishing House, 2004)]. 749 Minh Thong Le, Luat Nuoc va Huong Uoc Le lang Trong Doi Song Phap Ly Cua Cac Cong Dong Lang Xa, above n 728. 750 Minh Tuan Nguyen, 'Ke Uoc va Thua Ke Trong Quoc Trieu Hinh Luat' in Thi Son Le (ed), Quoc Trieu Hinh Luat: Lich Su Hinh Thanh, Noi Dung va Gia Tri (Nha Xuat Ban Khoa Hoc Xa Hoi, 2004) 287, 324 [Minh Tuan Nguyen, ‗Contract and Inheritance in Hong Duc Code‘ in Thi Son Le, Hong Duc Code: History, Contents and Values (Social Science Publishing House, 2004)]. 232
In addition, a number of rites were legalised and traditional modes of behaviour strongly upheld. Article 113 of the Hong Duc Chinh Thien Thu provided that the
King and officials accommodated customary law in order to educate people to be benevolent and righteous. Those deviating from customs and traditions to follow new ideas might be ostracised or excluded from the community, which would be terrible a punishment for villagers.751 Article 642 of the Hong Duc Code also provided that those who did something forbidden shall be sentenced to hard labour or deportation.
Although the law did not state clearly what the something was forbidden, based on
Articles 95 to 102 of the Hong Duc Chinh Thien Thu, and the Proclamation of 24
Instructions for People issued in 1461, this would involve conduct that violated customary laws.752
On some matters, ‗state law‘ gave way to customary law. Customary law would be applied for defining a husband and wife‘s rights to property; the consequences after divorce; and in relation to the issue of child custody following divorce.753 Customary law was also used to define illegitimacy, and the relationship between the father and illegitimate child.
In terms of the relationship between state law and customary law, the Hong Duc
Code sensibly combined the application of customary law and state law.754 For instance, a sense of duty and loyalty were characteristics embodied in customs and
751 Yu, above n 742, 109. 752 Thi Nga Vu, 'Tu Tuong Duc Tri va Phap Tri Trong Quoc Trieu Hinh Luat', above n 748, 100. 753 Phuong Lan Nguyen, 'Gia Tri Cua Quoc Trieu Hinh Luat Qua Cac Quy Dinh Dieu Chinh Quan He Hon Nhan va Gia Dinh' in Thi Son Le (ed), Quoc Trieu Hinh Luat: Lich Su Hinh Thanh, Noi Dung va Gia Tri (Nha Xuat Ban Khoa Hoc Xa Hoi, 2004) 383, 409 [Trans: Phuong Lan Nguyen, ‗Values of Hong Duc Code Regarding to Marriage and Family Regulations‘ in Thi Son Le, Hong Duc Code: History, Contents and Values (Social Science Publishing House, 2004)]. 754 Quoc Hoan Nguyen, 'Quoc Trieu Hinh Luat va Nhung Gia Tri Lap Phap' in Thi Son Le (ed), Quoc Trieu Hinh Luat: Lich Su Hinh Thanh, Noi Dung va Gia Tri (Nha Xuat Ban Khoa Hoc Xa Hoi, 2004) 111, 119 [Trans: Quoc Hoang Nguyen, ‗Hong Duc Code and Legislative Values‘ in Thi Son Le, Hong Duc Code: History, Contents and Values (Social Science Publishing House, 2004)]. 233
played an important role in society. The Hong Duc Code (Article 7(2)), therefore, provided a sanction for undutiful conducts. To protect customs, the Hong Duc Code also regulated the basic marriage and property relations between parents and children. Article 278 provided that children are not allowed to sell their parents‘ real estate when those parents are alive. In regard to marital relationships, Article 308 detailed the obligations of a husband to his wife.
Where conflict occurred between state law and customary law, according to the
Hong Duc Code, state law had to give way to customary law (Article 314 on betrothal gifts; Articles 504 and 511 on children or descendants who accuse parents or forebears, whether alive or dead, of any wrongdoing). In the event that there were different subjects in a case, Article 40 of the Hong Duc Code made provision that if the conflict is between Indigenous people, customary law shall be applied; if the conflict is between Indigenous people and non-Indigenous people, state law shall be applied.
Secondly, village leaders governed village activities.755 In other word, traditional leaders played a vital role, not only in managing villages, but also in regulating social relations, particularly civil transactions such as contracts and inheritance.756 For instance, a contract between parties could be written or witnessed by village dignitaries (Articles 366 and 534 of the Hong Duc Code).
Thirdly, the Vietnamese feudal legal system was influenced by Chinese ideologies such as the Rule of Virtue (Confucius)757 and the Rule by Law (Han Fei).758 The
755 Yu, above n 742, 125. 756 Minh Tuan Nguyen, above n 750, 295. 757 Thi Kim Binh Nguyen, 'Duong Loi "Duc Tri" Cua Nho Giao - Tu Khong Tu Den Manh Tu' (2008) 4(27) Tap chi Khoa Hoc va Cong Nghe Dai Hoc Da Nang 79, 79–84 [Trans: Thi Kim Binh Nguyen, 234
Hong Duc Code legalised regulations that reflected such ideologies, putting them into law to educate people as to what was expected of them. Many regulations of the
Hong Duc Code expressed Rule of Virtue dogmas. Acting contrary to a mode of behaviour prescribe by Confucian teaching was a crime (Article 297 of the Hong
Duc Code).759
In fact, the influence of the Chinese legal system began in the Ly Dynasty (1010–
1225) and then the Tran Dynasty (1226–1400) but, as mentioned earlier, the documents and laws of these dynasties were lost. The most significant recorded impact of the Chinese law on the Vietnamese legal system occurred during the Le
Dynasty (1418–1789), when Confucianism became the orthodox ideology of
Vietnamese‘s political and social fields. For example, rites and filial piety were fully respected in Confucianism. Therefore, in November 1485, King Le Thanh Tong issued a Royal Decree in which the chiefs of provinces and districts were given the responsibility to educate people about the decrees and teaching of ancient and modern rites of previous dynasties, in order to make people follow the good.
‗"Duc Tri" (Governing By Virtues' Political Line) of Confucianism - From Confucius' To Mencius' Time‘ (2008) 4(27) The University of Danang Journal of Science and Technology]. 758 Thi Kim Binh Nguyen, 'Tu Tuong Tri Nuoc Cua Phap Gia Va Giai Tro Cua No Trong Lich Su' (2008) 3(26) Tap chi Khoa Hoc va Cong Nghe Dai Hoc Da Nang 134, 134–9 [Trans: Thi Lim Binh Nguyen, ‗Legalism - The Ideas of Governing A Country and Its Roles in History‘ (2008) 3(26) The University of Danang Journal of Science and Technology]; see also Thi Nga Vu, 'Tu Tuong Duc Tri va Phap Tri Trong Quoc Trieu Hinh Luat', above n 747, 73, 76. 759 Thi Son Le, 'Nhung Dac Diem Co Ban Cua Phap Luat Hinh Su thoi Nha Le Trong Quoc Trieu Hinh Luat' in Thi Son Le (ed), Quan Trieu Hinh Luat: Lich Su Hinh Thanh, Noi dung va Gia Tri (Nha Xuat Ban Khoa Hoc Xa Hoi, 2004) 175, 175–194 [Trans: Thi Son Le, ‗Basic Features of Le Dynasty‘s Criminal Law in Hong Duc Code‘ in Thi Son Le, Hong Duc Code: History, Contents and Values (Social Science Publishing House, 2004)] ; see also Thi Nga Vu, 'Tu Tuong Duc Tri va Phap Tri Trong Quoc Trieu Hinh Luat', above n 748, 96. 235
Rewards were offered to people who were faithful and polite, and punishment for those who violated customary law.760
Although customary law influenced state law, it also demonstrated shortcomings in some respects, such as where customary law permitted early marriage, wife abduction and encouraged male chauvinism. The law supported the position of men rather than that of women, and embodied a strongly patriarchal system.761 The patriarchy confined and bound a women‘s life at each and every stage.762 A woman was bound to respect the wishes of her parents until their death, her husband after marriage and her sons after her spouse‘s death. Indeed, in every social relation, ‗any contracts that [violated the rights of] patriarchy shall be invalid because they are immoral‘.763
Due to the shortcomings of customary law, King Le Thanh Tong wished to limit customary law and village conventions. However, he could not abolish them because they were unwritten laws. In 1475, the King Le Thanh Tong issued a Royal Decree on Censorship of Village Conventions, providing that if any village had ‗new‘ customs, they might issue a ‗convention‘ (or customary law) but the content must contain only a taboo.764 Only state law could have prescriptive power. Article 260 of the Hong Duc Chinh Thien Thu further provided that state law should be followed by the people. Villages should not have their own conventions. If any villages had
760 Van Huu Le et al, Dai Viet Su Ky Toan Thu (1272–1697) (Huy Le Phan trans, Nha Xuat Ban Khoa Hoc Xa Hoi, 1967) 293 [Van Huu Le et al, Complete Annals of Dai Viet ( 1272-1697) (Huy Le Phan trans, Social Science Publishing House, 1967)]. 761 Van Mau Vu, Co Luat Viet Nam Luoc Khao, above n 743, 12. 762 Thi Nham Tuyet Le, Nhung Hu Tuc Bat Cong Trong Vong Doi Nguoi Phu Nu Viet Nam (Nha Xuan Ban Thanh Nien, 2009) 18 [Trans: Unsound Customs in the Life Circle of Vietnamese Women (Thanh Nien Publishing House 2009)]. 763 Luat Hong Duc (1440–1442) (Viet Nam) art 278 [Trans: Hong Duc Code (1440-1442) (Vietnam)]. 764 Unknown, Hong Duc Chinh Thien Thu (Sy Giac Nguyen trans, Nha Xuat Ban Ha Nam, Sai Gon, 1541–1546), 103 [Trans: Unknown, Hong Duc Chinh Thien Thu (Trans: Sy Giac Nguyen, Ha Nam Publishing House, 1959)]. 236
strange customary laws or issued private conventions, such customary laws and conventions had to be issued by traditional leaders. Customary law and conventions had to be approved by the officials in charge of that locality. Customary law or conventions which were regarded as unsactisfactory were rejected. Customary law village conventions could be changed and supplemented if necessary.765
Along with the Hong Duc Code, the Gia Long Code 1815 (Hoang Viet Luat Le) inherited and upheld the legislative experiences — including the application of customary law — of the previous dynasties.766 The Gia Long Code also had regulations expressing its recognition of customary law. For instance, Article 3 (15) provided that the code is applied to the Viet people only. For other minority groups, their own law should be applied. Nevertheless, many customs and especially the provision of phep vua thua le lang (that is, the rules of the king give way to customary law) was abolished by the Gia Long Code. Regulations of Conventions
(Dieu Le Huong Dang) were enacted to regulate customs.767 Unfortunately, as many
Vietnamese scholars claim that the Gia Long Code seems to be largely a copy of the original Code of Qing Dynasty (China),768 research on this code is considerably less than on the Hong Duc Code.
In 1858, the French invaded Vietnam. From 1862–1945, Vietnam was divided into three areas (Northern Vietnam, Central Vietnam, and Southern Vietnam). French law
765 Xuan Duc Bui, 'Huong Uoc Co va Huong Uoc Moi: Nhin Tu Goc Do So Sanh' (2003) 8 Nghien Cuu Lap Phap 63, 70 [Trans: Xuan Duc Bui, ‗Old Village Conventions and New Village Conventions: Regarding to Comparison Angle‘ (2003) 8 Journal of Legal Studies]. 766 Quyet Thang Nguyen, Luoc Khao Hoang Viet Luat Le (Nha Xuan Ban Van Hoa Thanh Nien, 2002) 297 [Trans: Quyet Thang Nguyen, Overview of Gia Long Code (Thanh Nien Cultural Publishing House, 2002)]. 767 Nguyen Luu Le, Van Hoa Hue Xua: Doi Song Van Hoa Lang Xa (Nha Xuat Ban Thuan Hoa, 2006) 126 [Trans: Nguyen Luu Le, Culture of Ancient Hue: Cultural Life of Villages (Thuan Hoa Publishing House, 2006)]. 768 Van Mau Vu, Co Luat Viet Nam va Tu Phap Su (Sai Gon, 1973) 208, 214 [Trans: Van Mau Vu, The Vietnamese Ancient Law and History of Legislation (Saigon, 1970)]. 237
was applied in the south and three biggest cities of Hanoi, Hai Phong and Danang. In other areas feudal law and customary law applied.769
After governing Vietnam for over half a century, the French realised that they could not control the highland people by using their European-based law. They began recognising customary law and applying it in adjudication.770
The French also established a customary court system (tribunal de village) for three ethnic groups, namely the Bana, Sơđang and Jrai (the so-called Tribunal Coutumier or Tribunal Coutumier Officiel). The main purpose of this court system was to settle all the legal issues of Indigenous people in their compliance with their own customs.771 The panel was flexible, and depended on the race of the persons concerned. If the persons concerned were Viet people, the judges would also be Viet people, and the law applied would be state law. If the persons concerned were
Indigenous people, the judges would be Indigenous people, and customary law would be applied. If one party was a Viet person and the other an Indigenous person, then both state law and customary law would be applied to the case. According to
Decision No 196 issued on 7 July 1923 relating to the judicial organisation of
Kontum Province, the application of customary law would be executed as the following regulation:
769 Ngoc Vuong Dinh, 'Khai Niem va Nhung Moi Quan He Cua Phap Luat' in Tri Uc Dao (ed), Nhung Van De Ly Luan Co Ban ve Nha Nuoc va Phap Luat (Nha Xuat Ban Chinh Tri Quoc Gia, 1995) 120, 380 [Tran: Ngoc Vuong Dinh, ‗Concept and the Relationship between State Law and Other Norms‘ in Tri Uc Dao, Basic Theoretical Issues on State and Law (National Political Publishing House, 1995)]. 770 Dang Nhat Phan, 'Toa An Phong Tuc: Mot Kieu Van Dung Phap Luat Co Hieu Qua' (2007) 3 Tap Chi Nha Nuoc Va Phap Luat 19, 19 [Trans: Dang Nhat Phan, ‗Customary Code: An Effective Form of Law Application‘ (2007) 3 State and Law Review]. 771 So Tu Phap Tinh Lam Dong, 'Tham Luan cua So Tu Phap Tinh Lam Dong' (Paper presented at the Moi Quan he Giua Luat Tuc, Huong Uoc va Phap Luat Hien Hanh, DakLak, 1997) 131–2 [Trans: Justice Department of Lam Dong Province, ‗Speech of Justice Department of Lam Dong province‘ (Paper presented at the Relationship between State Law and Customary Law, Dak Lak, 1997)]. 238
Kontum, previously, belonged to Binh Dinh Province, justice tasks would be conducted by Binh Dinh Province. At present, Kontum is independent province; therefore it will need to establish a legal foundation. We agree to appoint an An Nam‘s chief of district and Indigenous people‘s chief of district (Highland) to assist ambassador to handle judicial works as the following: To the cases of An Nam people, the disputes should be settled by An Nam‘s chief of district and applied An Nam‘s law under the supervision of the ambassador. To the cases of Indigenous people in Tay Nguyen, the disputes should be settled by Indigenous people‘s chief of district in Tay Nguyen (Highland) and applied Indigenous law under the supervision of the ambassador. To the disputes between An Nam and Indigenous people, the case shall be settled by the ambassador under the consultation of An Nam chief of district and Indigenous chief of district. In this case An Nam law and Indigenous law are both applied.772
As can be seen, the Vietnamese legal system ‗reflects the country‘s historical experience with foreign intervention‘773 in which customary law was an important source of law. Vietnam today should consider experiences during the time of the feudal dynasties and when the French dominated Vietnam, particularly in relation to their recognition of customary law and the activities of customary courts. This may be of benefit to Vietnam when it is seeking ways to recognise customary law to improve the contemporary legal system.774 The following offers an overview of customary law features for this period:
(i) Being enforceable: Customary law was considered as a source of law. For
instance, Article 40 of the Hong Duc Code (King Le Thanh Tong 1470–1497)
provided that the disputes between Indigenous people should be settled by their
own law; the disputes between Indigenous people and non-Indigenous people
should be settled by the state laws;
772 Thong Bao Quyet Dinh So 196 Cua Trieu Dinh ve To Chuc Tu Phap o Tinh Kontum 1913 (Hoi Dong Nhiep Chinh) [Trans: Royal Anouncement of Decision No 196 on Judicial Administration in Kontum Province 1913 (The Board of Regents)]. 773 Rose, above n 11, 95–6. 774 Dang Nhat Phan, 'Toa An Phong Tuc‘, above n 770, 29. 239
(ii) Reflecting the administrative organism and the mode of life and social
organisation in villages and communes:775 Customs and village rules provided
the regulations to organise and manage villages, the roles and obligations of the
village dignitaries, as well as the obligations of the community members;
(iii) Being a supplementary legal source to support state law: Customary law
supported state law in the social fields where the state lacked appropriate
regulatory provisions (that is, lacked normative legal documents). In other
words, customs were filling a gap. In addition, village rules were an instrument
to ensure that the law would be fully executed in practice. A number of
customs were absorbed into normative legal documents, such as in the legal
regulation of marriage and family, inheritance, land, and trade in the Hong Duc
Code;776
(iv) Having local features: customary law was considered as local law;
(v) Customary law was related to rituals, social order and hierarchy and other
issues such as village security, development and occupation reservation;777
(vi) ‗Custom was king‘:778 State law gave way to the customs (phep vua thua le
lang).779 In many cases, village customs limited the application of feudal state
law because the state law, when disseminated to villages, was refracted by
775 Khac Thuan Dinh, Tuc Le Co Truyen Lang Xa Viet Nam (Nha Xuat Ban Khoa Hoc Xa Hoi, 2006) 27 [Trans: Khac Thuan Dinh, Traditional Customary Law in Vietnam‘s Villages (Social Science Publishing House, 2006)]. 776 Lan Phuong Ha, above n 741, 358. 777 Khac Thuan Dinh, above n 775, 26. 778 Sheleff, above n 71, 83. 779 Gillespie, above n 5, 47. 240
village customs and, as a result, village customs were applied without reference
to the state laws.780
6. 3 The Second Period: from 1945 to 1975
This was the period of civil war in Vietnam, including two phases of the history: the period from 1945 to 1954 and from 1954 to 1975. The historic first period (1945–
1954) was marked by the country gaining its independence from the French who, although unable to halt the Japanese invasion in 1940, had wanted to reassert its dominance on the Indochinese peninsula after World War II. (France had negotiated with China for control of the region in exchange for the loss of French concessions in mainland China (Shanghai, Guangshowan and Hankow)). The people of Vietnam resumed their own bid for independence and, having defeated the French, in 1954 established the Democratic Republic of Vietnam in the North. The 1954 Geneva
Convention, however, left the country divided. The South of Vietnam (where again armies also fought initially against the French, the Japanese, and again the French) had in place a government supported by the United States as fears mounted domestically in the US about the post-WWII ‗communist threat‘. Although the nation was promised a plebiscite on reunification, this never eventuated and from
1954 to 1975, Vietnam remained divided into two parts with different political regimes: the Democratic Republic of Vietnam in the North and the Republic of
Vietnam in the South.
Under such a situation, the legislation in both the North and the South improved slowly and poorly. Customary law, accordingly, was applied unobtrusively during
780 Lan Phuong Ha, above n 745, 359. 241
this period though there were differences in its adoption and application (and its extent) between the North and the South of Vietnam.
In the North of Vietnam (Democratic Republic of Vietnam), customary law was not recognised and applied781 because the government reformed the model of local government organisation into one in which the basic administrative unit consisted of a number of villages, not only a single village as before. More importantly, the government considered that customary law was an under-developed legal form, consisting of thoughts and values that were no longer appropriate; no longer suitable for the new revolutionary era. The government in the North thus recognised and applied, as the sole source of law in the Vietnamese legal system, normative legal documents, which were issued by the new state.
By way of contrast, in the South of Vietnam (the Republic of Vietnam), customary law was regarded as an official source of law. Article 9 of the Civil Code of Saigon
1972 provided that where a law was lacking for a particular case, customary law shall be applied to settle the case.782 On 22 July 1965, the Government of the
Republic of Vietnam promulgated Decree No 006/65 for re-establishing customary courts (which had been established in the period of the French colonisation). The members of the customary court included a tribunal president (the Administrative
Committee chairman (village chief) would be a tribunal president) and two
Indigenous (highlanders) jury members who were nominated by their minority group.783 The customary courts only had jurisdiction on civil cases and minor
781 Phan and Bui, above n 56, 124. 782 Bo Luat Dan Su Sai Gon (Viet Nam Cong Hoa 1972) art 9 [Trans: Civil Code of Saigon (Republic of Vietnam 1972)]. 783 Nghi Dinh No.006/65 ve Tai Thiet Lap Toa An Phong Tuc 1965 (Viet Nam Cong Hoa) [Trans: Decree No.006/65 on Re-establishment of Customary Law 1965 (Republic of Vietnam)]. 242
criminal cases, and the persons concerned in such cases must be Indigenous people
(highlanders).784
To be a judge appointed to hear such a case, the village chief of the particular
Indigenous people concerned not only had to understand customs deeply but also be professional in terms of being able to undertake the procedures of adjudication so as to avoid ill-effects to the persons concerned and society more generally.785
Unfortunately, few documents of the sort required for detailed research remain from this period. Due to war and for a number of other reasons, most records of the adjudication of customary law cases that did exist were lost, as were other related materials. Therefore, anyone attempting to research customary law practices for this period encounters serious difficulties.
6. 4 The Third Period: from 1975 to the present
Since 1975, Vietnam has been an independent and united country. Following reunification, a new legal system was established; however, customary law was not recognised because the law-makers considered that it had numerous weaknesses, such as being antiquated, limited to particular localities and, being traditional, often unchanging and unchangeable, and so unable to keep abreast of situations arising in the development of the modern Vietnam. Principally for these reasons, customary law has not been recognised in the Vietnamese legal system since 1975.
The most prominent factors contributing to changes in attitudes towards customary law in the 1980s were The Exchange of Land and Doi Moi policies. The Exchange of
784 Nghi Dinh No.006/65 ve Tai Thiet Lap Toa An Phong Tuc 1965 (Viet Nam Cong Hoa) [Trans: Decree No.006/65 on Re-establishment of Customary Law 1965 (Republic of Vietnam)]. 785 Nghi Dinh No.006/65 ve Tai Thiet Lap Toa An Phong Tuc 1965 (Viet Nam Cong Hoa) art 6 [Trans: Decree No.006/65 on Re-establishment of Customary Law 1965 (Republic of Vietnam)]. 243
Land allowed people to enter into a contract with the state where the state would assign land to households. The exchange of land led to the establishment of new communities and also offered the opportunity to gather former residents of an area together once again. This policy also provided an opportunity for the traditional structure of the family and villages (as had existed before the war) to be rebuilt and, consequently, the traditional values of culture and customary law to gradually recover.
In 1986, Vietnam decided to reform the economy under a new policy: the Doi Moi
(Renovation) policy, starting with allocating cooperative land to householders.786 To implement the Doi Moi policy, Vietnam would need to build a new legal system, and began by amending the Constitution 1959. As a result, the 1980 Constitution was enacted.
On te issue of customary law, although Article 3 of the Constitution 1980 provided that ‗All nationalities have the right to preserve or reform their own customs and habits, to use their spoken and written languages, and to develop their own national culture‘, customary law was still not recognised because normative legal documents were considered to be the best basis for law, and also sufficient regulate all social relations.
Sine the 1990s, customary law has attracted considerably more attention from the
Vietnamese government. The reasons for this are related to changes in the economic and social conditions in Vietnam.
786 Dang Hung Vo and Nhu Trung Tran, 'Land Administration for Poverty Reduction in Vietnam' (Paper presented at the Good Land Administration: Its Role in the Economic Development, Ulaanbaatar, Mongolia, 27–29 June 2007) 2. 244
With the Doi Moi policy in place since 1986, Vietnam‘s economy has moved from a centrally planned economy based on the two tiers of the state and co-operative sectors, to a multi-sector economy that includes state-owned enterprises, collective economic sectors, individual economic sectors, private capitalist economic sectors and state capitalist economic sectors. The economic reforms have led to social and legal changes. There are, for example, a number of civil and commercial relations that now occur for which there is regulation (or legislation or guidelines) in place to regulate them.787 This situation is ongoing.
Due to the changes in economic relations, social relations (such as inheritance, marriage and family, civil transactions and land) have also changed. The state law, with its ageing regulations, could not be expected to be able to cover all the new social relations that are occurring. To some extent, in social relations where state law does not reach, customary law may dominate.788 Customary law, in this special circumstance, became an important source for the regulation of such social relations.
Customary rules are spontaneously applied in the social fields of Indigenous peoples, such as those involving land and forest management;789 ownership rights, property disputes and disputes regarding lost livestock, issues of marriage, inheritance,
787 See more details in Chapter 5 ‗The Vietnamese Legal System‘. 788 Duy Nghia Pham, 'Confucianism and the Conception of the Law in Vietnam' in John Gillespie and Pip Nicholson (eds), Asian Socialism & Legal Change: The Dynamics of Vietnamese and Chinese Reform (ANU E Press, 2005) 76, 86–8. For example, with two conferences on Customary Law (the Conference on the Relationship between State Law and Customary Law 1997 in DakLak Province and the Conference on the Relationship between State Law and Customary Law 1999 in Lao Cai Province), a number of researchers argued that customary law, regardless of its recognition or non-recognition by the state, co-exists with the state law. For more details, see So Tu Phap Tinh DakLak, 'Tham Luận Cua So Tu Phap Tinh DakLak' (Paper presented at the Moi Quan He Giua Luat Tuc, Huong Uoc va Phap Luat Hien Hanh, DakLak, 1997) 35 [Trans: Justice Department of DakLak Province, ‗Speech of Justice Department of DakLak Province‘ (Paper presented at the Relationship between Customary Law and State Law, DakLak Province, 1997)]; So Tu Phap Tinh Lam Dong, above n 770, 132–3. 789 Huy Tuan Hoang, 'Decentralization and Local Politics of Forest Management in Vietnam: A Case Study of Cơ Tu Ethnic Community' (2006) 52 Journal of Legal Pluralism 169, 171. 245
contract and tort.790 Customary law offers not only rules for social relations but also dispute settlement methods that are mutually agreed upon and implemented voluntarily by all members of the community.791 In practical terms, customary law is the first choice for dispute settlements in minority ethnic communities.792
In addition, customary law also involves social agreements in order to preserve and protect community‘s society and culture.793 For instance, the H‘Mông ethnic minority people have a custom of ‗agreement‘ (an uoc), where they enter an agreement on forest protection, village security and regulations involving reward and punishment. Hence, customary law is an essential factor in minority ethnic community society. However, customary law remains a controversial issue.
Although Vietnamese legislators consider customs and village conventions as social
790 Quoc Anh Tran, above n 713, 101–6; Xuan Tien Ha, 'Tap Quan va Thuc Tien Xet Xu Cac Vu An Dan Su cua Toa An Nhan Dan Tinh Lao Cai' (Paper presented at the Moi Quan He Giua Tap Tuc va Phap Luat, Lao Cai, 1999) 82–5 [Trans: Xuan Tien Ha, ‗Customs and Practical Adjudication of Civil Cases in the People‘s Court of Lao Cai Province‘ (Paper presented at 'The Relation between State Law and Customary Law, Lao Cai, 1999)]; Ngoc Lan Nong, 'Tap Quan, Luat Tuc Hon Nhan Gia Dinh Mot So Dan Toc It Nguoi O Tinh Lao Cai Va Nhung Van De Dat Ra' (Paper presented at the Moi Quan He Giua Tap Tuc va Phap Luat, Lao Cai, 1999) 55–60 [Trans: Nong, Ngoc Lan, ‗Customs and Marriage and Family Customary Law of Ethic Communities in Lao Cai Province and Some Proposals‘ (Paper presented at the Relationship between Customary Law and State Law, Lao Cai, 1999)]. 791 Ngoc Trach Nguyen, 'Mot Vai Van De Luat Tuc va Van Dung Luat Tuc Tren Co So Phap Luat Thong Qua Phong Trao Xay Dung Nep Song Van Hoa, Gia Dinh Van Hoa o Mien Nui Tinh Quang Ngai' (Paper presented at the Moi Quan He Giua Tap Tuc va Phap Luat, Lao Cai, 1999) 50 [Trans: Ngoc Trach Nguyen, ‗Customary Law and Customary Law Application in Accordance with State Law through the Movement of Building Cultural Lifestyle and Cultural Family in the Highland Areas in Quang Ngai Province‘ ( Paper presented at 'The Relation between State Law and Customary Law, Lao Cai, 1999)]. 792 Nha Y, Loc Nguyen and Phi Y, 'Giai Quyet Tranh Chap Dan Su Trong Luat Tuc Ê Đê — M'Nông' (2001) 2 Tap Chi Nghien Cuu Lap Phap 51, 51–8 [Trans: Nha Y, Loc Nguyen and Phi Y, ‗Civil Dispute Settlement in Customary Law of Ê Đê – M‘Nông (2001) 2 Journal of Legal Studies]; see also Trung Lap Phung, 'Ve Boi Thuong Thiet Hai Ngoai Hop Dong Trong Luat Tuc Ê Đê và M'Nông' (2008) 9(198) Dan Chu va Phap Luat 60, 60–4 [Trans: Trung Lap Phung, ‗Liability to Compensate for Damage Outside Contract in Customary Law of ÊĐê and M‘Nông‘ (2008) 9 (198) Democracy and Law]; Quang Tuyen Nguyen, 'Van De Thua Ke, Dat Dai Trong Luat Tuc Bana' (2008) 2 Tap Chi Luat Hoc 54, 56–7 [Trans: Quang Tuyen Nguyen, ‗Issues of Inheritance and Land in Bah Nar‘s Customary Law‘ (2008) 2 Law Review]. 793 Sy Giao Le, 'Luat Tuc: Su Hinh Thanh va Vai Tro Cua No Trong Doi Song Cua Mot So Cong Dong Dan Cu Nuoc Ta' (2000) 7 Tap Chi Nha Nuoc Va Phap Luat 57, 58 [Trans: Sy Giao Le, ‗Customary law: Origin and its Role in Some Communities‘ Life‘ (2000) 8(148) State and Law Review]. 246
norms,794 other people argue that customary law and village conventions are one of
Vietnam‘s cultural values, and that they are law created by communities to regulate social relations occurring in localities.795
The greatest value of customary law is the preservation of community self- management in the community through village leaders. In villages (such as villages of the Cham), the Paley Council is a ‗Conciliation council‘ or ‗Customary Board‘ and its membership may include religious dignitaries, the village patriarch and head of clan.796 Based on customary law, the main duties of a Paley Council are to control everyday order in the community, ensure environmental protection797 and manage forest resources.798
In addition, there are a number of customary laws expressing gender equality (such as the customary law of the Jarai), the unity of the community (such as the customary law of the Bah Nar)799 and respect for traditional rites (such as for customary law the
Thai). For instance, the customary law of the Thai People in Mường Muối (Thuan
794 Huu Nghi Pham, 'To Chuc Quan Ly O Thon, Ap, Ban: Thuc Trang va Giai Phap Doi Moi, Hoan Thien' (2002) 2 Tap Chi Nghien Cuu Lap Phap 64, 66 [Trans: Huu Nghi Pham, ‗Organizing and Managing Hamlets and Mountain Villages: Practice and Solution for Improvement‘ (2002) 2 Journal of Legal Studies]. 795 Vinh Thang Thai, 'Huong Uoc: Mot Hinh Thuc Phap Luat Dac Thu Cua Viet Nam' (2003) 2 Tap Chi Nghien Cuu Lap Phap 66, 70 [Trans: Vinh Thang Thai, ‗Village Convention: A Specific Legal Form of Vietnam‘ (2003) 2 Journal of Legal Studies]; see also So Tu Phap Tinh Thanh Hoa, 'Van Dung Tap Quan Vao Cong Tac Xay Dung Cac Van Ban Phap Quy O Dia Phuong' (Paper presented at the Moi Quan He Giua Tap Tuc Va Phap Luat, Lao Cai, 1999) 96–9 [Trans: Justice Department of Thanh Hoa Province, ‗Accommodating Customary Law in Building Local Normative Legal Documents‘ (Paper presented at the Relationship between Customary Law and State Law, Lao Cai, 1999)]. 796 Tien Hung Truong, 'Su Can Thiet Van Dung Luat Tuc cua Nguoi Cham Trong Quan Ly Nha Nuoc O Chinh Quyen Cap Co So' (2005) 3 Nha Nuoc va Phap Luat 44, 45 [Trans: Tien Hung Truong, A Need for Application of Cham‘s Customary Law in Management at Grassroots Level‘ (2005) 3 State and Law]. 797 Van Chung Pham, 'Luat Tuc va Vai Tro Cua No Trong Doi Song Cac Dan Toc Thieu So Kon Tum' (2007) 2 Tap Chi Toa An Nhan Dan 26, 26–7 [Trans: Van Chung Pham, ‗Customary Law and its Roles in Ethnic Community in Kon Tum‘ (2007) 2 Journal of People‘s Court]. 798 Cong Tuan Ha, 'Su Dung Luat Tuc, Huong Uoc: Mot Chien Luoc Quan Ly Rung' (2006) 3(71) Nghien Cuu Lap Phap 41, 43–5 [Trans: Cong Tuan Ha, ‗Applying Customary Law and Conventions: A Strategy of Forest Management‘ (2006) 3 (71) Journal of Legal Studies]. 799 Quang Tuyen Nguyen, 'Van De Thua Ke, Dat Dai Trong Luat Tuc Bana', above n 792, 57. 247
Chau) provides in details for a ritual system, including one chapter (XI) with articles from 138 to 150 comprising strict regulations for religious officials (there are 18 different religious officials) and for worship.800
Nevertheless, customary law has shortcomings because it is local and unwritten.
Although state law has several regulations related to village and hamlet activities, village people principally follow customary law and village conventions, ignoring state law. This attitudes of ignoring state law has resulted from the traditional custom of phep vua thua le lang (where the rules of the king give way to customary law).801
In many civil disputes (such as ownership of property and civil transactions) and marriage and family disputes (adultery and division of property during divorce), customary law is applied instead of state law.802
Similarly, customary law also deeply influences marriage and family relationships.
For instance, according to the customary law of the Cham People, marriage (and divorce) shall be permitted by arrangements made by the parents (of the couple) and customary council of the community.803 The Bah Nar are also married in accordance with their customary law.804 State law is completely disregarded. In fact, however, the state is difficult to abolish customary law. Hence, the state tends to attempt to harmonise with it with state law, and find a way in which to accommodate customary law. The approach is to align it with state law while preserving and upholding
800 Duc Thinh Ngo and Trong Cam, Luat Tuc Thai O Viet Nam (Nha Xuat Ban Van Hoa Dan Toc, 1999) 43 [Trans: Duc Thinh Ngo and Trong Cam, Customary Law of the Thai in Vietnam (Nationalities Culture Publishing House, 1999)]. 801 Dang Dung Nguyen, 'Mot Xa Hoi Lang Xa' (2003) 11 Nghien Cuu Lap Phap 20, 22 [Trans: Dang Dung Nguyen, ‗A Village Society‘ (2003) 11 Journal of Legal Studies]. 802 Nha Y, Loc Nguyen and Phi Y, above n 791, 51–8; see also Phung, above n 792, 60–64; Quang Tuyen Nguyen, 'Van De Thua Ke, Dat Dai Trong Luat Tuc Bana', above n 792, 56–7. 803 Tien Hung Truong, 'Su Can Thiet Van Dung Luat Tuc cua Nguoi Cham‘, above n 796, 46. 804 Quang Tuyen Nguyen, 'Tim Hieu Van De Hon Nhan va Gia Dinh Trong Luat Tuc Bah Nar' (2008) 1 Nha Nuoc va Phap Luat 31, 31–3 [Trans: Quang Tuyen Nguyen, ‗Studying Marriage and Family Customary Law of Bah Nar‘ (2008) 1 State and Law]. 248
traditional values, and abolishing unsound customs (such as polygamy, marriage between related persons, the custom of thach cuoi (where a girl‘s family issues a request for specific wedding presents from a prospective groom‘s family) and that of noi day (a levirate marriage applied to widowers as well as widows; that is, where a husband or wife dies, the surviving spouse must marry the deceased‘s sibling in the case of a widower, one of the wife‘s sisters, in the case of a widow, one of the husband‘s brothers if at all possible)).805
Another concern with customary law is that individual rights are not significantly considered in communities. Members of the community may not be aware of their individual rights because they consider that ‗rights‘ belong to the community.806
Also, depending on the community, individuals themselves limit their own individuality, preferring to adhere to community values and mores, so limiting the diversity within the community.807 Moreover, the community‘s strong influence on the individual may lead to the creation of a very self-contained society,808 resulting in a world that would be quite different from the wider Vietnamese society.
In order to allow the development of individual character, uphold values of customary law and abolish unsound customs that are not appropriated to modern
805 Ngo and Chu, above n 84, arts 97, 98; see also Thi Mung Bui, 'Nguyen Tac Ap Dung Phong Tuc, Tap Quan Trong Luat Hon Nhan va Gia Dinh Nhin Tu Goc Do Gioi' (2007) 3 Tap Chi Luat Hoc 46, 46–50 [Trans: Thi Mung Bui, ‗Principles for Applying Customary Law in Marriage and Family Law Regarding to Gender‘ (2007) 3 Law Review]; Dinh Hoan Le, 'Tim Hieu Luat Tuc Ê Đê ve Hon Nhan va Gia Dinh' (2007) 1(178) Dan Chu va Phap Luat 56, 56 [Trans: Dinh Hoan Le, ‗Studying Marriage and Family Customary Law of Ê Đê‘ (2007) 1 (178) Democracy and Law]; Quang Tuyen Nguyen, 'Tim Hieu Van De Hon Nhan va Gia Dinh Trong Luat Tuc Bah Nar', above n 804, 33. 806 Tri Hao Vo, 'Xay Dung Lang Xa Phu Hop Voi Nha Nuoc Phap Quyen' (2004) 12 Tap Chi Nghien Cuu Lap Phap 36, 37 [Trans: Tri Hao Vo, ‗Building Village to Comply with Rule of Law State‘ (2004) 12 Journal of Legal Studies]. 807 Xuan Dinh Bui, 'Huong Uoc va Phap Luat' in Duc Thinh Ngo and Dang Nhat Phan (eds), Luat Tuc va Phat Trien Nong Thon Hien Nay (Nha Xuat Ban Chinh Tri Quoc Gia, 2000) 895 [Trans: Xuan Dinh Bui, ‗Village Conventions and State Law‘ in Duc Thinh Ngo and Dang Nhat Phan (eds), Customary Law and the Development of Rural Areas in Vietnam Today (National Political Publishing House, 2000)]. 808 Dang Dung Nguyen, 'Mot Xa Hoi Lang Xa‘, above n 801, 27. 249
society, a collection of relevant statistics and classification of customary law is essential. Customary laws can then be systematically evaluated and compared with state law809 in order to allow it to be applied in a manner that reflects the spirit of the various communities in law810 whilst also ensuring the necessary degree of social security and national unity.811
Facing social reality, the Vietnamese government has taken initial steps towards recognising customary law, starting with further amendments of the constitution. The
1992 Constitution is the fourth (after the constitutions of 1946, 1959, and 1980) and replaces the 1980 Constitution in order to usher in and serve a new era of customary law recognition in Vietnam.
Article 5 of the 1992 Constitution provides: ‗Every nationality has the right to use its own language and system of writing, to preserve its national identity, and to promote its fine customs, habits, traditions and culture‘. With this basic regulation, essentially an itinerary for the recognition of customary law, a new chapter in the Vietnamese legal history has opened.
Based on the spirit of the 1992 Constitution, several legal documents have been issued in relation to customary law. On 19 June 1998 the Prime Minister issued
Direction No 24/1998/CT-TTg to facilitate the creation and implementation of village conventions. Direction No 24 also aims to preserve Indigenous habits and
809 Tien Hung Truong, 'Ve Mot So Bien Phap Van Dung Luat Tuc Cua Nguoi Cham Trong Quan Ly Nha Nuoc Cua Chinh Quyen Cap Xa O Ninh Thuan' (2006) 2 Nha Nuoc va Phap Luat 8, 8 [Trans: Tien Hung Truong, ‗Several Methods for Applying Cham‘s Customary Law in Management of Village Government in Ninh Thuan‘ (2006) 2 State and Law]. 810 Ngoc Son Bui, 'Mot Goc Nhin ve Su Phan Chieu Truyen Thong Trong Phap Luat Viet Nam' (2004) 2 Tap Chi Khoa Hoc Phap Ly 7, 11 [Trans: Ngoc Son Bui, An Outlook of Reflecting Tradition in the Vietnamese Law‘ (2004) 2 Legal Sciences Journal]. 811 Huu Nghi Pham, above n 794, 66. 250
customs, encourage the recognition of appropriate customary law and the abolition of unsound customs.812
Despite Direction No 24/1998/CT-TTg, there were still shortcomings with the issue and implementation of village conventions, including a lack of guidance for building village conventions; the contents of some village conventions were not practical or did not accord with the state law; drafting and approval of village conventions did not comply with the law of jurisdiction; and the procedures for issuing village conventions were inconsistent.
Supporting Direction No 24, on 31 March 2000 the Ministry of Justice, the Ministry of Culture and Information, and the Standing Committee of the Central Committee for Vietnamese Fatherland Front issued Joint Circular No 03. Joint Circular No 03 stipulates the form and content to be present in village conventions. A village convention should embody good customs and habits, and assure and uphold liberty and democracy in the community. Unsound customs (such as early marriage and patriarchy) are to be abolished.813 According to Joint Circular No 03, the content of village conventions should contain appropriate methods in order to encourage local people to participate in the state management, ensure and uphold goods habits and custom, and protect the property of the community and individuals.
812 Chi Thi 24/1998/CT–TTg Ngay 19/06/1998 Cua Thu Tuong Chi Phu Ve Viec Xay Dung va Thuc Hien Huong Uoc, Quy Uoc Cua Lang, Ban, Thon, Ap, Cum Dan Cu [Trans: Directions No24/1998/CT-TTg, 19 June 1998 issued by Prime Minister for Building and Implementing Village Conventions of Villages, Communal Subdivisions, and Inhabitant Groups]. 813 Thong Tu Lien Tich So 03/2000/TTLT/BTP-BVHTT-BTTUBTUMTTQVN Ngay 31/03/2000 Ve Viec Huong Dan Viec Xay Dung va Thuc Hien Huong Uoc, Quy Uoc Cua Lang, Ban, Thon, Ap, Cum Dan Cu [Trans: Joint Circular No.03/2000/TTLT/BTP-BVHTT-BTTUBTUMTTQVN, 31 March 2000 on Instructions of Building and Implementing Village Conventions of Communal Subdivisions, and Inhabitant Groups (Ministry of Justice, Ministry of Culture and Information, and Standing Committee of Central Committee for Vietnamese Fatherland Front)]. 251
Joint Circular No 03 also provided procedures for drafting, approving and executing village conventions to suit ethnic communities. Village conventions must be based on local people‘s opinions and they should be approved by a plenum of community members (more than half of the votes).
Unfortunately, 10 years after its introduction, there has been evaluation of the Joint
Circular‘s implementation. In general, the role of judicial cadres has improved in building village conventions in localities. According to Joint Circular No 03, judicial cadres at village level have the responsibility for assisting local people how to draft village conventions. They prepare documents to submit to the authorities for approval. They are also the one who evaluate village conventions in the locality.
The Law on Marriage and Family 2000 is considered as an important step in the recognition of customary law in the field of marriage and family. Article 6 of the
Law on Marriage and Family provides: ‗In marriage and family relationship, customary laws which express national traditions and comply with the principles of the Law on Marriage should be applied‘. Along with the Law on Marriage and
Family 2000, Decree No 32/2002/NĐ-CP was issued on 27 March 2002 by the
Government. It provides detailed instructions on how to apply the Law on Marriage and Family for minority ethnic groups, and how to bring customary law into line with state law. According to Decree No 32, customary law is recognised and applied for ethnic groups in the field of marriage and family. It also provides rules for the
252
relationship between the husband and the wife, parents and children and between members of the family.814
In 2005 the Politburo Bureau issued two resolutions. Politburo Resolution 48-
NQ/TW (dated 24 May 2005) regulates the strategies for the development and improvement of Vietnam‘s legal system to the year 2010, and offers direction for the period up to 2020. The aim of this Resolution is to improve the legal system including via the recognition of customary law. The Politburo Resolution No 48 provides that the government, by upholding and maintaining traditional customs and ethics, should improve the law for minority ethnic groups and religions whilst still assuring social equality and freedom.815 Politburo Resolution No 49-NQ/TW also recognises that in the process of judicial reform Vietnam should preserve national traditions and customs.816
The most prominent evidence for the recognition of customary law can be seen in the
Civil Code 2005 and Commercial Law 2005. According to Articles 12 and 13 of the
Commercial Law 2005, customary law and practices shall be applied in commercial activities pre-established between parties817 and in commercial activities.818 The
814 Nghi Dinh so 32/2002/ND-CP Quy Dinh Viec Ap Dung Luat Hon Nhan va Gia Dinh Doi Voi Dan Toc Thieu So (Vietnam) arts 2, 9, 10, 13 and 14 [Trans: Decree No 32/2002/ND-CP on Instructions to apply the Law on Marriage and Family for minority ethnic groups (Vietnam)]. 815 Nghi Quyet 48–NQ/TW Ngay 24/05/2005 Cua Bo Chinh Tri ve Chien Luoc Xay Dung va Hoan Thien He Thong Phap Luat Viet Nam Den Nam 2010, Dinh Huong Den Nam 2020 [Trans: Politburo Resolution 48-NQ/TW, 24 May 2005 issued by Politburo Bureau on the Strategies for the Development and Improvement of Vietnam‘s Legal System to the Year 2010 and Direction for the period up to 2020]. 816 Nghi Quyet 49–NQ/TW Ngay 02/06/2005 Cua Bo Chinh Tri ve Chien Luoc Cai Cach Tu Phap Den Nam 2020 (Bo Chinh Tri) [Trans: Politburo Resolution 49-NQ/TW, 2 June 2005 issued by Politburo on the Strategies of Judicial Reform up to 2020)]. 817 Luat Thuong Mai 2005 (Vietnam) [Trans: Commercial Law 2005 (Vietnam)]. Article 12 provides: ‗Except otherwise agreed, the parties shall be regarded as automatically applying customs in commercial activities pre-established between them which they have already known or ought to know, provided that such customs are not contrary to the provisions of law‘. 818 Luat Thuong Mai 2005 (Vietnam) [Trans: Commercial Law 2005 (Vietnam)]. Article 13 provides: ‗Where it is neither provided for by law nor agreed by the parties, and there exist no customs pre- 253
Civil Code also contains several regulations relating to customary law recognition. In regard to civil transactions, Civil Code 2005 provides: ‗A civil transaction shall be effective when…the purpose and contents of the transaction are not contrary to social ethics‘ (Article 122); and that ‗Civil transactions with purposes and contents contravening social ethics shall be invalid…Social ethics are common standards of conduct among people in social life, which are recognized and respected by the community‘ (Article 128).
Similarly, according to Article 3 of the Civil Code 2005, custom may be applied if it complies with the principles of state law. ‗In an instance where it is neither provided for by law nor agreed upon by the parties, [customary] practices can be applied (…).
Practices must not contravene the principles provided in this code‘. This is an important legal regulation in settling complicated civil transactions. The Civil Code
2005 provides clearly for the cases where a civil transaction may be understood in different ways. A transaction must be interpreted according to the following order: (i) according to the true desires of the parties when the transaction was established; (ii) according to the meaning consistent with the objective of the transaction; (iii) according to the practices of the locality where the transaction is established.819
Following is a case to illustrate the recognition of customary law in Vietnam in accordance with Article 14 of the Civil Code 1995 (now Article 3 of the Civil Code
2005).
Ms Loan vs Mr Thanh
established between them, commercial practices shall be applied provided that such practices are not contrary to the principles provided for in this Law and the Civil Code‘. 819 Bo Luat Dan Su 2005 (Vietnam) arts 126, 409 [Trans: Civil Code 2005 (Vietnam)]. 254
(Civil Case of ‘19 Hours Brushwood’)
Facts: A dispute arose between Ms. Loan and Mr. Thanh. Ms. Loan claimed Mr.
Thanh for taking the ‗Brushwood‘ and the place of fishing.
Ms Loan, a fishing ship-owner, employed Mr Huong as a helmsman. Mr. Huong built ‗Brushwood‘ in the sea 19 hours by boat from the Long Hai coast. Thus, it is called ‗Cay cha 19 tieng‘ (19 Hours Brushwood). Mr Huong had caught fish in this area since 1992. After Mr Huong terminated the contract, Ms Loan employed Mr
Hung as replacement helmsman. In 1999, Ms Loan knew that Mr Hung gave Mr
Thanh the ‗Brushwood‘; therefore she sued Mr Thanh for taking the ‗Brushwood‘ and the place of fishing.
Issue:
- Whether Ms. Loan has the right to ask Mr. Thanh for the return of the
‗Brushwood‘?
- Whether customary law should be applied in this case?
Judicial Reasoning:
Holdings at first instance, appellate judgments and reconsideration:
1. In the first-instance judgment No. 94 rendered by the People‘s Court of Long
Hai District on 13 October 2000, the court decided that the plaintiff had no
right to ask for the return of the ‗Brushwood‘;
255
2. In the appellate judgment No 46 rendered by the Appellate Court of the
People‘s Court of Ba Ria-Vung Tau Province on 14 December 2000, the
court decided that defendant must return the ‗Brushwood‘ to the plaintiff.
3. In the Reconsideration No 93/GĐT-DS rendered by the Civil Court of the
Supreme People‘s Court on 27 May 2002, the court annulled the appellate
judgment No 46 rendered by the Appellate Court of the People‘s Court of Ba
Ria-Vung Tau, and restored the first-instance judgment No 94 rendered by
the People‘s Court of Long Hai District.
Consideration of the Supreme People‘s Court:
Ms Loan asked for the return of ‗Brushwood‘ from Mr Thanh but she had no evidence to prove that the ‗Brushwood‘ was hers. Mr Hung, the person who received the ‗Brushwood‘ from Mr Huong to catch fish, confirmed that when he gave the fishing place to Mr Thanh, the ‗Brushwood‘ no longer existed. Ms Loan also confirmed that the cost for building the Brushwood has been deducted from every time of fishing. It means that expenses for fishing had to include the cost for building the Brushwood. Thus, although the Brushwood would have existed when Mr Thanh received the place of fishing (the location of Brushwood), it was not owned by Ms
Loan.
In relation to the right to exploit the fishing place the Court ruled that the location was a great distance from the coastal area, and the prior right to fishing is not regulated by law there. Thus, customary law should be applied to determine the priority of fishing. According to the ascertainment of local authorities and a professional body (the Long Hai Seafood Committee), the helmsman is the person
256
who has the right to choose and allow other persons to exploit a fishing place.
Moreover, once a place that has been exploited has been vacated for more than three months, other persons have the right to use/exploit/fish the area.
Thus, Mr Thanh exploited the disputed fishing place in complete accord with customary law.
Discussions and Comments:
In this case, the courts used customary law in the settlement of a civil dispute. It can be seen that a number of customs were applied. Customary law 1: The helmsman
(not the shipowner) has the right to choose a place for fishing. The case shows that
Mr Huong was the first helmsman that chose that fishing place, and then Mr Hung continued to choose that place. Customary law 2: The helmsman has the right to exploit the fishing place. The shipowner (Ms Loan) cannot choose a fishing place and so does not have the right to ask for the return of that fishing place. Customary law 3: If a fishing place is vacated for more than three months, other persons have the right to use it. There was evidence that Mr Hung had not exploited the fishing place for more than three months. Hence, Mr Thanh has the right to exploit it.820
In addition, the case also revealed conditions for applying customary law: (1)
Customary law shall not be applied if state law is available. In this case, according to the court, the exploited fishing place is a marine area that is far distant from the coast for which there was no state legal regulation. Thus, customary law could be applied.
(2) Customary law shall not be applied if the parties have other agreements. In this
820 Van Dai Do, Luat Hop Dong Vietnam: Ban An va Binh Luan An (Nha Xuat Ban Chinh Tri Quoc Gia, 2008) 21 [Trans: Van Dai Do, Vietnam Contract Law: Judgment and Commentaries (National Political Publishing House, 2008)]. 257
case no any other agreements were in existence. Hence, customary law could be applied. (3) Customary law shall not be applied if it is contrary to state law and social morality. In this case, the given customary laws comply with state law and morality.
Therefore, customary law could be applied.821
The Civil Code 2005 and the Commercial Law could be seen as a major breakthrough in recognising customary law after a long period during which it was regarded very negatively. However, regulations in the Civil Code are just
‗principles‘; they do not indicate which principles and which customs (which party‘s customs in a civil transaction) shall be applied. In addition, giving to judges the right to decide whether customary law shall be applied or not may cause problems. In instances where a party requests that custom be applied to his/her case in accordance with Article 3 of the Civil Code 2005, the court, and only the court, will decide whether custom should be applied to the case or not. It means that only the court has the jurisdiction to decide the ‗legal nature‘ of the approach to be taken in the case.822
In other words, the recognition of customary law depends entirely on the court
(noting that, under the Vietnamese legal system, judges are not law-makers). This may lead to arbitrariness and subjectiveness on the part of the court. On the other hand, to avoid facing obstacles when applying customary law, judges may not be willing to apply customs because the legal regulations in relation to customs are not sufficiently explicit.823
821 Ibid 21–3. 822 Vuong Long Le, above n 52, 30. 823 Thi Tuyet Mai Nguyen, 'Tap Quan Phap Va Viec Thuc Hien Nguyen Tac Ap Dung Tap Quan Trong Bo Luat Dan Su Nam 2005' (2009) 5(142) (March 2009) Tap Chi Nghien Cuu Lap Phap 48, 48–51[Trans: Thi Tuyet Mai Nguyen, Customary Law and Principles for Application of Customs in Civil Code 2005, (2009) 5(142) Journal of Legal Studies]. 258
6. 5 Conclusion
The recognition of customary law has endured throughout Vietnamese legal history, from the feudal period to contemporary society. Although the formal recognition of customary law has sometimes been discontinued, it has demonstrated its value by contributing to the regulation of social relations. In regard to the current legal system, customary law is also recognised in a limited number of fields, most notably in relation to particular civil cases. There is no recognition for criminal, administrative and other fields. Hence, a regime for choosing the social fields in which customary law is recognised and applied is needed. In addition, in order ensure that customs become law in the true sense of this word,824 the government should have a synchronous solution for: defining standards for custom to be transformed into customary law; establishing the jurisdiction for recognising customary law; and training judges and juries who may be chosen to settle cases according to customary law.
824 The Quyen Nguyen, 'Hoan Thien Cac Quy Dinh Ve Xay Dung Phap Luat' (2009) 15(152) Nghien Cuu Lap Phap 16, 17 [Trans: The Quyen Nguyen, ‗Improving Regulations of Law Building‘ (2009) 15 (152) Journal of Legal Studies]. 259
7 VIETNAM AND THE ISSUE OF CUSTOMARY LAW
7. 1 Vietnam’s Viewpoint on Legal Pluralism
The concept of legal pluralism is largely be absent from the Vietnamese scholarly literature. The mention of legal pluralism (if any) is insufficient, both in nature and in content, and few approach the topic. Any such research tends towards historical and ethnographic studies, not studies of customary law.825
Despite some positive steps, during the last decade, towards formal recognition of customary law, legal pluralism and customary law do not appear to be prospering.
The reasons may be related to the Vietnamese understanding of the concept of law,
Vietnam‘s specific political circumstances, and the positive view of normative legal documents and negative attitude towards customary law.
7.1.1 Centralist paradigm of law
Vietnam follows the paradigm of legal centralism in which the only ‗law‘ is state law. Law (state law) is a system of rules of conduct, expressing the ruling class‘s will and the leadership of the Communist Party of Vietnam. Law is issued and assured of implementation by being enforced with the support of the power of the state (state
825 Huy Cuong Ngo, 'Cu The Hoa Quan Dien ve Tap Quan Phap Theo Nghi Quyet 48-NQ/TW cua Bo Chinh Tri' (2010) 3+4(164+165) Nghien Cuu Lap Phap
coercion).826 Law, therefore, differs from other social norms such as customary law and religious law.
According to Vietnamese legislators, law is a stable and united system, possessing a universal normative character, a defined form, with adherence supported by state coercion.827
The normative character of the law expresses the scope in which subjects are able to conduct themselves freely in the permitted domain. Going beyond this scope would be considered breaking the law. Since law upholds a pattern of behaviour, it must be typical, specific and systematic. In addition, law should be universal because it covers a wide range of social activities. The state will provide for the social activities or behaviours that it considers the most logical and make them the law for every subject in the nation.828
In reality, it is not only law that possesses normative character. Other norms — such as mores (customs or conventions characteristic of a given community), customary law, religious dogmas, and morality or ethics — are also normative. However, the difference between law and other social norms is its regulatory scope. For instance, customary law may be able to have an impact on subjects in a certain locality; religious dogmas may be applied for adherents whereas (state) law can be applied to
826 Minh Tam Le, 'Ban Chat, Vai Tro va He Nguyen Tac Co Ban cua Phap Luat Xa Hoi Chu Nghia', above n 13, 336. 827 Thi Minh Ha Nguyen, 'Vi Tri cua Van Ban Quy Pham Phap Luat trong He Thong Phap Luat' (2006) 5 Tap Chi Nha Nuoc Va Phap Luat 32, 32 [Thi Minh Ha Nguyen, ‗The Position of Normative Legal Documents in the Legal System‘ (2006) 5 State and Law Review]. 828 Minh Tam Le, 'Ban Chat, Vai Tro va He Nguyen Tac Co Ban cua Phap Luat Xa Hoi Chu Nghia', above n 13, 330; see also Ngoc Vuong Dinh, 'Khai Niem va Nhung Moi Quan He Cua Phap Luat', above n 769, 126. 261
every individual, organisation and entity in the country. The regulatory scope of law therefore, is far wider than that of social norms.829
The second attribute of law is the defined form in which law should be expressed, namely in an external, concrete, written-form, such as normative legal documents
(Acts, Ordinances and Decrees, and so forth). In addition, legal regulations (the content of law) should be written in legal language and be accurate, clear and unambiguous so that it is able to be understood and applied without delay. The defined form locates the law is reflected in hierarchy of legal documents, and the issuing authority.
The final characteristic of state law is state coercion.830 By the power of the state, law provides compulsory rules for every subject831 in a wide range of activities and behaviours.832 State law applies across the entire nation, not just to a specific part or parts (in terms of class, geography or ethnicity and so on).
The prevalence of the point of view that state law alone is ‗real‘ or genuine law has meant that, Vietnam has disregarded other sources of law such as customary law.
7.1.2 Political influence on the sources of law
Along with the prevailing concept of law, the political regime also exerts an important influence on the Vietnamese legal system. Law is the means to institutionalise the policies of the Communist Party of Vietnam. Hence, law should originate from its policies. The mission of law is to assure the leadership of the
829 Ngoc Vuong Dinh, 'Khai Niem va Nhung Moi Quan He Cua Phap Luat', above n 769, 126. 830 Minh Tam Le, 'Ban Chat, Vai Tro va He Nguyen Tac Co Ban cua Phap Luat Xa Hoi Chu Nghia', above n 13, 332. 831 Ngoc Vuong Dinh, 'Khai Niem va Nhung Moi Quan He Cua Phap Luat', above n 769, 120. 832 Minh Tam Le, 'Ban Chat, Vai Tro va He Nguyen Tac Co Ban cua Phap Luat Xa Hoi Chu Nghia', above n 13, 332. 262
Communist Party of Vietnam and, at the same time, law is the framework for the activities of the Party and of other bodies.833
In Vietnam, the Communist Party of Vietnam‘s policies are the very soul of law and provide its foundation. The party line on issues and its policies are decisive in the process of building, improving and implementing the legal system.834 By law, the
Parties policies are transformed into legal regulations, applicable to the whole society.835
The state, with its role of social management, uses law as an essential means to regulate social relations in accordance with the will of the ruling class. The
Vietnamese state uses normative legal documents as the single way to achieve this goal.836
7.1.3 Positive view of normative legal documents and negative outlook on
customary law
Normative legal documents comprise a legal form, in that legal regulations are presented in written documents. These documents are clear and precise, applicable to for the whole nation. In addition, normative legal documents may be rapidly issued
833 Thi Minh Ha Nguyen, above n 827, 35. 834 Phuoc Tho Nguyen, 'Mot So Suy Nghi ve Doi Moi Phuong Thuc Lanh Dao Dang Doi Voi Nha Nuoc Trong Boi Canh Viet Nam Hien Nay' (2008) 10 Tap Chi Nha Nuoc Va Phap Luat 3, 5 [Trans: Phuoc Tho Nguyen, ‗Some Ideas About the Improvement of the Leadership of Communist Party of Vietnam Today‘ (2008) 10 State and Law Review]; see also Thai Duong Tran, 'The Che Hoa Duong Loi Cua Dang' (2004) 12 Nghien Cuu Lap Phap 42, 42–3 [Trans: Thai Duong Tran, Institutionalizing Communist Party of Vietnam‘s Lines‘ (2004) 12 Journal of Legislative Studies]; Viet Thieu Vu, 'Moi Quan He Giua Xay Dung Phap Luat va Thuc Hien Phap Luat: Y Nghia Thuc Tien' (2007) 9(107) Nghien Cuu Lap Phap 36, 36–7 [Trans: Viet Thieu Vu, ‗The Relationship between Law Building and Law Implementation: Practical Sense‘ (2007) 9 (107) Journal of Legislative Studies]. 835 Viet Thieu Vu, above n 834, 36. 836 Thi Minh Ha Nguyen, above n 827, 34. 263
to meet the requirements of society. Thus, they are considered the basic and dominant source of law in Vietnam today.837
According to Vietnamese scholars, in comparison with customary law, normative legal documents offer great advantages as a source of law in terms of transferring legal contents offering, consistency of structure and the potential for a well- coordinated and synchronous system. During the process of law making, normative legal documents are arranged by fields and issues.838 Besides that, normative legal documents are stable and predictable. The draft Act is often sent to law universities and to other relevant organisations (such as labour unions and women‘s groups) for their feedback. This encourages people to participate in the process of law making.
Law produced in this matter is also predictable because it follows the rule of law and accord with the need of society.839
While normative legal documents are held in high esteem, customary law is regarded very negatively. According to Vietnamese scholars, because customary law is unwritten, it can only be inexactly understood. It is also often difficult to apply across a broad range of people and places.840 Customary law is also sometimes contrary to state law; for example, where it allows a couple to be married without a
837 Thi Hoi Nguyen, 'Cac Loai Nguon cua Phap Luat Viet Nam Hien Nay' (2008) 12(128) Nghien Cuu Lap Phap 11, 13 [Thi Hoi Nguyen, ‗Sources of Law in Vietnam Today‘ (2008) 12 (128) Journal of Legislative Studies]. 838 Van Tu Hoang, 'Chat Luong cua Luat, Phap Lenh va Moi Quan He Giua Quy Trinh Lap Phap voi Chat Luong cua Luat, Phap Lenh' (2006) 6 Tap Chi Nha Nuoc Va Phap Luat 19, 21[Trans: Van Tu Hoang, ‗The Quality of Acts and Ordinances and the Relationship between Legislative Process and the Quality of Acts and Ordinances‘ (2006) 6 State and Law Review]; see also Van Tu Hoang, 'Danh Gia Chat Luong Du An Luat, Phap Lenh Hien Nay' (2006) 7(79) Nghien Cuu Lap Phap 18, 18–9 [Trans: Van Tu Hoang, ‗Assessing the Quality of Act and Ordinance Projects‘ (2006) 7 (79) Journal of Legislative Studies]; Tri Hao Vo, 'Minh Bach Hoa Phap Luat' (2003) 7 Nghien Cuu Lap Phap 83, 83 [Tran: Tri Hao Vo, ‗Transparency of Law‘ (2003) 7 Journal of Legislative Studies]. 839 Tri Hao Vo, 'Minh Bach Hoa Phap Luat', above n 838, 83. 840 Thi Hoi Nguyen, above n 837, 15. 264
marriage certificate, or permits polygamy and other unsound customs that are deemed inappropriate for a modern society.841
In addition, customary law has a huge number of unsystematic customs, possibly leading to arbitrary application.842 More importantly, Vietnam has not enacted the legislation and regulations required for the systematic recognition of customary law.
Some scholars, although supporting the legal form of normative legal documents, argue that this form has several disadvantages. First, regulations are established from general patterns of behaviour; therefore, their contents are sometime unclear, hard to understand, and may be inappropriate for situations that occur in real life.843 In practice, normative legal documents may be unable to anticipate all cases that arise in life and regulate them in advance, since social relations are too general and various and difficult to anticipate. Subsequent events may reveal a gap in the law.844 Because
Vietnamese normative legal documents cannot regulate all social relations, they often contain a statement such as ‗having other rights and obligations according to regulations of law‘. This statement is considered to be an effective solution covering any situations that may happen later or of which legislators are aware at the time issuing normative legal document. However, judges who apply the law may be
841 Van An Luu, 'Luat Tuc Voi Su Phat Trien Nong Thon Vung Dan Toc, Mien Nui' (2006) Tap Chi Ly Luan Cua Uy Ban Dan Toc
confused because they may not know what are the ‗other rights and obligations‘; or judges may issue subordinate law documents to supplement rights and obligations.845
Second, there is a lack of in unity and coordination of and synchronisation between normative legal documents in the legal system. Most Acts and Ordinances (as two forms of regulation) carry potential risks of inconsistency. The government has sought to avoid this problem by using various phrases in the legislation, such as
‗previous normative legal documents that are contrary to this Act/ Ordinance shall be avoided‘. However, there is no listing of normative legal documents that are considered ‗previous‘, thus contributing to uncertainty. Another sentence often used is: the ‗Government shall regulate the details for the implementation of this
Act/Ordinance‘, but there is no typically date indicated by which the Government should have issued the detailed subordinate legal documents so crucial to the implementation of the legislation.846
According to Nguyen, the Vietnamese legal system is flawed because it is complicated and not ‗concrete‘.847 Most Acts and ordinances are in reality only framing regulations. In order for law to come into real life, the National Assembly authorises Government to issue a series of guiding documents. Consequently, the legislative responsibility is put on shoulders of the executive rather than the legislative arms of government.848 It may cause serious overlaps between the
845 Van Tu Hoang, 'Danh Gia Chat Luong Du An Luat, Phap Lenh Hien Nay', above n 838, 19–20. 846 Ibid. 847 Am Hieu Nguyen, 'Kinh Nghiem Phap Dien Hoa Phap Luat va Van De cua Viet Nam' (2006) 6 Tap Chi Nha Nuoc Va Phap Luat 14, 18 [Trans: Am Hieu Nguyen, ‗Codification Experiences and the Case of Vietnam‘ (2006) 6 State and Law Review]. 848 Dinh Loc Nguyen, 'Mot So y Kien Nghien Cuu ve Sua Doi Hien Phap 1992' (2001) (Dac San) 1 Nghien Cuu Lap Phap 49, 56–7 [Trans: Dinh Loc Nguyen, ‗Some Ideas of Amendment of Constitution 1992‘ (2001) (Special Issue) 1 Journal of Legislative Studies]. 266
legislative rights of the National Assembly and the administrative rights of the
Government.849
For example, Article 11 of the Law on the State Budget 1993 provides that budget for activities of social organisations in some cases shall be subsidised in accordance with the Government. In this case, the Government (not the National Assembly which enacts the law), has full power to issue normative legal documents regulating budget subsidisation.
Finally, law-making skills and the present forms are also problematic. The process of drafting and issuing a normative legal document is more costly and longer than the processes for other sources of law.850 In practice, legislators will issue normative legal documents if they consider that these are needed. However, the question of whether the normative legal documents issued are working in real life or not seems to be ignored.851
In conclusion, although many Vietnamese scholars point out the disadvantages of normative legal documents, they mainly focus on the issues of ‗improving legislative
849 Kim Thoa Nguyen, 'Uy Quyen Trong Linh Vuc Xay Dung Van Ban Quy Pham Phap Luat' (2001) 9 Nghien Cuu Lap Phap 50, 53 [Trans: Kim Thoa Nguyen, ‗Proxy for Building Normative Legal Documents‘ (2001) 9 Legislative Studies Journal]; see also Anh Son Nguyen and Thi Thu Thuy Le, 'Van Ban Quy Pham Phap Luat: Hieu The Nao Cho Dung' (2006) 5(75) Nghien Cuu Lap Phap 16, 22 [Trans: Anh Son Nguyen and Thi Thu Thuy Le, ‗Normative Legal Documents: What They Exactly Mean‘ (2006) 5 (75) Journal of Legislative Studies]; Hong Anh Vu, 'Ve Tieu Chi Xac Dinh va Tham Quyen Ban Hanh Van Ban Quy Pham Phap Luat cua Cac Co Quan Nha Nuoc' (2008) 2 Tap Chi Luat Hoc 3, 3 [Trans: Hong Anh Vu, ‗Criteria to Define the Authority of Normative Legal Documents Issuance of National Organs‘ (2008) 2 Law Review]. 850 Thi Hoi Nguyen, above n 837, 13; see also Van Dai Do, 'Toa An Nhan Dan Toi Cao Voi Van De Giai Thich Phap Luat Dan Su o Viet Nam', above n 844, 5. 851 Sy Hien Bui, 'Ban ve Tinh Minh Bach Cua Phap Luat Va Van De Dan Chu Hoa Viec Soan Thao, Ban Hanh Van Ban Quy Pham Phap Luat' (2002) 11 Nghien Cuu Lap Phap 35, 37 [Trans: Sy Hien Bui, ‗Discussing about Explicitness of Law and Democracy in Drafting and Issuing Normative Legal Documents‘ (2002) 11 Journal of Legal Studies]. 267
activities‘852 or ‗improving and enhancing legislative skills of legislators‘853 but there is no proposal for recognising other sources of law. Law, however, should be in line with practice.854 Hence, Vietnam should adopt a more positive point of view in assessing and recognising the values of other sources of law in order to have appropriate and realistic policies to improve the legal system.
7. 2 Overview of Human Rights and Ethnic Policies in Vietnam
Vietnam is home to 54 ethnic groups, with a population of almost 86 million. It is a multi-ethnic country with many religions.855 Over 2,000 years of building and protecting the country, the policies on improving the life of the people, preserving the national character, and developing human rights have consistently attracted considerable attention from the Vietnamese State. Vietnam is a member of almost all important international human rights treaties, and accordingly many regulations and the contents of international conventions are institutionalised in the Vietnamese legal system.
Nevertheless, there remain shortcomings in human rights in Vietnam, especially human rights relating to ethnic minorities. This part will explore two aspects: 1) the achievements in human rights protection in general and in ethnic communities in particular; 2) shortcomings in human rights protection, including international
852 Sy Dung Nguyen, 'Thu Ban ve Viec Doi Moi Hoat Dong Lap Phap', above n 708, 13; Hung Cuong Ha, 'Hoan Thien He Thong Phap‘, above n 704, 20; Tu Long Nguyen, 'Quan Diem cua Dang ve He Thong Phap Luat Trong Dieu Kien Xay Dung Nha Nuoc Phap Quyen XHCN' (2008) 9(125) Nghien Cuu Lap Phap 9, 11 [Tran: Tu Long Nguyen, ‗Point of View of Communist Party of Vietnam of Legal System in Socialism Rule-of-Law State‘ (2008) 9 (125) Journal of Legal Studies]. 853 Minh Doan Nguyen, 'Chat Luong Cua He Thong Phap Luat Thuc Dinh Bao Dam Quan Trong Cua Thuc Hien Phap Luat' (2009) 3 Tap Chi Luat Hoc 22, 30 [Trans: Minh Doan Nguyen, ‗The Quality of Legal System: Important Guarantee for Law Implementation‘ (2009) 3 Law Review]. 854 Minh Ha Hoang, 'Luan Ban Ve Tinh Hop Ly Cua Van Ban Quy Pham Phap Luat' (2008) 3(192) Dan Chu & Phap Luat 9, 10 [Trans: Minh Ha Hoang, ‗Discussing about the Logicality of Normative Legal Documents‘ (2008) 3 (192) Democracy and Law]. 855 Government Committee for Religious Affairs, above n 19, 5. 268
concerns about Vietnam‘s fulfilment of its human rights obligations. This examination will provide a firm foundation fore returning to the central concern of this thesis: why Vietnam should recognise customary law.
7.2.1 Vietnam‘s perspective on human rights
According to Vietnam‘s scholars, the universality of human rights is historical and objective.856 In the modern world, human rights have attracted attention from states and the international community. Human rights are seen as an achievement of civilisation and benchmark for social breakthroughs.857
Particularity is also a major characteristic of human rights. Human rights are considered as a part of national history and depend on a state‘s economic and cultural development.858 The particularity reflects a limitation of scope, subject and difference in human rights in different social, cultural and economic backgrounds.859
Although human rights are recognised as the rights of humanity, they are not only the rights of individuals. In the eyes of the government of Vietnam and Vietnamese scholars generally, they are within the ambit of the rights of self-determination of a nation. This is in accord with the special situation of Vietnam whose desire for independence has, over the course of its long history, been stymied by colonisation by many countries. As a result, it has created in Vietnam a sensational national spirit,
856 Khanh Vinh Vo, 'Quyen Con Nguoi: Gia Tri Xa Hoi, Tinh Pho Bien va Tinh Dac Thu' (2009) 5(253) Tap Chi Nha Nuoc Va Phap Luat 60, 60 [Trans: Khanh Vinh Vo, ‗Human Rights: Social Values, Universality and Particularity‘ (2009) 5 (253) State and Law Review]. 857 Duc Thai Cao, 'Quyen Con Nguoi Trong Thoi Ky Doi Moi: May Van De Ve Nhan Thuc va Ly Luan Thuc Tien' in Khanh Vinh Vo (ed), Quyen Con Nguoi: Tiep Can Da Nganh va Lien Nganh Khoa Hoc Xa Hoi (Nha Xuat Ban Khoa Hoc Xa Hoi, 2009) 15, 15 [Trans: Duc Thai Cao, ‗Human Rights in Renovation Period: Some Issues of Awareness and Practical Theory‘ in Khanh Vinh Vo, Human Rights: Interdisciplinary Approach of Social Sciences (Social Science Publishing House 2009)]. 858 Ibid 15–36. 859 Chu, above n 520, 9–10. 269
one that values its culture and place, and yet one that has been exposed to many legal ideologies and cultures from different schools of thought from around the world, and ultimately chosen its own way.
In the period when Vietnam was under the imperial rule of China (207 BC–905 AD), the idea of human rights was demonstrated by the continuing struggle for independence against the rule of China, yet the period also left a lasting legacy with
Vietnamese thought, both in cultural and political life, have been affected by
Confucianism, Taoism, and Rule by Law Theory of Han Fei Tu. During its period of relative independence, in order to maintain peaceful coexistence, Vietnam often remained a tributary state to its more powerful near neighbour China, although this relationship was marred by military conflict on a number of occasions, including in the 11th and later the 15th centuries. This period also saw the addition of Buddhism to the range of sources of patterns for behaviour, ethics and mores, and its own emphasis on the value and place of persons. Vietnam also repelled Mongol invasion in the 13th century and was again occupied by China for a period in the 15th. These experiences only served to strengthen the people‘s desire for independence and an enduring peace. As early as the 11th century, the kingdom also sought to expand further south and unite an area similar to that which Vietnam today occupies. This expansion continued in the 14th and 15th centuries. The original occupants of the region (the Cham people) remain a significant ethnic minority within the country.
Like China and later Japan, the ruling dynasties often viewed western ideas and their propagators with a degree of suspicion, and the rejection of westernisation has been a sustained underlying current that, in part, reflects these countries‘ own nationalism and pride in their respective cultures.
270
Colonisation by France in the early 19th century brought with it exposure to yet another range of materials (including the Code Civile of Napoléon) and ideas (such as those embodied in the works of Montesquieu, Voltaire and Jean Jacques
Rousseau), as well as the unique contradiction that the country that had so powerfully espoused the cause of ‗liberté, égalité, et fraternité‘ (freedom, equality and brotherhood) was now a colonising power. This had been preceded more than a century earlier by Christian missionary activities (not always was received and, at some stages, subject to brutal persecution), but these activities had also introduced another set of mores and customs and ideas, that were further encouraged under the
French.
At the beginning of 20th century, the conception of human rights was known in
Vietnam though the ideologies of Voltaire, Montesquieu and Rousseau. Vietnamese patriots against the French, such as Phan Chu Trinh and Phan Boi Chau, consciously applied these ideologies in their struggle for the ‗rights of man‘ (les droits de l‘homme) in Vietnam.860
Since 1945, the North of Vietnam has been independent. Given the country‘s hard- won independence from French colonial rule and other earlier and later aggressors, it should not be unexpected that the nation would reluctant to cede its power to another institution national or international. The Proclamation of Independence of the
Democratic Republic of Vietnam in 1945 asserted that human rights are not only the
860 Dang Dung Nguyen et al, 'Lich Su Phat Trien va Quan Diem, Chinh Sach Co Ban cua Dang, Nha Nuoc Viet Nam ve Quyen Con Nguoi' in Dang Dung Nguyen, Cong Giao Vu and Khanh Tung La (eds), Giao Trinh Ly Luan va Phap Luat ve Quyen Con Nguoi (Nha Xuat Ban Chinh Tri Quoc Gia, 2009) 509, 518 [Trans: ‗Developmental History and Point of View and Policies of Communist Party of Vietnam and Vietnamese State about Human Rights‘ in Dang Dung Nguyen, Cong Giao Vu and Khanh Tung La, Textbook on Theory and Law of Human Rights (National Political Publishing House, 2009)]. 271
rights of individuals but also involve the right to self-determination of the state.861
This spirit has been confirmed by a number of international multilateral and bilateral conventions and declarations, where the rights of the nation as a whole (and as an entity in relation to its people) are upheld. For example, such as the April 1993
Bangkok Declaration emphasised ‗the principles of respect for national sovereignty…as well as ―non-interference in the internal affairs of States, and the non-use of human rights as an instrument of political pressure‖‘.862 Whilst the
Bangkok Declaration stresses the ‗universality, objectivity and non-selectivity of all human rights‘863 it nevertheless recognises that ‗[these rights] must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds‘.864 The June 1994 Vienna Declaration affirmed the principle of non-interference and stated that ‗national and regional characteristics and various historical, cultural and religious backgrounds must be borne in mind‘. It appeared to insist on the pre-eminence of an internationally determined consensus on human rights and their expression rather then one determined by the individual national state.865
861 Ngoc Vuong Dinh, 'Chu Quyen Quoc Gia va Nhan Quyen' in Khanh Vinh Vo (ed), Quyen Con Nguoi: Tiep Can Da Nganh va Lien Nganh Khoa Hoc Xa Hoi (Nha Xuat Ban Khoa Hoc Xa Hoi, 2009) 163, 163–4 [Trans: Ngoc Vuong Dinh, ‗National Sovereignty and Human Rights‘ in Khanh Vinh Vo, Human Rights: Interdisciplinary Approach of Social Sciences (Social Science Publishing House 2009)]; see also Duc Thai Cao, 'Tu Tuong Quyen Con Nguoi Trong Tuyen Ngon Doc Lap Nam 1945 Cua Chu Tich Ho Chi Minh' (2005) 90 Tap Chi Cong San
Human rights and the nation‘s right to self-determination are two types of rights but are unified and rely on each other. Individual rights are associated with basic national rights and both of them are the scope of national sovereignty. However, as their existence and expression are linked with the history and tradition of each state, and depend on the particular economic and cultural backgrounds, the standards or models of human rights are thus unable to be simply copied by one country from another.866
In Vietnam, reflecting a universal common trend, human rights are considered as a foundation for development and a core element of the doctrine of development,867 but it is believed that they should accompany national rights and be placed under national control.868
In brief, human rights are the common values of humankind, and contain both universal features and specific characteristics. The Universal Declaration of Human
Rights embodies the rights of people whilst the United Nations Charter also proclaims the basic principles of respecting and ensuring equality in regard to
universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedom.‘ 866 Hung Vu, 'Thanh Tuu ve Nhan Quyen o Viet Nam Trong Nhung Nam Qua' (2004) Bao Dien Tu Dang Cong San Viet Nam
national sovereignty.869 In addition, the Declaration of the World Conference on
Human Rights held in Vienna, Austria, on 25 June 1993, although targeting human
rights, stated that all nations have the right to self-determination in that they have the
right to make their own decisions on political institutions and the way of economic,
social and cultural development.870 The prevailing view in Vietnam is that human
rights, while very important, must be placed in the framework of national
sovereignty as a whole.871
7.2.2 International human rights conventions and international treaties relating to
human rights that Vietnam has ratified
Together with other nations, Vietnam has shown significant consideration for human
rights. Since 1975 (after the nation gained independence), Vietnam has ratified the
following human rights conventions:872
1. Convention on the Prevention and Punishment of the Crime of Genocide 1948
(ratified 9 June 1981)
2. International Covenant on the Elimination of All Forms of Racial Discrimination
(ICERD) 1965 (ratified 9 June 1981)
869 Charter of the United Nations art 1(2). 870 Vienna Declaration [2]. 871 Duc Thang Nguyen, 'Thuc Chat Cua Luan Thuyet "Nhan Quyen Cao Hon Chu Quyen"' (2007) 17(137) Tap Chi Cong San
3. International Convention on the Suppression and Punishment of the Crime of
Apartheid (ICSPCA) 1973 (ratified 9 June 1981)
4. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed Conflicts (Protocol I) 1977
(ratified 28 August 1981).
5. The International Covenant on Civil and Political Rights (ICCPR) 1966 (ratified 24
September 1982)
6. The International Covenant on Economic, Social and Cultural Rights (ICESCR)
1966 (ratified 24 September 1982)
7. Covenant on the Elimination of All Forms of Discrimination Against Women
(CEDAW) 1979 (ratified 18 December 1982)
8. Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes Against Humanity 1973 (ratified 4 June 1983)
9. Covenant on the Rights of the Child (CRC) 1989 (ratified 20 February 1990)
It should be noted that although Vietnam as been a signatory to the Declaration on
the Rights of Disabled Persons 1975 since 22 October 2007, it (like the US) has yet
to ratify this Declaration. It has been submitted to the National President for
ratification.873
873 Trung Dang Ha, above n 872. 275
Having been a member of the International Labour Organization (ILO) since 1992, and since 1994 Vietnam has ratified a number of international conventions relating to human rights protection and international humanitarian law, including:
C5 Minimum Age (Industry) Convention 1919
C6 Night Work of Young Persons (Industry) Convention 1919
C14 Weekly Rest (Industry) Convention 1921
C27 Making of Weight (Packages Transported by Vessels) Convention 1929
C29 Forced Labour Convention 1930
C45 Underground Work (Women) Convention 1935
C80 Final Articles Revision Convention 1946
C81 Labour Inspection Convention 1947
C100 Equal Remuneration Convention 1951
C111 Discrimination (Employment and Occupation) Convention 1958
C116 Final Articles Revision Convention 1961
C120 Hygiene (Commerce and Offices) Convention, 1964
C123 Minimum Age (Underground Work) Convention 1965
C124 Medical Examination of Young Persons (Underground Work)
Convention 1965
C155 Occupational Safety and Health Convention 1981
C182 Worst Forms of Child Labour Convention 1999.874
However, some other international conventions have not been ratified, including the
C169 Indigenous and Tribal Peoples Convention 1989 (ILO 169); the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
874 Ibid. 276
(CAT) 1984; the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families (ICRMW) 1990, and two protocols: the Optional Protocol to the International Covenant on Civil and Political
Rights; and the Second Optical Protocol to the International Covenant on Civil and
Political Rights, Aiming at the Abolition of the Death Penalty.
The reason that Vietnam has not ratified such conventions is related to the difference between Vietnam and other countries in terms of understanding and interpretation of terms in a convention. For example, Article 1 of the Indigenous and Tribal Peoples
Convention 1989 (ILO 169) provides:
This Convention applies to: (a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
According to the Vietnamese government, Vietnam does not have Indigenous people that term is expressed in the Convention. All groups within the country are regarded as ‗ethnic‘; that is, they have a particular ethnicity, whether they are the majority
Vietnam or one of the numerous minority ethnic groups. Thus, the government deems it inappropriate to be a member of this convention.
However, Vietnam voted in support of the United Nations Declaration on the Rights of Indigenous People adopted by the General Assembly 13 September 2007.
277
Vietnam‘s perspective on human rights, accordingly, comes closer to international human rights standards.875
7.2.3 Human rights of ethnic communities in Vietnam
Since 1986 Vietnam has established various instruments at the national level to protect human rights, including the rights of minority ethnic communities and
Indigenous people. Firstly, economic policy and the legal system have been reformed, with the major goals to protect and develop human rights876 and to take special care of vulnerable groups, including ethnic minorities.877 From 1986 to the present, Vietnam has issued and amended around 13,000 laws and subordinate laws where civil and political rights have been more clearly, completely and specifically recognised.878 Secondly, Vietnam has also been working against discrimination between social, religious and ethnic groups, ensuring everyone and every group are able to participate equally in social and political organisations such as the Vietnam
Fatherland Front (which is an alliance of all ethnic and population groups), the
Institute for Human Rights Studies, the Committee for Ethnic Minorities‘ Affairs (a ministerial level agency), the Ethnic Advisory Council and so on. People can engage in state and social administration directly or through their representatives. In addition, the Vietnamese government has organised training courses on topics, such
875 Declaration on the Rights of Indigenous Peoples, opened for signature 13 September 2007, UNTS (entered into force 13 September 2007). 876 According to the National Report of the Socialist Republic of Vietnam under the Universal Periodic Review of the United Nations Human Rights Council 2009, the Vietnamese government has centrally and harmoniously implemented the Strategy for Judicial Reform up to 2020; Building and Improving the Legal System to 2010 (with direction to 2020), and the Strategy for Social and Economic Development to 2010 to enhance democracy and promote social justice, social security, cultural preservation and development, and human rights as well. 877 Ministry of Foreign Affairs, 'National Report of the Socialist Republic of Vietnam under the Universal Periodic Review of the United Nations Human Rights Council' (24 April 2009) 3. 878 Ibid. 278
as the ‗Vietnam and human rights conventions implementation‘,879 to raise awareness of human rights among central and local officers, as well to review what has been done so far in regard to the implementation of international human rights conventions and their integration process.880 Although government policies are not universally supportive of minority ethnic groups, the Vietnamese government also has policies on encouraging national cultural preservation and development, especially for the cultures of ethnic minority peoples.881
If one considers that human rights have particularity, then so too does protecting human rights for ethnic communities express such particularity.882 Vietnam has 53 ethnic minorities (while the Kinh people is the majority group). The total population of the minority ethnic communities is approximately 11 million (of Vietnam‘s total population of approximately 86 million). They mainly live in highland areas.883
879 On 22–23 December 2010, the Conference on International Conventions on Human Rights and Mechanism for Implementation was held in Hanoi by Vietnam and Australia on the scope of the Human Rights Cooperation Program between Vietnam and Australia. 880 For more details, see Ministry of Foreign Affairs, Viet Nam Thuc Hien Tot Cac Cong Uoc Quoc Te Ve Quyen Con Nguoi (8 January 2010)
In accordance with the international conventions ratified by Vietnam, Vietnamese law has regulations for the human rights of those numbered among its ethnic communities, with a particular focus on equal rights and cultural rights.884
Correlating with Articles 26 and 27 of the International Covenant on Civil and
Political Rights that are related to equal rights,885 the Vietnamese Constitution 1992 and other normative legal documents have striven for the expression of equal rights for ethnic minorities in which there is no discrimination between ethnic groups.
Article 5 of the Constitution 1992 provides:
The Socialist Republic of Vietnam is the unified State of all nationalities living on the territory of Vietnam. The State carries out a policy of equality, solidarity and mutual assistance among all nationalities, and forbids all acts of national discrimination and division. Every nationality has the right to use its own language and system of writing, to preserve its national identity, and to promote its fine customs, habits, traditions and culture. The State carries out a policy of comprehensive development and gradually raises the material and spiritual living conditions of the national minorities.
Article 52 further provides: ‗All citizens are equal before the law‘. ‗Equal rights‘ can be understood as everyone having the same rights and obligations (Articles 52 and 54 of the Constitution 1992). It is also regulated in other legal provisions such as Article
94 of the Constitution 1992 which defines the role of the Nationalities Council as one where the Council shall make proposals for ‗the execution of programmes and plans
884 Ibid 671–5. 885 International Covenant on Civil and Political Rights arts 26, 27 (reproduced below): Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 27 In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. 280
for socio-economic development of the highlands and regions inhabited by national minorities‘.
Along with the Constitution, other laws also have remarkable regulations for human rights,886 giving further recognition of equality among people of various nationalities or who are members of the various ethnic minorities. Both Article 1 of the Criminal
Code 1999 (as amended in 2009) and Articles 4 and 12 of the Criminal Procedure
Code 2003 and Law of Vietnam on Nationality 2008 assert that ‗minorities are considered full citizens of the Vietnamese state‘.887 Ethnic minority people have the right to be elected as members of the National Assembly (Articles 1, 2 and 10 of the
Law on the Election of the Members of the National Assembly 1997). For instance,
87 of the 493 members of the National Assembly XII for the 2007–12 Term were ethnic minority people, that is to say they comprised 18.8 per cent of the total number of members.888
Together with equal rights before the law and in terms of citizenship rights, cultural rights are also considered as important element in human rights protection. The legal basis for protecting cultural rights of minority ethnic groups is also principally provided in Article 5 of the Constitution 1992 and Articles 4, 5, 30 and 31 of the
886 Pham, Chu, and Vu, above n 883, 671–3; see also Vuong, 'Tinh Dac Thu Cua Quyen Con Nguoi o Cac Dan Toc Thieu So Viet Nam', above n 882, 10. 887 WriteNet, 'Vietnam: Indigenous Minority Groups in the Central Highlands' (Writenet Paper No.05/2001, UNHCR - Centre for Documentation and Research, January 2002) 10. 888 Xuan Tinh Vuong and Van Minh Nguyen, 'Nghien Cuu Nhan Quyen o Viet Nam: Mot Tiep Can Dan Toc Hoc' in Khanh Vinh Vo (ed), Quyen Con Nguoi: Tiep Can Da Nganh va Lien Nganh Khoa Hoc Xa Hoi (Nha Xuat Ban Khoa Hoc Xa Hoi, 2009) 329, 342 [Tran: Xuan Tinh Vuong and Van Minh Nguyen, ‗Studying Human Rights in Vietnam: Regarding to Ethnology‘ in Khanh Vinh Vo, Human Rights: Interdisciplinary Approach of Social Sciences (Social Science Publishing House, 2009)]. 281
Civil Code 2005. Culture is a part of their community life; therefore, they have rights to preserve and develop their culture in order to uphold their ethnic traditions.889
Besides the policies reflected in legal documents, Vietnam also has a range of social policy programs, such as: the Assistance Programme on land for housing and production, and for the provision of domestic water for poor ethnic minority households living in hardship (Programme 134); and the Socio-economic
Development Programme for Communes in special hardship in mountains, remote and border areas (Programme 135), which also supports ethnic minority peoples.
These programs help minority ethnic communities to settle and develop their life, and become more equal in all fields of social life.890
7.2.4 The limits of Vietnam‘s approach to human rights
For a number of social and political reasons, human rights lacked visibility in
Vietnam for many years.891 In contemporary Vietnamese society, they have become more universal but there are matters that remain controversial, to a lesser or greater degree. The quality of Vietnam‘s implementation of its international human rights obligations is a topic of debate. Some argue that Vietnam uses the term ‗national security‘ to defend the lack of implementation of what they would deem appropriate policies on human rights protection. Critics argue that the term is often used for
889 Chi Thi 39/1998/CT–TTg cua Thu Tuong Chinh Phu Ve Viec Day Manh Cong Tac Van Hoa Thong Tin O Mien Nui va Vung Dong Bao Cac Dan Toc Thieu So 1998 (Vietnam) [Trans: Circular No. 39/1998/CT-TTg issued by Prime Minister on Preservation and Improvement of Ethnic Communities‘ Traditions (Vietnam)]; see also Pham, Chu, and Vu, above n 883, 671–3; Vuong, 'Tinh Dac Thu Cua Quyen Con Nguoi o Cac Dan Toc Thieu So Viet Nam', above n 882, 15. 890 Ministry of Foreign Affairs, 'National Report of the Socialist Republic of Vietnam‘, above n 877, 7. 891 Vuong, 'Tinh Dac Thu Cua Quyen Con Nguoi o Cac Dan Toc Thieu So Viet Nam', above n 882, 2. 282
purely political purposes.892 Some overseas commentators claim that the reason for the inadequate implementation of international norms in Vietnam is the desire to maintain political control rather than minority groups‘ issue.893
With regard to the implementation of international human rights conventions, the various bodies charged with supervising implementation continue to issue comments critical of the extent and rate of progress. For instance, the Human Rights Committee which Monitors Compliance with the ICCRP, claims that Vietnam fails to supply
‗information on the human rights situation in practice‘,894 and maintains that
Vietnam has a particularly poor record in regard to the human rights of Vietnamese
Indigenous peoples. Vietnam continues to violate Article 7 (the prohibition of inhuman or degrading treatment or punishment) and Article 27 (the right to enjoy cultural tradition, including religion, and language of minorities and Indigenous people) in regard to the treatment of the Montagnard895 (mountain dwelling ethnic minorities in the northern part of Vietnam).896
Additionally, according to the Report of the Committee on the Elimination of Racial
Discrimination 2001, the Committee, while recognising that the growth of the
Vietnamese economy had contributed ‗to the easing of racial and ethnic tensions‘,897 observed that Vietnam should improve the legal system and overcome administrative
892 Van Ai Vo, 'Human Rights and Asian Values in Vietnam' in Michael Jacobsen and Ole Bruun (eds), Human Rights and Asian Values: Contesting National Identities and Cultural Representations in Asia (Curzon, 2000) 92, 96. 893 WriteNet, above n 887, 21. 894 Human Rights Committee, 'Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observation of the Human Rights Committee for Vietnam' (2002) Point 19. 895 Ibid. 896 With the issue of Indigenous highlanders (known as Montagnards) in the Central Highlands, the Vietnamese Government considers this as a political issue and social perturbation caused by a group of highland people, whereas Human Rights Watch considers these as human rights issues. 897 General Assembly of United Nations, 'Report of the Committee on the Elimination of Racial Discrimination' (Supplement No.18 (A/56/18), United Nations, 2001) [411]. 283
obstacles to fully assure human rights and follow more thoroughly the spirit of
Article 1 of the Convention on the Elimination of all Forms of Discrimination
Against Women.898
In summary, Vietnam considers human rights as a part of the nation‘s development.
On the one hand, Vietnam defends its position that human rights should align with national sovereignty and national solidarity as a state to be desired for ethnic groups.
On the other hand, Vietnam appears at least somewhat receptive to opposing ideas and genuine debate, but only if such debate is predicated on an acceptance of national unity and political integrity as the cornerstone of all discussion.
Vietnam shows willingness of its leadership to engage in dialogue over the course of its development – even over sensitive issues – with international partners (international and regional organizations, bilateral donors and non- governmental organizations) provided that this is based on recognition of Vietnam‘s political integrity.899
From a positive perspective, human rights standards are being transformed into
Vietnamese law. Human rights, accordingly, may be fostered and protected more effectively and to a greater extent.900
7.2.5 Reasons for Vietnam to recognise customary law
Recognising customary law is one of the ways that Vietnam aligns itself with international human rights and complies with international law. Through the international human rights treaties that Vietnam has ratified, Vietnam has
898 General Assembly of United Nations, 'Report of the Committee on the Elimination of Racial Discrimination' (Supplement No.18 (A/56/18), United Nations, 2001) [418]; see also Committee on the Elimination of Discrimination Against Women, 'Concluding Comments of the Committee of the Elimination of Discrimination Against Women: Vietnam' (2007) [ 9]–[13]–[29]. 899 WriteNet, above n 887, 9. 900 Hung Hai Hoang, Gop Phan Tim Hieu Quyen Con Nguoi o Viet Nam (Nha Xuat Ban Quan Doi Nhan Dan, 2008) 127 [Trans: Hung Hai Hoang, Understanding of Human Rights in Vietnam (People‘s Army Publishing House, 2008)]. 284
responsibility for building a legal mechanism to meet the requirements of such agreements. This should be compulsory despite a number of conventions agreeing that there are differences in regard to national economic, cultural and political backgrounds. Creating a mechanism for implementation, and where possible access to remedy and redress where violations occur (and subsequent enforcement of those remedies) appears compulsory, though the option of phasing in of such mechanisms can be inferred from the texts.901 Article 2(1) of the International Covenant on Civil and Political Rights, for example, provides:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Recognising customary law is also in accordance with Vietnamese law. According to
Article 6 of the Law on Signing, Joining and Implementing International
Conventions 2005, international conventions of which Vietnam is a member shall have priority over Vietnamese normative legal documents. According to the contents and the nature of international treaties that the National Assembly, National
President and Government has ratified, such treaties should be legalised and transformed into Vietnamese laws (normative legal documents) in order for them to be implemented.
In addition, although there are some tensions, it is possible to accommodate customary law without simultaneous infringing other human rights. It can be seen that many important international human rights conventions have not been ratified by
Vietnam. Some of them are closely related to the rights of ethnic communities (such
901 Trung Dang Ha, above n 872. 285
as the International Labour Organization Convention 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in
Independent Countries (1957), the ILO Convention 169 concerning Indigenous and
Tribal Peoples in Independent Countries (1989), and the Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992).
Increased recognition of customary law has contributed to the respect of human rights in Vietnam. Recognition may create more or less favourable conditions for protecting ethnic minority peoples‘ human rights. More importantly, it may also serve to limit the state‘s power by providing a ‗space‘ (such as the legal field) for ethnic groups. On the one hand, it may prevent potential abuses of power by the state. The state may not impose an order (such as legal order) for ethnic groups. On the other hand, it may compel the state to be more responsible and effective in human rights protection902 in order to create equality for every ethnic group in society.
7. 3 Conclusion
The Vietnamese legal system‘s reliance on the paradigm of legal centralism creates a number of shortcomings. Accordingly, changes of law-making process and law- making authority, and more importantly, a recognition of customary law have been considered extensively. The first steps that have been taken towards recognising customary law are remarkable. However, Vietnam should deal more effectively with adjusting the paradigm of law in order to create a firmer legal foundation for
902 Minh Khoi Do, 'Dan Chu Doi Voi Viec Bao Dam Thuc Hien Quyen Con Nguoi' in Khanh Vinh Vo (ed), Quyen Con Nguoi: Tiep Can Da Nganh va Lien Nganh Khoa Hoc Xa Hoi (Nha Xuat Ban Khoa Hoc Xa Hoi, 2009) 275, 292 [Trans: Minh Khoi Do, ‗Democracy to Human Rights Protection‘ in Khanh Vinh Vo, Human Rights: Interdisciplinary Approach of Social Sciences (Social Science Publishing House, 2009)]. 286
recognising customary law widely. It may also create a legal regime for applying customary law in a manner that aligns with the current legal system (such as, providing criteria for a custom to be transformed into customary law; establishing jurisdiction boundaries and the relationship between state law and customary law).
Although there is debate and tension on the subject of human rights in Vietnam, the country is getting closer to the standards of international human rights, including in the relation to the rights of ethnic communities. By being a member of various international human rights conventions, Vietnam has made an effort to harmonise with international human rights issues. In relation to human rights of ethnic groups,
Vietnam, however, should more effectively recognise customary law to comply with international human rights law and to accommodate customary law. This can be done without simultaneously infringing other human rights.
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8 PROPOSALS FOR MORE EFFECTIVE RECOGNITION OF
CUSTOMARY LAW IN VIETNAM
8. 1 Introduction
Building on the foundation layed by previous chapters, chapter 8 presents proposals for the recognition of customary law in Vietnam. These proposals will response directly to the questions set out in Chapter 1.
This thesis set out to answer two main questions. Should customary law be recognised as an official source of law in the Vietnamese legal system? If so, how should it be recognised?
To address the above questions, the thesis has examined how customary law is treated in different parts of world. The survey overview led to the question of how countries should recognise customary law as a source of law. In seeking the answer for this question, two issues relating to legal pluralism and human rights have been explored.
How should customary law be recognised in Vietnam? The Vietnamese socio- economic, political and cultural background, especially the shortcomings of the legal system needed to be examined. The evidence obtained provides the basis for proposing the recognition of customary law as a legitimate aspiration and as an urgent need in contemporary Vietnamese society. However, to achieve this goal, related factors such as the history of customary law in Vietnam, and how the
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Vietnamese government deals with the issues of legal pluralism and human rights should be taken into account.903
This chapter is the culmination of the thesis, answering the main and secondary research questions and making positive proposals for the recognition of customary law. The chapter consists of two basic parts: 1) findings in regard to the reasons for recognising customary law; and 2) proposals for a legal framework for their recognition in Vietnam.
8. 2 Findings in Regard to the Recognition of Customary Law
8.2.1 Legal centralism and legal pluralism: Vietnamese perspectives
Chapter 3 considered the question of the recognition of customary law from the perspective of legal pluralism. Social norms are plural but there are differences between scholars as to the way to define the concept of law. Thus, these norms can be state law (if the state (the ruler) wishes so); otherwise, they are mere social norms
(non-state law). However, social norms themselves — whether they are recognised as state law or not — nevertheless still exist by their own inherent nature.
Vietnam follows the paradigm of legal centralism in that law is state law; and other norms, such as morality and customs, are social norms. However, this does not mean that the theory of legal pluralism is completely rejected. Historically, the Vietnamese legal system has combined Western and Eastern legal theories and traditional Eastern belief systems (or faiths) and their rites and observances (as noted in Chapter 6). It can be seen that the model of legal pluralism implicitly exists in the Vietnamese
903 Nhat Thanh Phan, 'Legal Pluralism and Human Rights: A Possible Approach to the Application of Customary Law in Vietnam' (Paper presented at the Other Side of the Law: Beyond Legal Research, Australian National University, 8–9 July 2010). 289
society though it is not recognised officially. The recognition of customary law as an official source of law is only a further step in formalising legalising existing arrangements; it needs involve building a new infrastructure or creating a new or different regime within the legal system. This is an advantage for Vietnam because, if recognition is understood as outlined above, no radical changes in individual and community awareness would be required.
Nevertheless, whilst recognising customary law may not involve changes to individual and community awareness, the existing disorder in the legal system should be taken into account because recognition may result in changes to a large number of legal documents. Currently, customary law in Vietnam is non-state law. In the event that it becomes infra-state law, how should the legal system be modified while still being loyal to its paradigm of law? The evidence presented in this thesis suggests that the most feasible approach is that Vietnam may still follow its position of legal centralism but customary law will play a supplementary role to the state law. These will remain a hierarchical relationship between state law and customary law.
Customs which are not recognised as state law may be seen as customary law to be applied in a certain locality.
A change in the awareness of the value of customary law is also a must for the recognition of customary law. Vietnam is a developing country with remarkable achievements in state management and social development. However, as examined in Chapters 1, 5, 6 and 7, it is undeniable that the legal system has numerous shortcomings. Democracy, to some extent, is only formalistic and human rights protection has not been a significant concern, particularly in regard to ethnic communities. Findings in those chapters show that although Vietnam has changed
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considerably in its internal activities and international relations, bureaucratic power remains a big problem and the level of judicial discretionary power is still poor. This leads to unrealistic and unattainable expectations of administrative and legal reforms.
In addition, the lack of a comprehensive policy and professional management of reforms also causes many negative impacts on society. Whilst large cities are developing quickly, other areas (such as rural and highland regions) endure poor economic and social conditions and little cultural recognition. The people living there have not received the proper care in terms of human rights and social welfare.
National policies give priority to the urban areas of the country and disadvantage the remote, rural and highland regions, causing a big gap between different areas and the conditions their populations enjoy. The bigger cities, as can be readily seen, are developing rapidly whereas remote and mountain areas have to contend with the conditions of poverty, an underdeveloped economy, backward society and poor or non-existent welfare policies. The efforts made by government and other NGOs seem to be still far from redressing this situation.
Recognition of customary law in Vietnam is a matter of urgency as the difference between the rich and the poor, between urban and rural areas grow larger and larger.
Customary law would be an effective instrument, in terms of social justice, for the creation of social equality and enhancing human rights. Its importance lies in its ability to establish and maintain balance and stability between communities and areas by contributing to the solution of Indigenous and minority ethnic community conflicts, protecting human rights and preserving Indigenous cultures. Most ethnic people live in rural and highland areas. The recognition of customary law is the way to ‗hand over authority‘ for ethnic communities to self-government according to their rules. 291
All should be aware of the continuing importance of customary law. The recognition of customary law is a process, linking the past, the present and the future.
Historically, customary law was used as an official source of law to regulate social relations, particularly in civil and land fields. Currently, it can be said that customary law is not generally applied as it is negatively regarded by authorities. Nevertheless, whether it is recognised or not, customs are still present in communities, especially in minority ethnic communities. The existence of customary law is obvious and, therefore, it should be officially recognised.
The recognition of customary law would give the Vietnamese government an opportunity to be courageous in facing the practical situation that exists in the legal life of Vietnam. Theoretically, Vietnam strenuously supports the paradigm of legal centralism in which law is only those norms promulgated by the state. For a long time, legal education and training in Vietnam have led legal researchers and law students into ‗one-way‘ thinking about the nature of law. However, in practice, many examples of customary law exist but legislators try to deny their existence in practice. This inconsistency should be confronted.
Now is the time for legislators, legal and social researchers, and law students to re- evaluate what the law is and reconsider the status of customary law. Life has many facets; therefore, there is a need to be more objective about things and the phenomena that encourage positive outcomes and limit negative ones. Only when thoughts are liberated from familiar patterns are people are able to explore what currently exists, critique it objectively and then reach for the true, the good and the beautiful.
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In addition, it is necessary to gain from the experiences of customary law recognition from other countries. It does not matter that such experiences come from capitalist or socialist countries. The Vietnamese legal system, with its legal doctrines significantly influenced by the former Soviet Union, has served Vietnam very well in the past but it should be reconsidered and closely examined to ascertain whether these are still appropriate to Vietnam today. The past cannot be clung to and the future cannot be imposed. Imposing unidirectional thought may inhibit or even destroy human creativity needed to deal with changing circumstances. If the best results are to be achieved for Vietnam, justice (not political purposes) must be the primary motivation in thinking about the recognition of customary law. The most important elements are how to ensure social justice and protect human rights and the rights of ethnic communities instead of imposing a unidirectional mechanism solely to protect the political regime.
8.2.2 The relationship between customary law and human rights: What does
Vietnamese expect? What should Vietnam do?
It is a fact that Vietnam has ratified a number of international human rights treaties.
One of the reasons that Vietnam should more effectively recognise customary law is that this is necessary in order to comply with the various international human rights conventions and treaties that is has ratified. It is also necessary to advance the interests of justice and potentially increase administrative simplicity and efficiency.
Although there are some tensions, it is possible to accommodate customary law without simultaneously infringing other human rights.
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In Vietnam, the lack of concrete studies of the relationship between human rights and customary law is the major problem for customary law recognition.904 The few limited separate and conflicting studies on this issue have led to a lack of comprehensive outlook on the interaction between human rights protection and customary law application. These studies have neither pointed to or proposed a legal mechanism for customary law nor defined the relationship between group rights and individual rights in the recognition of customary law. However, the main argument for the recognition of customary law on human rights grounds is respect for collective rights. Vietnam argues that individual rights in the cultural, political and economic fields are provided in important normative legal documents, such as the
Constitution and Acts.905 Customary law is law of the community, not individuals therefore; the recognition of customary law supports the collective rights of communities.906 Moreover, Vietnam (like other Asian countries) tends towards placing a higher value on group benefits or interests rather than on individual interests. Reflecting Dyke‘s description (discussed in Chapter 4),907 Vietnam considers that members of groups will be provided the rights that the group enjoys.
Hence, rights for groups are a major concern in the recognition of customary law in
Vietnam.
904 See Nhat Thanh Phan, 'Vai Tro Cua Nha Nuoc Trong Viec Van Dung Tap Quan Phap De Bao ve Nhan Quyen Cho Cac Dan Toc Thieu So' (Paper presented at the Vai Tro Cua Nha Nuoc Trong Viec Bao Ve Quyen Cho Cac Nhom De Bi Ton Thuong, Truong Dai Hoc Luat Thanh Pho Ho Chi Minh, 25 December 2010) [Trans: Phan, Nhat Thanh, ‗The Role of the State in Recognizing Customary Law to Protect Human Rights of Ethnic Groups‘ (Paper presented at the Role of the State in Protecting the Rights of Vulnerable Groups, Hochiminh City University of Law 25 December, 2010)]. 905 Hien Phap Nuoc Cong Hoa Xa Hoi Chu Nghia Viet Nam 1992 [Trans: Constitution of the Socialist Republic of Vietnam 1992] art 5. 906 Thong Tu Lien Tich So 03/2000/TTLT/BTP-BVHTT-BTTUBTUMTTQVN Ngay 31/03/2000 Ve Viec Huong Dan Viec Xay Dung va Thuc Hien Huong Uoc, Quy Uoc Cua Lang, Ban, Thon, Ap, Cum Dan Cu [Trans: Joint Circular No.03/2000/TTLT/BTP-BVHTT-BTTUBTUMTTQVN, 31 March 2000 on Directions of Building and Implementing Village Conventions of Communal Subdivisions, and Inhabitants Groups (Ministry of Justice, Ministry of Culture and Information, and Standing Committee of Central Committee for Vietnamese Fatherland Front)]. 907 Van Dyke, 'The Individual, the State, and Ethnic Communities in Political Theory', above n 565, 345. 294
However, Vietnam‘s approach to the rights for groups is not unconditional, and is cautious. Vietnam is neither a federal country nor is there considerable conflict between the Indigenous peoples and immigrants as has occurred in other countries in the world. In addition, Vietnam is a multi-ethnic country but these ethnicities have settled and lived together harmoniously and on equal terms for a very long time.
Hence, conflict between customary laws of ethnic groups is not a significant factor.
Nevertheless, Vietnam was a colony of China, and then France, and has been affected by US culture in the period of civil war. Therefore, earlier legal ideologies and traditional habits that survive may conflict with the values of modern society.
In addition, the models applied by the French when they dominated Vietnam and established autonomous regions has contributed to sensitive political and ethnic issues today because some groups wish to establish autonomous government.908 This has become a major concern of the state because it may have potential risks of social and political discord in regard to relational autonomy and political representation.909
The right of self-determination about social economic conditions and customary law should be within the realm of political action.910 The aim of the recognition, accordingly, is to focus on the question of achieving social equality whereby the gap between the rich and the poor is narrowed and human rights are fostered and protected in the mainstream of domestic and international development.
Customary law should be recognised as an instrument to protect human rights, including those of Indigenous people and minority ethnic communities. This has been proven through numerous studies of human rights and of customary law.
908 Eg, the case of Montagnards in Vietnam as mentioned in Chapter 7. 909 Kymlicka, Multicultural Citizenship, above n 563, 1. 910 Joseph Raz and Avishai Margalit, 'National Self-Determination' (1990) 87(9) Journal of Philosophy 439, 440. 295
Although there are a number of controversial ideas on customary law and differences regarding giving priority to Indigenous people and minority ethnic groups, customary law has been recognised worldwide as a practical instrument for protecting human rights. Customary law contributes to defining precisely the rights of Indigenous people and ethnic communities. Through the application of customary law
Indigenous and minority ethnic community members perform their autonomous rights as they have expected. Individuals or communities are seen as components that form a country; therefore, they must have equal rights and other proper rights.
In addition, the recognition of customary law is also an instrument to ensure balance differences between communities. As set out in the previous chapters (Chapter 3 and
4), customary law recognition is able to compensate for disadvantages in the economic and political conditions which ethnic groups and Indigenous people have to be bear. If majority groups gain advantages in terms of power, and economic and political conditions, recognition of customary law may help share that political power and the economic benefits with minority groups. Ethnic groups, by their customary law, may control ethnic groups‘ activities as they wish. Moreover, the recognition of customary law is also the way to preserve cultures consistent with the
Vietnamese Constitution 1992, Article 5 of which gives ethnic groups the right to
‗help themselves‘ by permitting self-control with regard to issues of cultural, language and religious preservation.
Several issues should be considered in order to protect human rights when customary law is recognised. National benefits and public interests should be the first concerns in reforming policies. Second should be the rights and benefits of ethnic communities
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and Indigenous people. Programs of national cultural preservation should seek to avoid isolationism, assimilationism and apartheid.911
Conflicts that may occur between the state and ethnic groups and between ethnic communities need a mechanism to supervise and settle such matters. Also, to avoid discrimination and a push for autonomy, customary laws and the communities where customary law are applied should be carefully chosen through a particular legal mechanism by both the state and representatives of the ethnic communities with the purpose of fostering democracy in villages and protecting human rights. Conversely, there is a need to abolish inappropriate customs, such as harmful superstitions, polygamy and early marriage.
As for the legal field, state law does not seem to be the most effective instrument for the management of minority ethnic communities. Customary law is commonly and naturally applied in communities as natural law, regardless of any inconsistency with the state law. The reality is that the state law is not in very close touch with ethnic groups and Indigenous people. It is remote from the reality of what is happening in community life. State law, therefore, becomes a theoretical means, rather than a practical one, for administering ethnic minority communities.
Would customary law bring about justice for Vietnamese society? To address this question, the issue should be examined from different angles. Of greatest importance is how to define the purpose of customary law application and the subjects who will benefit from such application. The purpose of customary law application is to create social justice, not for political purposes or for the autonomous power of any subjects.
Customary law should be for ethnic communities and Indigenous people, who are
911 Kukathas, Theoretical Foundations of Multiculturalism, above n 600. 297
considerably lacking in material and social facilities, essential for their welfare.
Moreover, they are also subjects who need to be seriously respected in terms of their human rights and their cultures. Customary law, by appropriately addressing the two above issues, will benefit society.
Finally, recognition should avoid creating an opportunity for any particular group‘s interests to be elevated over and above another. There are many kinds of groups
(most relevantly, ethnic communities) in society. Identical conditions cannot be provided for different groups by the application of customary law because they differ in their social, economic and cultural circumstances and conditions. The state is justified in neutrally considering what real benefits the Indigenous people and ethnic communities may receive. Minority ethnic groups and Indigenous peoples should be aware that the purpose of the application of customary law reflects the wish of the state to foster and protect human rights, and improve the life of Indigenous peoples and minority ethnic communities. It is not designed to give minority an opportunity to secure an autonomous regime or avoid state control or take advantages from other communities.
8. 3 Proposed Legal Framework for the Recognition of Customary Law in
Vietnam
8.3.1 Defining the concept and the notion of recognition
Defining the concept of customary law is considered the initial step in the process of customary law recognition. Vietnamese scholars have proposed several different concepts of customary law. These concepts define what customary law is, setting out
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a basis for those who apply law to understand and apply it. Additionally, it helps communities to comprehend which custom can be transformed into customary law.
Reflecting the conceptions set out in Chapter 1 and 2, customary law refers to customs (including traditional rules and social conventions) whose usage has long been existed, being voluntarily accepted by and binding upon members of the community, and recognised by the state.
The debate over the question of which level is appropriate for the recognition of customary law in Vietnam is substantial and understandable, given that Vietnam has
53 minority ethnic groups, only a few of whose customary laws have been collected and recorded. In addition, judges do not have law making power. To recognise customary law widely — involving a variety of methods of recognition, reinforcement or accommodation of ethnic community customs or traditions912 — would be difficult road for Vietnam to pursue at the present to me. Comprehensive recognition and implementation would be hampered by some problems, such as the continued management of minority ethnic communities (whose expectation of customary law recognition may not match those of the state), ideas of national sovereignty, and other political factors.
Alternatively customary law may be accommodated more narrowly, extending only to the enactment of particular rules.913 This presents a more suitable alternative because Vietnam considers that customary law should be recognised and codified to supplement the existing recognised sources of law.
912 Australian Law Reform Commission, 'The Recognition of Aboriginal Customary Laws' (ALRC 31, Australian Government, 1986) Part II: The Recognition of Aboriginal Customary Laws: General Principles, [55]. 913 Ibid. 299
8.3.2 Mode of recognition
As set out in Chapter 2, the recognition of customary law is usually executed through legislation or through the courts. Whatever the mode of recognition, the recognition of customary law as an official source of law in the Vietnamese legal system must involve a combination of functional organs. The National Assembly is the country‘s legislative body. Therefore, it should produce regulations outlining the role and position of customary law in the constitution. These fundamental regulations will be a basis for other organs to execute the application of customary law in practice.
Another vital organ for the application of customary law is the court. With the function of adjudication, the court will be responsible for applying customary law directly. How customary courts should be established and how the customary courts will work will be presented in this chapter.
The following are proposals for Vietnam:
Recognition through the courts
The national constitution provides that the courts function as adjudication organs; they do not have law making power. Thus, judges cannot transform custom into customary law.914
The Vietnamese legal trend is tending towards the application of both precedents and customary law (as highlighted in the Report on Comprehensive Needs Assessment for the Development of Vietnam's Legal System to the Year 2010 issued by Vietnam
914 Luat To Chuc Toa An Nhan Dan 2002 (Vietnam), art 1 [Trans: Law on Organization of the People‘s Courts 2002)]. 300
Government).915 Vietnam may change its mechanisms somewhat by considering the mode of customary law recognition by common law systems as a foundation in continuing to build the national legal system. These are, however, emerging trends and as such will apply more to the future than the present.
Recognition through legislation
Recognition of customary law through legislation is the most appropriate mode for
Vietnam today, for three reasons.
Firstly, it is consistent with the current Vietnamese law. According to Article 83 of the Constitution 1992, the National Assembly is the only organ with constitutional and legislative powers. Thus, giving National Assembly the right to recognise customary law is appropriate to its legislative function.
Secondly, it is consistent with the ruling party‘s viewpoint. The Communist Party of
Vietnam is the ruling (and sole recognised) party in Vietnam. Party policies are guidelines for the law building process. In recent resolutions, such as Resolution No
48 NQ/TW (2005)916 and Resolution No 49 NQ/TW (2005)917 issued by the
Politburo Bureau, the recognition of customary law is seen as part of the legal reform process. According to the viewpoint of the Communist Party of Vietnam, the legal system should be examined in the process of its natural activity. Due to ongoing
915 Inter-Agency Steering Committee of Vietnam Government, above n 9, 24. 916 Nghi Quyet 48–NQ/TW Ngay 24/05/2005 Cua Bo Chinh Tri ve Chien Luoc Xay Dung va Hoan Thien He Thong Phap Luat Viet Nam Den Nam 2010, Dinh Huong Den Nam 2020 [Trans: Politburo Resolution 48-NQ/TW, 24 May 2005 issued by Politburo Bureau on the Strategies for the Development and Improvement of Vietnam‘s Legal System to the Year 2010 and Direction for the Period up to 2020]. 917 Nghi Quyet 48–NQ/TW Ngay 24/05/2005 Cua Bo Chinh Tri ve Chien Luoc Xay Dung va Hoan Thien He Thong Phap Luat Viet Nam Den Nam 2010, Dinh Huong Den Nam 2020 [Trans: Politburo Resolution 48-NQ/TW, 24 May 2005 issued by Politburo Bureau on the Strategies for the Development and Improvement of Vietnam‘s Legal System to the Year 2010 and Direction for the Period up to 2020]. 301
social movements and legal changes, the recognition of customary law not only is required by the need to supplement source of law and to improve the Vietnamese legal system, but is also prompted by the need to improve people‘s lives.
Although the policies and guidelines of the Communist Party of Vietnam are not laws — to be laws they must be institutionalised by being transformed into Acts and so forth (‗legalised‘) —they have the ability to restrict or pave the way for improving law. For instance, Resolutions No 48 and No 49 clear the way for customary law to become an official source of law in the Vietnamese legal system.
Thirdly, recognition through legislation is consistent with the legal reform process. In the strategies adopted for administrative and legal reform, customary law is one of the targets, attracting significant consideration from legislators.918 However, these strategies only contain general suggestions that the state should recognise customary law. The proposals advanced in this thesis offer concrete steps towards recognising customary law in Vietnam.
The current Vietnamese constitution could be changed or amended to create a legal foundation for the recognition of customary law through legislation. More importantly, based on principles provided in the Constitution, a huge number of normative legal documents — such as the Law on Promulgation of Legal
Documents, the Civil Code, the Criminal Code, the Civil and Criminal Procedure
Codes and other subordinate laws — could be modified to provide instructions and guidance for the implementation of customary law application.
918 Inter-Agency Steering Committee of Vietnam Government, above n 9, 2; see also Bo Luat Dan Su 2005 (Vietnam) [Trans: Civil Code 2005 (Vietnam)]. 302
8.3.3 Criteria to define a custom for transformation into customary law
Although some studies on customary law have been undertaken, Vietnam lacks authoritative criteria for custom to be transformed into customary law. This thesis therefore, proposes particular criteria for defining customary law based on studies from other countries.
In general, together with compulsory standards as set out in Chapter 2, such as antiquity, continuity, peaceable enjoyment, reasonability, certainty, obligatory force, and consistency, others criteria need to be considered as follows:
Sources
Customary law should be from the existing customs that regulate the behaviour of the members of one of the country‘s 54 ethnic minority communities. It is noticeable that Vietnamese communities‘ customs combine ethical and religious norms. Thus, sources of custom are not only customs (customary activities undertaken) but also the religious beliefs and moral principles that these embody. This is acceptable because it is characteristic of Vietnamese traditional mores, rituals and rites.
Existence and continuity
Such customs must exist at the time of recognition and application. Many
Vietnamese scholars argue that custom refers to long-standing habits in a certain community.919 In addition, they also claim that custom should be the result of behavioural experiences and currently exist in order to be recognised. (Customs that have fallen into disuse should not be recognised, nor should ancient past practice that
919 Huu Son Tran, above n 25, 38. 303
has fallen into disuse be revived). Thus, the standards requiring antiquity and continuity of custom for it to be transformed into customary law are reasonable.
Of course, although customs and customary law, by definition, embody long- standing traditions and beliefs, changes do nevertheless occur. This can lead to various problems. Other problems might arise particularly around the time of initial recognition and practical implementation. Would customary law apply retro- respectively to agreements already entered into? Would agreements that previously lacked the force of (state) law now be recognised more broadly rather than seen as agreements that could be overridden as lacking legal force (for example, in relation to land use, or fisheries and other resource issues)?
On the question of timing, should customary law be defined as applying at the time a transaction is undertaken or when a dispute arise in relation to the transaction? If customary law is applied at the time that a transaction begins, what should a judge do where a dispute occurs but such customary law no longer exists? For example, what it a transaction is made under a customary law that is subsequently amended or revoked and replaced by a new customary law? Moreover, which customary law should be applied if customary law at the time of transaction is disadvantageous to a particular party rather than customary law at the time of dispute where no such disadvantage existed? Or if customary law was applied at the time of dispute, but the new customary law does not suit the spirit of the transaction?
To ensure a uniform approach to the application of customary law, customary law should be applied to a transaction immediately that transaction begins. If such custom no longer exist at the time of dispute, the law applying at the time of the dispute may be retroactively applied. 304
Normative character
Customs must be normative.
Consistency in matters of public policy
The main purpose of law in general, and customary law in particular, is to serve people. Accordingly, the recognition and application of customary law should consider public policies because these policies are for the country and the society‘s development and stability. In this instance, the interests of public have priority over groups‘ benefits.
8. 4 Other Issues Related to the Recognition of Customary Law
8.4.1 Rules that should govern the solution of conflicts between customs
In the application of customary law, conflicts between customs may occur because different customs may lead to different results in what might be externally viewed as parallel situations (for example, different forms of contract in different minority ethnic communities). The question of which rules or norms should be applied to settle conflicts may prove problematic. In conflicts between state law and customs, the case seems to be simple because state law is superior to customary law. However, in the case of conflicts between various customs, a series of issues need to be clarified and a process designed to determine which customs should be applied to define the rights and obligations of the parties involved. This can occur when various locations are involved. Where the parties signed the contract? Where the parties made the relevant transactions? Or where the parties have a dispute?
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The state should provide regulations to avoid unexpected disputes and the risk of discrimination among ethnic communities. In this instance, experiences from the
United Kingdom‘s past could be considered. In the 13th century, customary court existed in United Kingdom. If the members and customs of two communities came into conflict, mixed juries could be established to settle the case.920 If the case is solved by customary law but appealed, state law shall be applied for reviewing the judgement.
8.4.2 Subject matter for the recognition by customary law
The proposal for the recognition of customary law advanced in this thesis does not include criminal and administrative fields because they are closely related to politics and state power. Recognition in these fields may not only have negative impact on the role of the ruling party but also cause instability in the nation and discrimination on the basis of ethnicity as well. Civil fields (including the marriage and family fields) are the most appropriate contexts for the application of customary law. The reason for this suggestion is related to the nature of civil transactions.921 They are common relations, and, more importantly, they are significantly influenced by customs, and considerable differences in practices involving civil transactions exist between localities and minority ethnic communities.
However, the problem remains as to how to make minority ethnic communities and
Indigenous people comprehend which case is criminal and which case is civil, because there is no distinction in the local community between criminal and civil
920 Marianne Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizen, Law, and Knowledge (University of Chicago Press, 1994) 8. 921 Civil transactions, according to Vietnam Civil Code 2006, are contracts or unilateral legal acts that give rise to, change or terminate civil rights and obligations, for example, purchasing, swapping or transferring property (Civil Code 2005, art 121). 306
cases. To address this issue, the state should initially widely disseminate a greater knowledge of the law and also provide people (particularly those charged with applying customary law) with the criteria for distinguishing between civil and criminal matters. In this instance, the distinction should be based on the distinction outlined in the Criminal Code and the Civil Code because they offer precise concepts of what are civil transactions and what are criminal relations.
In addition, Vietnam may also consider models from other countries (such as the US,
Zimbabwe and Tanzania) for defining the jurisdiction of customary law.922 The jurisdiction of customary law is normally based on the subjects of the case, who may also be members of a community, or the case might be between a member of one community and a member of another community.923 This means there is a need to define the ethnic group to which the subjects belong. Moreover, there are other important factors that need to be defined, such as whether the transaction was intended by the parties as one which was to be regulated by custom,924 and whether the parties to transactions must consider customary factors in their contracts. Where parties in contracts belong to different ethnic communities (and have different customs), the customs applied shall be noted in the contract. In instances where there is no agreement, state law shall be applied to decide which law shall be applied to the case.
8.4.3 Customary Code
A Customary Code should be issued to create a framework for customary law application. The content of the Code may include general principles, such as the
922 See Chapter 2. 923 Judicature and Application of Laws Act 1961 (Tanzania), art 11 (1) (a). 924 Care, Newton and Paterson, above n 258, 31. 307
principle of national sovereignty, the principle of non-discrimination, the principle of human rights protection in customary law application and so on. In addition, the
Code should also outline the criteria to define a custom, what norms and rules should govern the solution of conflicts between customs, and the relationship between judge and village leaders.
Issuing a Customary Code is the way to legalise the existence of community customs which are already present in every field of the lives of local people. Official recognition may bring about a greater uniformity and unity of law application and judges‘ decisions. It would also discover where conflict exists (or has the potential to exist) between customs and between customs and state law. Consequently, disputes may be settled more appropriately.
In contemporary society, this model should be applied in some defined communities and areas. As noted earlier, with 54 ethnic groups in Vietnam, only a few communities‘ customs have been recorded. To ethnic groups where customs have been recorded as customary law, the state should have the role of evaluating them and determining whether and to what extent to codify them. In minority ethnic communities where customs are unwritten, such customs should be recorded before codification can be undertaken. (This is, when the judges have authorised to make law yet, customary law cannot be recognised by the courts).
8.4.4 Customary courts
Customary courts would be an essential component of an effective system for customary law application. A proposal for establishing customary courts in Vietnam is a breakthrough in judicial reform. Customary courts may share works with other
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courts and make a significant contribution to reducing the burden on overloaded existing courts.
The establishment of customary courts will meet the requirements of ethnic communities. Application of their own rules for their own transactions and activities is their preference. This development would not only serve the community‘s interests, but it also expresses the respect of the state for the cultures and customs of minority groups.
Outlined in Chapter 2 (Advantages of Customary Law in Application), the establishment of customary courts in Vietnam should be in accordance with the expectations of minority group. Accordingly, the enforcement of decisions is likely to be more effective because these decisions will be issued by customary leaders or judges who are elected by the local community. Additionally, as stated in Chapter 1, the procedures of customary law courts should be simple, inexpensive, accessible, and speedy.
The establishment of customary courts should be considered carefully because it raises legal, administrative and financial issues. There are two proposals: 1) establishing an independent customary law system; 2) establishing an extra division
— the Customary Division in district courts.
Establishing customary courts as an independent court system may be complicated. It would need certain criteria. Such criteria may depend on the population, size of the administrative unit, and the economic and social conditions of the minority ethnic communities. Along with criteria to form customary courts, court location is also problematic because such courts should be placed within the minority ethnic
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community so as to be available for use for adjudication, customary application and enforcement. Furthermore, judges, clerks and village leaders also need to prepare to undertaken judicial tasks. This may be impossible to complete in a short time.
In contrast, establishing customary courts as court sections in the existing district courts system seems to be more logical and appropriate; preferable to building a separate independent court system. The reason for this suggestion is based on the limited geographic habitation of minority ethnic communities (usually in small settlements and/or in limited localities). Establishing customary courts as court divisions in the district courts may offer some advantages. Firstly, the state already has the court system in use. The court structure would not be greatly changed because the innovation just adds one more division. Secondly, judges have already been trained in law, so the change only involve appointing judges who will be in charge of the cases relating customary law and supplying them with the necessary additional legal normative documents that customary law recognition will necessarily generate. Thirdly, law enforcement organs may also hold the function of enforcement of customary law. These activities may not add much to the national budget.
However, this mode may present certain disadvantages in terms of adding to the already overloaded situation of the courts.
When customary courts are settled down as a court division in the district court system (for instance, district courts have criminal, civil, administrative, economic and labour divisions, they too should add one more section, the customary law section), expenditure for building new courts will be remarkably decreased. In addition, judges could be appointed to customary courts.
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In instances where customary cases are appealed, the cases will go to the courts of appeal. In this trial, state law may be applied to ensure unity in the application of law. This is appropriate because the case needs to have a final decision and state law is proper choice.
Nevertheless, no matter whether the decision is taken to build a customary court system or establish a customary section in district courts, the court system must change its mode or organisation and redefine its jurisdiction, including jurisdiction of hearing the cases involving customs. In addition, in the event that the law provides a law-making right for judges, the role and function of judges would also be modified.
8.4.5 The role of village leaders
In the recognition of customary law, village leaders would play an important role.
The participation of these subjects in customary law application may contribute to strengthening the effectiveness of law enforcement. Sentences and decisions may be more persuasive and additionally, those who are parties in the case may be more inclined to accept the outcomes.
The role of village leaders and patriarchs should be recognised and regulated in legal documents and/or a Customary Code. It should not only define their legal position but also define their authority in the application of law.
However, redefining the role of village leaders and patriarchs must include provision of the training in legal knowledge required for them to fulfil their duties as judges in any disputes. They themselves must understand both state law and customary law in order to give an authoritative and accurate decision that is both satisfying to the parties involved and less likely to be subject to appeal on any legal ground. Thus,
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village leaders and patriarchs could be trained in legal knowledge so that they would be qualified to participate in a trial with judges.
8. 5 Conclusion
The processes involved in recognising customary law in Vietnam are poorly understood at the present time. This chapter has outlined essential conditions for the recognition of customary law in Vietnam. Drawing on insights from the previous chapters in this thesis, is the chapter has synthesised the best features of legal pluralism, human rights and customary law application worldwide. It offers Vietnam to have a clearer outlook on customary law. However, the proposal advanced in this thesis for the recognition of customary law in Vietnam is only an initial step. It may be considered as a solid foundation on which to build the framework for the recognition of customary law in Vietnam.
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9 CONCLUSION
This thesis has addressed the important topic of customary law and its status in
Vietnam. Customary law itself is source of law in many states but, it is to some extent disregarded in others. Seemingly endless debates on the validity of customary law have demonstrated the considerable attention the topic has attracted in most countries.
The greatest value of customary law may be increasing people‘s awareness of the concept of law (what law is). Even in countries where the paradigm of legal centralism is followed, there can be no denying the truth that customary law is a source of law, or at least provides ‗raw materials‘ for state law. In Vietnam, customary law has been disregarded for a long period (although it has in recent years attracted some attention). Yet, customary law has survived both within and alongside state law, from feudal times until the modern era.
Customary law has played an important role, not only in the national legislation, but also in ethnic communities‘ spirit and beliefs. It is the law of Indigenous and ethnic minority peoples. Wherever Indigenous people and ethnic minority communities settle, customary law will be present. Indigenous people apply their law regardless of its status; that is, regardless of whether it is recognised by the state or not. The community has always considered customary law to be their own law. Its formal recognition and implementation will be a big undertaking and may, if not wisely handled, pose a challenge to the state. The state itself may not be able to forbid or abolish customary law completely, nor may it desire to do so, because such an action
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would in all probability cause significant dissatisfaction among minority ethnic groups and Indigenous people.
In countries of great diversity and multi-ethnicity, national stability should also be more important than the abolition of several customary laws. Thus, to some extent, the state still provides a space for the existence of customary law. However, at the other end of the spectrum from total adoption, it is impractical for the state to implement all aspects of custom as customary law (particularly in light of the nation‘s obligations under international human rights legislation and the need for national unity). However, this should not deter the state from implementing those parts consonant with, or complementary to, state law.
Recognition by the state may give customary law an official name and confirm the extent of its validity in the national legal system. In contrast, customary law may be regarded as mere social norms, controlled by the state and even abolished if it is considered inappropriate in light of considerations of political security and national development. It can be observed from the above that Vietnam has a fine line to tread upon, balancing the need for development and change must be balanced with the maintenance of tradition, localism with centralism; the relative weight given to community ethnicity and the nationhood of the broader society; and weighing the needs and rights of the individual with those of the local and broader community, and the rights of the individual arising from their membership of the whole. This thesis has attempted to make a contribution to the journey upon which Vietnam has embarked.
Human rights and customary law have been closely linked in this thesis. Although ethnic human rights protection and customary law is more or less considered in the 314
existing legal system, the relationship between human rights and customary law has not yet attracted significant attention from Vietnamese scholars. Confronting human rights and ethnic group interests, this thesis proposes that Vietnam should recognise customary law as an official source of law in the Vietnamese legal system. The reason for this is related to the international human rights treaties that Vietnam has ratified, including international conventions relating to ethnic communities human rights. In addition, the need to uphold traditions and preserve surviving cultures within the country are the leading concerns of the Vietnamese state. Hence, the proposal for the more effective recognition of customary law advanced in this thesis is reasonable and necessary.
This thesis has also noted possible shortcomings that may eventuate in the event that customary law is recognised. In terms of human rights, customary law may cause inequality between communities. In addition, some unsound customs need to be abolished to protect human rights. Unsound customs (such as early marriage, male chauvinism, and polygamy) are the opposite of a progressive outlook in the world.
Careful consideration is needed in relation to the content of customary law and the criteria established for the selection of customs to make the transition to customary law and its implementation, such that sound customs are legalised and customs deemed unsound (and perhaps contrary to the nation‘s obligations under international conventions to which it is a signatory) are not. Where they are not, a program of education may be recommended in an endeavour to change a community‘s traditional values, attitudes and behaviours. Rather than embolden the community to make further demands, officially recognising a number of a community‘s customs may serve to make them more amenable to change in the areas remaining.
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Given Vietnam‘s current circumstances, challenges for recognition of customary law include how to change the awareness of customary law, how to create principles for recognition and the selection of the legal regime that would be best for applying customary law.
This thesis has examined the Vietnamese legal system, focussing on its shortcomings and the potential benefits of customary law recognition. The legal system of the
Socialist Republic of Vietnam has been established for decades but due to political, social and economic changes, it has continuously improved. Most prominently, there have been four constitutions and one amendment of the constitution. Given the constitutional changes and the changes in the society, a huge number of normative legal documents (including Acts and subordinate laws) have necessarily also been altered. In recent years, the return of customary law has been heralded in the normative legal documents and has awoken scholars to the possibility of customary law recognition.
The major obstruction for customary law is court jurisdiction as provided for in
Vietnamese laws. In a few civil cases, the courts may apply customary law but most normative legal documents offer no definition of custom and customary law. In addition, giving law-making jurisdiction to the courts is problematic as the
Constitution and Law on the Organization of the People‘s Courts ensure that judges are law implementers, not law makers. Moreover, the scope and conditions for customary law application are currently very limited. This is an obstruction because it limits the possibility of applying customary law in practice.
This thesis has endeavoured to provide a general picture of customary law in
Vietnam, both historically and into the modern era. In light of this history and the 316
identified deficiencies in the current legal system, two main arguments have been advanced: a principled normative argument as to why customary law should be recognised in Vietnam; and a proposal for the legal regime that Vietnam should adopt to more appropriately recognise customary law.
Principles are points of view that need to be grasped thoroughly in the recognition of customary law. They may determine the awareness of legal pluralism and the relationship between human rights and customary law. In Vietnam policies are set by its one dominant party (namely the Communist Party of Vietnam). The Party line and policies have a significant influence on the legislature and, hence, it may be difficult for customary law to gain a position in the legal system if it has not been presented in the Communist Party of Vietnam‘s Resolutions.
Fortunately, in recent years the Resolutions of the Communist Party of Vietnam
(such as Resolution No 48 and Resolution No 49) have manifested a positive outlook towards customary law and consider it as potential source of law.
This thesis has also analysed the mode and criteria for custom to be transformed into customary law, as a basis for making a number of suggestions for Vietnam on the issue of customary law recognition. Nevertheless, considerable further research for customary code and customary courts is required. With 54 minority ethnic groups, the collection and recording of 54 customary codes will be challenging. It requires professional teams, working with village patriarchs or leaders to choose, analyse, and classify customs in order to be able to provide a complete customary code.
Customary courts were part of Vietnam‘s past. Although there are differences in their conditions, circumstances and purpose, Vietnam today may benefit from knowledge
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of the experiences of the establishment and activities of those customary courts to some extent. The establishment of customary courts may allow breakthroughs in the application of customary law, and will be a valuable part of Vietnam‘s trends towards building a paradigm of judicial independence.
The subject matter for the recognition of customary law is important issue. As argued in Chapter 8, the criminal and administrative fields would be difficult fields in which to apply customary law. Civil law and areas related to marriage and the family are more appropriate, including because there already exists in Vietnamese law the beginnings of a legal framework for the recognition of customary law. The task for the government is to build a more effective and completive legal regime for customary law based on these existing regulations.
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LIST OF PUBLICATIONS
Phan, Nhat Thanh, 'Van De Lua Chon va Ap Dung Tap Quan Phap De Bao Dam
Quyen Con Nguoi Cho Cong Dong Dan Toc Thieu So' (2011) 1(62) Journal of Legal
Sciences [Trans: Phan, Nhat Thanh, ‗On the Choice and Application of Custom in
Protection of Human Rights of Ethnic Minorities‘ (2011) 1(62) Journal of Legal
Sciences]
Phan, Nhat Thanh, ‗Nhan Quyen va Luat Tap Quan, Kien Nghi Cho Viec Cong Nhan
Luat Tap Quan o Viet Nam (De Tai Nghien Cuu Khoa Hoc, Da Duoc Duyen boi
Trung Tam Nhan Quyen va Phong Quan He Hop Tac Quoc Te, Truong Dai Hoc
Luat TP. Ho Chi Minh) [Trans: Phan, Nhat Thanh, ‗Human Rights and Customary
Law: A Proposal for Recognising Customary Law in Vietnam‘ (Research paper,
Approved by Human Rights Center and Academic Research and International
Relations Office of Hochiminh City University of Law, December 2010)]
Phan, Nhat Thanh, ‗Vai Tro Cua Nha Nuoc Trong Viec Cong Nhan Luat Tap Quan
De Bao Ve Quyen Cho Cac Cong Dong Thieu So‘ (Tham Luan tai Hoi Thao ‗Vai
Tro Cua Nha Nuoc Trong Viec Bao Ve Quyen Cho Cac Nhom De Bi Ton Thuong‘,
Truong Dai Hoc Luat TP. Ho Chi Minh, 2010) [Trans: ‗The Role of the State in
Recognising Customary Law to Protect Human Rights of Ethnic Groups‘ (Paper presented at the Conference on the Role of the State in Protecting the Rights of
Vulnerable Groups (Hochiminh City University of Law, Vietnam) 27th December
2010)]
Phan, Nhat Thanh, 'The Relationship between Customary Law and Human Rights: A
Possible Approach to the Situation in Vietnam' (Paper presented at the Conference in
Public Law, University of New South Wales, 12–13 July 2010)
319
Phan, Nhat Thanh, 'Legal Pluralism and Human Rights: A Possible Approach to the
Application of Customary Law in Vietnam' (Paper presented at the Other Side of the
Law: Beyond Legal Research, Australian National University, 8–9 July 2010)
320
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Legislation
Bo Luat Dan Su 2005 (Viet Nam) [Trans: Civil Code 2005 (Vietnam)]
Bo Luat Dan Su Sai Gon (Viet Nam Cong Hoa 1972) [Trans: Civil Code of Saigon (Republic of Vietnam 1972)]
Bo Luat Hinh Su 1999 (Viet Nam) [Trans: Criminal Code 1999 (Vietnam)]
Bo Luat To Tung Hinh Su 2003 (Viet Nam) [Trans: Criminal Procedure Code 2003 (Vietnam)]
Chi Thi 24/1998/CT-TTg Ngay 19/06/1998 Cua Thu Tuong Chi Phu Ve Viec Xay Dung va Thuc Hien Huong Uoc, Quy Uoc Cua Lang, Ban, Thon, Ap, Cum Dan Cu
357
(Vietnam) [Trans: Directions No.24/1998/CT-TTg dated 19 June 1998 issued by Prime Minister for Building and Implementing Village Conventions of Villages, Communal Subdivisions, and Inhabitant Groups (Vietnam)]
Chi Thi 39/1998/CT-TTg cua Thu Tuong Chinh Phu Ve Viec Day Manh Cong Tac Van Hoa Thong Tin O Mien Nui va Vung Dong Bao Cac Dan Toc Thieu So 1998 (Vietnam) [Trans: Circular No. 39/1998/CT-TTg issued by Prime Minister on Preservation and Improvement of Ethnic Communities‘ Traditions (Vietnam)]
Hien Phap Nuoc Cong Hoa Xa Hoi Chu Nghia Viet Nam 1992 [Trans: Constitution of the Socialist Republic of Vietnam 1992]
Luat Ban Hanh Van Ban Quy Pham Phap Luat 2008 (Viet Nam) [Trans: Law on Promulgation of Legal Documents 2008 (Vietnam)]
Luat Bau Cu Dai Bieu Quoc Hoi 1997 (Viet Nam) [Trans: Law on the Election of Member of National Assembly 1997 (Vietnam)]
Luat Dat Dai 2003 (Viet Nam) [Trans: Land Law 2003 (Vietnam)]
Luat Dau Tu 2005 (Viet Nam) [Trans: Law on Investment 2005 (Vietnam)]
Luat Doanh Nghiep 2005 (Viet Nam) [Trans: Enterprise Law 2005 (Vietnam)]
Luat Giao Thong Duong Bo 2009 (Viet Nam) [Trans: Road Traffic Law 2009 (Vietnam)]
Luat Hon Nhan Gia Dinh 2000 (Viet Nam) [Trans: Law on Marriage and Family 2000 (Vietnam)]
Luat Hong Duc 1440-1442 (Viet Nam) [Trans: Hong Duc Code (1440-1442) (Vietnam)]
Luat Kinh Doanh Bao Hiem 2000 (Viet Nam) [Trans: Insurance Business Law 2000 (Vietnam)]
358
Luat Ky Ket, Gia Nhap va Thuc Hien Dieu Uoc Quoc Te 2005 (Vietnam) [Trans: Law on Signing, Joining and Implementing International Conventions 2005 (Vietnam)]
Luat Nha O 2005 (Vietnam) [Trans: Housing Law 2005 (Vietnam)]
Luat Quoc Tich Viet Nam 2008 (Viet Nam) [Trans: Law on Nationality of Vietnam 2008 (Vietnam)]
Luat Thue Thu Nhap Doanh Nghiep 2008 (Viet Nam) [Trans: Law on Enterprise Income Tax 2008 (Vietnam)]
Luat Thuong Mai 2005 (Vietnam) [Trans: Commercial Law 2005 (Vietnam)]
Luat To Chuc Toa An Nhan Dan 2002 [Trans: Law on Organization of the People's Courts 2002 (Vietnam)]
Nghi Dinh 90/2006/NĐ-CP ve Quy Dinh Chi Tiet va Huong Dan Thi Hanh Luat Nha O 2006 (Viet Nam) [Trans: Decree 90/2006/ND-CP issued by the Government of guidance to implement Housing Law 2006 (Vietnam)]
Nghi Dinh No.006/65 ve Tai Thiet Lap Toa An Phong Tuc 1965 (Viet Nam Cong Hoa) [Trans: Decree No.006/65 on Re-establishment of Customary Law 1965 (Republic of Vietnam)]
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Nam 2020 (Bo Chinh Tri) [Trans: Politburo Resolution 48-NQ/TW dated 24 May 2005 issued by Politburo Bureau on the Strategies for the Development and Improvement of Vietnam‘s Legal System to the Year 2010 and Orientation for the Period up to 2020 (Vietnamese Politburo Bureau)]
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