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Vietnam and the Rule of Law Vietnam and the Rule of Law Carlyle A. Thayer and David G. Marr (eds) Political and Social Change Monograph 19 Political and Social Change Monograph 19 Vietnam and the Rule of Law Proceedings of Vietnam Update Conference November 1992 Department of Political and Social Change Research School of Pacific Studies ANU Carlyle A. Thayer and David G. Marr (editors) Department of Political and Social Change Research School of Pacific Studies Australian National University Canberra 1993 © Carlyle A. Thayer and David G. Marr and the several authors each in respect of the papers contributed by them; for the full list of the names of such copyright owners and the papers in respect of which they are the copyright owners see the Table of Contents of this volume. This work is copyright. Apart from any fair dealings for the purpose of study, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission. Enquiries may be made to the publisher. First published 1993, Department of Political and Social Change, Research School of Pacific Studies, The Australian National University. Printed and manufactured in Australia by Panther Publishing and Printing. Distributed by Department of Political and Social Change Research School of Pacific Studies Australian National University Canberra ACT0200 Australia (FAX: 61-6-249-5523) National Library of Australia Cataloguing-in-publication entry Vietnam and the rule of law Bibliography ISBN 0 7315 1852 7. 1. Law - Vietnam. I. Thayer, CarlyleA. II. Marr, David G. III. Australian National University. Dept. of Political and Social Change. (Series: Political and social change monograph; no. 19). 349.597 Contents Acknowledgements iv Contributors v Introduction Carlyle A. Thayer 1 PART1: SOCIO-ECONOI\.fiC SETTING 1. The Vietnamese Economy in 1992: Development and Prospects Adam Ffo rde 23 2. Health and the Current Situation and Recent Changes Suki Allen 38 3. Recent Political Development: Constitutional Change and the 1992 Elections Carlyle A. Thayer 50 4. The 1992 Constitution and the Rule of Law Ngo Ba Thanh 81 5. Vietnam's Revised Constitution: Impact on Foreign Investment Levien Do 116 PART2: LAW AND THE ECONOMY 6. The Evolutionof Private Commercial Freedoms in Vietnam John Gillespie 129 7. Real Estate Laws in Vietnam Nguyen Qui Binh 148 8. Problems of the CorporateIncome TaxStructure Nguy en Qui Binh 160 9. The Creation of a Labour Market in Vietnam Legal Framework and Practices Irene Nerlund 173 Bibliography 182 Acknowledgements We would like to thank the Australian International Development Assistance Bureau (AIDAB) for financial support in convening the November 1992 Vietnam Update meeting from which this volume has emerged. Australian Ambassador Michael Potts and his staff as well as former Ambassador Graham Alliband, facilitated contact with participants from Vietnam. John Gillespie kindly liaised with the Australian legal community on our behalf. David Laidlaw, William Magennis, Brian Weir and Noel Fabri took part in a panel discussion on legal practice relating to Vietnam, which offered ample food for thought to other participants when revising papers for publication. Staff of the Department of Political and Social Change assisted us every step of the way: Bev Fraser helped to organize the Update, sustained communication with writers in the revision process, word processed and formatted the entire text, and liaised with printers to a tight schedule; Allison Ley researched missing details and ambiguities in the text; and Lulu Turner copy-edited the page proofs for consistency of usage. The Editors Contributors Allen, Suki: Medical practitioner and health consultant. Author of Country Gender Analysis fo r Vietnam (Stockholm, 1993). Co­ founderof consulting firm ADUKI Pty. Ltd., Canberra. Do, Levien: Solicitor, Mallesons Stephen Jaques, Sydney. Fforde, Adam: Visiting Fellow, Department of Economics, Research School of Pacific Studies, ANU. Author of The Agrarian Question in North Vietnam, 1974-1979: A Study of Cooperator Resistance to State Policy (New York, 1989). Co-founder of ADUKI Pty. Ltd., Canberra. Gillespie, John: Senior Lecturer, Centre for Asian Business, Deakin University, Melbourne. Author of articles on foreign investment and commercial arbitration in Vietnam. Marr, David G. (co-editor of volume): Senior Fellow, Pacific and Asian History Division, Research School of Pacific Studies, ANU. Co-editor of Postwar Vietnam: Dilemmas in Socialist Development (Ithaca, NY, 1988). Ngo Ba Thanh: Doctor in Law, University of Paris. International Comparative Law Consultant. Author of Vietnam's Economic Renovation and the Development of Law (Hanoi: 1991). Nguyen Qui Binh: Director, International Law and Treaties Department, Vietnam Ministry of Foreign Affairs. Norlund, Irene: Senior Research Fellow, Nordic Institute of Asian Studies, Copenhagen. Co-editor of Vietnam in a Changing World (CurzonPress, forthco ming). Thayer, Carlyle A.: Visiting Fellow, Department of Political and Social Change, Research School of Pacific Studies, ANU. Associate Professor, Australian Defence Force Academy. Author of War by Other Means: National Liberation and Revolution in Vietnam (Sydney, 1989). Introduction Carlyle A. Thayer In September 1990 the Departments of Human Geography, Political and Social Change, and Pacific and Southeast Asian History, and the National Centre for Development Studies of the ANU's Research School of Pacific Studies hosted a landmark international conference on the theme 'Doi Moi: Vietnam's Renovation - Policy and Performance' (see Forbes et al., 1991). This meeting was so successful that it sparked the idea to emulate the model of the annual Indonesia Update. The Vietnam Update as it was originally conceived, consisted of a review of the major, economic, social and political developments over the previous year and the exploration of a specially chosen theme. In November 1991 the first Vietnam Update was held on the theme of human resource development. Papers delivered at this conference were not published in an edited collection. This volume contains the revised papers delivered to the second Vietnam Update held in November 1992 on the theme 'the law in Vietnam'. The title of this book, Vietnam and the Rule of Law, was adapted from the original title of Mme Ngo Ba Thanh's paper, 'The 1992 Constitution and the Rule of Law'. The papers delivered at Vietnam Update 1992 fall into three categories. The first consists of the papers delivered by Adam Fforde, Suki Allen and Carlyle Thayer which provide an overview of major economic, public health and political developments in 1992. The second category comprises papers by Ngo Ba Thanh and Levien Do which deal with the 1992 state constitution. The third category includes the papers by John Gillespie, Nguyen Qui Binh and Irene N0rdlund which discuss specialist aspects of the law in Vietnam. Vietnam's reform process is usually dated to the landmark Sixth National Congress of the Vietnam Communist Party held in December 1986. It is now clear, based on recent research, that the impetus for economic reforms dates back to the late 1970s. Calls for political reform were first expressed in public in 1981 in the lead up to the Fifth National Congress held in March 1982. Comparatively little was accomplished in this area until after 1986. The speed and scope of changes since 1986 has been quite startling. Within three years Vietnam had all but dismantled its 2 Carlyle A. Thayer central planning apparatus and had thrown open its doors to foreign investment. According to Adam Fforde 'if, as one can argue without much difficulty, the Vietnamese economy has been essentially a market economy since 1989, then the leadership is the sole example in the world today of a ruling communist party that has abandoned the central-planning methods derived from Stalinist Russia' (Fforde 1993:293). What then was the situation in 1992, 'year fo ur' of the Vietnamese market economy? Fforde raises three principal questions in his discussion: What do current economic trends indicate for the state of the country when large-scale foreign assistance recommences? What do current trends indicate for the medium-term rural development outlook? And would the Vietnamese polity be able to cope with the immense strains of market-orientated development without an accompanying political evolution? Fforde provides his readers with a concise summary of the main economic trends in the first half of 1992. On the positive side Vietnam experienced the rapid growth of private and state capital, the inflow of foreign investment, the strong development of the private sector, especially in the retail trade, soaring oil production, and the growth of marine, agricultural and forestry exports. On the negative side, the state sector continues to be supported by cheap credits and tax breaks. This serves to stoke inflationary pressures and to distort interest rates. In rural areas Fforde notes that the 'new deal' promised by the party in its Decree No. 10 decollectivizing agriculture has failed to materialize. As a result rural credit and market stabilization remain weak, while the terms of trade facing peasant farmers have deteriorated. Fforde devotes most of his analysis to the prospects for weaning state enterprises from their dependency on cheap credit. In his view, the political influence of the state business sector is a major constraint on the development of strong institutions that are needed for rapid and stable growth. Fforde also foreshadows
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