Legalculture
Apart from building its legal system, Vietnam will need to develop a new legal culture in order to become a society governed by the rule of law. In this respect, it should be noted that �law’ and the �rule of law' are still fairly new concepts in Vietnam.
Traditionally, Vietnamese society operated in a feudalistic style, under the command of the King and his officials. Social interactions were governed primarily according to social norms and Confucianvalues. Rules and regulations were scarce and mostly in the form of edicts reflecting the will of the King, rather than the wish of the people. In this regime, there was no recognition of civil liberty, rights or freedom. Taking any action against the state was often considered treason. The King and his officials would act as both administrators and judges to resolve disputes amongst citizens and the outcome often depended on the discretion and mercy of the King or the particular official handling the matter. The society existed mainly on the basis of social relationships and the utmost respect for the King and his orders, rather than a coherent system of law, consistently applied. This feudalistic regime continued to exist during the period when Vietnam was a French colony and was only abolished when President Ho Chi Minh took power in 1945. However, even during the 40-year period that followed, Vietnamese society continued to be run according to administrative orders issuedbythe Government. During this period lawwas onlythemedium the Government had for issuing orders, and it was accepted that its orders had to be followed without questioning. The law took a passive secondary role, subsidiary to the policies and orders from the state.Such historical background explains the deep-rooted reluctance of VietÂnamese people to use the law and the legal profession to seek redress in legal fora.
The practice that has existed for thousands of years is that one would first turn to his or her social connections in order to resolve a legal problem. Social pressure, social connections and even self-help would be primary remedies. If that did not work, one would then seek assistance from the administrators, including the police, to get the problem resolved through administrative measures. An ordinary person would almost never seek the help of a lawyer or bring the matter before a court to enforce his or her rights and entitlements under the law. For example, in order to enforce a contractual debt, a contracting party would first use his or her social connections to put pressure on the debtor to pay. If that did not work, that party would complain to the administrative authority having jurisdiction over the debtor. This would often work under the old economic model when all businesses were owned by the state or its various agencies. The relevant state agency would then step in to resolve the issue. In serious cases, the police would start a criminal investigation and that would often guarantee sufficient pressure on the debtor to pay.In this context, it would never occur to a Vietnamese that he or she should consult a lawyer or bring the matter to court. People are more familiar with, and hence had more confidence in, their social connections and the involvement of the administrative authorities. This manifests as a deep-rooted lack of knowledge of and trust in the legal system, the judiciary and the legal profession. If this culture and practice continue to exist, the legal system that Vietnam has built over the past two and a half decades will become ineffectual.
Thus, the real challenge facing the Vietnamese legal system now and in the future is to make the people understand and trust the system so that the sysÂtem is actually applied. This will require fundamental changes in the culture, practice, belief and values of the Vietnamese, which will not be easy.
Emerging from the above-described background into a market economy, the Vietnamese have been struggling to come to terms with the notion that the law dictates the behaviour in the society, that everybody must act pursuant to the law and that no one is above the law. It has taken Vietnam the past 25 years to build and strengthen its system of legislation and institutions as described above. However, it is going to take a lot longer for such systems to be trusted and actually applied by the people. This will require fundamental qualitative changes, which can only evolve gradually over a long period of time. Happily, some positive changes have already been seen. For example, it is now accepted that people are allowed to do what is not prohibited by law, whereas the accepted norm used to be that people were only allowed to do what was permitted by law. As another examÂple, it is now more common for citizens to bring actions against state authority and actually win. In addition, the increase in the number of lawyers and law firms mentioned above indicate that people are using the law and lawyers much more than in the past. Businesses and individuals have become much more accustomed to engaging lawyers for legal work, rather than resorting to the habit of â€?do it yourself. A further example is that the level of public interest in the law-making process has increased significantly. As mentioned earlier, drafts of Laws are now regularly released for public comments and people actively respond.It is clear that some fundamental changes have taken place in the way VietÂnamese people perceive and use the legal system. Vietnam will need many more of these changes to become a society governed by the rule of law. This will be the real test for the Vietnamese authorities as they will need to turn words into actions. It will require strong and consistent efforts by Vietnam's legal instituÂtions in enforcing the law, fighting corruption and encouraging public confidence in the legal system.
State agencies must take the law seriously before they can expect citizens to do so. Laudably, the Ministry of Justice has taken active steps. There have been a number of occasions in which the Ministry of Justice has opined that legal instruments issued by other state bodies are unlawful, promptÂing such state bodies to revoke their decisions. This shows an increasingly serious attitude by the authorities towards ensuring compliance with due process. Once this attitude is consistently taken by all other authorities at the central level, and then the local level, there is no reason why the citizens will not adopt the same attitude.In short, together with the developments of the legal system as described in the previous sections, we can see that, at a more fundamental level, a legal culture is slowly evolving in Vietnam, on the part of individuals, businesses, state authorities and all other organisations. This process will take a long time for Vietnam, given its background as described above. However, with strong and consistent efforts, there is no reason why Vietnam cannot achieve this and become a society to be governed by the rule of law in the long term.
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