English - CEDAW Southeast Asia

A Gendered and Rights-Based Review of Vietnamese Legal Documents through the Lens of CEDAW
Assembly committee to draft a resolution to interpret a law or ordinance and to submit it to the
Standing Committee for consideration, adoption and publication. 97
To understand legal documents and their application, it is important to note some of the
areas of concern with the Viet Nam’s legal system that have been earlier identified and that
are currently being addressed: 98 (a) legal drafting agencies establish multi-ministerial or
multi-agency drafting committees that enables the inputs from many stakeholders, but reflect
sectional interests rather than broad policy considerations. This is exacerbated by limited
time for discussions and a full government agenda for representatives in the drafting committee
that they must also address; (b) controversial provisions or details from laws are
removed from bills to enable their wide acceptance and consequent adoption; (c) legal regulation
is tied to Communist Party of Viet Nam policy. As a result, fluctuations in subordinate
legislation occur with the changes of policies despite laws; (d) the technical quality of subordinate
laws requires improvement; and (e) a number of new legal documents revise or repeal
prior legislation, but they do not specify which provisions or laws are revised or repealed,
thus creating ambiguity. 99
To emphasize this, the Resolution of the Politburo of the Communist Party of Viet Nam
on Strategy for Development and Improvement of Viet Nam’s Legal System to the year 2010
and Directions for the Period up to 2010. May 24, 2005 (Communist Party Resolution on Legal
System) pointed out that after 20 years of implementing Doi Moi, although there has been
much progress, in general, the Vietnamese legal system still has many shortcomings:
The system is still not comprehensive and consistent; its feasibility is still low and its implementation
into the practice is still slow. Mechanisms for making and amending laws
contain many shortcomings and are still not properly respected. Speed of law making activities
is slow. Quality of laws is not high. There is lack of attention paid to the research
and implementation of the international treaties to which Viet Nam is a member. Effectiveness
of the legal dissemination and education is limited. Institutions for law implementation
are still deficient and weak.
II.2.2 INTERNATIONAL SOURCES: TREATIES
Treaties, to a limited extent, are also sources of law in Viet Nam. In cases where a legal document
and a treaty to which Viet Nam is a party contains different provisions on the same matter,
the provisions of the treaty shall prevail. 100 Further, the promulgation of legal documents
must be ensured that they do not obstruct the implementation of treaties to which Viet Nam is
a party. 101
However, the procedure for claiming rights under a treaty is not automatic. 102 Upon conclusion
or accession to a treaty, the recommending agency must submit a plan for implemen-
47
97
Ibid.
98
AusAID, ‘Viet Nam: Legal and Judicial Development’, Working Paper 3, Prepared for AusAID, April 2000,
Commonwealth of Australia, Canberra, 2001 (AusAID Working Paper)
99
Ibid., pp. 6-7
100
Law on Treaties, Article 6
101
Ibid.
102
Ibid., Articles 71 and 73
The political and legal framework of Viet Nam