POLICY ON ENFORCEMENT OF IMPRISONMENT SENTENCES IN VIETNAM AND CHINA - FROM THE PERSPECTIVES OF TRADITION, CONSTITUTION AND STATUTORY LAW
Dr. Le Lan Chi School of Law, Vietnam National University, Hanoi
Abstract Vietnam and China, the two neighbours are both in the family of the legal system of the feudalism - “中华法系” (Chinese legal system) in the past and of the socialism now. The paper raises the questions: Do such analogous points lead to any analogous policy on the enforcement of imprisonment sentences? Besides, are there any distinct points between the two countries? What is the movement of these common and distinct points in the current policies on enforcement of imprisonment sentences, especially when Vietnam and China have recently revised their constitutions and prison laws? The paper applies Comparison, “Yi – ology” and Generalization as three main methods to answer these questions; in addition, “Contextual analysis” and “Teleological Statute interpretation” ones are also employed. The paper argues that apart from some differences between Vietnam and China, the two countries have the same approach, which is the outstanding “阴法阳儒” (Yang Fa, Yin Ru), i.e. Legalism with law (penalty) is the mainstream and Confucianism with morality (virtue) is subordinate in the enforcement of imprisonment sentences and which is far distinct from the shown approach “阴儒阳法” (Yang Ru, Yin Fa). Nowadays, the more harmonious approach between government powers and human rights in the 2013 Constitution of the Socialist Republic of Vietnam (the 2013 Constitution of Vietnam) and the Constitution of the People’s Republic of China with the 2018 Amendment (the Constitution of China) entails further adjustments to the policy on enforcement of imprisonment sentences based on the new context but in connection with history and tradition values of the two countries. Keywords: imprisonment, punishment, reform, prisoners’ rights, Yin Yang.
Introduction Policy on the enforcement of imprisonment sentences reflects the viewpoint of the state not only on the nature of penalty in general and imprisonment in particular, but also on the benefits obtained from the inmates’ serving imprisonment sentences. Besides, the policy provides a reflection of the state’s attitudes and behaviours toward the inmates, as well as a vivid demonstration of the level of human rights and the rule of law of a nation. As Nelson Mandela had said: “It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones”. Especially, the policy is one part of history, hold traditional concepts and values in the legal culture of a nation. 406 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS
Looking back into history, as a small country bordering a much larger and more populated one - China, Vietnam has been heavily influenced by China’s legal philosophies and the legal system. In modern days, both are Communist countries with a relatively similar criminal justice system. Therefore, it is necessary for research from comparative perspectives on policy on enforcement of imprisonment sentences of Vietnam and China to have a true grasp over the issue of each country. However, studies with such an approach are still limited in numbers. On the other hand, similar to those in China, policy on enforcement of imprisonment sentences in Vietnam is a relatively sensitive field, sometimes avoided because of its association with democracy and human rights, many research with the view to considering the enforcement of imprisonment sentences have been published with limited access to sufficient and official data of practice. In the current context when both countries give high priority to the rule of law, human rights, transparency, democratization in terms of criminal justice, further comparisons are necessary. This paper examines the similarities and differences between the policy of China and Vietnam through the analysis of the history, constitution and statutory law concerning to enforcement of imprisonment sentences. Methods Addressing the aforementioned questions, this research employs Comparison method and Generalization one to identify the similarities and differences between the two countries in terms of the history of law and penalty. “Yi-ology” is used for the identification of the movement and changes among the conflicting political and legal philosophies co-existing in the policy on enforcement of imprisonment sentences, and between the ones in the old Feudalism and existing Socialism on the policy. The method also aims to examine the movements and changes of Vietnam under the influence of China. The contextual analysis method is applied to specify the impacts of political, economic, and socio-natural contexts on the policy-making process of each nation. The method of “Teleological statute interpretation” is applied for more detailed and accurate analysis of the constitution and law concerning to enforcement of imprisonment sentences in the association with criminal law and related bylaws. Results
1. Traditional policy on enforcement of imprisonment sentences in Vietnam and China Similar to other East Asian countries, Vietnam is deeply influenced by legal-political philosophies and feudal law of China. For more than a thousand years of Chinese colonial rule and even after another thousand years after Vietnam reclaiming independence in 938, the two typical political and legal philosophies of the Chinese feudal regime, “Ru” (Confucianism) and “Fa”, have spread to Vietnam. In general, each feudal dynasty of Vietnam has passed down a legislative heritage by enacting a comprehensive code governing most of the basic fields of the society by the stipulations of criminal law, by criminal sanctions - penalties. Two Codes, National Penal Code of the Le Dynasty (Quoc Trieu Hinh Luat) in the 15th century and National Penal Code of the Nguyen Dynasty (Hoang Viet Luat Le) in the 19th century, which are still preserved to date, set out the penalty system with 05 principal punishments (“the Five Punishments”) and some additional penalties. The “Five Punishments” include: 1- “Xuy” (Chi): light stick, 2- “Truong” (Zhang): heavy stick, 3- “Do” (Tu): penal servitude), 4- “Luu” (Liu): life exile, and 5- “Tu” (Si): death. The “Five Punishments” is not largely different POLICY ON ENFORCEMENT OF IMPRISONMENT SENTENCES IN VIETNAM AND CHINA... 407 from ones in China as these originate from China itself. “Imperial Chinese law did not distinguish between criminal law and civil law. Neither did it distinguish private law from public law as “the Five Punishments” (“Wu Xing”), since ancient times, underwent changes and were enshrined in the Tang Code – the new codification of the Tang dynasty in 624. The Tang’s Five Punishments “proved remarkably influential not only in China, but also in East Asia”1. The enforcement of these punishments is not specified separately, but is always present in the regulations on grades of penalty which also shows the forms of the punishments. For example death sentence consists of 03 following grades corresponding to 03 manners of execution: (1) “jiao” hanging or decapitation; (2) “xiaoshou” (expose or display of the head); (3) “lingchi” (tormented death), prior to which are four less severe penalties similar to “Five Punishments” in the National Penal Code of Le Dynasty2. “Tu” (penal servitude) and “Liu” (life exile) can be perceived as two versions of the current imprisonment penalties and the policy on such. Particularly, criminals have their freedom restrained and must stay in a confined space under the management and supervision according to different levels of security (though not in confinement facilities of such high concentration as the current “prison”). Additionally, for both “Tu” and “Liu”, restricting freedom is one characteristic while the other is compulsory labour. For example, for “Tu”, according to Quoc Trieu Hinh Luat, criminals are forced to serve their sentence in workplaces such as kitchens, fields, gardens, and silkworm or elephant farms. For “Liu”, despite the long or short distance of exile, the penalty in nature means isolating criminals in a remote location and forcing them to work. Besides, these two penalties stripped not only the criminals’ freedom, but also their honour and social status as degrading them to the servants, “cizi” (judicial tattooing) them as the dregs at the bottom class of the society. So, the traditional policy on enforcement of imprisonment sentences is featured by typical traits as such: grades of the penalties are specified via the manners of enforcement thereof; the penalties and their enforcements are to punish criminals not only by restricting freedom, but also degrading their honour and dignity; human rights, rehabilitation and reintegration of criminals are not an issue of concern to the state; and, the exploitation of penal labour is emphasised for various practical purposes. The most common model of the feudal dynasties of Vietnam and China is often generalized in the formula of “Yang Ru, Yin Fa” (阴儒阳法): “Ru” (Confucianism) is the supremacy (“Yang”) and “Fa” (Legalism) is the subservience (“Yin”), or its simple version of “De Zhu, Xing Fu” (德主刑 辅): the supremacy of “De” – one of the core concepts of “Ru” and the subservience of “Xing” - one of the core concepts of “Ru”. It originates from the combination of two conflicting legal-political philosophies, which are “Ru” and “Fa”. As Confucius, the vital figure of “Ru”, states: “Guide them by edicts, keep them in line with punishment and the common people will stay out of trouble but will have no sense of shame. Guide them by virtue, keep them in line with the rites and they will, besides having a sense of shame, reforms themselves” (Analects II, 3). Confucianism puts forward the theory of “De” (morality or virtue) and “Li” (rites). The objective of Confucianism is to prevent crime by the shame, honour and self-restraint of each individual person since it is believed that human beings could be reformed thanks to the good nature of human nature, that people could be improved through education and persuasion. Meanwhile, Legalism introduces the theory of “Fa”, “Xing”: “Fa”
1 Klaus Mühlhahn, Criminal Justice in China A history (Havard University 2009) 31 2 Quoc Trieu Hinh Luat (National Penal Code of Le Dynasty) in Mot so van ban dien che va phap luat Viet Nam tu the ky XV den the ky XVIII (Some legislations and legal documents of Vietnam from 15th century to 18th century) (Vol. 1, Khoa hoc xa hoi 2006) 48 408 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS
(law) is “Xing” (penalty); penalty is punishment; the results of law enforcement are more important than the process of the enforcement itself, in other words: “Power regarded as law, law regarded as punishment, contempt for law on proceedings, emphasis for mediation, disregard for the rights, and emphasis for prevention”1. This is considered to be a common formula of governance mentioned in studies on the history of Vietnam and China. “In particular, the emphasis of the supremacy of “De” and the subservience of “Xing” (德主刑辅), or the idea of “morality given priority over penalty”, was fundamental to the administration of justice in the imperial state”2. Such combination of the two philosophies is considered a basic rationale for the administration of justice and punishment that even continued to influence the way criminal justice operated up to the modern time in their publication before3. Looking back into history, Dong Zhongshu (195-115 B.C) was the first author of the formula of the relationship between “Ru” and “Fa” originated from Yin Yang cosmology. “He related Punishment to “Yin” and virtue or morality (“De”) to “Yang”. “Yin” was subordinated to “Yang”, and by analogy, the ruler should in his rest mainly in virtue, not on punishment. Punishment should be a helper of morality as “Yin” is supposed to be the helper to “Yang”4. However, in the field of criminal justice, “Fa” is the dominant, which can not serve as “Yin” and only support to “Ru”. Law or criminal law demonstrates the authoritarian power of the emperors, so “Fa” (upholding punishments, incapacitation, deterrence, and prevention with the severity of the penalty) shows “Yang” - the main role, expressed in a major, common and permanent manner; “Ru” (treasuring education through virtues and rites) signifies “Yin” as a supplementary role, expressed in a minor, uncommon, non-permanent manner in stipulations on punishments and their enforcement. The National Penal Code of Nguyen Dynasty, with its preface written by Emperor Gia Long himself, despite expressing the Confucian thought the possibility of human rehabilitation, has its nature imbued with the spirit of the Legalism about the role of punishments and their enforcement in inducing fear to deter people from committing crimes. Emperor Gia Long stated: “I personally did the final revision of the Code so that everyone would learn in order to prevent mistakes. The Code shines like the sun and the moon, leaving no shadow anywhere, and the strict punishments are as dazzling as lightning, resounding like thunder which spare no wrongdoing. And the obstinate can easily be looked upon to avoid crimes and punishments. Therefrom they can go down the path of self-education and avoid committing wrongdoings, thus, the officials have few reasons to intervene. Then all things will go well without the enforcement of laws. Is that not a good thing?”5. That “Fa” (Penalty/Xing) is better regarded also takes root from the practical benefits yielded during the enforcement process. Enforcement of penalty does not only achieve such objectives as retribution, rehabilitation, deterrence, and incapacity, but also yields many practical benefits for the state. Enforcement of penalty provides cheap labour for building constructions such as palaces, temples,
1 Du Vinh Can, Tong quan tu tuong phap luat Nho gia (Overview on Confucists’ Ideals on Law), (Nhan dan Quang Tay 2000), Vietnamese version translated by Institue of Scientific Information, Hochiminh National Political Academy) 29. 2 Wei Wu & Tom Vander Beken, “Understanding Criminal Punishments and Prison in China” (2018) The Prison Journal 98 (6) 700, 703
1 Mühlhahn (n 1), 32 2 Do Duc Minh, Hoc thuyet phap tri trung Hoa co dai, Gia tri tham khao trong quan ly xa hoi o Viet Nam (Legalism in acient China, Reference Values in Society Administration in Vietnam) (Chinh trị hanh chinh 2013) 139 3 Ibid, 37 4 Ibid, 35 5 Mühlhahn (n 1), 38 410 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS
wet-rice farming was born and people lived on such farming throughout the history. Meanwhile, Vietnam is both in Southeast Asia – the cradle of the philosophy and the only country of the region that adopted the philosophy after China had perfected it”1. Vietnam is the land upholds “Yin” – “Yang” balance that leads to a moderate, harmonious and non-extreme attitude towards life. Thanks to harmonious comportment, social disputes and political conflicts in Vietnam were not as bitter as in China; therefore, the need for deterrence in social management of Vietnam rulers was not so strong to impose extreme sentences. Division, ruling as a feud and a power struggle among feudal clans were in place, but not as apparent as in China. On the other hand, the difference between Vietnam and China can be explained from the view of history. Vietnam’s history largely revolved around resistance against invasion and territorial expansion of China; as a result, law and penalty were put in a political and social context that valued the close relationship between the ruler and his or her people – the ideology of “亲 民” (closeness to the people) and “且寬民力” (easing the people’s burden of life) to gain the people’s support and nurture their strength. The ideology has a quite profound presence throughout Vietnam’s history. Some typical works of national heroes Ly Thuong Kiet, Tran Nhan Tong, Nguyen Trai, and Le Thanh Tong demonstrated such, and a particular one by Tran Hung Dao: “As the long-term strategy of “easing the people’s burden of life” is the best policy to defend the nation”2. Maintaining closeness to the people in Vietnam’s politics contributes to the tolerance in legislation and its enforcement, as well as less strict and punitive requirements of the criminal law. This is different from China’s history featured by the division and power struggles among feudal clans, as well as the territorial expansion taking roots from Unileversalism (conquering others) and Sinocentrism (China is central) of the Chinese. In addition, the approach to forced labour in the two countries also differ. Vietnam did not lay heavy emphasis on the need for penal labour due to its smaller area and population, less severe climate, along with community and religious works of smaller scale and lower complexity, including palaces, temples and tombs. Conversely, in China, penal labour was used to control floods in Huang He river, construct the Great Wall, or far-flung boundary outposts (“Those sentenced fapei were sent to Manchuria, Mogolia, or later, Xinjiang in the North West. These regions were considerable farther away than the maximum distance stipulated for regular or military exile”3). Therefore, the policy of Vietnam on enforcement of imprisonment sentences was more moderate, in which criminals are allowed to stay and work in shorter distance and less severe conditions.
2. Modern policy on enforcement of imprisonment sentences The 20th century witnessed momentous changes in the national and the legislative history of the two countries. On September 2, 1945, the Democratic Republic of Vietnam was established. Throughout the next 30 years of war (1945-1975), in the North Vietnam - a socialist legal system was in gradual development which was strongly influenced by the law of the Union of Soviet Socialist Republics (Soviet Union). On October 1, 1949, the People’s Republic of China was formed and its legislation on the enforcement of imprisonment sentences was also under the influence of the Soviet Union. As the states shifted to socialist regime, their policy on such was based on a shared outlook
1 Tran Ngoc Them, He gia tri Viet Nam tu truyen thong den hien dai va con duong toi tuong lai (Vietnam Values System from Tradition to Modernity and the Way to the Future) (Van hoa nghe thuat 2016) 205 2 Ngo Sy Lien et al., Dai Viet su ky toan thu (Daiviet ‘s General History Book) (Khoa hoc xa hoi 1993) 126 3 Mühlhahn (n 1), 33 POLICY ON ENFORCEMENT OF IMPRISONMENT SENTENCES IN VIETNAM AND CHINA... 411 on human ity, i.e. human can be rehabilitated; therefore, the enforcement of these sentences moves towards rehabilitating people and combining “punishment with education and reform”. In China and Vietnam alone, this policy is also an inheritance of the historical flow with a combination between the theories of “Ru” and “Fa” in the new context. “The basic principle of Confucian thought-bringing out the good nature of people and creating change through imposing moral education – has meshed with the Communist’s need to reeducate the people in Socialist values. The ancient legalist view promoting the use of strict punishments to punish wrongdoing and prevent crime were also within the philosophical framework of the Communist regime, which believes the punishment and reform go hand in hand”1. For Vietnam, the policy has clearly and consistently highlighted its nature as a combination of punishment with education and reform, which is still in place and aligns with the regulation for the purpose of penalty stipulated in the Penal Code 2015, a 31 (penalty is not only to punish offenders but also to educate them on the compliance with laws and social norms while deters them from committing more crimes); this policy is further reflected in the regulation on the principle for enforcement of criminal sentences specified in the Law on enforcement of criminal judgements 2019, a 4(4) and before that, Law on enforcement of criminal judgements 2010, a 4(4): “Combine punishment with education and reform in judgement enforcement”. For China, the Prison Law 1994, at 3 provides that: “A prison shall, with regard to prisoners, implement the principle of combining the punishment with reform and combining education with labour, in order to transform them into law-abiding citizens”. This principle remained unchanged in the most recent amendment of Prison Law of China in the 29th meeting of the 11th National People’s Congress date October 26, 2012. Vietnam’s and China’s policies are similar in the sense that enforcement of the imprisonment sentence shall be the combination of punishment with education and reform, in which punishment shall be put before. Therefore, such policies in socialist era still considers the enforcement of imprisonment sentences as punishment at first (similar to the theory of Legalism) and then education and reform (similar to the principle of Confucianism on the role of education and that human can be rehabilitated). Modern policy on the enforcement of imprisonment sentences of China and Vietnam use the “combination” between punishment and education and reform, but they make not much of a difference from the previous “Yang Fa, Yin Ru”. However, concerning form, education and reform continue to rank first, following the line of socialist humanity with the mission of revolution of reforming human on the belief that human is reformable; in fact, punishment still outweighs education and reform due to the demand of proletariat dictatorship entailing vigorous repression via institutions on sanction and penalty and its enforcement. There is a switch between “Fa” and “Ru” according to “Yin and Yang” in terms of the form and content. Regarding content, “Fa” represents “Yang” and “Ru” represents “Yin” but the opposition is true in term of form. On the other hand, the dual existence (“Yin” in “Yang” and “Yang” in “Yin”) can be used to highlight a principle of conversion between punishment with reform and education in the enforcement of imprisonment sentences. The penalty itself is punishment (deriving of the inmates’ freedom and relating rights due to being derived of freedom). However, only under punishment can the inmates recognize of their wrongdoings and correct themselves (education and reform based on punishment).
1 Erika Fairchild, E. and Harry R. Dammer, Comparative Criminal Justice System, (2nd edn, Wadsworth Thomson Learning 2001) 259 412 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS
On the contrary, punishment is embodied in education and reform. Criminals are penalized in the name of education and reform. This nature was extremely prominent in the period prior to the introduction of the Prison Law 1994. In 1954, China issued the Act of the People’s Republic of China for Reform through Labour. Despite its name as “Reform through Labour”, Article 2 of the Act considers prisons as a part of the “people’s democratic dictatorship”. Given its disarray of social orders and values in the second half of the 20th century, China has coined a distinctive definition of “reform”. Three China’s distinctive aspects of reform in this special period are generalized as follows: First, in terms of content of reform: political ideology and viewpoints are particularly emphasized in reform program: “Inmates are subject to institutions called laogai to promote “thought rehabilitation through labour” 1. “Inmates also obtain moral education in Socialist ideology such as sound work ethic and acceptance of the ideal of collectivity” 2. Inmates are politically reformed by undergoing “different kinds of degradation ceremonies, such as mass trials (gongshendahui公审大会) and mass sentencing rallies (gongpandahui 公判大会), providing an important avenue through which the emotive representations of public shaming and moral indignation toward crimes and criminals were constituted” 3. Political views and policy lines must be learned and reiterated by the inmates. Their shortcomings, their criminal past must be repeated in activities of self-reflecting and giving criticism to other inmates. Re-educating their way of thinking is also a form of mental punishment for inmates. Second, in terms of target groups of reform: inmates – those who are sentenced to imprisonment and sent to “Laogai” (Reform through Labour Camps) only make up a part in the total number of people reformed in the system of correctional facilities, Because apart from inmates, there are also lawbreakers or counter-revolutionaries being detained without trial in “Laojiao” (Reform through Labour facilities), which is a part of the Administrative Detention Centers. Laojiao had existed for a long time and detainees here, though in the name of being reformed, are in fact deprived of their freedom and punished. Generally speaking, there is a wide range of reform subjects due to the fact that the need for reform (a political ideology) is given as an excuse to expand the target groups of reform and scope of confinement without court proceedings. Third, in terms of manners of reform: labour is the manner that plays a vital role in reform inmates. In the minds of Mao ZeDong and other Chinese communists, labour plays a particularly important role: “Labour in Chinese Communism was above all understood as a cultivating activity for transforming the mindset of those who were engaged in it”4. So, “In the rehabilitation of criminals, China operates on the principle that education is very important, attaching great importance to physical labour in addition to legal, moral, cultural and technical education to encourage criminals to stop considering their time in prison as a forced prison term but think more in terms of conscientious reform, to give up the idea of obtaining personal profits through criminal means, to form the habit of respecting other people and society in general, and to obtain the work skills needed for later employment so that they may become law-abiding citizens”5. “In all forms of Chinese punishment,
1 Ibid, 216 2 Ibid, 261 3 Wu & Beken (n 4), 78 4 Mühlhahn (n 1), 152 5 Information Office of the State Council Of the People’s Republic of China,Criminal Reform in China (White Papers 1992) POLICY ON ENFORCEMENT OF IMPRISONMENT SENTENCES IN VIETNAM AND CHINA... 413 labour is a recurring theme”1. In Vietnam, followed the Soviet model, there was a period since 1954 as the born of the so-called Reform Camps under the management of the General Department of Reform through Labour (Cuc Lao cai) and this name was maintained until 1961 when the People’s Police Ordinance was issued, it was changed to General Department of Police of Prison Management (Cuc Canh sat quan li trai giam). Vietnam also conducted ideological reform, but for completely different subjects - a part of officials of the Republic of Vietnam regime after 1975 (within a few years after the war and only for those who were former enemies on the front lines). In the case of Vietnam, to a certain extent, there are similarities with China in terms of reform policy and the context in which the policy is implemented: political-ideological context (one party, one ideology), socioeconomic context (severe economic crisis in both countries during this period). In the case of China, China’s approach stemmed from the internal political problems of a large nation with a huge population without great importance placed on human rights in general and freedom of thought in particular. As for Vietnam, two wars in 30 years (1945-1975) divided the country both geographically and ideologically. Therefore, when the country was united, objective ly speaking, this model of concentrated reform and ideological education in this case, despite receiving mixed reviews, was not vengeful, but it was a transitional approach to stabilize the country after the unification. Currently, China is still heavily criticized for poor protection of human rights of inmates, for over exploitation of inmates’ labour, for the use of organs of criminals sentenced to death2, etc. even though China always denies or mitigates the severity of the problem. We do not have access to authentic information to affirm or deny. However, since the promulgation of the Prison Law 1994, China has adjusted its policy on enforcement of imprisonment sentences that respects human rights and the rule of law more. The Prison Law 1994 “has recognized and implemented common principles such as rule of law, fairness and justice” 3. “Inmates’ rights cumulatively form the largest portion of the new Prison Law. Due treatment goes far beyond the prohibition against mistreatment and corporal punishment (which are still “strictly prohibited” under new Article 14)” 4. The Law confirmed that “Human dignity of a prisoner shall not be humiliated, and his personal safety, lawful properties, and rights to defend, petition, complaint and accusation as well as other rights which have not been deprived of or restricted according to law shall not be violated” (a 7), demanded that “The people’s
1 Chad Cook, “The Chinese System of Corrections: Searching for Answers” (2011) 3 (Chinese Law Paper Series © Government Law Center of Albany Law School) < https://www.albanylaw.edu/media/user/glc/china_law_paper_ series/chad_cook_final.pdf > accessed 28 October 2019 2 See: 1, Joan E. Hemphill, Comment, China’s Practice of Procuring Organs from Executed Prisoners: Human Rights Groups Must Narrowly Tailor Their Criticism and Endorse the Chinese Constitution to End Abuses, 16 Pac. Rim L & Pol’y J. 431 (2007).
police of a prison shall strictly abide by the Constitution and the law, be loyal to their duties, enforce the law impartially, strictly observe discipline and be honest and upright”, set prohibited acts of infringement on inmates, identified grounds for reward and punishment (s 6) and specified, the content and methods of Education and Reform (c V), especially legalizing the labour regime in the mode of rehabilitation based on the principles “An able-bodied prisoner must do labour” (a 69). Overall, after 40 years of renewal, China has consistently advocated building its own socialist state with centralized power. The Constitution of China does emphasize the authoritarian power of the State. The Constitution of China, a 1 enshrines: “The People’s Republic of China is a socialist state under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants”. Meanwhile, the 2013 Constitution of Vietnam does not mention “democratic dictatorship” when defining the nature of the State (“The Socialist Republic of Vietnam is a socialist rule of law State of the People, by the People and for the People” (a 2). The Constitution of China, mainly uses the concept of citizens’ rights while the Constitution of Vietnam simultaneously uses the two concepts of human rights, citizens’ rights, putting the concept of human rights first1. On the other hand, the 2013 Constitution of Vietnam sets out a rule that restricts human rights and citizens’ rights: “Human rights and citizens’ rights shall only be restricted when prescribed by law in imperative circumstances for the reasons of national defence, national security, social order and security, social morality and community well-being” to determine the scope and manner of restricting human rights and citizens’ rights of the State while the Constitution of China has yet to set this rule. In terms of labour, unlike the 2013 Constitution of Vietnam, the Constitution of China continues to emphasize the role of labour: “Work is a matter of honour for every citizen who is able to work” (a 42) as a continuation of the value of labour in the cultural tradition of this country. Vietnam does not regard labour as a civic value reflecting social standard enshrined in the constitution, nor identifies labour as an element of the imprisonment sentences and policy on enforcement of imprisonment sentence as China does. Based on the provisions on human rights and citizens’ rights in the 2013 Constitution of Vietnam, the Law on Enforcement of Criminal Judgments 2019 of Vietnam has supplemented several important provisions defining and ensuring the rights of inmates: (1), introducing a new provision onlyon inmates’ rights and duties (a 27), inmates’ rights, including: Have their lives, health, assets, dignity protected and respected; having been informed of their rights and obligations and regulations of places of detention; Receive board and lodging, clothes, personal care, health care as prescribed; receive letters, gifts, money; read books, newspaper, listen to the radio, watch television in conformity with conditions of the place where they serve the sentence; Participate in physical training and sports, cultural and performance activities; Participate in work, study, apprenticeship activities; Meet and contact with relatives, representatives of agencies, organizations, and individuals; or have consular visit and contact in case of foreign inmates; Conduct civil transactions as per the law by themselves or via their representatives…; (2), introducing new provisions on rights for inmates of vulnerable groups: in addition to groups of inmates prescribed in the Law 2010, inmates as nursing women with children under 36 months of age residing with their mothers in prison, inmates who are LGBT or whose gender is unidentified shall be held separately(a 30). These are the provisions ensuring the
1 See the title and content of Chapter 2 of the Vietnam Constitution 2013 and of Chapter 2 of the China Constitution (2018 Constitutional Amendment) POLICY ON ENFORCEMENT OF IMPRISONMENT SENTENCES IN VIETNAM AND CHINA... 415 human rights of inmates that has not mentioned yet in the Prison Law 1994 amended in 2012, or if ever mentioned, they are somewhat general and insufficient (Law 1994 a 7, a 39). Through this comparison, it can be seen that the Law on Enforcement of Criminal Judgments 2019 of Vietnam shows more humane points, ensuring more human rights, at least on paper, in Vietnam. Yet China also has more advanced points than Vietnam does. China enacted its first prison law in 1994, 16 years earlier than Vietnam. Meanwhile, until 2010, Vietnam passed the Law on Enforcement of Criminal Judgments (although there was an Ordinance for Enforcement of imprisonment sentences in 1993). The Vietnam Penal Code 1985, 1999, Criminal Procedure Code 1989, 2003 all has provisions on the enforcement of the imprisonment sentence, but there is no specific and separate act regulating the enforcement of criminal judgments, only). The Penal Code 2015 and the Criminal Procedure Code 2015 of Vietnam have just set up parole and the legal framework for enforcement of parole has just been supplemented under Section 3, Chapter III, including 16 articles from Article 57 to Article 72 of the Law on Enforcement of Criminal Judgments 2019. Parole of Vietnam was established later than that of China (the Penal Code 1997, s 7 provided quite specific provisions on parole). The Amended Prison Law 1994 was promulgated in 2012 with specific provisions on certain cases in which short sentences did not have to be served in prisons. China also solves the question of allocation of the Bureau of Prison Administration with the more “civilianized” manner than Vietnam. In China, the Bureau of Prison Administration is under the Ministry of Justice while in Vietnam, the organs with the same function (The Departments of Administration of Criminal Judgments) are under the Ministry of Public Sercurity and the Ministry of National Defence (the ministries in charge of administrative management of the armed forces). The policy on transferring the task of prison administration of the Ministry of Justice in Vietnam has been set in the Resolution 49-NQ/TW Vietnam in 2005 of the Political Bureau of the Communist Party on Strategy to reform the judicial system until 2020 remained unimplemented. Both the Law on Enforcement of Criminal Judgments of Vietnam and the Prison Law of China share the same approach to define the inmates’ obligations. The Law on Enforcement of Criminal judgments 2019, a 27(2) stipulates that inmates have the following obligations: “… Abide by internal rules of prison, serving emulation standards”; c) Abide by the requests, orders and instructions of officials of places of detention…”; the China Prison Law 1994, a 7 provides: “Inmates must strictly observe laws, regulations, and rules and discipline of the prison, subject himself to control, accept education and take part in labour”. Back to the 2013 Constitution of Vietnam, a 14 (2): “Human rights and citizens’ rights shall only be restricted when prescribed by law in imperative circumstances for the reasons of national defence, national security, social order and security, social morality and community well-being.” However, the Law on Enforcement of Criminal Judgments 2019 does not have regulations specifying the content of the Constitution, a 14(2), nor are there regulations on the nature and scope of inmates’ rights which are restricted by laws as the China Prison Law 1994, a 7: “Human dignity of a prisoner shall not be humiliated, and his personal safety, lawful properties, and rights to defence, petition, complaint and accusation as well as other rights which have not been deprived of or restricted according to law shall not be violated”. The Law on Enforcement of Criminal Judgments 2019 is designed in a manner that creates initiative with relatively large amplitude for prison rules (bylaws) and for competent authorities and persons in enforcement of criminal judgments. The Law 2019, a 10(2) is nothing new compared to the Law 2010 regarding “prohibited acts in enforcement of criminal judgment”, which prohibits: “Failing to abide by decisions to enforce of criminal judgments; 416 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS
obstructing or resisting the implementation of internal rules on enforcement of criminal judgments or decisions or requests of competent authorities or persons in enforcement of criminal judgments.” This provision is a legal basis for the establishment and consolidation of prison order, but when inmates are forced to comply with “internal rules on enforcement of criminal judgments or decisions or requests of competent authorities or persons in execution of criminal judgments”, their rights shall be unlikely to be guaranteed if the Law on Enforcement of Criminal Judgment does not specify cases where inmates’ rights are restricted. The issue continues to be raised regarding the prison rules issued together with the Minister of Public Security’s Circular No. 36/2011/TT-BCA on May 26, 2011. Accordingly, “in order to strictly keep the prison’s discipline and create favourable conditions for the serving of imprisonment sentences of inmates, the Minister of Public Security stipulates the prison rules as follows: Article 1. Inmates must strictly abide by court judgments and decisions, absolutely obey the orders and abide by the instructions of prison officials...”. Prison internal rules include regulations and discipline of the prison, which are by-laws (issued by the Ministry of Public Security) and can directly restrict the rights of inmates while the Constitution sets out the restriction of human rights by law. The debatable question is the fact that the 2013 Constitution of Vietnam sets out the restriction of human rights (1) by law/legislation (enacted by Parliament) or (2) by law (including the constitution, law, sub-laws and other documents not enacted by Parliament)?. In the context of the incomplete legal systems in the two countries, it is not feasible to restrict human rights by law enacted by Parliament only (due to such laws are unable to cover and update all social relations that need to be governed). Although human rights can be restricted by sub-law documents, the judicial review mechanism to ensure the sub-law documents (especially the ones restricting human rights) are consistent with the constitution, must be strong enough. However, this mechanism in China is still insufficient and the same with Vietnam (without a constitutional court or constitutional council). The judiciary in Vietnam exercises judicial powers as defined in the 2013 Constitution, a 102(1), but there are no specific provisions on the content of judicial powers and judicial review has not been set. The judicial review, the modality of constitutional implementation have not been fully recognized to ensure the supremacy of the consitution, as the supremacy of the consitution or consitutionalism remains a sensitive topic. Hence, the two countries have yet to overcome practical socio-political challenges which demand the dictatorship of government powers, and have yet to establish a complete legal system so that the policy of enforcement of imprisonment sentences can operate on the basis of the rule of law, in an increasingly humane way, better guaranteeing the rights of people sentenced to imprisonment.
Conclussion The policy of enforcement of imprisonment sentences in Vietnam and China is following the formula of “Yang Fa, Yin Ru”. This formula of “Yang Fa, Yin Ru” is actually not absolutely new. It is newer if compared to previous studies that only mentioned “Yang Ru, Yin Fa”, which is disseminated by the authorities. “Yang Fa, Yin Ru” itself have been nothing new as its long-lasting existence, just not clearly shown. The reason is that, “Fa” is like an ugly but a warm shirt worn inside to retain heat, while “Ru” (with “De”, with “Li”, with its trust in the good nature of humans and the role of education in bringing humans back to their inherent good nature) is like a beautiful brocade worn outside to cover the ugly shirt inside, despite being almost unable to keep warm. This formula continues to be maintained and clearly demonstrated in practice in the modern time. However, the POLICY ON ENFORCEMENT OF IMPRISONMENT SENTENCES IN VIETNAM AND CHINA... 417 changes of the era have been directed towards the trend that the policy is less of a punishment and more education and reform. Vietnam, whether in the feudal regime of over 2000 years or in the socialist regime since the second half of the twentieth century, has been influenced by China’s policy on enforcement of imprisonment sentence, but the degree of punishment is less severe. In executing modern imprisonment sentences, the position of ideological reform and the role of labour are not as emphasized as in China. Currently, both countries are in the trend of enhancing human rights in the relationship with the goverment powers and in the socialist models of rule of law in each country. However, Vietnam has taken an earlier, stronger approach to human rights and citizens’ rights in its 2013 Constitution. Human rights in the enforcement of imprisonment sentences are also defined more clearly and fully in the new Law on Enforcement of Criminal Judgments 2019. This is a strong point and also a value that Vietnam needs to continue pursuing. Vietnam has more favourable conditions to promote human rights and the rule of law than China, the world’s most populous country with the complexity of political, religious, regional, ethnic, etc. issues so there is a need for an institution of enough public power to govern the society. Our study approaches such policy of Vietnam and China by the comparison with history, with new provisions of the Constitution and the laws concerning to enforcement of imprisonment sentences. It has shown similarities as well as differences between the two countries, but has yet to provide practical data on prisoners to identify the real situation of applying the policy. On the other hand, it also has yet to put the policy in the landscape of criminal policies in each country. The content of the policy on enforcement imprisonment sentences, in a broad sense, also includes the views on the organizational structure of the prison system and the relationship with the components of the criminal justice system, the views on the categorization of inmates and the assurance of genuine equality for disadvantaged inmates, on preparation for social-integration of inmates… but fails to mention in this paper. However, the policies of enforcement of imprisonment sentences are considerably identified via the connections between the past and the present, the external appearance and the internal content as well as in the connection between the two neighbouring countries that are not always in a harmonious relationship. These connections - which can be hidden for many reasons - have been more clearly shown in this study.
References Anderson, A. F., “A Perspective on China’s New Prison Law” (1996), International Criminal Justice Review (Vol. 6) 79, 83
1995), pp. 135-154
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