Vietnam: Constitutions As Signalling Instruments
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VIETNAM: CONSTITUTIONS AS SIGNALLING INSTRUMENTS Professor Pip Nicholson Dean, Melbourne Law School, Australia Dr Do Hai Ha Postdoctoral Research Associate (University of Oxford China Centre) I. Introduction This paper sits at the intersection of two sites of constitutional scholarship. First, it draws on Ginsberg and Simpser’s significant work on authoritarian constitutions which reflects on: i. What do authoritarian constitutions do? ii. How do they work? iii. Why do they exist?1 At least part of the answer to these three questions offered by Ginsberg and Simpser lies in their characterisation of the signalling power of constitutions, and we turn to that shortly2. Secondly, during a discussion at a 2016 National University of Singapore conference, a group of scholars argued, at least in part, that the Vietnamese constitution of 2013 was not specific in certain critical respects. If we accept this insight, what implications does that have for constitutional signalling in socialist states? Today, we suggest that the 2013 Vietnamese Constitution has signalling power, while also containing not very specific provisions. This in combination with the political role of socialist constitutions, confirms that signalling can be significant, but also that it can be dynamic and what is signalled can fluctuate. Actors involved in negotiating the signals include the Party-state and reformers. Signals leave an elastic space, and where ambiguities exist; these can operate regressively or progressively. This paper builds on a forthcoming publication in David Law, Holning Lau & Alex Schwartz (eds) the Oxford Handbook of Constitutional Law 1 Vo Tri Hao, ‘Integrating the Principle of Separation of Powers into the 2013 Constitution’, Paper presented at ‘Constitutional Debate in Vietnam’ Conference, National University of Singapore, 2016 [unpublished paper]. 2 A focus on the contemporary period does not mean we deny a constitutional legacy from imperial and colonial Vietnam, particularly given the possibility of a ‘traditional constitutional’ legacy. There is also Vietnamese literature arguing these early influences. See Bui Ngoc Son, ‘The Global Origins of Vietnam’s Constitutions: Text in Context’ (2017) 2 University Illinois Law Review 528 (hereafter Bui, ‘Global Origins’). 264 ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS II. Socialist and Authoritarian Constitutions By way of background, in 2013 the SRVN passed its fifth constitution, following unprecedented consultation by the Party-state. The consultations witnessed the strongest advocacy for liberal constitutional reforms since the passage of the DRVN’s first independence constitution in 1946. This paper focuses on the most recent constitutional reforms and their impact. Writing in 1977, Chris Osakwe contends that the hallmarks of socialist constitutions include that they: are the State’s basic law, establishing the state’s economic focus and political aspirations but not capable of enforcement (no judicial review); set up a unitary state structure (no separation of powers); are led by the relevant Communist Party which as the vanguard party is regulated by political, rather than legal structures; and include a procuracy, which has the powers to prosecute and supervise the implementation of law1. As Bui notes, socialist constitutionalism is instrumentalist: constitutions do not reflect how state power is constrained but are instead a ‘tool for the [Party-]state’2. This conception is realised through the key roles played by instrumentalism, ‘vanguardism’, where the people’s power is expressed through the vanguard role of the relevant communist/socialist party, and democratic centralism. ‘Democratic centralism’ requires the combination of democratic discussion in decision-making and centralised action in implementation3. Across time, democratic centralism has provided the foundation for power and control of policy and law and statist conceptions of rights and the economy4. III. Constitutions as Signalling Instruments Constitutions in authoritarian states also play a signalling role. There is a range of different signals that authoritarian constitutions can send. First, constitutions can serve as ‘billboards’. The signalling function is positivistic: the effect is to advertise the regime’s actual, present commitments.5 The audience for these signals may be the population of the state itself or external actors to whom the state seeks to publicise certain constitutional commitments (frequently those relating to its openness to international trade and investment)6. 1 Monty Johnstone, ‘Democratic Centralism’ in T B Bottomore (ed), A Dictionary of Marxist Thought (Blackwell Reference 1991) 134-136. 2 Bui, ‘Globalization’ (n 7) 476-478. 3 Ginsburg and Simpser (n 1) 6; Bui, ‘Constitutions in Ethnically Plural Societies’ (n2) 205. 4 Ginsburg and Simpser (n 1) 6–7; Denis J Galligan and Mila Versteeg, ‘Theoretical Perspectives on Social and Political Foundations of Constitutions‘ in Denis J Galligan and Mila Versteeg (eds), Social and Political Foundations of Constitutions (Cambridge University Press 2013) 1, 13–14. 5 See Jeff King, ‘Constitutions as Mission Statements’ in Denis J Galligan and Mila Versteeg (eds), Social and Political Foundations of Constitutions (Cambridge University Press 2013) 73. Although King’s argument is limited to liberal democracies, it has been observed that mission statements ‘often appear in [the constitutions] of autocratic nations’: Galligan and Versteeg (n 1429) 10. 6 Ginsburg and Simpser (n 1) 8; Bui, ‘Constitutions in Ethnically Plural Societies’ (n 2) 205. See also Walter F Murphy, ‘Constitutions, Constitutionalism and Democracy’ in Douglas Greenberg et al (eds), Constitutionalism and Democracy: Transitions in the Contemporary World (Oxford University Press 1993) 3, 10. VIETNAM: CONSTITUTIONS AS SIGNALLING INSTRUMENTS 265 Second, constitutions can serve as ‘blueprints’ or ‘mission statements’1. These constitutions portray an aspirational future, rather than laying down a set of (immediately) enforceable norms2. There is no sharp distinction between billboard and blueprint constitutions: a constitution may simultaneously reflect current commitments and portray an imagined future3. Sometimes, however, constitutions signal neither present commitments nor future aspirations. ‘Window dressing’ or ‘sham’ constitutions4 give the appearance of compliance with the global consensus as to the minimum core commitments of a constitution, but in truth, they impose no meaningful constraints on the state nor do they signal an intention to move towards more robust normative commitments in the future5. Window dressing constitutions devalue the norms to which they pay lip service6. Window dressing can concurrently sit alongside billboard/mission statements and can be addressing local as well as international audiences. The constitutional text will affect the nature of the signal that the constitution sends. Recent work demonstrates that authoritarian constitutions are less specific than their democratic counterparts: they cover fewer issues, and they do so in less detail7. In this analysis, authoritarian constitutions are sometimes categorised as either ‘sham constitutions’ — where they may cover a wide range of rights, but those rights are not respected in practice — or ‘weak constitutions’ — where they provide a low level of rights protection8. This dichotomy - sham or weak (also explained as ‘cheap talk’)9 - although helpful at a level of abstraction, has the potential to obscure the importance of constitutional drafting, which in turn has consequences for the signals that the constitution sends. The dichotomy tends to overlook those constitutions that include provisions that, although broadly consistent with liberal constitutionalism, are framed in abstract or ambiguous language. This paper suggests that ambiguity is not necessarily ‘sham’. It might also enable developments to be tested and experienced, before a nation commits to new constitutional norms, albeit these constitutions are largely aspirational. And it may therefore be strategic. In contexts where constitutional courts adjudicate constitutional matters, provisions framed at a high level of generality may send a quite different signal than those that are more specific. In the case of democratic constitutions, Dixon argues that abstract or ‘framework-style’ drafting results in the conferral of greater discretion on the judiciary in constitutional interpretation, whereas a maximalist or ‘codified’ constitution limits the judiciary’s power10. Dixon recognises, however, that the effect of different drafting styles in relation to authoritarian constitutions, where judicial independence is 1 King (n 12) 73; Galligan and Versteeg (n 11) 12. 2 See David S Law and Mila Versteeg, ‘Sham Constitutions’ (2013) 101 California Law Review 863. 3 Ginsburg and Simpser (n 1) 7. 4 Ibid 8. 5 Zachary Elkins, Tom Ginsburg and James Melton, ‘The Content of Authoritarian Constitutions’ in Tom Ginsburg and Alberto Simpser (eds), Constitutions in Authoritarian Regimes (Cambridge University Press 2013) 141, 159–60. 6 See, eg, David S Law and Mila Versteeg, ‘Constitutional Variations among Strains of Authoritarianism’ in Tom Ginsburg and Alberto Simpser (eds), Constitutions in Authoritarian Regimes (Cambridge University Press 2013) 165. 7 Ginsburg and Simpser (n 1) 7. 8 Rosalind Dixon, ‘Constitutional Drafting and Distrust’ (2016) 13 International Journal of Constitutional Law 819. 9 Ibid 842. 10 See Law and Versteeg (n 19) 170–2.