Read a version of this story in Vietnamese
When Vietnam’s National Assembly meets in May, parliamentarians will be asked to study, review and amend the 2013 constitution at the request of the politically powerful Politburo.
According to Article 120 of the constitution, the president, the National Assembly standing committee, or at least a third of National Assembly deputies, have the right to propose amendments.
If two thirds of parliamentarians vote in favor of the changes, the National Assembly will set up a constitutional drafting committee.
The committee will organize public consultations, then submit a draft to the assembly. Again, two thirds of members need to support the changes for them to be incorporated into the constitution.
Deliberations on any proposed changes could reveal differences between the ruling Communist Party, which is usually intent on consolidating its powers, and reformers seeking a more open society.
Is amending the constitution constitutional?
Vietnamese lawyers have very different views on the planned changes.
One human rights lawyer said the Politburo’s plan is in line with the current political environment.
”The party holds leadership through Article 4 of the constitution and most members of the National Assembly are party members, so their call for the national assembly to vote on the amendment is appropriate," said the lawyer, who didn’t want to be named because he practices in Vietnam
Not so, said Germany-based lawyer Nguyen Van Dai.
“The [state-controlled] press should have said that the president or the National Assembly standing committee, at the request of the Politburo, had proposed to amend the constitution, which would have been more consistent with the provisions of the constitution.
“But they only bluntly said that the Politburo requested to amend the constitution, so clearly they have pushed the highest authority of the party of the communist regime of Vietnam into an unconstitutional state.”
What will be amended?
Officials have not specified which articles of the constitution are under consideration according to Carl Thayer, emeritus professor of politics at the University of New South Wales, Canberra. However, he said the planned abolition of district-level government and the reorganization of the nationalities council suggest that Article 110 and Articles 75-77 will be amended.
Article 110 states that provinces are divided into counties, and centrally governed cities are divided into urban and rural counties. These references will be deleted, he said.
Articles 75-77 set out the structure, organization and tasks of the nationalities council. The council was reorganized in February and it is likely that the wording of these articles will be revised.
“If the constitutional amendment is limited to amending the Articles to reflect the dissolution of district-level governments and the reorganization of the ethnic council, there will be no major impact on Vietnam’s political system beyond the institutional restructuring that is underway,” Thayer said.
“General Secretary To Lam’s institutional restructuring will only strengthen the party’s role in Vietnam’s political system. It is unlikely that Article 4 will be amended, and so far, no Vietnamese official or legislator has mentioned this possibility” added Thayer.
“This does not rule out the possibility that reform-minded citizens could try to use this process to push for broader political change by amending Article 4, as happened in 2013.”
What is Article 4?
Since the end of the Vietnam War in 1975 there have been several amendments of the constitution. It was changed in 1980 and again in 1992. It was amended and supplemented in 2001 and most recently amended in 2013.
Many rights groups and political activists want Article 4 removed from the constitution when it is next amended. The article outlines the Communist Party’s leadership role in the state and society.
According to Human Rights Watch, Article 4, which stipulates the Communist Party as “the vanguard of the working class [and] the Vietnamese people,” restricts the right to participate in freely held multi-party elections.
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Lawyer Nguyen Van Dai said many believe the next time the constitution is amended Article 4 needs changing or removing.
“When To Lam said he wanted to bring Vietnam into the ‘era of rising up’ and declared that ‘the institution is the bottleneck of bottlenecks,’ the word institution referred to the political institution, Dai said, referring to the Communist Party.
Although Article 4 does not prohibit people from forming other political parties, Dai discovered to his own cost that people who threaten the one-party system face long prison sentences.
Dai founded the Brotherhood for Democracy in 2013 to defend human rights and promote democratic ideals in Vietnam.
He was sentenced to four years in prison for “propaganda against the state” in 2007, and 15 years in prison in 2018 for “activities aimed at overthrowing the people’s government.” He was released in 2018 and exiled to Germany.
Dai said the constitution needs radical amendments with the phrase “according to the provisions of law” removed, because this allows the party to crack down on any attempts to introduce a democratic political system.
He said there should also be a constitutional court which could annul laws and documents that are issued unconstitutionally or contain unconstitutional provisions.
Germany-based democracy activist Nguyen Tien Trung agrees, saying the court could ensure that no law contradicts the constitution.
Which laws are unconstitutional?
Trung cited the example of the Cyber Security Law which he said violates the right to freedom of speech enshrined in Article 25 of the constitution.
“To ensure the people’s right to be masters, the new constitution needs to remove Article 4 to avoid conflict with Articles 2 and 3 of the constitution: Every citizen has the right to form a party to run for election, and only the winning party has the legitimacy to lead the state. Communists and non-communists are equal. That is also the principle clearly stated in Article 16 of the constitution.
“Finally, the constitution is only valid when it is approved by the people. The one-party National Assembly has no right to pass the constitution because the people have never given that right to the National Assembly through a referendum.
“The Communist Party needs to hold a referendum and let the people approve the new constitution as they have always claimed that ‘the people are the masters’.”
Translated by RFA Vietnamese. Edited by Mike Firn.