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Vietnam: Emergency Powers in Time of Pandemic and the Role of the Written Constitution

Le Nguyen Duy Hau, Attorney at Law

This blog post seeks to inform about a new constitutional development in Vietnam surrounding an enabling act formally vesting the Prime Minister (“PM”) with unprecedented emergency powers, and how such an event could provide meaningful suggestions in further research into Vietnam’s constitutional law. In short, I argue that when researching the constitutional law of Vietnam, a country with only one ruling party, examining the written constitution may be insufficient as other traditions and behaviors accepted by main political actors may suggest better answers to certain phenomenon.

From being hailed as a global superstar for its impressively economical containment of the COVID-19, Vietnam quickly saw its success shattered by the Delta variants. By August 2021, with the new daily cases averaging more than 10,000 and the increasing hospitalization rates overran a weak healthcare system, the country’s main financial hub Ho Chi Minh City and the capital Hanoi effectively went under lockdown with the government decided to deploy of regular troops to the historically complicated South to enforce an almost martial law order. The situation was so severe that a freshly elected National Assembly – the country’s main legislative body and constitutional supreme organ – had to take an unprecedented move by granting the PM with an 18-month-long enabling power, a legal proposal not explicitly stipulated anywhere in the written constitution.

The enabling act, formally known as Resolution 30/2021/QH15, allows the PM to “decide and apply” measures that are either beyond his constitutional authority, contradicting to the law or beyond the law, with a nominal oversight of the Standing Committee of the National Assembly (“SCNA”) – a body of high-ranking legislators of the National Assembly. Essentially, the PM could now deploy measures as strict as available only under a formal emergency situation, which the written constitution exclusively grants the President, without any concerns of constitutional review or scrutiny by the National Assembly.

Although this is nominally an unprecedented legal move, the reality is that such powers have been continuously enjoyed by the PM (and his predecessor) since last year March, when the first case appeared in Vietnam, and was categorically appeased by other political actors. The early success of Vietnam’s containment was attributable to a quick-thinking but constitutionally problematic Directive 16 by the former PM. Under the Directive 16, social distancing rules were enforced; public transportation, public entertainment, and private businesses were suspended; and borders were closed.

Despite the success of the Directive 16, legal commentators raised concerns that the measures under Directive 16 were beyond the authority of a PM. For example, the laws exclusively preserve the power to border closure and suspension of public entertainment and transportation to the President under a formal emergency situation, which must be approved by either the SCNA or the National Assembly. The lack of a strong legal foundation perhaps explained why initially, the then PM only suggested that his Directive 16 was only recommendations, only to see any disobedience of the rules to be punishable by the local authorities. The concerns died down when both the then President and the then SCNA “complimented” the PM for his flexibility and early success, effectively endorsing the “constitutionality” of Directive 16 despite its clear violations. Directive 16 was repeatedly used to contain smaller outbreaks throughout the year.

Consider the precedent of Directive 16, the introduction of the enabling powers in late July 2021 can be seen as a redundancy. However, in retrospect, it makes politically logical sense. When it had become clear that Vietnam could no longer contain the virus, some National Assembly’s deputies began to publicly request the new President to invoke the formal emergency powers, which would undermine the role of the new PM. Interestingly, the new President is indeed the former PM who invented the Directive 16 and his successor had never served in his cabinet. One interpretation is that a political competition may have motivated this call. The PM responded quickly by explaining, through his health minister, that such declaration of emergency situation could be detrimental to the “political stability” of the country. The public did not know how this debate progressed but a said enabling act was adopted which keeps the new PM in the driver’s seat (for now) under a premise that the “flexibility” invented by the former PM is attributable to the early success and it should continue (indirectly endorsing the now President’s achievement). While the SCNA is tasked with the oversight authority of the PM’s enabling powers, so far, it has only invoked that once for unimportant matters (Resolution 268/NQ-UBTVQH15). Other more important matters, such as the deployment of troops in the South, the prolong of social distancing orders, and the acquisition of vaccines, go without any debates.

From the Western liberal standards, such “blank check” approach is terrifyingly undemocratic and would potentially create an individual tyranny out of it. As an authoritarian country so fearful of the cult of personality, the question is why the Vietnam allows for such a potential to arise. My argument is that perhaps Vietnam’s true “check and balance” system, so valuable method to prevent strongmen, is not stipulated in the written constitution, but rather embedded in the country’s political tradition and structure – namely the Communist Party’s disciplinary regime and its collective leadership. Under this structure, the PM is only ranked third in the power hierarchy and his decision could be overruled by a vote of confidence of the 18-men leadership Politburo, with the President among one of them. In the past, this structure appeared to work well in successfully purging overly ambitious politicians or fierce reformists. Perhaps this is the most plausible explanation, that the Communist Party – the true authoritarian of the country – is confident in containing an ambitious but freshly elected PM from becoming a dictator by using its existing “check and balance” regime, while still can successfully arbitrate the political competition between the new President and PM. That also means perhaps Communist Party’s system must be taken into account to explain how the country deals with constitutional disputes.

 Apparently, this view must be tested and studied further in order to be developed into a working theory, but it suggests that when researching the constitutional law of a country like Vietnam, the written constitution may not provide all plausible answers for all political phenomenon.

Suggested citation: Le Nguyen Duy Hau, Vietnam: Emergency Powers in Time of Pandemic and the Role of the Written Constitution, Int’l J. Const. L. Blog, Sept. 28, 2021, at: http://www.iconnectblog.com/2021/09/vietnam-the-emergency-powers-in-time-of-pandemic-and-the-role-of-the-written-constitution

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Published on September 28, 2021
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