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Public Discourse and Constitutional Change: A Comparison of Vietnam and Indonesia

Published online by Cambridge University Press:  15 November 2016

John GILLESPIE
John GILLESPIE*
Affiliation:
Monash University, [email protected]
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Asian Journal of Comparative Law , Volume 11 , Special Issue 2: Special Issue on Vietnamese and Comparative Constitutional Law , December 2016 , pp. 209 - 218
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© National University of Singapore, 2016 

A recurring critique in the papers about the 2013 Constitution of the Socialist Republic of Vietnam (2013 Constitution) in this Special Issue is that public discourse is shaping the reform agenda. Some commentators argue that public discourse is animating a transition from a Soviet-influenced authoritarian constitution to a more liberal incarnation that legally defines the interface between state and society. Others are less certain about the impact of liberal constitutional discourse, and argue instead that Confucianism and East Asian illiberalism are equally important discursive influences. Although differing in their normative emphasis, these accounts share a common view that public commentary is propelling the party-state toward some kind of constitutionally limited government. This transformation involves a shift from a constitution that coordinates state agencies, announces state ideology, and controls and elicits cooperation from subordinates, to one that also establishes legal limits to party and state power.

Despite unprecedented public discussion during the lead-up to the 2013 Constitution, commentators agree that reforms have been modest. Public calls for amendments that would have made the party and state legally accountable to the constitution were rejected. For example, the party leadership emphatically opposed constitutional oversight of the party, the separation of powers, a constitutional review council, legally enforceable guarantees of civil rights, and private land ownership. Nevertheless, many commentators remain optimistic that eventually the constitution will legally constrain party and state power. This faith in the capacity of public discourse to fundamentally change the conceptual underpinnings of the constitution raises fundamental questions. How does public discourse change deeply held constitutional preferences in authoritarian political spaces? What kinds of public discourse are the most persuasive in shaping law-making?

This article draws on neo-Habermasian scholarshipFootnote 1 to analyze the interaction between public discourse and constitutional change. It then contrasts constitutional discourse in Vietnam with public discourse that fundamentally changed the Indonesian Constitution after the fall of President Soeharto in 1998. It argues that key preconditions for effective public deliberation are currently absent or constrained in Vietnam, suggesting that only modest constitutional changes are likely until the discursive environment changes.

I. Theorizing Public Constitutional Deliberation

A burgeoning body of neo-Habermasian research shows that only particular types of discourse are likely to produce substantive constitutional change. Before turning to what constitutes effective public discourse, it is important to define what is meant by substantive change. The question here is whether the state has an instrumental and strategic commitment to constitutional change or a normative commitment to change.Footnote 2 Only a normative commitment, it is argued, distinguishes a state that is prepared to change deeply entrenched constitutional preferences from one that is merely modifying policies to appease critics. There is a key temporal difference between strategic and normative commitments. Although strategic constitutional change can eventually assume a normative force that influences the regime’s thinking, studies suggest that this is a long-term process.Footnote 3

What might a normative commitment to constitutional reform look like? Studies distinguish between states that are prepared to accept constitutions that increase the ruler’s power from states that are prepared to accept constitutions that tie their hands. The first type of constitution uses coordination, a precommitment to rules, and the control of government agents to improve governmental functions.Footnote 4 The second type of constitution goes further and accepts that effective governance also includes legally enforceable limits to party and state power. Most governments are limited by élite power and even highly authoritarian states respond to public criticism.Footnote 5 A key question in distinguishing the first and second types of constitution is whether the state supports constitutional doctrines and practices that make the constitution the superior law.

One test for a normative commitment to the second type of constitution is whether or not a state has accepted legality, along with economic performance and national security, as a measure of regime legitimacy.Footnote 6 More specifically, has the government accepted some version of constitutionally limited government as a criterion for accessing their legitimacy? As the articles in this Special Issue reveal, there are many versions of a constitutionally limited government expressed in Vietnamese constitutional discourse. These range from Confucian-inspired constraints through to the liberal democratic norms proposed by the Petition 72 deliberators.

Turning to what constitutes effective public deliberation, Habermas argued that constitutions and laws are fashioned by morals and ethics synthesized from public exchanges and contests between lawmakers and society—a process he termed “communicative rationality”.Footnote 7 Recent neo-Habermasian scholarship has loosened the reliance in orthodox deliberative theory on the liberal public sphere and “ideal speech” based on rational deliberative exchanges.Footnote 8 Scholars working in China, for example, show that effective deliberation can occur between citizens and lawmakers in distinctly illiberal spaces.Footnote 9

Interest has also grown in the capacity of social media platforms, such as Facebook, Weibo, and personal blogs, to displace the public sphere model of deliberation with one based on a networked public sphere.Footnote 10 The diffusion of knowledge by social media has the potential to disrupt the traditional role of the media in providing the tacit assumptions that shape public debates.Footnote 11 Studies show that effective deliberation is not confined to “rational” and reflective discourse, as it also takes place through self-interest advocacy, certain kinds of rhetoric, and even the story-telling and emotive discourses found on social media.Footnote 12 Neo-Habermasian scholars propose three criteria for assessing effective public deliberation: (1) authentic unmediated preference formation; (2) inclusive communication that enables the main affected actors to participate; and (3) consequential communication that allows the exchange of tacit ideas and preferences.Footnote 13

II. Comparing Constitutional Discourse In Vietnam And Indonesia

Despite cultural and political differences, there are enough similarities in the constitutional histories of Vietnam and Indonesia to make comparison meaningful. Following independence, the new governments in Vietnam and Indonesia sought to discredit colonial rule and stamp their authority on the legal and constitutional system. In Vietnam the state replaced French colonial governance with laws and doctrines modelled on the Soviet legal system.Footnote 14 It became fashionable in Indonesia to speak of hukum revolusi (revolutionary law), which emphasized bureaucratic regulation at the expense of legislative governance and judicial review.Footnote 15 Although the New Order regime under President Soeharto, which came to power in Indonesia in 1965, was vehemently anti-communist, law functioned in similar ways in Vietnam and Indonesia.

Professor Raden Soepomo, the architect of the Indonesian 1945 Constitution, was strongly influenced by German fascist and Japanese imperial thinking.Footnote 16 He argued that there was no need to guarantee “Grund-und Freibeitsrechte [basic rights] of individuals against the state, for the individuals are nothing else than organic parts of the state, having specific positions and duties to realise the grandeur of the state.”Footnote 17 He reimagined the legal system based on a traditional village community—a theory of state and law that became known as integralism. According to integralism, the state could never be at odds with the individuals comprising it because the state was integrated with the people. There was no need for a private legal sphere independent from the state, because the state constituted all the people.Footnote 18 The purpose of the state was not simply to regulate society through laws, but also to encompass it by becoming involved in all aspects of social life. This highly corporatist understanding of the relationship between state and society corresponds with Vietnamese constitutional doctrines, such as democratic centralism (Tập trung dân chủ), which centralized power in the party-state executive, and collective mastery (Làm chủ tập thể), which collapsed distinctions between state and society.Footnote 19

Integralism dominated legal thought in Indonesia until the fall of President Soeharto in 1998. During this period, the executive exercised broad discretionary powers to substitute political policy for legal rights and principles enshrined in the constitution and legislation.Footnote 20 Courts largely ignored the constitutional hierarchy of laws, following instead the executive orders issued by government agencies.Footnote 21 Constitutional doctrines were slow to develop because the executive, rather than the courts and other legal agencies, determined the meaning of law.Footnote 22 Under the New Order, a tension developed between official pronouncements that Indonesia was a rechtsstaat—a legally limited state—and integralism that placed public policy above the constitution.

Beginning with the 1999 constitutional reforms, and accelerating with the far-reaching constitutional reforms of 2002, the shadow of Soepomo and the integralist state has faded. In 2002 the Majelis Permusyawaratan Rakyat (MPR or People’s Consultative Assembly) produced a constitution that was three times longer than the 1945 Constitution. This completed a transformation from Soeharto’s integralism to a law-based regime that established a powerful constitutional court that reviews the constitutionality of superior legislation, rules on disputed electoral results, and determines disputes among state institutions.Footnote 23

III. Public Deliberation And Constitutional Change In Indonesia

To evaluate the role that public deliberation played in constitutional change in Indonesia, it is useful to draw on neo-Habermasian scholarship and analyze unmediated, inclusive, and consequential deliberation. The New Order regime promoted an all-embracing political ideology that treated opposition as sedition and prevented unmediated public deliberation. It exerted significant controls over the mass media through the rigid licensing and regimentation of professional and non-government organizations. Under such constraints, the Internet provided the Reformasi (reform) movement with the only relatively unmediated forum for public discussion about controversial constitutional reform.Footnote 24

Commentators primarily attribute the fall of the New Order regime to the severe economic recession created by the East Asian Financial Crisis in 1998.Footnote 25 The New Order regime used economic performance to legitimize authoritarian rule. When the economy collapsed, the justification for integralism vanished. President Habibie, Soeharto’s protégé and successor, sought to regain legitimacy by responding to demands for constitutional reform.Footnote 26 Although opposed to liberal constitutionalism, Habibie set in place some of the preconditions for wide-ranging reforms by loosening controls over public demonstrations, increasing judicial powers, and ratifying international human rights treaties on civil and political rights.Footnote 27

Calls to abolish integralism came from a broad social base.Footnote 28 Public intellectuals, retired state officials, religious organizations, academics, journalists, and social activists used the Internet and other modes of communication outside state control to convince the public about the need for constitutional change. Key demands for reform included a democratically-elected president, separation of powers, and constitutional protections for civil rights.Footnote 29 Two NGOs and a university law school prepared model constitutions that were widely circulated and discussed on the Internet. At a time when the government was still censuring the media and controlling public association, the Internet permitted discussion about reforms that proposed radical constraints over the powers that had been enjoyed by the executive for thirty-five years.Footnote 30 The Internet also fulfilled another neo-Habermasian requirement for effective deliberation, as it enabled a broad range of people to voice their concerns.

Although these are important preconditions for effective deliberation, neo-Habermasian research convincingly demonstrates that consequential deliberation is critical in communicating complex constitutional ideas and preferences. Reformers needed to change how the MPR delegates responsible for constitutional reform thought about governance. This conceptual transformation was difficult because most delegates spent their formative years under the New Order regime and had little understanding of, and sympathy for, constitutionally limited government. Empirical studies show that knowledge-intensive deliberation, such as constitutional reform, requires the communication of tacit knowledge to convey and generate new regulatory preferences.Footnote 31 This research suggests that constitutional reformers needed sustained and consequential dialogical exchanges with MPR delegates to communicate the tacit knowledge needed to understand complex constitutional arguments. Consequential discourse builds social consensus because it verifies whether one set of interpretations—and the responses they generate—are accurately directing the meaning of constitutional reform. The delegates also needed time to absorb, reflect upon, and integrate the new tacit knowledge into their assumptions about how to govern effectively.

Opening political space for wide-ranging discussion, President Habibie declared that the 1945 Constitution was no longer sacred (sakti) and untouchable. The influential Committee of Legal Experts (Dewan Pakar Hukum), chaired by Professor Romli Atmasasmita, invited MPR delegates to discuss constitutional change with members of the Reformasi movement.Footnote 32 MPR delegates engaged in sustained and consequential discussions with public intellectuals, NGOs, and religious organizations during the crucial initial deliberations leading up to the 1999 constitutional reforms.Footnote 33

After months of discussion and reflection, a majority of the MPR delegates voted to replace integralism with a law-based constitution that limited government and protected basic civil rights. Although many constitutional principles were not comprehensively settled during the initial deliberations during 1999, the normally divided parties and groups in the MPR formed a consensus about the need to make the constitution legally binding to prevent legislative and executive agencies from violating constitutional norms and principles.Footnote 34

What is instructive about the Indonesian reform is that public deliberation profoundly changed the constitution before the Habibie government passed laws formally liberalizing freedom of the press and public association. Later in 2002, during a second round of constitutional reform, the MPR voted for the creation of a constitutional court. After decades of abuses by the New Order regime, MPR delegates were strongly attracted to the idea that only an independent body of review could guarantee constitutional rights and protect citizens. They concluded that constitutional rights are meaningless without an independent body with powers to review the constitutionality of statutes and executive action.

The Constitutional Court quickly demonstrated that it was both competent and independent from government policy. Shortly after its creation in 2003, the Court controversially invalidated a statute that would have permitted prosecution of those accused of involvement in the 2002 Bali bombings.Footnote 35 More recently, it has overturned the legislative powers of the state over forest areas, allowing customary claims to large tracts of land.Footnote 36 Vigorous public support for the Constitutional Court expressed in the press and social media has protected it from powerful political enemies.

IV. Contrasting Constitutional Deliberation In Vietnam And Indonesia

Most of the constitutional ideas circulating in public discourse in Indonesia are also present in Vietnamese constitutional discourse. The different reform outcomes are attributable not to the arguments made for reform, but rather to the quality of public dialogue. Neo-Habermasian scholarship provides a useful framework for evaluating the effectiveness of public deliberation.

A. Unmediated Communication

Contrasting with President Habibie’s declaration that the Constitution 1945 was not sacred, the party leadership in Vietnam sought to guide public discourse by setting the ground rules for the 2013 constitutional reforms. Many of the most controversial demands for reform were published in an obscure journal—Tạp chí Tia Sáng (Light Journal) —before the party leaders established deliberative guidelines.Footnote 37 Once the guidelines were promulgated, commentators observed a change in public debate. Public calls for reform that violated the guidelines, such as Petition 72, were publicly criticized by party leaders. Party mediation was not confined to public discourse; rather, commentators such as Vo Tri HaoFootnote 38 demonstrate that National Assembly debates were also tightly monitored. Delegates were prevented from considering the more controversial public calls for change.

B. Inclusive Communication

The scale of public discussion in Vietnam surpassed public involvement in the Indonesian constitutional debates. It is important, however, not to confuse the scale of deliberation, which promotes feelings of public empowerment and expectations for change, with the quality and effectiveness of deliberation. The National Assembly reported 26 million comments about the constitution emanating from 28,000 conferences and workshops around the country.Footnote 39 The scale of public involvement provoked much excited discussion about the emergence of constitutional awareness and political engagement. But questions remain about the quality of the deliberation that took place in the conferences and workshops.Footnote 40 Was it unmediated, allowing consideration of controversial reforms? Of equal importance is the question of what steps (if any) the National Assembly took to collate and assimilate the comments into constitutional deliberation.

Unlike the Indonesian Reformasi movement, which concentrated its discursive message by presenting a united front to the MPR, most Vietnamese deliberators acted independently of each other.Footnote 41 They rarely responded to other deliberators and showed little interest in cultivating the oppositional consciousness that formed around the Reformasi movement in Indonesia. In the few cases where Vietnamese deliberators presented a united position, such as Petition 72, the state responded with public criticism and police surveillance and intimidation.Footnote 42 For example, Nguyen Dinh Loc—a prominent member of the Petition 72 group, was compelled to publicly withdraw his support for liberal constitutional reforms.Footnote 43

C. Consequential Deliberation

Constitutional change in Indonesia reveals the importance of forums where public deliberators engaged MPR delegates in sustained and consequential deliberation. In Vietnam, public deliberation primarily took the form of stand-alone commentaries followed by state-sponsored criticism of the more radical claims for constitutional change. There is little evidence of constitutional positions evolving in response to what others were saying. Consequential constitutional deliberation took place in academic forums, but commentators are doubtful whether lawmakers engaged in these debates or read the conference papers.Footnote 44 Unlike Indonesia, public deliberators were not given the face-to face meetings required to convey tacit knowledge about limited government to either members of the constitutional drafting committee or National Assembly delegates. Although many new ideas about constitutional reform circulated in the public space, drafters and delegates needed tacit knowledge, communicated through face-to-face exchanges, to change deeply embedded constitutional assumptions.

V. Conclusion

The comparison of public deliberation in Indonesia and Vietnam suggests limits to constitutional change in Vietnam. Although the party leadership sought public comments, it attempted to mediate discussions about constitutionally limited government. It sent a clear message that although the Constitution plays a role in promoting efficient governance, legally enforceable constitutional constraints over party and state power were unacceptable.

What does this response indicate about the willingness of the party leadership to accommodate public demands for limited government? There is evidence that the party leadership is seeking legitimacy through procedural legitimacy. For example, party resolutions direct police to follow procedural guidelines, and hold judges and state officials accountable for applying the law. This appeal to procedural legitimacy is consistent with a constitution that coordinates state agencies, announces state ideology, and controls and elicits cooperation from subordinates. What is missing is evidence that the party-state is seeking legitimacy by placing legal constraints over its own power. Quite the opposite, the party leadership has consistently opposed a constitution that functions as meta-regulation—ordering and subordinating party, executive, and legislative power.

This position contrasts with the Habibie government in Indonesia, which sought to bolster its poor public standing by portraying itself as the creator of a constitutionally limited government. The Habibie government needed new sources of legitimacy because the East Asian Financial Crisis had discredited performance legitimacy based on economic growth. A social consensus emerged that blamed economic failure on ‘crony’ capitalism linking the government with business conglomerates. Although similar claims are made about government–business collusion in Vietnam,Footnote 45 the economy is not experiencing an economic shock comparable to the East Asian Financial Crisis.

Neo-Habermasian studies tell us that the diffusion of constitutional ideas into public discourse in Vietnam is an unreliable signpost of constitutional reform. Constitutional change does not inevitably follow public discourse. Without face-to-face public deliberation, and a government that is receptive to new sources of legitimacy, the assimilation of controversial ideas is likely to be slow and uncertain. The problem with slow transformations is that a constitution that cannot justify its own authority as superior law may eventually be dismissed as irrelevant.

Footnotes

*

Professor of Law, Department of Business Law and Taxation, Monash University, Australia.

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