Keywords: Article 4 of the 2013 Constitution.

1. New features of Article 4 of the 2013 Constitution

Article 4 of the 2013 Constitution of the Socialist Republic of Vietnam states as follows:

“1. The Communist Party of Vietnam - the vanguard of the working class, concurrently the vanguard of the laboring people and Vietnamese nation, faithfully representing the interests of the working class, laboring people and entire nation, and acting upon the Marxist - Leninist doctrine and Ho Chi Minh Thought, is the force leading the State and society.

2. The Communist Party of Vietnam is closely associated with the People, shall serve the People, shall submit to the supervision of the People, and is accountable to the People for its decisions.

3. Organizations and members of the Communist Party of Vietnam shall operate within the framework of the Constitution and law”.

Politically, the supplemented contents in Article 4 of the Constitution are to institutionalize new perceptions of the position and role of the CPV which has been affirmed in the Platform for national construction in the transitional period to socialism (supplemented and developed in 2011)(1). On social aspect, the supplements are “to clarify the nature, role, and responsibility of the CPV as the leading force of the State and society”(2). 

To be more specific, the following points continue to be affirmed and clarified:

Firstly, the reconfirmation of CPV’s historical mission and position as the leader of the State and society in the transition to socialism. The CPV is the de facto force that led the Vietnamese people to achieve national independence, conduct Doi Moi, and is currently the only force capable of leading the Vietnamese people to build socialism.

Secondly, the clear, comprehensive and public identification of the CPV’s nature as the vanguard of not only the working class but also of the laboring people and the Vietnamese nation. Accordingly, it affirms the people’s recognition of the Party’s leadership. Furthermore, it requires the Party in a position to make more efforts to deserve the people’s trust.

Thirdly, the emphasis of requirement for the CPV to hold close bonds with the people, serve the people, submit to the supervision of the people, and is accountable to the people for its decisions regarding national and people interests. Besides, in order for the people to supervise the Party’s organization and activities, and to identify the Party’s liability, the 2013 Constitution defines not only the organization but also “members of the CPV shall operate within the framework of the Constitution and law”.

Among the aforementioned points, a significantly important one is the provision of the Party’s responsibility in relation to the people. This is the first time that the Party’s responsibility is defined at the constitutional level. Moreover, rather than generally state that “the Party is accountable to the People for its leadership”, the 2013 Constitution clearly stipulates that “the Party is accountable to the People for its decisions”. This stipulation concretizes the responsibility for decisions of each Party’s organization, addressing the problem of “denying” liability(3).

2. The principle “the Communist Party of Vietnam shall operate within the framework of the Constitution and law” in the 2013 Constitution

This principle was recognized in Article 4 of the 1980 Constitution, then the 1992 Constitution. The 2013 Constitution inherits the provisions of its two predecessors, while also states that not only the Party’s organizations (as mentioned in 1980, 1992 Constitution) but also its members “shall operate within the framework of the Constitution and law”. This principle has the theoretical and practical basis as follows:

Firstly, this principle stems from the nature and purpose of the Party: The CPV was built and developed with no other purpose but “for the people” purpose

During 90 years of leading Vietnamese revolution, overcoming a great deal of difficulties and challenges, the CPV has always shown its “people-oriented” nature. Meanwhile, since becoming the ruling party, the Party has always adjusted itself to ensure that its leadership complies with the Constitution and law.

Although the 1st, 2nd, 3rd, 4th and 5th Party Charter did not specify the Party’s operation within the framework of the constitution and law, the Party’s activities clearly demonstrated it. Specifically, at the 3rd Congress (1960), the Party frankly raised the issue: “... there are Party committees who substitute and trivially intervene the State agencies’ affair. There are committees and officials, party members who despise the state government as well as disobey the instructions and resolutions of superior government bodies”(4). The Party’s charter approved at the 3rd Congress stated: “party members who violate the laws of the State and are prosecuted, the competent party organization will apply the party discipline to them. In terms of government, their crimes will be judged by administrative or judicial authorities”(5). The 4th Congress (1976) of the Party regulated: “party members and organizations must be the most exemplary people in complying with the State’s decisions”(6) and “It is compulsory for party organizations and members to respect the power, responsibility, and regime of state agencies, strictly abide by the laws and decisions of the State, consider it as the Party’s discipline”(7).

The Party Charter from the 7th Congress (1991) to the 9th Congress (2001) did not confirm that “the Party operates within the framework of the Constitution and law”. However, in many other documents, the Party consistently held the view that the Party led society through the State, Party organizations and party members must strictly obey the law. For instant, the Platform for National Construction in the transitional period to socialism approved by the 7th Congress (1991) asserted: “The Party is the leader of the political system, and concurrently a part of it. The Party is closely associated with the People, shall submit to the supervision of the People, and shall operate within the framework of the Constitution and law. In the document of the 7th Congress, the Party stated: “All officials who are party members in State agencies must submit to the Party’s leadership, implement the Party’s resolutions, exemplarily observe the laws of the State”. The 8th Congress of the Party also affirmed: “The Party strongly promotes the role and effectiveness of the State but does not substitute the State. The Party and all party members shall operate within the framework of the Constitution and law and are accountable for their own activities”(9).

By the 10th Congress (2006), perception in terms of the Party’s operation within the framework of the Constitution and law witnessed a newer and clearer development. It has been incorporated into the Party’s organizational and operational principles in the Party Charter.

The Party drew lessons from the practice of building the Party in the reforming years: “It is necessary to build a regulatory system of Party leadership at all levels and branches. The Party operates within the framework of the Constitution and law, and does not substitute other organizations in the political system”(10). In particular, the Charter of the CPV approved by the 10th Congress, for the first time identified: “The Party operating within the framework of the Constitution and the law is one of the organizational and operational principles of the Party”(11).

The aforementioned viewpoint is appropriate theoretically and practically. When becoming the ruling party, the Party acts as the force leading society by setting out policies and guidelines. Through the State and party members, they are assigned to the political system specific tasks. Therefore, the principle “the Party operates within the framework of the Constitution and the law” is the basis to determine that the party organization and its members must always comply with the Constitution and law. In other words, strictly complying with the Constitution and the law means implementing the Party’s leadership.

Secondly, this principle stems from the position and role of the State and need to reform the law-ruled State

The State has an irreplaceable position in organizing the implementation and actualization of the Party’s lines and guidelines. The 1946 and 1959 Constitutions did not stipulate the principle that the Party should operate within the framework of the Constitution and law because the contemporary revolutionary reality did not allow it. It is important to consider the fact that the war for national independence at times made the CPV “on thin ice”. The Party even had to withdraw into secret activities several times to maintain its revolutionary leadership role. Only until the South was completely liberated, Vietnam was unified, the whole country moved forward to socialism, did the conditions for defining the Party’s leadership in the Constitution fully mature. As a result, since the 1980 Constitution, the position and leadership role of the State and society of the CPV has been affirmed in Article 4 of the Constitutions, along with the principle “The Party shall operate within the framework of Constitution and law”.

The 2001 revision of 1992 Constitution defined the goal of building a socialist law-ruled state. The law-governed State is a State that upholds the law; it, therefore, requires all subjects in society, including the ruling party, to abide by the Constitution and the law. As the supreme organization, the ruling party, The Party leads the State to institutionalize the Party’s viewpoints, lines, guidelines and major policies into the Constitution, laws and organize the people’s implementation. The Party gives the views and principles for building the Constitution and laws, the laws on the organization of state agencies. Therefore, when the Constitution and laws come into force, the Party is subject to the constitution and the law just as all other socio-political subjects. 

Thirdly, this principle stems from the need to build a pure-minded, strong Party that truly deserves to be the leading force of the State and society

The fact that the principle “the Party operates within the framework of the Constitution and the law” is included in the Constitution ensures that the Party maintains its nature, objectives and ideals, and prevents all possible risks of degradation given the context of Vietnam’s single-party state. From a broader perspective, the principle “The Party shall operate within the framework of Constitution and law” stems from the need for constant renewal and improvement of the Party’s leadership and combat capacity. The implementation of this principle will both facilitate its operations and set higher requirements for it. Besides, it helps the Party to purify and strengthen the organization, politics, thought and morality. As a result, party organizations and party members can self-examine each specific activity to overcome the negative phenomena in of the party organizations’ leadership, such as: making excuse, substituting, arbitrarily and subjectively behaving, and, helping to improve the Party’s leadership and fighting strength, making the Party fulfill its tasks before the people, ensuring the Party’s prestige towards the people. Consequently, the Party’s leadership and combat capacity has been enhanced, enabling the Party to fulfill its duties towards the nation and guaranteeing the Party’s trust towards the people.

The basic content of the principle “The Party shall operate within the framework of Constitution and law” is construed as follows:

First, the Party’s leadership towards the State, the socio-political system is a matter of the Constitution, which cannot be arbitrarily changed or denied. In a law-ruled state, obedience to the law is an indispensable requirement. All organizations and citizens must live and work according to the constitution and the law. Despite being the ruling party, the leader of the State, the Party does not stand above or outside the law. It is the Constitution and the law that clearly stipulates the ruling position and role of the Party. Also, they guarantee the Party’s leadership towards the State and society, and ensure that the activities of the Party’s organizations and members are in compliance with the Party’s guidelines and regulations, the Constitution and law.

Second, the Party’s lines, guidelines and policies are institutionalized into the Constitution and the law through the order from the constitution to the legislature, thereby implementing the Party’s leadership towards society.

As the ruling party, the Party establishes the platforms, strategies, and policy directions and major policies of the country. The State, with its managerial functions, will form laws to institutionalize and concretize the Party’s resolutions, directives, lines and guidelines, ensuring the actualization of the Party’s leadership. 

After the Party Congress, the guidelines and lines of the Party will be implemented by the National Assembly and the Government by concretizing into specific regulations and institutions in the Constitution and the system of legal documents. 

Third, the Party’s organization and activities are consistent with the institutions defined by the Constitution and law. This provision meets the requirement of the Party’s leadership, while ensuring the implementation of the Constitution and laws without obstructing the activities of the State and organizations in the political system. In addition, this provision help the system of Party’s organizations and State agencies improve the uniformity in organization and operation. 

Fourth, the Party’s leadership content and mode are consistent with the institutions defined by the Constitution and law. 

The Party implements leadership over society through legalized guidelines and policies. The Party develops specific regulations to set out the content and mode of its leadership over the political system and the entire society. They clearly define the functions, missions and relationships between the Party and the State, the Front and people’s organizations. However, these provisions must not be contrary to the Constitution and law.

The Party leads society through officials’ work and Party organizations. The Party assigns party members to leading positions in the organizations of the political system for them to operate in accordance with the purpose set by the Party.

3. Requirements for implementing the provisions of Article 4 of the 2013 Constitution of Vietnam.

First, it is fundamental to continuously improve the law on the Party’s leadership.

Regarding Article 4 of the 2013 Constitution, there are two requirements for improving the law(12):

Firstly, it is necessary to create a legal corridor for the CPV’s leadership towards the State and society. In order to make this legal corridor clearer, it may be important to consider forming a law on the leadership of the Party. As a result, the legitimacy of the ruling Party is guaranteed, overcoming the risk of the Party standing above the law, abusing its power and violating people’s power without being controlled. 

Secondly, it is essential to create a legal corridor for the people to supervise the Party’s leadership and ruling activities. In other words, it is the completion and implementation of the law on citizens’ democracy and freedoms. This should be done through the development, enactment and implementation of a number of important new laws such as the Law on Associations, Law on Access to Information, Law on People’s Supervision; Law on social criticism(13) as well as the completion of several current laws namely the Election Law, Law on Complaints, or Law on Denunciation.

Secondly, it is important to continue to renew the relationship between the Party and the State

To renew the relationship between the Party and the State, it is crucial to focus on the following issues(14):

- Recognizing the essence of the relationship between the Party and the State in two aspects: (1) In terms of content, it is an equal relationship between two entities implementing people’s power. Simultaneously, it is a controlling and coordinative relationship between two entities leading, operating, and managing; (2) In terms of organization, it is the composition of three main relationship models including Party - The supreme representative body and State power; Party - The supreme executive - administrative management agency; Party - judicial authority.

- Coherently delineating the Party’s leadership competence and the State’s management competence in terms of: The competence to exercise the Party’s political functions and the competence to exercise the state’s legislative functions; leadership competence and management competence; the competence to make strategic decisions and the competence to make strategic decisions; The competence to recruit, train and arrange staff in State agencies. Particularly, in the terms of judiciary, the principle of the law-governed regime that requires adjudication is the independent competence of the State. Therefore, the Party’s leadership role in the judiciary is only demonstrated in the aspects of organization and personnel, not by issuing directives, orders or interfering in judicial activities.

- Fundamentally and comprehensively renovating the Party’s leadership mode with the State, in which the key step is to renew the Party’s leadership of the National Assembly and the Government.

Thirdly, it is necessary to ensure the exercise of the people’s right to mastery

Currently, the mechanism for the people to authorize the State in Vietnam is clear, but the mechanism for the people to authorize the ruling Party is not. The requirement is to create a mechanism to allow the people to authorize the Party by election, but still maintain the stability of the unitary political institution. The recent “unification” of Party and authorities leadership positions in some localities may be a good suggestion and need to be analyzed and evaluated for wide application. Besides, it is promising to build a mechanism for people to carry out votes of confidence for Party titles prior to Party congresses.

Fourthly, it is crucial to step up the fight against bureaucracy and corruption

Bureaucracy and corruption have severely damaged the reputation and legitimacy of the CPV. To overcome these issues, the Party must continue to innovate, self-regulate and address the deterioration of ideology, morality, lifestyle. Additionally, it is advisable to improve the intellectual level, leadership capacity and combat capacity of the party organization, party members, especially those with authority. The Party should be held openly and transparently accountable internally and to the people, and build an effective power control mechanism.

Fifthly, it is necessary to reinforce the inspection and supervision over the Party organizations’ and its members’ observance of the Constitution and the law.

The inspection and supervision of Party organizations and party members must be conducted strictly to ensure the uncompromising observance of the Party’s regulations(15). Through inspection and supervision, violations of the Party’s principles must be handled promptly and strictly if detected in accordance with the Constitution and the law, ensuring no exceptions and no restricted zones. 

The inspection and supervision of the Party organization and its members over the observance of the Constitution and the law will help the Party realize the faulty regulations, or gaps in the construction and implementation of the Party’s guidelines, policies and laws. Based on them, the Party can summarize, reevaluate, and continue to innovate its theoretical thinking, leadership, and ruling modes. Capacity of policy making should be enhanced on by means of quality improvement, practical review, theoretical research. Besides, the organization of the implementation of Party’s views and guidelines should be closely and effectively directed. In order to realize the goal of “prosperous people, strong country, democratic, equitable and civilized society”, it is necessary to strengthen the close-knit relationship between the Party - State – People.

__________________

 Endnotes:

(1) Dao Tri Uc - Vu Cong Giao: “An overview of the new features of the 2013 Constitution”, in the book Scientific Commentary on the 2013 Constitution of the Socialist Republic of Vietnam, National University Publishing House, Hanoi, 2014.

(2) Explanatory report on the 1992 Constitution Amendment Draft of the Committee on the Draft Constitution Amendment in 1992, p.4.

(3) Le Minh Thong: “The Institution of Political Regime in the 2013 Constitution”, in the book Scientific Commentary on the 2013 Constitution of the Socialist Republic of Vietnam, Nguyen Thi Viet Huong: “Implementing regulations on the leadership of the CPV in the Constitution 2013”, in the book Scientific Commentary on the 2013 Constitution of the Socialist Republic of Vietnam, op.

(4), (5) CPV: The Complete Official Documents of the CPV, vol.21, National Political Publishing House, Hanoi, 2002, p.713, 813.

(6), (7) CPV: Summary report on Party building and amending the Party’s Charter (at the 4th Congress), The Truth Publishing House, Hanoi, 1977, p.100, 100.

(8) CPV: Platform for national construction in the transitional period to socialism, Truth Publishing House, Hanoi, 1991, p.21.

(9) CPV: Document of the 7th Congress of the CPV, National Political Publishing House, Hanoi, 1996, pp.149-150.

(10) CPV: Document of the 10th National Congress of the CPV, National Political Publishing House, Hanoi, 2006, p.278.

(11) CPV: Statute of the CPV, National Political Publishing House, Hanoi, 2006, p.5.

(12), (13), (14) Nguyen Thi Viet Huong, op cit.

(15) Regulation No. 08-QD/TW dated October 25, 2018 on the responsibility to set bright examples of cadres and party members, especially Politburo members, Secretariat members, Central Executive Committee members; Regulation No. 102-QD/TW dated November 15, 2017 of the Politburo on disciplining party members with violations; Regulation No. 109-QD/TW dated January 3, 2018 on the inspection of the Party’s organization for the cultivation and practice of morality and lifestyle of cadres and party members; Regulation No. 124-QD/TW dated February 2, 2018 on the supervision of the Vietnam Fatherland Front, socio-political organizations and people for the cultivation and training of morality and lifestyle of leaders, key officials and cadres, party members; Regulation No. 109-QD/TW dated January 3, 2018 on the inspection of the Party organization for the cultivation and practice of morality and lifestyle of cadres and party members.

Dr. Cam Thi Lai

Department of Political Schools,

Ho Chi Minh National Academy of Politics