Deconstructing the "Socialist" Rule of Law in Vietnam: The Changing Discourse on Human Rights in Vietnam's Constitutional Reform Process

Article excerpt

Since the collapse of the Soviet Union and the socialist bloc in the early 1990s, the one party-state of Vietnam has made a concerted effort to adapt its socialist theoretical foundations and substantially transform key legacies. Since then, the concepts of the "socialist oriented" market economy and the socialist law-based state have been hailed as the most important theoretical achievements of the Communist Party of Vietnam (CPV). The doctrine of socialist law-based state has been claimed by CPV theorists as a distilled version of the rule of law towards which Vietnam is marching. (1) Building on the legacy of "socialist legality", the concept of the socialist law-based state has been given multiple meanings and dimensions. It is developing concurrently as a fundamental value, a basic principle of the Constitution and as a set of institutions to support its realization. However, the concept has insufficiently and inconsistently constructed a human rights regime, exposing disconnects with the international human rights laws that Vietnam recognizes. The dynamic discourse of human rights has emerged in Vietnam within this broader context rather than evolving independently.

The literature on the concept of socialist law-based state and human rights in Vietnam tends to be disparate. Little attention has been paid to the subtle shifts in the discourse of human rights taking place within the broad parameter of the socialist-law based state and their implications. This paper argues that the changing discourse on human rights in Vietnam is likely to transcend the socialist-law based state concept and create a new human rights identity. This identity-shaping process will have important implications for the future development of human rights in Vietnam both as an ideal and regime. The process is characterized by the contestations and challenges over ideas and values among party-state actors and various non-state actors that are unprecedented in the Vietnamese political and legal discourse.

With that in mind, this paper begins by investigating the development of the "socialist" rule of law from socialist legality to a socialist law-based state. It then proceeds to link this development to the human rights regime and the changes taking place in the discourse of human rights during the constitutional reform process in Vietnam. In setting out the context and content of constitutional reform, the paper seeks to deconstruct the socialist rule of law and interpret the discourse of human rights accordingly. It notes subtle changes taking place in the discourse of human rights as the party-state engages more deeply and substantively with international human rights law. With a view to making sense of these changes, it is important to unpack the mechanism of socialization of human rights against the background of Vietnam's politically closed authoritarianism. Furthermore, the paper aims to uncover the implications of this change for the development of Vietnam's human rights regime and ideals.

Gradual Moves to a Rule of Law Discourse in Vietnam

In Vietnam, the discussion of human rights comes within the broad framework of Nha n oc phap quyen xa hoi chu nghia (the socialist law-based state). The reason why the discourse on human rights does not have an independent standing separate from the state doctrine is because it is rooted in the traditional dominance of the socialist legality concept (phap che xa hoi chu nghia) and the doctrine of a socialist law-based state. The latter has been developed as an indigenous variant of "rule of law" since early 1990s. In this context, the point of departure for any research on the discourse of human rights in Vietnam is socialist legality and the law-based state.

Socialist Legality

The core idea behind the concept of socialist legality is that the state attaches increasing importance to the role and rule of law in governance. However, there is a vigorous debate among local actors as to the scope and level of its significance. …