3. Capitulo III – Subjetividades Políticas en Asoinca
3.3. El Nosotros en Asoinca “Nosotros lo que buscamos es cómo hacemos
3.4.2. Las trayectorias políticas y de vida como espacios de configuración
The Vietnamese state has been engaged in the Doi moi process since 1986. It should be acknowledged that the legislation on public administration is now clearer and more transparent with more specific accountabilities than it was nearly three decades ago.120 The procedures for promulgating legislation have been reformed. The legal system is more certain and more protective of citizens’ rights. Many laws have created a legal framework enabling the state to ensure that society is regulated by the law. Mathieu and Ket find it impressive that legislative effort has been made to build a comprehensive regulatory framework for the state and its civil servants to operate within a clear law.121
However, scholars and legal experts have revealed a number of problems. One is ‘legislative inflation’ with many poor-quality laws. Another is described as luat khung, luat ong [law-frame, law-pipe] which means the law states only general principles 122 or luat treo [suspended law] which indicates that the law exists in the books but not in
118 The VCP’s Resolution 49; Ministry of Justice, above n 15. 119 Peerenboom, above n 108, 42.
120 Mathieu and Ket, above n 91, 149. 121 Ibid.
122 Bảo Minh, “Tranh tinh trang luat ‘khung’, luat ‘ong’” [The Situations of ‘Law-Frame’ and ‘Law-pipe’ Have to Be Avoided] Sài Gòn Giải Phóng
22
practice.123 As a result, many scholars have doubts about the effectiveness of these legal reforms, including the law on state liability.
Matthieu and Ket, for example, emphasise that despite progress toward a clearer legislative framework governing state activities, there is still complexity, overlap, and inconsistency.124 They illustrate this by examining the problem of legislative inflation produced by the poor quality of laws. The number and the length of legal texts, including laws, decrees, ordinances, and resolutions have, they claim, created a regulatory labyrinth. They also point out that: 125
The quality of laws which are only “frames” is not good enough to be directly implemented. ...To implement the law, secondary legislation is then needed, such as decrees and ordinances. This situation contributes to aggravation of legislative inflation but also delays the implementation of laws, as adopting this secondary legislation takes time. Moreover, the decrees and other texts adopted by different institutions sometimes contradict the laws.... [T]here is then plenty of room for inaction, personal interpretation, arbitrariness, and corruption.
As Gillespie observes ‘for most Vietnam’s history laws played a relatively minor role compared with regulation through moral virtue, administrative measures, and self regulation by village officials and families’.126 Sidel similarly observes that Vietnamese law has played a narrow role in recent national political and legal life dominated by the VCP.127 Hao concluded in 2007 that while the Vietnamese legal framework on human rights has been positively changed, it is still far from adequate.128 Sidel, in 2008, stated that the distinctive characteristics of the key principles underlying the post-1986 reform of Vietnamese legal system include a strong role for the state and an instrumentalist concept of law as serving state interest and priorities, and a notion of rights as state- granted rather than emanating from concepts of natural rights.129
123 Anh Xuan, “Luat ... treo” [Suspended law] Người Lao Động, 15 August 2008 <www.laodong.com.vn/Home/Luat-treo/20088/102192.laodong>
124 Mathieu and Ket, above n 91, 141. 125 Ibid.
126 Gillespie and Chen, above n 6, 78.
127 Mark Sidel, Law and Society in Vietnam: The Transition from Socialism in Comparative
Perspective (Cambridge University Press, 2008) 2-3.
128 Hao Duy Phan, ‘A review of the legal framework for human rights protection in Vietnam’ (2007) (2) Asia-Pacific Journal on Human Rights and the Law 20.
23
By pointing to the tools that may be utilised by the state in centralised systems, Milhaupt and Pistor provide useful insights into the role of the state in shaping the pattern of legal change. The authors’ analysis shows the tools that may be utilised in both the formulation and enforcement of law. They indicate that a rapid convergence of the law-in-books in state-led economies towards other systems is unlikely to occur and that changes in the law in practice are likely to take place at an even slower pace. Substantial changes to the formal law may be introduced by the state in response to pressures from globalisation and interest group politics.130 Other devices, such as limitations of norms, may, however, continue to operate in the implementation of changes in the formal law, and mitigate the effect of those changes. This is also consistent with Pistor and Wellons’ findings in their earlier study of legal developments in six Asian economies. They found that different parts of those systems took different paths in development (‘path differentiation’). While strong signs of convergence towards western models were present along the allocation or contents of the law, the procedural dimension, namely the application and enforcement of law, tended to be more path-dependent.131
Uniform application of national laws in Vietnam is also affected by localism, corruption, legal culture and the uncertain overlap of VCP and government activities and responsibilities.132 Those problems are also seen with the SCL as well as in its enforcement. Consequently, there is some scepticism about the success of the SCL in imposing restraints on state power and officials.
Other challenges have been expressed by Quinn. He indicates that the movement from rule by bureaucracy to rule by law is not necessarily fast or easy. In the case of Vietnam, in an effort to keep pace with other reforms, the NA and the government have developed very broad legal frameworks. The ongoing tension between the future system and the existing system may mean that there are no or unexpected or converse
130 David M Trubek, ‘The Political Economy of the Rule of Law: The Challenge of the New Developmental State’ (2009) (1) Hague Journal on the Rule of Law, 28-32; David M Trubek, ‘Developmental States and the Legal Order: Towards a New Political Economy of Development and Law’ (University of Wisconsin Law School, Legal Studies Research Paper Series, Paper No.1075, October 2010) 10-12 <http://ssrn.com/abstract=1349163>; Mark Robinson and Gordon White (eds), The Democratic Developmental State: Political and Institutional Design (Oxford University Press, 1998).
131 Katharina Pistor and Philip Wellons, The Role of Law and Legal Institutions in Asian
Economic Development, 1960-1995 (Oxford University Press, 1999) 285.
132 Đỗ Quốc Sâm, ‘Bàn về lãnh đạo và quản lý trong cải cách hành chính’ [On Leadership and Administration in the Administrative Reforms] (2007) Tap chi Cong San 6.
24
outcomes.133 He and other writers have pointed out that in its intention to create a legal system for regulating a market-oriented economy, Vietnam has borrowed western law but without its legal institutions or culture.134
In addition, the laws relating to state activities are often considered as tools to protect the state itself rather than individuals or legal persons or other organisations. Jayasurya, in 1999, argued that the liberal understanding of the use of law and the rule of law in the adjudication of disputes between individuals and individuals and the state and public officials was not observed in Vietnam and several other countries in Asia. The law had been used to entrench state power and as an instrument to pursue the objectives of the state.135
One further difficulty impacting on the effectiveness of the legal framework is the lack of an adequate blueprint.136 The legal reform process has been conducted without an integrated and comprehensive plan. Thus, the overlap and conflict between the laws and other regulations is common in Vietnam. In Resolution 48, even the Political Bureau (Politbura) of the central committee of the VCP admitted that:137
Nhìn chung hệ thống pháp luật nước ta vẫn chưa đồng bộ, thiếu thống nhất, tính khả thi thấp, chậm đi vào cuộc sống. Cơ chế xây dựng, sửa đổi pháp luật còn nhiều bất hợp lý và chưa được coi trọng đổi mới, hoàn thiện. Tiến độ xây dựng luật và pháp lệnh còn chậm, chất lượng các văn bản pháp luật chưa cao. Việc nghiên cứu và tổ chức thực hiện các điều ước quốc tế mà Việt Nam là thành viên chưa được quan tâm đầy đủ. Hiệu quả công tác tuyên truyền, phổ biến, giáo dục pháp luật còn hạn chế. Thiết chế bảo đảm thi hành pháp luật còn thiếu và yếu.
[In general, the Vietnamese legal system is inconsistent and not unified, often ineffective and difficult to apply in practice. The mechanism for making or amending laws is irrational, not comprehensive, and it has not been yet been paid sufficient attention. Making laws and ordinances is slow and the quality of legislation is not high. Research about and implementation of international treaties to which Vietnam is a party have not been paid
133 Brian J M Quinn, Note, Legal Reform and Its Context in Vietnam (Selected Works, Boston College Law School, January 2002) 221.
134 Ibid.
135Kanishka Jayasuriya, Law, capitalism and power in Asia: the rule of law and legal
institutions (New York : Routledge, 1999).
136 Gillespie and Chen, above n 6, 96.
25
enough attention. Effective legal education and awareness of the law is limited. The institutions to ensure implementation of laws are weak and inadequate.]
The quality of drafting and implementation of laws, including the law on state liability for compensation, is very poor. When evaluating the XII NA’s operational effectiveness for the period 2007-2011, during which it enacted the SCL, Professor Duong observed that:138
Về chất lượng lập pháp, tuy đã có tiến bộ, nhưng cũng còn một số luật còn chứa đựng những quy định chưa phản ảnh đầy đủ nhu cầu của cuộc sống, nên tác dụng điều chỉnh không cao, một số quy định còn thể hiện ý chí chủ quan, tính dự báo không cao, tính khả thi còn thấp, nên sức sống của một số điều luật và đạo luật không dài...
Một số luật mới ban hành có những quy định trái với luật hiện hành do chính sách đề ra thiếu nhất quán, nhưng chưa kịp thời sửa đổi, bổ sung những mâu thuẫn đó, làm cho hệ thống pháp luật thiếu thống nhất, lúng túng trong thực hiện, tính khả thi thấp. Việc ban hành văn bản hướng dẫn luật
còn chậm làm cho luật chậm đi vào cuộc sống, gây khó khăn choviệc thực
hiện luật. Hình thức thể hiện tuy có tiến bộ, nhưng nhiều điều luật vẫn còn
quy định dài dòng, thiếu rõ ràng, minh bạch và thiếu chế tài cụ thể.
[In this period, regarding the quality of legislation, although achieving certain progress, there are some laws containing provisions which have not yet reflected adequately the needs of life so they are difficult to apply in practice; some rules are subjective, with low predictability, limited feasibility, so the viability of such laws does not remain stable. … Moreover, some new laws have been made contrary to existing provisions due to inconsistent policy proposals that produce inconsistencies in the legal system, with limited effectiveness and difficulties in their implementation. The promulgation of secondary regulations guiding the laws is often slow. This creates difficulties in implementing the law. Many provisions are over long, lacking clarity, transparency and specific sanctions.]
138 Prof. Dr. Trần Ngọc Đường who is senior expert of Institute of legislative research, delegate of NA X, XI, he is former Vice Chairman of NA office, former assistant of Head of NA, former Chef Editor of the journal of legislative research, Legislative activities of NA XII [Hoạt động lập pháp của Quốc hội nhiệm kỳ XII] <http://luathoc.cafeluat.com/showthread.php/33229-Hoat- dong-lap-phap-cua-nhiem-ky-Quoc-hoi-khoa-XII#ixzz2TJx6JPH0>
26
This research places the SCL in the context of the Vietnamese reform program. It is focussed more on the legal developments than on the economic development. Nevertheless, it touches on a number of issues raised in the literature including: the role of the state in the development state or a centralised system,139 the state apparatus such as government agencies and the courts, the role of law in protecting human rights and in the legal reform process, and the procedural dimension or the application of the law in practice.