Law on Association's critical proceedings

ISSUES SURROUNDING THE DRAFT BILL FOR THE
LAW OF ASSOCIATION


(Summary Compilation of Discussions in the VAN NGHE Magazine)





Hoi Nha Van [Writers’ Association] Publisher
2006






[cover]ISSUES SURROUNDING THE DRAFT BILL FOR THE
LAW OF ASSOCIATION

(Summary Compilation of Discussions in the VAN NGHE Magazine)
FOREWORD

Proceeded to be designed starting from 1993, with 12 years having now passed, over two of which saw an intensive focus, the Law of Association has gone through to its 8th Draft. It can be said that although this is one of the draft bills that take a relatively long time for preparation, at the last moment it still contains many conflicting opinions. On 13th December of last year, the Law Design Committee of the Government Office organized a conference in collaboration with the Ministry of Interior in order to canvass opinions on the proposal for this law, and they reached the following conclusion: “…Right until the proposal can be commented upon by the Government, it is certain that the National Assembly Committee, the National Assembly Standing Committee and various National Assembly offices still have to examine it in terms of evaluation, and certainly to return it for acceptance, comments on the direction to proceed…” Of special interest is the remark that a number of Association-type organizations, who will be the subjects of application of this law following its issue, would possibly set up a group of independent experts to work with the Draft Committee, even possibly draft a new bill for study. This comment has been emphasized by the Vietnam Lawyers Association in the concluding remarks at the conference. This fact indicates that even those responsible for the final planning, evaluation, and amending of the draft bill prior to presenting it to the Government to be ratified for passing, are still plagued by irresolution to a considerable degree …
To effectively put forward this proposal, on 23rd December last year, there was a conference at the Vietnam Union of Science and Technology Associations headquarters to introduce the Draft Bill for the Law of Association (an unofficial Draft) by a group of specialists who, in 10 days, expeditiously put together a text for the representatives to consult, based on the fundamental principles raised in previous conferences, with an additional number of rectifications from comments at the conferences on the Law of Association organised by many agencies in the recent past. This fact demonstrates that the Law of Association is drawing actual and widespread attention.
Once issued, the Law of Association with have enormous implications for the economic and social development of our country, especially for the process of integration into the international economy which has been and still is taking place as a necessary manifestation of our Revolutionary legacy.
For many years now, the Van Nghe [Literature and Arts] Weekly’s Forum column for scientists has attracted the interest of the scientific fraternity as well as the nation-wide readership. For this very reason, taking the opportunity to address this issue, Van Nghe Weekly has collaborated with a number of professional agencies to organise small discussions within this specialists’ column, around issues related to the Law of Association in order to respond to the wish and aspiration of many readers as well as contributing to an early but well prepared and democratic issuing of the Law of Association. This almanac is a compilation of the proceedings of the above mentioned conferences.

VAN NGHE WEEKLY


THE 5TH DRAFT

THE LAW MUST ALSO TOUCH THE HEARTS OF THE PEOPLE
SOME FUNDAMENTAL THOUGHTS ON THE DESIGN OF A LAW OF ASSOCIATION
Dr HOANG NGOC GIAO, Barrister,
Law Faculty, National University of Hanoi

1. One of the fundamental characteristics of Associations and mass organizations is the members’ solidarity, operating on a voluntary basis. On this issue, the policy encouraging the development of the civil society have been officially acknowledged in a Resolution of the 9th Congress of the Vietnam Communist Party, which advocates the “broadening and diversification of all forms of public participation in people’s mass organizations, social groups, professional, cultural, friendship, welfare-humanity groups.” It may be seen from this that the legal relationships arising from the formation and activities of an Association - being the subjects of governing by the Law of Association – are relationships which are private in character, and mainly dependent on the will, aspiration and capacity of the individuals (or organizations) as its members. For that very reason the role of the government must be limited and not imposing, nor deeply interventionist, whereas the Law of Association should only determine the main legal frameworks, in order to establish a clear legal environment, to create favourable conditions for the Association’s activities, at the same time to ensure that the Association is not working against society’s common interests.

2. The 1992 Constitution of the Socialist Republic of Vietnam stipulates in Article 69 as follows: “Citizens possess the right to exercise freedom of speech, press freedom, the right to be informed, to assemble, to form associations, to hold public demonstration within the limits of the law.” Thus activities carried out by Associations and public organizations are within Constitutional Rights. All legal regulations that are written and noted in law acts and codes or in any other legal documents must not contradict in spirit and letters with the Articles of the Constitution. The task of those who draft laws therefore is to render these rights real with concrete stipulations in the direction of creating the most favourable legal environment for Associations’ activities. All Legal provisions with contents that restrict, or narrow down the capacity to exercise the Right to form associations (unless for reasons of national security, of infringement on others’ pursuit of their rights and freedom, or of breaching other legal regulations), can be considered as anti-constitutional rules (breaching the Constitution), and rendered invalid.
In the Vietnamese circumstance of having no Constitutional Court as yet in existence, the National Assembly Advisory Committee, being an agency with the power to interpret laws, is capable of assessing whether a legal document is constitutional.

3. The freedom of forming Associations is one of the fundamental Human Rights, solemnly recognised by almost all nations of the world in the 1948 International Declaration on Human Rights. The Vietnamese Government has also officially joined the International Convention on political and civil rights in 1966. This means the drafting and issuing of the Law of Association is precisely part of the Vietnamese Government’s fulfilment of its international legal obligations in so far as respect and protection of Human Rights are concerned.

4. The citizens’ basic rights have been set down by the Constitution, including the right to form associations. It means that whether the Law exist or not, forms of Associations such as Clubs, Centres, or a number of associations such as same-village-of-origin associations, senior citizens associations, scholarship promotion associations, etc.. are tacitly recognised by the State without any concern about their ‘juridical status of a corporate entity’. This is because the activity contents of these associations are based entirely on voluntary agreement. However, an association with the juridical status of a corporate entity, i.e. being officially recognised by the Government, possesses an important legal condition for its ability to take part in public administrative, civil, economic etc. relations. The Law of Association needs to have practical and clear stipulations, setting out conditions, criteria for an Association’s juridical corporate entity status. Corporate entity status is merely necessary for an Association in so far as it is an official recognition on the part of the State, and a legal condition solely for entering into civil, economic, public administrative relations…

5. The present reality of Vietnam’s civil society is that it displays extremely high diversity in form. There exist socio-political organizations; there are also social organizations, professional societies, community organizations, developmental organizations, Science and Industry organizations… Among these, the socio-political organizations hold a special political position. Being large organizations, with their scale of activities ranging through all the levels of territorial administration, their expenditure for activities is subsidised from the Government budget, and they often have a prestigious history of activities. However, considered under the basic criteria for qualification as civil society, these organizations resemble in form the people’s mass organizations and other non-government organizations. These are also organizations residing outside the State machinery, but fulfilling ‘Association’ criteria such as: operating on voluntary basis by members, not with profit-oriented objectives, but in the interest of members and of the public. Therefore, relegating these socio-political associations to the precinct governed by the Law of Association will also create juridical equitability among organizations in the civil society.
With regards to foreign subjects, the recognition that foreign individuals or organizations as being within the governing scope of the Law of Association can be understood as follows: foreigners, foreign organizations living and working legally in Vietnam also have the same right as Vietnamese individuals and corporate entities to form, to join associations. This is also a universal principle adopted by other nations at present, and applied to foreigners in the general trend of globalisation and integration into the world economy.

6. The relationship between Associations, public organizations and the State must be an egalitarian one. The Law of Association must clearly lay down mechanisms for resolving disputes between associations and government officials, and agencies with a State authority (according to the Law of Appeal, through the court system). The question of specific management of Association activities by the State should be determined in a practical manner: Are they to be managed through licenses for specialised activities? Are they to be administered through a parent body? Are they to be administered according to laws?… The State carries out functions including keeping watch on Associations’ compliance with the law, supervising Association activities, ensuring that these organizations’ activities are responsible and transparent to the community, society and to the members of the Association or NGO themselves. However, it should be noted that the restrictions according to the stipulations of Article 22, Item 2 of the 1966 Convention on Political and Civil Activities must be implemented in a concrete, clear, and explicit manner, reducing as much as possible all arbitrariness in interpretation and application of articles of law.
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The realistic conditions of many nations, Vietnam among them, have shown a diversity in organizational and operational forms of social organizations, who have promoted the deployment of their social resources to the utmost capacity and continue to do so. The participation by social organizations in the tasks and areas currently undertaken by the State can be considered as a sharing out of the heavy burden of responsibility from the Sate over to the civil society. Being aware of the importance of social organizations and their ability to make contributions, the Vietnamese Government, as a policy, has encouraged and created favourable conditions for the civil society to participate in State business. Government Decree 86/2003/ND-CP of 5/11/2002 and Prime Ministerial Resolution no. 22/2002/QD-TTg of 30/12/2002, concerning the activities of consultancy, critical appraisal and scrutiny of society of the Vietnamese Union of Science and Technology Associations, have addressed this issue rather concretely. This shows that Vietnamese government has a clear policy to promote participation of Associations in the State and society management activities. In making the Law of Association, it is imperative to grasp thoroughly and implement clearly the Policy towards Associations through concrete provisions of the Law.
THE LAW IS NOT THE MANAGEMENT OF ASSOCIATIONS BY THE STATE
Dr PHAM HUU NGHI
Editorial Panel, Journal of State and Law

In the context of integration into world economy, the role of Associations is growing day by day as a necessity, and it is a growth impossible to staunch. In question is the need to create favourable conditions for Associations in the common interests of the nation, of the Associations themselves as well as of the community. The governing of the organization and activities of Associations therefore does not lie in the law but in the more important role of the Association’s rules and regulations. This Draft Bill, interfering rather deeply into the rules and regulations of Associations, proves that the situation is still not yet rational. That is why a number of unaccomplished points of this Draft Bill for the Law of Association can be raised as follows:
1. The Draft Law has not created favourable conditions for the citizens and organizations to exercise their right to form Associations. Many articles cannot even compare to the laws of 1957, with Chapter 1 showing no clear stipulations as yet of the right to form Associations, thus it is inferior to the existing Business Law (Chapter 1 of Business Law determines affirmatively the right to freely engage in a business and prohibits any hindrance to the freedom to do business). Why don’t we have the daring to stipulate such rights in the Law of Association? In my opinion, it is necessary to express clearly the substantial contents of the citizens’ right to form Associations such as: Everybody has the right to form Associations, except those who have lost citizen’s rights and those who are being prosecuted by the law; everybody has the right to join a legally formed Association, and the right to freely withdraw from an Association; no-one can encroach upon another person’s right to form, join and withdraw from an Association… Practicality and clarity should always be part of the fundamental characteristics specific to laws.
2. The reason not to place the Vietnam Fatherland Front, Vietnam General Federation of Labour Unions, Ho Chi Minh Communist Youth Association, Vietnam Farmers Association, Vietnam War Veterans Association, Vietnam Women’s Union and religious organizations within the governing scope of the Law of Association has yet to be convincing. Aren’t these organizations considered as government agencies or as special organizations without attributes of an Association? If this question is not addressed then the Article 3 of Item 3 should not be included.
3. The fact that this draft law has not yet expressed the role of Associations in carrying out inspection, supervision, consultation, critical appraisal of society with regards to management by the State, especially in professional activities as one of the functions already determined as specific to Associations since long ago – proves it is not yet rational. This problem must be seriously and scientifically recognised from a juridical perspective.
From the above-mentioned reasons, it is more accurate to say that perhaps this Draft Bill is inclined towards State management of Associations. As State management of Associations is deemed so important, the rights of Associations to take initiatives, to operate independently or to make decisions will be made negligible. I concur with the idea that the law should only stipulate the areas of prohibition (for instance jeopardizing national security…) Outside those areas it is only rational to leave people to their own initiatives.
SPECIFIC PROVISIONS ARE REQUIRED FOR SPECIAL CASES

Mr PHAM QUANG LE
Research Office of the Prime Minister

1. Perhaps everyone is clear about the necessity to replace the Law “stipulating the right to form Associations” issued since 1957 with a Law of Association. The reason is that the old legal framework, although progressive in its spirit, has not been able since many years to cope with the enormous and profound changes taking place in our country. Not until the 9th Congress could the making of the Law of Association be addressed in a Resolution. However, the developmental process of drafting (from 2001) has encountered many obstacles with diverging opinions right from the areas of scope, governing subjects, down to conditions, procedures… and management by the State. Under such circumstances, the Prime Minister decided to have a Resolution (ND88/2003) issued immediately, so as to obtain clarification for it later with the passing of a period of application. And in 2004, the drafting of the Law of Association was continued after a preliminary wrap-up report of the situation of implementing the ND88 Resolution, and the Prime Minister has laid down the directive guidelines for this drafting task.
2. Through the various drafts of the Law of Association, many limiting points in ND88 have been examined for rectifications. However, the most important problem has not been resolved, it is the scope, and the governing objectives of the Law. Thus the Law has not been able to achieve a breakthrough to affect qualitative changes in which the expression of equality before the law can be manifested. It left a gap in the legal framework while we need to perfect the making of a State governed by the rule of law.
With that limitation, apparently up to the present moment the designing of the Law of Association (perfecting and surpassing ND88) has not yet reached a truly mature stage capable of giving us a law as everyone has been expecting. It has been suggested that if ND88 could not be legislatively surpassed, then it would be better to continue implementing ND88 with a few of its feasible governing points, while investing in more research to resolve the above mentioned persistent problem, which hopefully will be ultimately addressed at the coming 10th Party Congress.
To contribute a very small part to the additional drafting process, may I present here a few thoughts on the above-mentioned persistent problem. After careful consideration for terminology, the consensus on nomenclature is that:
Law of Association: This means that the governing subjects of this Law are the Associations. The term ‘Association’ here is not an ordinary term (with various meanings), but a concept with a precisely determined set of semantic attributes, perhaps should be written with its precedent letter in capital, “Association”, to distinguish it from others. While Associations have different forms (as in Federation, Union…) in essence they all belong to the Association type.
ND88 has stipulated the meaning of the Association (as the governing subject of this Law) in a fairly concrete fashion. However, to obtain a more comprehensive and coherent set of meanings in the Law, more research study is needed. According to documentary material on NGO’s from the World Bank, Associations are required to have members (to distinguish them from Funds and welfare organizations that do not have members and managing committees, but only founders and operators). An Association must be a corporate entity (but is not situated within the domain of the State). Associations do not include Party organizations, religious groups (churches), workers’ Union, business enterprises (who comply with specific Laws).
From the conceptual conventions, a highly sensitive issue arises concerning the organizations outside the scope of governing. Decree ND88 stipulates that those socio-political organizations (or popular/mass groups) shall include: the Fatherland Front, the Federation of Labour Unions, the HCM Communist Youth Group, the Women’s Union, the Farmers Association, the War Veterans Association, and religious organizations… Besides these again a number of other “socio-political” associations are stipulated to remain outside the Law of Association (and to receive regular funding from the government). With regard to the Law of Association, there are two differing streams of opinions: The Law must govern all these organizations (except the religious ones). It is because they satisfy all the criteria laid down for Associations, and therefore must be equal before the law. The other stream of opinions maintains that these organizations are not to be governed by the same Law of Association, as they have “special attributes” (belonging in the political system).
It would be fitting here to raise a submission for a proposed selection of the terms designating the criteria of qualification for Associations. The present classification for organizations is as follows: the Party is a political organization; there are beside it a number of socio-political organizations, and others being professional socio-political organizations. I think the word “political” here is being abused in the sense of “serving in a political assignment,” for instance: The Lawyers Association is in its real essence a professional Association for lawyers (similar to other occupational Associations). However, it is maintained that the juridical domain is closely connected to political power, it must therefore be political in real essence. There is also an explanation based on the reason of interest, in that an organization is political… when it is funded by the Government.
A final issue concerns those organizations that encompass many Associations, called Federation of Associations (literature and arts, science and technology…), who do not wish to be governed by the Law of Association. This is also a “special case” in Vietnam, as well as a sensitive issue.
To resolve all of the above “special cases” in a fundamental way, it would be imperative to acquire a new vision of our political system. Like the above mentioned socio-political organizations, I think it is possible to deal with the issues immediately by having a separate Chapter in the Law of Association that refers specifically to this type of special organizations.
LAWS OF ASSOCIATION IN OTHER COUNTRIES TO BE CONSULTED BUT NOT COPIED
Dr PHAM SY LIEM
Vice-president, Federation of Building-Construction Associations

1. The issuing of the Law of Association is necessary, but drafting it must spring from viewpoints fundamental to the Renovation process [doi moi]. The reason is that organization of the Associations in a market-oriented economy differs greatly in character, function and form of activity from that of Associations in a centrally planned economy. Besides, the Party’s work on public relations must be renovated, with experience and lessons to be urgently learnt from the events in the Soviet Union and Eastern European countries not long ago.
The role of civil society should also be studied and correctly evaluated. Recently there have been many studies by sociologists on civil society, in which the Association is a civil society’s organization operating outside the State machinery and the sphere of economic enterprises.
2. The Law of Association pertains to each country’s political regime, therefore it is necessary to consult the Laws of Association of other countries, but it is not possible to copy them, as we are being in the process of reform. It is necessary to examine the current situation of Associations. However, we must be extremely cautious, as we cannot immediately overturn the currently existing order, even though trail must be blazed for the coming reform. Especially the trend towards integration into international economy must be taken into account, as Associations could not avoid exchange relationship with those in other countries and preclude their joining international organizations. If our Associations do not resemble any others then it would be difficult to have a common language. That will be a great obstacle to the development of our country.
3. As deduced from the above considerations, the Law should only establish a legal corridor for the Associations to operate, which would include aims and objectives of formation, regulations, office premises, registration with the authorities, regular activities, submission of annual reports to the authorities, financial independence, rights and obligations, and prohibited activities… The Law should not intrude into the details of regulations and activity formats of Associations as there are many types of Association. Whatever subject matters that exist in other Laws need not be brought into this Law, such as the publication of periodicals, establishing businesses... That is why the Articles and Items regarding Association activities such as Article 12 (main subject matters of Association regulations) and Article 15 (essential contents of the General Meeting for founding an Association) should be deleted, as such details need not be entered into. Chapter 3 on membership and chapter 4 on organization of activities should not be brought into the Law either. Instead they should be substituted by a number of Articles concerning the rights and responsibilities of the Association, the non-profit nature, the publicly open nature, transparency, and the regularity of activities. There should not be any differentiation between the six social organizations and others as written in Item 3 Article 2 because this will create obstacles later for these organizations themselves in the eventual integration process. For the Vietnam Fatherland Front and the Federation of Labour Unions, there are Article 9 and Article 10 in the Constitution. As for Item 2 Article 5, it should be clearly stipulated that a number of Association should be recognised by the Government as being of public interest and benefit. Welfare Associations could be assigned by the Government to render a number of appropriate public services and could receive Government funding.
A matter greatly deserving attention also is the poor vocabulary of the drafters of the bill: In a barely 20-page long law text, it is unacceptable that there should be about 20 times in which the phrase “In accordance with stipulations by law..” is used. It is absurd for a draft law to rely on stipulations of the law. For every sector, there exists a law to govern it (such as the law of investment for instance). To write that way betrays a lack of confidence on the part of the drafters, who must rely on other existing laws… Then, does it not mean that ultimately, it will be sufficient just to bring out the Criminal Code?
STILL NOT AS GOOD AS THE OLD DECREES

Mr BUI TUONG ANH
Deputy general Secretary, Vietnam Economic Science Association

Nearly half a century now since the Decree 102/SL/LOC4 was issued on 20th May 1957 regarding “Stipulations for the right to form Associations” (signed by President Ho and Prime Minister Pham Van Dong), the State has initiated the drafting of a bill on Associations. 48 years already have passed, and, in my opinion, the draft “Law of Association,” however, has failed to respond fully to the demands for renovation and integration, failing even to be as progressive as the older decrees.
The opening lines of the old Decree (Article 1) consist in an affirmation: “The people’s right to form Associations is respected and guaranteed. Associations must be formed with legitimate interests, appropriate to the people’s democratic regime of our country”, and “Everybody has the right to form Association, except those who are deprived of civil rights or being prosecuted by the law. Everybody has the right to freely join a legitimately formed Association and the right to freely withdraw from an Association. No one is allowed to encroach on another person’s freedom to form an Association, and the freedom to join, to withdraw from an Association” (Article 2). How concise, how comprehensive and confident it is, how respectful of the people, how fair and straight forward it sounds! As for the present draft bill, there appears to be an apprehension, but about what, no one cares to state readily. There is only a desire to intrude excessively into people’s rights, an intervention that has become downright unlawful and irrational. I will cite for instances a few cases:
1. In Article 1 it is stated that: “This Law stipulates the right to form an Association, to organize activities and to manage an Association.” This is redundant, because without it, people still would not understand in any other way. Article 2 refers to “Vietnamese citizens and organizations, except those stipulated in Item 3 of this Article.” The drafter forgets that this Law governs the act of forming Associations, therefore it is only for those citizens and organizations who form Associations to comply with, it does not govern all citizens, all organizations in general… We therefore propose we should basically return to the two introductory articles of the old decrees, only with the following alteration to Article 1: “The right of citizens and citizens’ organizations to form Associations is respected and guaranteed…”
2. In practice it is not possible to achieve uniform State management of Associations. The State’s functions, duties of management are stipulated in the document on establishing agencies or while the functions and duties of the agency concerned are being regulated, but it is never the situation where every new law must sprout new functions and duties. Such stipulations could not guarantee uniformity, and therefore State agencies could neither “provide technical, professional guidance, and technical training” in the service of the Associations nor “manage international collaborative activities of the Associations.” For that reason the Chapter “On the subject of State management of Associations” is unnecessary.
3. If the draft reaches back to the introductory articles similar to those of the old decrees, then Article 7 (“Proscribed activities”) is utterly redundant. To have written articles as such unintentionally reveals that the author only focuses on prohibiting “Impediments to the right of forming Associations, acts of coercing people in joining or forming an Association.” However, “forcing members to leave an Association” is not forbidden. This is clearly not a fair and straightforward situation. This Article 7 is therefore also utterly too unnecessary to be included in the Law. Moreover, the criminal code lists all types of crime designated to impute all criminal acts. To mention some here would not only be insufficient, but also complicate the document much further. The same goes for commending and dealing with violation (Article 57, Article 58). While the phrasing goes “commending and dealing with violation,” in actual fact if violation occurs, both criminal law and administrative law will be capable of imputing the crime more than adequately. It is not necessary to mention it in this Law. By the way, there is a Chapter in the Draft called Chapter 6 governing “Associations by foreign individuals and organizations in Vietnam,” which we propose to leave out of this Draft altogether, in order to submit a separate Bill or Ordinance or Decree instead. As there are only 2 articles in this draft where it is left to the government to stipulate concretely (and it is correct that it should be so, for in reality the Constitution does not lay down foreigners’ right to form Associations). Thus including them in here only complicates matters further.
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With persisting remnant issues as shown above, if this draft is used as foundation for a Bill to be passed, then we really are on the verge of making a legislative backward step. That is why we submit that the Interior Ministry redraft methodically, in a more scientific and rational procedure in order to create a law responsive to civilized progressive needs, truly renovation-oriented and consistent with the integrative trend. I propose that the Federation of Economic Science Associations and the Federation of Literature and Arts Associations organize a group of independent experts to contribute ideas to the Draft Committee. This process of adding a little and removing a few errors each time is mired in circularity and is extremely flawed.
THE LAW MUST ALSO TOUCH THE HEARTS OF PEOPLE

Prof. Dr NGUYEN VUONG
Deputy Secretary-General, VN Union of Medicine and Pharmacy

The Union includes over 40 specialised Associations with more than 100,000 members counted among the total number of 265,000,000 staff ever employed in the medical profession, with an absolutely clear and brilliant history. For more than sixty years we have been absolutely loyal to our fatherland. A third of nationally famous persons who are nominated by the Politbureau belong to the medical profession. They are leaders of our Federation. As seasoned lecturers at Universities, as doctors totally dedicated to patients, we watch this law with extreme disappointment as it is presently drafted.
An Association is an organization that operates according to regulations. However, the Interior Ministry reviews the regulations for approval (as stipulated in the Draft Law of Association), thus the Ministry breaches the law. Not only that, the Draft Law contains many articles which in practice will tie our hands and legs, will abort the Association’s capacity to operate independently. The immediate past conference of 14 provinces has clearly affirmed that this is a step backward in this enterprise. It is impossible to accept the situation in that the organization of Association is a child of the authorities.
Such is the situation for the general law. In particular, for the medical profession, there is at present a directive from the Ministry requiring Associations to report their activities to the Ministry, while in reality Associations since a long time have no longer reported to the Federation, but have been doing so regularly and directly to the Ministry. It is clear there is this phenomenon of the Associations being “terrified” of the Ministry… If the law does not stipulate clearly on this issue then it would create gaps for negativities to spring up.
Also according to the draft bill for this law, in the functions of consultancy, critical appraisal and scrutiny of society, Associations have had their tails chopped off (been made ineffectual). Without social scrutiny, how could any professional activity be carried out by the Associations? Furthermore, language usage in the law must be precise and concrete. To work towards integration into world economy, the primary issue of ensuring and sharing a common language must be addressed. However, so many terms used in the articles are unacceptable. That is why it has been known that Westerners laugh at our Law.
If we say Science and Industry belong to our leading national strategy, there must be behaviour and response pattern consistent with this strategy. A law is introduced but it does not respect the activities of these organizations, who would want to join them if one had to do much fawning and crawling to authorities. The Party’s regulations and policies have been made standards as they are, but if we could breath life into the resolutions, they themselves must have practicability. The law must also touch the hearts of the people and ensure fairness and democracy. To state plainly in concrete terms, the Draft Law of Association this time still causes more repression than opening up more space.
THE LAW SHOULD BE AN EXPRESSION OF RELATIONSHIP IN MULTIPLE FORMS
Mme TRAN THI LANH
Centre for Research and Development of Ethnic Minority Women’s Resources


A law-governed State manifests the will to rule all society through Law, that is to say it carries out the Socio-Political function of the State. At the same time a law-governed State must also resolve all the problems in the life of Civil Society related to the Law, that is to carry out its Civil Societal function of the State. The law-governed State is a model of State organization that enables the merging of the Socio-Political function with the Civil Societal one in a most effective way, at the same time it has the greatest potential to strengthen the relationship between State and society by means of Law and through the Law.
The Socialist State of the People, by the People, and for the People contains in its nature the potential to unify the performances of Socio-Political function with Civil Societal one. Politics and Civility mutually require increasing unification as time goes on, through the Socialist Jurisdiction.
The Law of Association is of prime necessity, stemming from both Political and Civil needs. It is an embodiment of the gathering together of diverse multilateral relations between the Socialist State and life in the Civil Society. That is why the Law of Association only has real meaning when it can embody the current thinking of the period. Even so, the Law of Association must be one step ahead to cater for complex changes of the time. The aim would be to achieve the effect of government and at the same time serve in guiding and encouraging activities in civil society, working towards objectives of stable development.
Addressing the issue as outlined above, we would like to contribute a number of comments, mainly critical, regarding the aspects still found wanting in the Draft Law of Association. It is hoped that they will be received and studied by the Draft Committee in perfecting the draft bill.
1. The strategic aim in the Draft Bill is not yet consistent with the Party and State Ideological position as expressed in the Policies and Guidelines for Economic and Social development.
First, we must say frankly that the content of ideas in the Draft Law of Association this time, does not differ fundamentally from that expressed by the Decree issued in Ruling no. 102 SL/L – 004 dated 20/5/1957, which stipulates the right to form Associations, although there has been nearly 50 years elapsed between the two laws.
We are living in an Historical time with characteristics that have never existed before – THE GLOBALISATION ERA. The 9th Party Congress has acknowledged that: Globalisation is an objective trend. The Congress also asserted the Policy: “To heighten the promotion of domestic resources, at the same time to make use of foreign resources and take initiatives in integrating into the International economy for a rapid, effective and stable development.” On that basis, the Politbureau has issued the Resolution no. 07 NQ/TW on 27/11/2001 regarding the integration into the International Economy. Resolution no. 07 has asserted that integrating into the International Economy is a principal factor for development. The Resolution has laid down an ACTION PLAN FOR THE REALIZATION OF INTEGRATION INTO THE INTERNATIONAL ECONOMY, in which the tasks of designing, altering and amending the law are highlighted.
Having studied the Resolution 07 of the Politbureau, then, we are not able to find its Spirit and Philosophy of the Resolution in the draft of the Law of Association. The draft Law of Association has only propounded the rule of conduct and administrative procedures for Associations to adopt, whilst essentially the Role, Status, Function and Responsibility of the Association – of the Civil Society organization type – to date, have not been expressed at all. The Law of Association must be amended, to make it consistent with the Party and State ideological scope as expressed in the policy for Economic and Social development, especially the policy for integration into the International Economy, in the globalisation trend of all nations.
2. Incongruence between the Draft Law of Association and current Law.
When a new law is issued replacing an outmoded law in the same domain of governing, naturally it must negate all Stipulations that are no longer appropriate. However, it cannot cancel out the provisions of other Laws that are still effective. If it can negate other Laws then a situation where different Laws cancel each other would arise, the Law will bring chaos onto itself and become ineffective in regulating.
Article 3 in the Draft Law of Association stipulates that: In the case of differences arising between the provisions of the Law of Association and those of other Laws on Organization and activity of Associations, then the Law of Association applies.
Two questions can be raised intuitively:
Firstly: “Why are stipulations not made consistent to each other instead of having to negate other laws’ provisions?”
Secondly: “Can the Law of Association be placed above other Laws?!”
One only needs to answer these two questions to discover that there is some unsettling issue in the stipulation of Article 3 of the draft bill.
To clarify this issue, we will cite an instance as follows:
Point 4, Article 44 stipulates: “The corporate entity pertaining to the Association must operate according to the Corporate Regulations as approved by the Association, without infringing on the Association’s Rule and the current Law..”
Point C, Article 7 of the Draft “Stipulates on prohibited activities: using the Association’s Corporate status to pursue those economic activities to acquire profits, which are to be divided among members and the Managing Committee of the Association..”
Meanwhile Point 3, Article 15 of the Law for Science and Industry provides that: “Science and Industry organizations have the right to collaborate, form Joint Ventures, receive funding subsidies from organizations, individuals, accumulate capital in cash, real estate, Intellectual property copyrights to carry out Scientific and Industrial activities and productive, business enterprise activities according to the Provisions of the Law..”
In reality there are so many Corporate Entities pertaining to Associations, they are the Science and Industry organizations – forbidden by the Law of Association, but allowed by the Law for Science and Industry.
This single example is perhaps sufficient to ascertain the necessity to change the Provisions of the Law of Association, bringing them into line with the Provisions of other Laws.
3. The question of deployment and management of assets of the Association.
As to the question of management and deployment of the Association’s assets as well as disposing, settling Finances and assets of the Association in cases of splitting up, merging, dissolving, or ceasing activities, we find Provisions in Articles 45, 55, 58, 60, 77, 78 in the Draft bill to be unclear and inconsistent. We propose that, with respect to managing finances, the financial dealing in the cases of the Association being split up, merged with others, dissolved or having activities terminated are matters of fine details, of routine and of complexity. They require accurate usage of specialised language for finance and accountancy. The Provisions must conform to Accountancy Law, Audit Law and State Budgetary Law. That is why stipulations must not be made if they lack consistency with these Laws; the task should be given to the Government who can then assign the Ministry of Finance to issue a guiding Circular.
THE LAW AND THE DYNAMIC REALITY OF LIFE
Mr NGUYEN VI KHAI
Research Office of the Prime Minister

I. COMMON ISSUES, VARIOUS VIEWPOINTS, PERCEPTIONS
The primary aim of making a law is to govern social relations such that society will develop in the direction set out by the ruling class. This has been done since the codes issued by the very first governments such as the Hamurabi Code that appeared in the ancient State of Babylon 4,000 years ago (1792 – 1750 BC). With 282 Articles, Hamurabi Law was fairly detailed, allowing palace slaves to have family, own property, houses… However, the greatest limitation of this law was that it aimed to protect only the interests of a small minority, the ruling group. This is to show its fundamental difference from State Laws of the present era in general, and those of the Socialist Republic State of Vietnam in particular which have been and will be issued (among them the Law of Association), being designed to protect the rights and interests of the majority of people and not those interests of a group or an organization with special rights and privileges.
Reality has shown that in parallel with the existence of law-governed State is the development of civil society, the march of human progress, civilisation with three “active” mechanisms that govern the behaviour of a person in particular and the whole society in general. They are the market mechanism with its own rules, the law-governed State’s Legal codes and alongside them the community ties (community organizations which have existed since time immemorial, and today are called the civil society). Classical scholars have referred to this civil society as an indispensable entity beside the State: “The political State cannot survive without the natural institution, which is the family, and the artificial one which is the civil society. They are the sine qua non condition of a State.” In this context, the dialectical relationship between the three institutions is of upmost importance.
Recognizing this, the Vietnamese Communist Party has affirmed as from the 9th Congress that the State would entrust a number of public services to the social organizations’ undertaking so as to “enable the State to concentrate on more important tasks.”

II. A FEW IDEAS ON THE DRAFT LAW OF ASSOCIATION
1. When the 4th and 5th drafts are compared, more than 30 details of subject matters in chapter sections are found corrected and amended. The question worth discussing here is about the federation of Associations in Chapter 5, Article 39 (page 11) with the subtitle Federations of Associations, Unions (henceforth referred to as federation of associations). This is an Article which contains 4 subject matters in items 1, 2, 3, 4. The contents of these items are very unspecific and in reality possess little feasibility. For example: Section 1 states that “Associations operating in the same field can combine to form a federation of associations.” The notion of field is very abstract, with no characteristics to determine the limits and scope. More concretely, take for example the field of Internal Medicine, there is the Internal Medicine Association, beside whom there exist others with Internal Medicine characteristics such as the Endocrinal Medicine Association, the Cardio-Vascular Medicine Association, the Digestive System Medicine Association, the Urinary System Medicine Association… However because these Associations are so numerous they can not give rise to a Federation of Internal Medicine Association…
Section 4 in this article 3 stipulates that: “The formation of Federations of Associations is provided in the articles of Chapter 2 of this law.” When examined, Chapter 2 is found to contain many articles and items that are not realistic for many reasons. For instance many Federations and Unions are presently formed by a decree from high level authorities and not through lodging applications as laid down by Item 1 Article 11, or they came to exist through the issuing of an Order to form an association from a very high office such as the Government or the Party Secretariat and not the Interior Ministry as stipulated in Item 1 Article 17. Therefore it can be said that article 39 of Chapter 5 in this draft bill is completely inappropriate. It can even be said that it is so vague that it is impossible to ascertain what type of federation it refers to.
2. With a broad and systematic perspective on the drafting of the “Law of Association”, a number of points may be brought up from observation:
Strong points: The “Law of Association” has been arranged to be drafted and edited in a painstaking scientific manner, with opinions from many sources sought and canvassed, with the Party and State position on the task of managing the nation well understood and maintained, especially with the country as a whole being in the process of vigorous development. The world is beset with many turmoils: Vietnam as a country has gone through many changing periods, from being bureaucratically subsidized to a market-oriented economy that underpins a renovated Socialism. Although many difficulties still remain to be faced, after 20 years our country has escaped a severe socio-economic crisis (in the context of the collapse of Eastern European socialist countries and the Soviet Union), and opinions about this proposition are still divided.
- The Draft Law of Association has raised the standard of discussion on psychological aspects as well as responding partly to the practical demands. From the summary of Decree 88/2003/ND-CP to the evaluation of Association activities, the task of managing Associations on a nation-wide basis … this Draft Bill has gone through 5 editorial reworkings. A greatest common denominator of these changes is that some sticky problems snagged in the previous drafts have been surmounted, such as registration procedures being easier, freer (no need for permits), aspects of individuals and foreign organizations having been addressed (in the 5th draft)… However, in the last 3 drafts, Chapter 5 on federated Associations is a patchwork of different subject matters rendering the Law’s feasibility “problematic”! This has been raised above.
Some other strong points can be mentioned such as the focussed and expeditious working of the draft committee, with many sessions as observers and receivers of opinions from many directions, seeking references from international experiences… But these are not core points. The main thing is it has enabled the airing of intricacies needing to be unravelled, amended, proposed to be brought to attention in the drafting:
- Many ideas for discussing Article 2 Item 3: There exist 6 socio-political organizations mentioned as exempt from this Law, but why are other socio-political organizations not included in this category? Where is the exercise of “equality”? Especially the majority of these associations are organizations of intellectuals whose role at present as well as in the past has a history of being patriotic and loyal to the Party, being in the bloc of allied Workers, Peasants, and Intellectuals… According to the Interior Ministry’s preliminary statistics, as from March 2005, there are more than 330 associations of intellectuals, literati, artists and business people. This is too massive a force to be “glossed over”, taken lightly. It is no coincidence that Party and State documents mention the important role of this group in the past and more importantly for the future as this is the real source, the training ground for talents and valuable capital of the nation.
We take this opportunity to mention on equal basis the 4 important functions of Literature and Arts for progress in general, and for sustained development in particular. They are: The Reflective function, the Educating function, the Aesthetic function and the Predictive function. With such important functions, the Vietnamese intelligentia in the cultural “front” is really a force with a special role in national development. Their achievements are exemplary reflections of all dynamic aspects of life.

III. PLANNED SOLUTIONS PROPOSED DURING THE PROCESS OF DRAFTING THE LAW OF ASSOCIATION
Being cognizant of the sensitivity of this Law in the face of the urgent need for total socio-economic development, the drafting committee has gathered many ideas contributed over the past 5 editions, and will do so perhaps for several more editions to come. This is a law asserting human freedom, not responding purely to the material need of earning a livelihood like with a number of economic laws, but responding to psychological and moral needs imbued with humanity and culture. (To say so does not mean economic laws are less important). The particular nature of this law has forced the drafters and the very office responsible for drafting to lodge a report requesting guiding ideas not only from the Prime Minister but also from even higher authorities, to ensure the feasibility of this law. A sticking point is found right in the first Chapter, Article 2 and there have been several proposed solutions put forward as follows:
1. If the subjects to which this law does not apply are the 6 socio-political organizations (as referred to in the 5th draft above), then other socio-political organizations should be included also in this category, because other socio-political organizations such as the Federation of Economic Science Associations, Friendship Associations… represent the intelligentia with a special role as mentioned above.
2. It has been suggested that if this law does not apply to those socio-political organizations, then other socio-political organizations should be considered to be on the same footing as well. It will then be sufficient to cover these organizations altogether in one single clause that “[this Law] does not apply to socio-political organizations.” Organizations already under particular laws and decrees would be governed by those specific laws and decrees.
3. Other design plans of a separate chapter for federations of Associations is a transitional solution before specific laws for intellectuals can be established. However, if there is a separate chapter, it must be phrased differently, the important content of which must refer to the important functions such as consultancy, critical assessment, supervision… as raised by the documents from the Party Secretariat and the Politbureau.
The above planned solutions should be analysed to enable selection and proposals to be put to higher authorities, who can then give directions for proceeding towards a law that ensures high feasibility, one that is equitable, democratic, and scientific, appropriate to new historical developments. Especially, the process of the past 20 years of renovation has given us many valuable lessons, among which is the very important lesson of renovating our thinking, reviewing a host of issues of the government-subsidy era with its voluntarism that ignored objective laws. We had to pay the price. (That was the severe socio-economic crisis from the late 1970s until the late 80s before we could emerge from it).
Here it should be mentioned that the cause of all causes leading to that crisis and slowdown was “the task of organizing cadres and ideological thinking” still contained many irrelevances and weaknesses. At present this cause still remains as a challenge that hampers the development of our nation.
In the process of ascending towards Socialism we also cannot forget that a host of so-called problems peculiar to Capitalism such as “market economy”, “unemployment”, “labour as commodity” etc.. that are not strange to Socialism. Recently, pluralist economic development, respect for private economic enterprise have been acknowledged in a whole Party Resolution (at the protest still of some Party members). Recognising that it is an unavoidable process, only by going from direct perception of life to abstract philosophy, then back to the “practical reality”, can our approach lead gradually to objective truths (in the tenor of Lenin’s expressions). The Law of Association must be no different, as it must come back to the dynamic reality of life in order to renovate the thinking in the process of drafting and issuing it.



THE 8TH DRAFT

STILL SEARCHING FOR A COMMON LANGUAGE
DESIGNING LAWS IN THE CONTEXT OF MARKET ECONOMY AND CIVIL SOCIETY
Dr PHAM HUU NGHI
Chief Editor, Journal of State and Law

I maintain that we should attach much importance to the following viewpoints while designing a Law of Association:
First: The individual’s and organizations’ free will must be assured in the formation of Associations. The 8th draft has not yet embodied this principle. In the capacity of a public authority, the State must create a clear legal environment, most conducive to the formation and activities of association organizations, at the same time it must possess a mechanism for supervising associations. It must be said that the State-Association relationship is not that of a higher to a lower echelon, or command administration, but a democratic, egalitarian, mutually supportive relationship, creating conditions for mutual inspection and scrutiny. For the Associations themselves must inspect and scrutinize the State. These are two sides of the same issue. State management as outlined by this 8th Draft is not desirable.
Next is that the drafting a Law of Association must be located to the context of the on-going establishment of a law-governed State and the civil society, amidst the transformative changes in market economy. The role of social organizations by now has changed many times, no longer like during the period of centrally planned and subsidising regime. This point should be stressed, as the state of subsidy thinking, the requesting, granting of free assistance in setting up and operating social organizations in our country are still persistent. This issue is fairly clearly conspicuous in the temper of the 8th Draft.
Regarding the number of subject matters in draft bills, a crucial question is how to determine the main target of the law. I concur with the suggestion that facing the above question, the drafters are to make a choice among alternative solutions:
The first alternative is perhaps to bring all socio-political organizations into the governing precinct of the Law of Association. In this case, socio-political organizations are considered as a true part of the civil society, on an equal footing with other public organizations and associations. Consequently, the socio-political organizations will operate and develop in a more autonomous direction, and will be closer to the public. To put it another way, operating within the Law of Association, the socio-political organizations will acquire the conditions to develop in the direction of “socialisation.”[1] This will resolve the situation where social organizations become “governmentalised.”
The second alternative, is to devote a separate chapter in the Law of Association stipulating the activities of socio-political organizations. In principle, it must be affirmed that these organizations are NGO’s, and a part of the civil society governed by the Law of Association like other NGO’s. At the same time the Law of Association can have a number of provisions reflecting in a concrete manner the particular characteristics of a number of socio-political organizations, and a number of socio-politico-professional organizations.
In the third alternative, the Law of Association will not govern the activities of socio-political organizations. Thus the socio-political organizations will have a separate, special playground where they are subsidised and supported by the State.
My view is that we should adopt the second alternative solution, because we should not continue to “governmentalize” socio-political organizations in the context of the country changing over to market economy and integration into international market. However, we also need to take transitional steps, and having a separate chapter for socio-political organizations would amount to embodying this transitional characteristics in a number of stipulations.
The recognition of individual foreigner and foreign organizations having also the right to form, participate in associations just like Vietnamese individuals and corporate entities would be consistent with the reality of many countries and with the globalisation trend. Therefore I think if the concrete right to form associations of foreign individuals and organizations is stipulated in the Law of Association, it should not be stipulated as written in the Draft, where the provision is to be stipulated by the Government.
In addition, there are two issues that should be included in the Bill: First, provisions for settling disputes between associations and State departments and agencies and the determination that the authority to settle them should be the court (settling by judicial means and not through administrative avenues). In the process of formation and operation of association, disputes between associations and state agencies are unavoidable. Therefore the establishment of a judicial mechanism to settle this kind of dispute is extremely necessary.
Secondly, provisions for ensuring the associations’ right to appeal against State administrative offices, appeals in courts against impediments to the right to form associations, encroachment on the legitimate and legal rights and interests of associations.
Finally, careful considerations must be given to the provision that the Ministries with their specific managing capacity have the right (meaning also the responsibility and duty) to manage associations. The present period is the transitional period of development for civil society in the climate of market economy. Associations are institutions of the civil society. In that condition, the relative independence of associations with respect to the Ministries should be recognised. If specialised Ministries have the right to manage associations then the Association would find it difficult to perform its functions of scrutiny and social critique of the relevant Ministry’s management activities.
I DO NOT AGREE WITH THE VIEW THAT THERE MUST BE A MINISTRY IN CHARGE
Prof. Dr DINH NGOC MAU
Deputy Director, National Institute of Administration

- Firstly, what is the basis for drafting this law: The most important thing is civil liberty. If civil liberty is not recognised, we should not draft this law. There are a few types of freedom in society which have been subsequently inscribed in the Constitution: First is the freedom of speech. Second is the freedom to assemble and to form associations. Third is religious freedom. And fourth is the freedom to earn a living, and with the market economy we have the freedom to engage in business. There are many more types of freedom but I just mention those four above for the present purpose.
From conscious awareness, we take action. The awareness of Associations represents freedom, and the Associations’ activities are also free acts. Only with such conceptualisation can we discuss about the law of association.

- Secondly, the principle of law making. We already possess this principle: To separate government administration from civic activities. All associations’ activities must be separated from public administration. The more they can be separated, the more society can exercise freedom and develop. Associations are not bodies with departments and organised structure laid down by the government. If this principle is not recognised, it will be difficult to draft a law.

- Thirdly, concerning the scope; the scope of this law is to govern legitimate associations. Article 9 of this Law stipulates that: a quota number of members must be reached for an association to be set up. Therefore if an association is formed with a number of members lower than the quota, what can this be called? Why wouldn’t the State consider it as a body with a legitimate life when it does not breach any law? And therefore what is the legal scope within which it would be covered? This is why the concept of association in this law is far from clear. I propose that this problem is to be researched and studied.

- Fourthly, concerning the method of management. In fact if it has been called a law, there can only be three methods of management. The first is by prohibition. State prohibition is most important in market economy, but there is too little prohibition in this law. It is imperative to write down what are to be prohibited in the draft. Whether any prohibition is correct or not can be then left to subsequent discussion. The second method is by coercion. In my opinion, the only compulsory requirement for associations is registration. If they fulfil all legal criteria, they must be allowed to operate. Meanwhile the biggest principle for the State is to operate within the law. Anyone who broaches any limit under someone’s authority, that person is then deemed legally responsible.
After being forbidden, coerced, who would want to assemble together in associations? The condition that Associations can self-manage according to recognised regulations for registration is a lawful one. The State therefore must take the responsibility to ensure that the Associations’ charters are legal. I do not agree with the view that there must be a Ministry in charge to manage the activities of the Associations.
OBSOLETE THINKING IN THE STYLE OF STATE-SUBSIDISED SYSTEM
Prof. Dr TO NGOC THANH
President, VN Popular Arts Association

I have been able to participate 3 times in this drafting, this time is not different from previous ones, and if there was any difference, it would still not reflect the reality faithfully.
Firstly, we are of the Federation of Culture and Art Associations, established by the Party from the Cultural Association for the Fatherland Salvation since 1943, during the struggle of fighting the French and evicting the Japanese. From 1943 until now the professional branches have grown larger to become professional Associations, unlike what they were formerly – Performative Arts Associations. We did not take the initiative to form the Associations ourselves, therefore we do not come under the purview of voluntary self-governing subjects with regular activities. We were established together with the Youth Group for the Fatherland Salvation, but now we are not included in the so-called socio-political organizations bloc. According to the Party Decree 8, we are called a professional socio-political organization. May I ask you comrades: During the national struggle, the Party stated that there are Workers, Peasants and Intellectuals together. Today when the Resistance has succeeded, how come all of us intellectuals cannot join workers and peasants? I regard this is an error in ideological principle.
The two brother intellectual Federations are the Federation of Economic Science Associations and the Federation of Literature and Arts Associations. They should be on the same level with the Women’s Union, Youth group, as they form the fundamental elements of the Vietnamese Socialist Revolution. This drafting work is done in the name of civil society, I submit it must be remembered that it is a civil society led by the Party. I regard this is the compass point and the foundation stone for you comrades to work on. It does not consist of this and that concrete article. That is, may I say frankly, the ideological principle.
Secondly, it has been suggested that the word ‘in-charge’ does not exist anywhere in the draft Law, but I would maintain that the spirit of being State-managed appears abundantly clear. Associations are established for carrying out activities, but if they were to be totally managed by the State, then what would there be left for them to do? At most we belong to a branch of the Ministry of Culture. The Ministry of Culture has had respectable achievements, but they are not in our field. What do they know of cultural creativity, what do they know of creative works, and do they know what we in the Literature and Arts ranks are about in order to manage us? That is why we all agree that the Ministry only manages by law, and suggest that Items 2 and 3, Article 7 in this draft should be completely deleted. They represent an extremely outdated way of thinking in the style of State-subsidised system, if this is not a sort of stripping of Party leadership power from us.
THE ASSOCIATION SHOULD NOT BE REGARDED AS AN ECONOMIC ORGANIZATION
Dr HAN MANH TIEN
Institute of Research and Training for Management
…A point that I think mistaken, is the way Associations are perceived here as economic organizations. This is a fundamental error. It is expressed in two points: The first one is the registration to form an association requires the registration of assets. This is incredible! I have 300 members, I register 30 members. After the general meeting takes place, if laws are breached, then the application can be rejected. That is the correct procedure. If an Association is formed in breach of the provisions then clearly it must be liable for prosecution by the law, this is normal. To require registration of assets at the start of forming an Association reeks the thinking reserved for business enterprises. Secondly, it concerns the provision for dissolution. In a business enterprise, if the General Manager, the President of the managing committee made a mistake, it would not mean the enterprise has to be dissolved. Even if the Executive Committee made a mistake, it would still not mean dissolution of the enterprise. In the case of dissolution of an Association, the procedure for dissolution should be a matter of concern, but in this draft bill, the matter that attracts most attention in dissolving an Association is finance. Meanwhile the social implications, members’ rights and interests are as good as ignored. Such a way of perceiving, approaching the issue, from registration to dissolution, is copied completely from the management of business enterprises.
From the above logic, I would suggest: There has been already 8 rounds of drafting, if you think it is sufficient to change only a few words and phrases, then you should go ahead and submit the bill. It is my opinion, however, speaking also on behalf of other brothers and sisters, I strongly urge you to delay the submission, so that a consensus can be reached first for the concepts that express principles, then rectifications of technical issues can be made next. As such, if the drafting were to be halted or slowed down, and it would be all the better.
I CONCUR WITH THE PROPOSED REMOVAL OF ITEM 3 ARTICLE 7
Mme PHAM CHI LAN
Research Office of the Prime Minister

I concur with the proposed removal of Article 3 Article 7 from the draft Bill. The ministries can go on managing their own areas of specialty as stipulated by law, where anyone of them operating within their specialised area would have the right to inspect and to examine. They could blow the whistle if there was infringement, otherwise people should be left alone in their normal operation and there would be no need for stipulation of management here. In addition I propose the Item 3 Article 11 should also be deleted, as it requires that if the Association locates it headquarters in any district or precinct then it should register with the People’s Committee of that district or precinct. It would not be possible for districts or precincts to fathom the nature of Associations, even with the fairly well-known large ones with a nation-wide scale of activities. Without adequate information, the districts or precincts cannot be given the role of managing Associations, without feeling they are unduly burdened and are risking harm to the people charged with the management. To be practical, it would be quite sufficient for the Association to report to the registration office on the location of its headquarters, wherever it is. Such stipulations are not made even for business enterprises.
The district level management and the parent body status of the Ministry should be abolished. Only a quick and brief registration procedure with a registered address is needed. For the Central and Inter-regional areas, the Interior Ministry can be in charge. At local level, registration can be left with the provincial authority. This would be most convenient.
There must be a number of rights and duties designed in the Law, in the sense that the State recognises certain basic rights and obligations of the Associations. As far as the details of these rights and duties are concerned, they must be dealt with by the association’s regulations. The reason is that in their rules and regulations, the Associations always have to define perfectly clearly all the rights and duties of the Association and its members, in order to attract sizeable membership…
THE NEED FOR A CLEAR TYPOLOGY OF ORGANIZATION FOR ASSOCIATIONS
Mr TRAN KHANH CHUONG
Vice-President, VN Federation of Literature and Arts Associations

The National Assembly will no doubt discuss extensively about the Law of Association, but as a National Assembly representative I am deeply concerned, as the number of representatives who work in Associations is very low. Therefore once the bill is submitted, it will be too readily voted on. That is why if we do not discuss thoroughly at the Associations, when the bill is presented to the Assembly, only 5 or 7 of us who are in the associations can not argue against anything.
Can the association law be named differently for the sake of clarity, for instance Law of NGO, or Law of social organised groups? I find it extremely irrational that the Women Associations are not included in the Law of Association. And dos this mean our Fine Art Associations, Literature and Arts Associations are even inferior to these? The Vietnamese term association indicates they are all the same, therefore if these associations are left out, a very large number must be excluded. The Federations of Economic Science, Literature and Arts, Journalists Associations… each Association is equally important as another. How can industrialisation and modernisation do without science and technology? If culture is to be the foundation, how can Literature and Arts be missing? Thus I find that to speak about a Law of Association with some Associations remaining outside of it is unsatisfactory. I propose therefore in Chapter 1 of the Law of Association, a clear classification for the types of association must be made. In brief, I fervently hope that the comrades will continue to make rectifications and amendments, but I also would like to propose as follows: As the comrades who are active in associations have a deeper understanding, you should correct the details of this document. You would be able to deliberate on accurate phraseology and terminology, as past experience shows that generalised statements such as those made recently are inadequate. Once you point out which phrase and what term must be modified, naturally the Draft Committee will select a term suitable for both us and for the management proper.
THE FEDERATED ASSOCIATIONS MUST HAVE A UNIFIED VOICE
Mr LE CONG LUONG
Vice-President, General Secretary, Federation of Science and Economics Associations, Ha Tinh

Up to now, I have participated in 4 seminars altogether on the drafting of the Law of Association. For this a reason I can say that it has been a first step in democratization of the issuing of a Government law code.
Apart from a number of concrete ideas contributed to the drafting of the Law of Association, I think there is finally the issue which we must accept as only true, that is perfecting this law would be difficult. This is because in our country, on nation-wide basis alone, there are more than 300 NGO’s. As for federated associations and associations, they must count in the hundreds. To give all of them a hearing is indeed extremely difficult for the draft committee. That is why I propose that before this draft bill is submitted to the National Assembly, for the sake of high effectiveness as well as real consolidation of ideas, the VN Federation of Science and Technology Associations and the Federation of Literature and Arts Associations are to be assigned with collecting the ideas ranging from members to official texts of these two federations which will eventually be sent to the Draft Committee to present to the Government. In our opinion, a common unified voice of these two Federations is essential. It will serve as one of the bases for the Draft Committee to examine and consult.
MATTERS OF PRINCIPLE MUST BE GUARANTEED
Mr VU DUY THAI
President, Federation of Industry and Trade Associations

Our Federation has a difficulty, that is to organise a general meeting, we must obtain approval from the local Government agency. As a result, we must keep on waiting while the appointed due date has passed. We have already lodged reports, rules, anticipated personnel, but personnel is the only problem which has remained unsolved. And the planned General Meeting has been postponed for 9 years now. Therefore I propose that this Law must include this subject matter: in the case where individuals, associations encounter deliberate refusal from functionary agencies or deliberate delay in issuing approval when the time for General Meeting is due, the way these agencies are to be dealt with and the manner of settlement should be stipulated. Only by such a measure can the protection of rights and interests of Associations be ensured.
Associations are basically self-sustained, independent financially, except for some associations with special characteristics such as the Blind Association who need subsidies, whereas other associations should be considered on individual basis. Therefore I think all organizations governed by other laws must not be included in the purview of this law. This part must be phrased flexibly, made easier to understand, more convenient for usage, rather than having to specify this or that association is not within the area governed by the law, this is unsatisfactory.
We also agree that what can be understandable for the draft committee is OK, but when it comes to matters of principle such as the Association is a democratic institution, as a partner of the State, it must have relative independence and cannot be a public instrument… these must be enshrined. Only when that is done can Associations be brought up-to-date and able to attract more members. However if Associations are merely an extended arm of the Government, then achieving an conglomeration like our business enterprise bloc will be difficult.
As an insider, I believe that insiders’ opinions are more practical. I hope they are given due attention.
MANAGING ASSOCIATIONS AS STATE-ADMINISTERED BODIES IS UNSATISFACTORY
Mme TRAN THI LANH
Centre for Research and Development of Ethnic Minority Women’s Resources

In the general trend to integrate into world economy, according to the Politbureau’s Resolution NQ 07- stating clearly that we must go over closely every sentence, every word and article of international contracts. Any laws, articles, whatever is inconsistent with the integration process must be rectified. That is why this law of ours is still a draft, and we should change whatever is inappropriate. As a concrete example, according to the stipulations of the current draft bill, there are altogether 6 organizations (placed outside the governing scope of by the Law) that are not permitted to become associations. This is very dangerous, as our Government completely controls these organizations. However, these organizations do not come under the law, which means they cannot form associations. This is an absurd situation. Not to mention the idea that: the State – as Uncle Ho said – must stay stable like the three-legged vessel. Workers, peasants and intellectuals are those very three legs, and we cannot exist as a vessel with two legs.
We are a Science and Industry organization operating for 15 years in the field of utilising, promoting and developing local knowledges of the ethnic minority communities who live in protective forested areas in the upper reaches of streams, to discharge our duties of eradicating hunger and reducing poverty through autonomous, self-reliant methods and strategies, strictly adhering to the Party’s and State’s frameworks. I have noted that the regime of concentrating the State’s power in the management of natural resources in protective upland forests still contains many shortcomings. For example, there are only just over one hundred cadres, agricultural forestry workers and forest rangers who manage and have the right to exploit and utilize over 10 million hectares of natural land, forests and of protective forests, the whole nation’s common resources, while about 15 million poor and ethnic minorities are only allowed to manage and utilise less than 1 million hectares of forested land. This figures speak of the shortcoming caused by the centralisation of power, which not only exhausts the diverse natural biological resources of the nation, but also causes conflicts in social relations, conflict between the forest dwelling communities and government cadres at these state-run agricultural and forest collective farms. The result is a daily growing loss of trust of the communities towards government policies. And now both forest and land are exhausted. I imagine if we introduce State management of Associations into Chapter 7 without serious scrutiny then we are no different from the Ministry of Agriculture and Rural Development issuing laws of development of forestry resources without achieving it. This would lead to a situation of conflict in society more dangerous than the outcome from the above example.
Moreover, if we refer to basic characteristics then associations are completely independent, differing from the State in three aspects:
- First, the basic character of society is different from that of the State.
- Second, association culture is different from State culture.
- Three, more importantly, the organization, management and operating structures of associations are completely different from that of the State.
The reason is that associations have three very important elements: voluntary, autonomous, responsible to themselves, to their members and to the law of the State. That is why if we manage associations in the same way as the State, it will be unsatisfactory.
A FOREST OF TREES OR SOME SCRAWNY BRANCHES?
Dr NGUYEN CHI DUNG
National Assembly Office

This Law expresses concretely the article 69 of the Constitution, which stipulates on the citizens’ right to form associations. The Constitution states that Citizens have the right to form Associations… according to the provisions of the law. The usage of the words “according to the provisions of the law” in the Constitution is thoroughly permissible, as they differ from the law itself. Once it is law, such style of expression cannot be accepted, as its provisions must be practical and concrete. In laws, the phrase According to the provisions of the law is very general, valuable as a safeguard for the drafters but it causes great difficulty for the implementers.
If we contrast the content of the Law of Associations with the Constitution’s Article 69, there would be several ideas that require to be discussed: Citizens possess freedom of volition. Therefore does the individual or the organization have the right to form associations? The sacrosanct thing is the voluntary alliance of individuals and not of the organizations as the 8th draft proposes. This fact reminds me of associations within associations. It means when management is squeezed in size, Associations have to grow like branches off a tree trunk (in the manner of Federation of Associations). If they were free, they would have no reason to grow like branches but associations will shoot up like a forest. Thus do we wish to have a forest of trees or a few trees with scrawny branches? This is related to the understanding of citizens’ freedom of volition, without which Associations are only a way of bunching together for ease of administration.
Also in relation to Article 69 of the Constitution, this Law is being created to protect the right of individuals to form associations. For this reason, upon forming, do the associations need to apply for permission or to simply register? This matter should be clarified. Although the law stipulates that only registration would be required, no need for applications, there are concrete examples of complications of the following type: A law decree stipulates that organizations must register to be legitimate, but there have been cases when trying to register, they were not given permission. Self-initiated gathering, even in private homes, still runs into the problem of freedom to assemble… If this law is not carefully drafted, the requirement will amount to applying for permission to form Associations and would be effectively identical to that Decree.
The 8th draft stipulates the duty to register: To form an Association, an application must be lodged at an authority and the applicant must wait for the official consideration and subsequent approval. This is one way of understanding. Another way of understanding: The Association is founded strictly according to regulations, with a set of rules etc. then proceeds to be registered immediately after announcing its formation. A registration number will be issued to it for future inspection. In actual essence this is what describes a procedure of applying for permission. This does not fit the concept of free will. You cannot use a registration paper to deny that an Association has been formed.
As for the Socio-political organizations, there are two viewpoints: The first is the law needs to determine which type of association that are not within the governing purview of this law, and there need be separate laws, such as Fatherland Front Law for example, to govern these organizations, in which these organizations are clearly recorded as those with the special privilege of having a State budget for their operation. And therefore their financial transparency has to be mandatory. The Budget law must also state this clearly.
The second viewpoint is based still on Article 69 of the Constitution. Not being Associations formed by citizens, the above mentioned Socio-political organizations have their own history, own stipulations, special regulations and must be transparent about this in order to distinguish themselves from voluntarily formed Associations.
The third viewpoint is about having a Ministry as parent body. The fact is previously many Associations wanted to be in a Ministry-managed system in order to have protection and priority in getting jobs done. However until now, almost all income earning activities have been relegated by the Ministries to their service-providing departments. It is an unhealthy development. A public service unit with an income accruing capacity is a half-measure that creates a vague model, an extreme difficulty for the Associations’ activities.
Finally the limit of the registration agency’s power must be clearly delineated in this law. Apparently so far we have only seen the power to approve formation, whereas a host of matters in relation to the authority and jurisdiction of registration agencies, such as settling disputes between Associations and agencies, public disputes… are yet to be at all mentioned. Not only that, the Law intervenes even in the contents of general meetings, Association regulations, in truth it will really create a multitude of dangers…
I DO NOT UNDERSTAND WHY IT HAS COME TO THIS
DR TRAN HUU HUYNH
Head, Legislation Committee, Vietnam Chamber of Commerce and Industry

With regard to the Law of Association, allow me first to give a concrete example that took place recently, it was the investment law. In that situation where there are so many business people, federated associations and scientists who do not reach a consensus, the bill was still submitted. Even before the National Assembly voted, there was a number of people who asserted that the bill will surely be passed… This is a draft bill that has received contributions towards its pretty thorough construction, with many meetings to canvass ideas from associations, business enterprises, to compile into books, to invite National Assembly representatives from Hanoi, HCM City for hearings and for contributing ideas. However, the draft committee’s compilation work was tantamount to almost nothing. Only until 3 foreign Chambers of Commerce co-signed a submission could anything be made official…
I do not understand why it has come to such a situation. Now for the Law of Association, if care is not taken, it would be easy to find the same situation repeated. A joke has been going around that the purpose of conferences like this is to raise consciousness, to ease the passage of the law into real life with less hiccups… The reality is that there has been several conferences, and it appears that most ideas have not been consensual. The draft bill, however, has not been revised. If submitted to the National Assembly an passed in this state, our sweat and tears will have amounted to nothing significant…
Nevertheless, I have seen encouraging signs this time, that is a new draft bill for this Law for us to consult. Firstly it is a positive expression of the civic attitude towards society, and after perusal, I find this draft to be more positive, having solved many sticky problems, it is more acceptable.
Regarding the content of the 8th draft, I would suggest: This is a Law about regulations, as rights are readily understood. There has been communities from the early primeval societies, this is a natural right of people since antiquity, and it has history of enduring existence. Therefore it must be respected. It has higher priority as it is constitutionally recognised. In this spirit, nothing should be allowed to hinder this right. However, the content of the law works under a different spirit. The formation of associations is conditional on their general meeting being approved. Where is then the constitutional right? Associations must also reach a quorum: Why? …Not strictly the draft committee, but the collective consciousness in general in designing laws is still stuck in the planned-economy system, and this is not correct. The essence of the Government is that it is of the people, by the people. A community growing big and strong, in happiness, with people becoming prosperous, civilised, democratic, are the objectives of our Government. Why should the size of membership and registration be limited? The stipulations that there must be an inspecting committee, a campaign to form the Association, to me are unnecessary. To be green and lush, the tree of life must be diverse. The simpler and clearer the stipulations are, the better it will be.
The trend to link the word Political to associations is fairly widespread today. I think in principle, all associations have a political character. Is it not contributing to the building of a civilised society a political act? Ideally the State must not be entangled with practical necessities of livelihood and money but should be an arbiter, this should enhance its role of administering society. And the law only has to deal with the relationship between Associations and the State as with other partnerships. The internal relations of each Association need not be addressed by the law at all. The same with splitting up, dissolving an Association, and these are already governed by the civil law.
Similarly, regarding the formation, management of Associations, the issues that need addressing are only formation procedure and supervision to ensure the Association perform its functions properly, there is no need to manage Associations. If this can be achieved, Associations and the State will both be strengthened, and the tree of life will grow more green and lush.
IDEAS IN PARTICIPATING IN THE DRAFTING OF THE LAW OF ASSOCIATION
NGUYEN DINH ANH
Dept of International Finance, Ministry of Finance (Member of Drafting Committee)

Here has been many seminars surrounding the drafting of the “Law of Association,” many discussions organised by different agencies on different scales and in different areas. Of special interest are the seminars organised by the Interior Ministry itself (the presiding agency for drafting the Law) to gain a broad contribution of ideas to the draft Law of Association, notably the ideas from the Associations (the subjects of application of this Law of Association). I think the birth of the Law of Association at this point in history is truly necessary and appropriate. As a member of Drafting Committee, I have a number of opinions as follows:
1. On the concept of “Association” mentioned in article 4 by the Drafting Committee, “Association” is understood as a voluntary organization, having a juridical status of a corporate entity, operating regularly, being not profit-oriented, with the aim to protect the rights and legitimate interests of the Association and its members, to contribute to the socio-economic development of the country. I would like to add two following details to the concept of “Association”:
- Firstly, to differentiate “Association” from Government agencies. An Association is an organization outside the government, does not belong to the Government. It is important to state clearly here that this is also an attribute of the Association requiring to be elaborated in the concept of “Association.”
- Secondly, the role of Associations. An Association must have a certain role, being even over and above the aim “…to protect the legitimate rights, interests of the Association and its members”. Before protecting legitimate rights, interests of the Association and members, an Association must have a guiding principle, a separate operational objective directed towards the interests of the community and society. The role and significance of the Association must be expressed in the concept of an Association. As this is the Law of Association, it needs to have perfected the concept of Association, which reflects exactly its essence and encompasses all the characteristics of an Association. I think the conceptual framework should be designed with two component blocs. The first bloc reflects the essence of an Association: an Association is a corporate organization that is not State-dependent, with its guiding principle and aims congruous with the interests of the community, and for the sake of social progress, works towards upholding the values of truth, beauty and goodness.
The second bloc reflects the Association’s characteristics including:
- Voluntary nature
- Independence
- Professional nature
- Responsibility
- Non-profit nature
When the concept of an Association is perfected, it can be brought into Article 1 of the Law. The definition of an Association is to be made before other stipulations such as the right to form an Association, the governing scope, applicable subjects, the organization principle… That would be more reasonable.
2. Point 2, Article 4 of the Draft bill explains “not for profit purposes” as not to procure profit in order to divide it among members but to invest it in Association’s activities in accordance with regulations. This explanation to my mind is still flawed in the following aspects:
- Firstly, the above explanation allows an interpretation that Associations are entitled to seek maximum profits, so long as the profits are not divided among members and are invested in rule-abiding activities of the Associations. However, if Associations are allowed to seek maximum profits, this would negate the Association’s characteristics of “not for profit purposes.”
- Secondly: Article 37 of the draft bill stipulates that as corporate entities Associations must operate in accordance with the Association regulations, which must adhere to the principle of not seeking profits. This means the corporate entities pertaining to the Associations must also adhere to the principle of non-profit purposes, not seeking profit to distribute among members. This is a very unsettling problem as it contains many contradictions. I will cite an example as follows. At present many organizations with corporate status in the category of Associations are the science and industry organizations who are given permission to practice their professions by the Ministry of Science and Industry, allowed to “collaborate, establish joint ventures, receive funding from organizations and individuals, accumulate capital in monetary or real estate forms, in copyrights of intellectual property in order to carry out scientific industrial and productive, enterprising activities according to provisions of the law” (point 3, article 15, law of science and industry). This provision of the Science and Industry Law permits scientific and industrial organizations to form joint ventures, merging capitals in order to carry out, as provided by the law, productive enterprises, which naturally would include the distribution of profits. In fact hundreds of scientific and industrial organizations are organizations with corporate status who in the process of operation, have to accumulate capital for productive enterprises according to the science and industry law, and after paying all their tax duties, according to this draft bill for Associations, they are not permitted to distribute their profits to members, clearly contradicting the Science and Industry Law.
3. On the subjects of the application of stipulations in Article 3 of the draft bill, [they include] “Vietnamese citizens and organizations, except: the Vietnam Fatherland Front, the Vietnam Federation of Labour Unions, the Ho Chi Minh Communist Youth Group, the Vietnam Peasants’ Association, the Vietnam War Veterans’ Association, the Vietnam Union of Women’s Associations and the religious organizations.”
Regarding this issue, someone in the Drafting Committee has questioned why the six political organizations should be excluded from being subjected to the law. And there has been an explanation given, that is because in essence these 6 political organizations are not real Associations. With such an explanation, a counter argument is raised in this opinion:
- If they are not Associations in real essence, there would be no need to stipulate that they be excluded from the governing scope of the Law of Association, as naturally they do not belong to the category subjected to the Law of Association. Just like Ministries, we do not stipulate the exclusion of Ministries from being subjected to the Law of Association because Ministries are not Associations. But if those organizations are not Associations, why are they not called Ministries or something other than Association, instead of insisting on the nomination of ‘Association’ (Peasants’ Association, Women’s Association…) That is clearly because they are Associations and thus it cannot be said that they are not.
The Drafting Committee has discussed the second alternative solution regarding the provision for the subjects of application as “Vietnamese citizens and organizations, except those organizations stipulated to be governed by separate laws.”
I personally think this solution no. 2 is reasonable because it solves 3 problems:
- First: it satisfies the need to exclude from being governed by the Law of Association those political organizations such as the Vietnam Fatherland Front, the Vietnam Federation of Labour Unions… as these organizations already have their own laws.
- Second: this way of excluding is very subtle and very flexible. Subtle because it realises the wish to be excluded, at the same time it shows a straightforward fairness, transparency of the law towards all subjects (including international organizations). Flexible because it does not impose a rigid frame on the 6 political organizations. In my humble opinion, the determination of an organization as political depends on its political role in each of the developmental stages of the revolution. For example, there comes a time when the Vietnam Federation of Science and Technology Associations, due to the developmental needs, becomes a political organization of the present status. What can be more absurd on that occasion than having to add this organization to the number of those not within to the governing purview of the law?
- Thirdly, the rigid provision to exclude the 6 political organizations not within to the governing purview of the Law of Association make other Associations feel they are given unequal treatment, therefore they will fight for an equal footing with those political organizations. In reality this has been and is still taking place, causing no few complications.
4. Regarding the issue of Federations to revise the stipulation of Article 40 of the Draft Bill, the guiding thought in drafting is that Federations should not be a higher-level agency directing their constitutive Associations, therefore it has been stipulated that the function of the Federation is only “to co-ordinate the common activities ..of the constitutive Associations…”, there is no managing function. It is because in reality, the member Associations do not wish to be managed by a higher level organization and also in reality federations do not possess the capacity nor a mechanism to manage member Associations. I cannot deny this reality but do not agree with the draft bill either. I would suggest the following issues need to be further considered:
- First of all I regard the “co-ordinating” function of Federations as without content, because only a managing function can have a concrete content.
- If the management by their Federations, being unacceptable to member Associations, is a problem to dreaded, then it has been solved by the stipulation of Point 2 of Article 40, where “the joining or withdrawing from Federations of member Associations are done on voluntary basis and is decided by a General Meeting of the Associations concerned.”
- I propose that the Federations’ function with concrete contents about managing member Associations to be brought into the Law, because each Federation (including those in the local areas) at present has hundreds of member Associations and they will increase to thousands of member Associations in future. In that case, if there is no managing hub and no Federation, it will be disorderly like a routing army, impossible to assemble into a force, and professional work will not be achievable (such as in evaluating, appraising aid projects, or in evaluating, appraising, auditing annual combined accounting statements, or in combined report on financial data...) That is why it is very necessary to stipulate as law the function of Federations to manage member Associations.
5. Regarding State management of Associations, many ideas from representatives of Associations show a strong reaction against having a Ministry in charge of Associations. In the Draft Law of Associations, I did not see any article referring to the Ministry being in charge of Associations. Point 2, article 7 of the draft bill stipulates that: “Ministry, or equivalent department has the responsibility to carry out State management of Associations’ activities within the scope which the Ministry manages on a nation wide basis...” I do not see in this stipulation any point that is incorrect. It is natural that the Ministry must manage in a functional capacity consistent with the Ministry’s domain as related to Association activities. This does not mean that the Ministry becomes a parent body for Associations.
EVEN IDEAS FROM THE EDITORIAL PANEL ARE NOT ACKNOWLEDGED
Mr NGUYEN DINH KHUYEN
Deputy Head, Office of the Lawyers Association of Vietnam
(Member, Editorial Board)

As a member of the editorial panel of this Daft Bill, I could say that ever since the 5th draft we have discovered that this bill has many issues. We reported to the President of the Lawyers Association [asking him?] to send a circular requesting permission to organise a gathering of ideas from a limited source domain. We have canvassed opinions starting from the 6th draft, including those from members of the Lawyers Association, the Ministry of Interior Office… and at each sitting, the members of the editorial panel and the draft committee have been present to listen, but the results are extremely slow in coming.
Regarding the subject of governing of the Law, the 6th and 7th drafts propose 2 solutions: The first is to exclude the 6 social organizations from the domain governed by the Law; and the second is to provide a different document for their regulation. Our editorial panel was unanimous in choosing the second solution, and explained why the first solution was not adopted here. However, at the 8th draft, this proposal was overturned. The editorial panel’s suggestion itself therefore was not even noted, and the reasons arguing for such change were not given.
The editorial panel has also proposed that Item 2 Article 7, which stipulates on the Ministry being in charge, be deleted, because Associations operate according to rules and regulations by law, rendering such stipulation unnecessary. The State, in the role of tight managing of Associations, will hamper the vitality of the latter. This suggestion was made in almost all drafts. Furthermore, in Item 2 Article 39 of this draft, there are concrete provisions for Association activities which have not been revised. Not only that, if we follow the changes from the previous drafts, it will be easy to recognize that there are points in this 8th draft that are inferior to those of the 7th draft.
TO BE CONCRETE DOES NOT MEAN TO SET THE LAW IN GREAT DETAILS
Mr PHAM CONG LAC
Dean, Faculty of Civil Law, Law University of Hanoi

Exactly one week ago we also had a seminar on this draft bill. Although our report is not yet ready, I have noted that there are 80 – 90% of ideas from our seminar that coincide with what has been put in the articles of the draft bill just presented for study here.
Starting also from the scope of governing: According to the stipulation of Article 3 of this 8th draft, it is sufficient to exclude only the 6 existing social organizations. In fact all associations formed on voluntary basis ought to be included in the this governing scope. If there are stipulations for a number of special organizations to be put outside the scope of this law, there must be special governing provisions for these. In addition, there are many associations without corporate status, therefore have no need to register. This law must be able to encompass those also. Otherwise, if the situation is left like it is at present, the scope of governing can not be secured.
The second issue is management by the State. Until now the State keeps insisting that it must have a grip on everything. This is not necessary. If the Law stipulates that the State manages the Associations’ activities like at present, then it is not only excessive, but it also precludes the existence of a legal corridor for the Associations’ activities.
Third is legislative technique. According an evaluation of our specialist agency called the team for technical design of documents, this draft bill displays such a low professional standard of legislative technique that it requires to be redesigned starting from scratch. An instance can be mentioned in the fact that there are contents of articles that are shorter than the title of the article itself, which sounds extremely nebulous and incomprehensible.
We have many types of Associations. If the Law is to encompass them all, it needs clarity, orderliness and concreteness. However, this does not mean it must put in details all the article of law. The articles that already exist in other law codes need not be introduced to complicate things. Especially with the proposal that this law must be applicable to all Associations, or only those Associations formed after its issue, this matter should also be clarified…
TO REQUIRE THE MINISTRY TO BE IN CHARGE IS AN OBSOLETE, STATE-SUBSIDY SYSTEM THINKING
Dr PHAM TUAN KHAI
Deputy Head, Law Design Committee, Government Office

The policy to allow associations to participate in a number of activities hitherto belonging to the governing province of the State is one of the enlightened thoughts of our Party. In a recent meeting, the Prime Minister affirmed that: the birth of the Law of Association is complex, but we must strive so that all Associations reach unanimity and solidarity with the State to achieve great things. It is imperative to master that spirit in designing the law.
It must be said frankly that the guiding thought of this law is not yet clear at present. There are 2 opposing currents: The first is the State wants to control the whole lot; and the second is that Associations want to slip out of State control.
… When we consider the association as a principal subject in the activities of a progressive society: a democratic society, a civil society of today, it is a management issue for the State with respect to the associations. This is an important issue. State management of associations naturally exists, but the question is what is being managed, how to manage in order to enable the associations to develop. I am very dissatisfied with a number of draft bills and with the way in which some agencies implement the law at present, in that: we State-manage a number of different spheres, but when we do not manage, it is either a laissez-faire, or a tightening or prohibitive situation. For example, it has been suggested that nowadays various types of Karaoke pictures have become rampant disorderly, full of negativities, so they must be prohibited. Thus I think that is an encroachment on the people’s freedom to engage in business. We are not supposed to encroach on that freedom, but on the contrary we proscribe it even when such freedoms are demanded by society, on the part of the people. Another example is the recent stipulation that each person can register only one motor-bike or motor-bikes are prohibited etc… As you have seen on the media, Circular 02 of the Police Ministry has been amended.
Another point related to the particulars of State management is the State management Agency for associations. In the draft bill, many agencies are mentioned, including the Government being the main one, next are the Ministry, the Department on Ministry level, then the Ministry of Interior. Thus a question is raised as to when the Ministry of Interior acts as the agency, and in which case the Ministry-level Department is the agency. It has been suggested that, even if the Associations are to be managed by Ministries like at present, it is still an issue that deserves to be reviewed. There are many approaches to State management, but in our opinion, to speak of State management is to refer to agency and not a body subjected to the action of many managing agencies…
Our historical condition differs from that of many other countries, being a Party- led socialist country, therefore all of a sudden Associations can not be entirely divested of management by the State altogether. The associations’ position and role must be determined during this intervening period. What could be the influence of the State over the formation and supervision of associations like, what could be the effect of association on the State like, including supervision of the State? …All must stem from the thoughts in Article 69. This is exactly why this Law perhaps only stipulates around the citizens’ right to form associations, being the way it implements the Constitution, setting up norms with regulatory characteristics in order to manifest the citizens’ rights in practical reality.
Stemming from these thoughts as such, the law only revolves around the rights and duties of citizens in forming associations: what consists of legal validity, how are regulations to be set up, what is the role of the State regarding associations…? I agree with the suggestion that distinction must be sharply made between types of associations, so that eventually the mechanism for financial management could be clearly established. Clear differentiation of association types would also clarify the legal and obligatory position of association members. This should be an issue to be addressed throughout the process of drafting.
Seminars like this in my opinion is very useful for the process of designing the law. They are not just for raising awareness. No law can reflect all aspects of reality. One of the reason for the existence of lawyers is to find loopholes in the law to defend his/her client. Therefore however well crafted the Law of Association itself can be, it still will not be able to satisfy everyone. For that very reason we must only limit the content of the law to the guiding thoughts as affirmed above.
Regarding the issue of State management of Associations, I still maintain that thinking a Ministry or a Department of the same level as Ministry is needed to manage Associations represents obsolete thinking of the State-subsidy system era. The reduction of bureaucratisation of affairs, among them are Association activities, requires that this problem be solved. The clue to its solution is the Interior Ministry, who assists the government to approve registration. As for the Associations, if their activity breaches the law or State provisions then there is no way they avoid being held liable for prosecution by the law. This must be said openly, as in fact at present there are many Association that have lost their solidarity, being in torridly unpleasant conflict. They are not able even to organize a general meeting. What then is the role of the Ministry of Interior?
THE MINDSET ABOUT STATE MANAGEMENT BY LAW MUST BE RENOVATED
Mr NGUYEN VI KHAI
Research Office of the Prime Minister

The first thing to affirm is that the dialectical relationship, in a stable “tripod” framework, between a Government by rule of law, the Civil Society and the Market Economy stems from a new perception of the law of progress. It is a relationship between structure and function. Our Government has evolved from a governing function to a service function, whereas the role of Civil Society consists in the self-managing characteristics, effectively taking control of social life. Only in this context can we have a real Government of the people, by the people and for the people. The market economy, on the other hand, will have the role of categorizing, evaluating and rejecting. Thus, each of those subjects has its own organised mechanism and structure. For the Government it is the administrative machinery with its mechanism of assigning and posting. For the civil society, we have autonomous self-managed organizations (those social organizations) with their mechanism of public election. And for the market, there are productive and business enterprises with its mechanism of healthy (anti-monopoly) competition. From here there is a gradual divergence to a great degree of distinctiveness in the methods of sustaining existence and developing. The Government has its original law (the constitution) and the codes, its decrees and circulars. The Civil Society has its conventions, pre-conditions (Associations), or charters (villages), even sometimes simply a trust convention. And the market has its laws (of supply and demand, of pricing), its value yardstick, and use value of products. The relationship in the tripod stance therefore requires a harmony, agreeability between the constitutive elements. Consequently the law must be free and spacious such that the civil society can have a democratic and equitable basis for development. For the same reason, the law has to be much clearer, more coherent to avoid the phenomenon of covert markets aiming to evade and slip through it.
However, there are still viewpoints that tend to duck and weave around the notion of civil society, creating much delay in the drafting of this law. The vastly different role of the market (compared to the era of State-subsidised system) is not being recognized by the law. This remains precisely the limitation of the law.THE LAW HAS NOT CLARIFIED THE FUNDAMENTAL DIFFERENCE BETWEEN ASSOCIATIONS AND STATE AGENCIES
Dr NGUYEN QUANG TUYEN
Law University of Hanoi

It is not difficult to recognise that the guiding view in designing the Law of Association is not yet clear. This is revealed in stipulations which still give prominence to the managing role of the State for Associations’ activities, while Associations have the tendency to minimize State intervention in their activities. What should then be the guiding viewpoint when designing a Law of Association?
We agree with the view that the Draft Law of Association constitutes a concrete manifestation by law of the freedom to form Associations as stipulated by Article 69 of the Constitution: Citizens possess the right to freedom of speech, freedom of the press; they have the right to be informed, the right to assemble, to form associations, to hold public demonstrations in accordance with the stipulations of the law. Therefore, should not the Draft Law of Association concentrate more on dealing with proceedings, procedures to ensure that the citizens’ freedom to form associations is facilitated in an expedient, simple, clear way, and to avoid stipulations that create obstacles or cast influence over this right? It is regrettable that a number of provisions in the Draft Law of Association have not achieved that.
Regarding the contents of the Draft Law of Association, we would like to offer a few suggestions as follows:
Firstly, with respect to the governing scope, it is sufficient to stipulates that: “This Law makes provisions for organization and activities of Associations.” The issue of managing Associations should not be addressed; because the association is a social organization formed on a voluntary, self-managed basis and operates within Association rules and the law. The Association differs from State agencies, there should not be an administrative regime of managing Association activities. In view of such an approach, we think the Item 3 Article 7 in the Draft Law of Association, regarding the so-called issue of the Ministry being in charge of association activities, should be deleted. The application of parent body’s control by the Ministry will render Associations rigid, restrictive and will “Governmentalize” all Association activities, going against the policy to build civil society.
Secondly, about the concept that Associations as referred to in Item 1 Article 4, the Draft Law of Association has not yet specified the position, role of associations in relation to society, nor has it brought into relief the fundamental difference between Associations and State agencies. The explanation of the concept “not with the aim to procure profits” in Item 2 Article 4 of the Draft Law of Association is not yet precise and needs to be revised.
Thirdly, in our opinion, a number of articles and items of Chapter 2 stipulating conditions and procedure for forming associations should be deleted. Article 35 on Rights and Duties of members also, as this question should have been addressed by the Association’s Regulations in concrete details. All the contents of these stipulations in the Draft Law of Association are unnecessary.
Fourthly, the rights to appeal, complain against administrative action from those measures considered obstructive or impeding the freedom to form associations should be added in the Draft Law of Association, at the same time stipulations on the settlement of disputes, conflicts of interests between Associations and State agencies should also be added. The mechanism of judicial proceedings should be applied to the settlement of these disputes in resolving conflicts.

TO AMEND OR TO REWRITE THE LAW IS EQUALLY A GOOD IDEA
Mr PHAM TUAN ANH
President, Vietnam Lawyers Association

On the whole we can see there are many issues remaining in the draft bill. They are very difficult, despite the great effort of the comrades from the Ministry of Interior. The bill first began to be drafted in 1993, but under the time constraint applied by the National Assembly, it has been two years since you comrades have really had to set to work like this. I happen to know the comrades are working under extremely difficult conditions. The completion of this 8th draft is the result of a monumental effort, this is undeniable. However, because they are associations and there are so many of them, there are necessarily many different ideas.
I shall now conclude with the following ideas as proposals: Firstly a team should be formed to work on revising words and sentences and on the basis of amendment, write up a proposed text to submit to the Government. The second proposed resolution is to design a new bill, completing it in 10 days on the basis of what we have already discussed here. With 10 days of rewriting and with acceptance from you comrades, both these solutions would be unsurpassed.
A UNIFIED VOICE WILL FIND MORE AGREEMENT
Poet HUU THINH
President, Vietnam Writers’ Association,
Editorial Board of Van Nghe Periodical

Perhaps representatives at the National Assembly should have the complete information prior to receiving the draft bill in their hands so that the passing of this bill at the National Assembly forum will be more assured of success, and in that way the conferences organised around the contents of this draft bill will in fact serve the objective of providing society with an extra channel of legal information.
We could draw our experience from laws such as the Law of Heritage. It is a Law of Heritage, where language is not considered as Cultural Heritage. Thus we are using an invaluable heritage but we put it outside the scope of the law, and such things have been known to happen.
I do not know if you have read the law of association of China, it is so different from ours, although they have a Party system similar to ours. The Writers’ Association [of China] is one with a [State provided] budget, a Party group, whereas for the rest of the associations, both sides are on the same level (Honorary Minister title for the President of Writers Association). A writer who goes on field work in a local area would hold a position at least of the level equivalent to a Deputy District Head. Only then could information be assuredly and reliably obtained. This is the issue of high degree of governmentalization in China.
A contradiction persists in our Law of Association: The Associations need the State to fund their expenses, to provide employment, but do not like being managed by the State. That is a conflict of interests between State and Associations. This is a sensitive matter, a difficulty for law makers. The tree of life grows lush and green but the coat spread by this law cannot cover the whole foliage. For this very reason one ought not to go into specific details of the law. The concept of Association is basically diversified, with some Associations being essentially alliances, and loose alliances at that. For this very reason the more specific the Law is, the more inadequate it will be. The solution is to design it in such a way that it will be able to gain acceptance.
It is also worth paying notice to the relationship between this law and other laws. The more it is made concrete, the more special provisions it will have, and as a result it is easier to clash with others. We should therefore pay attention also to feasibility and effectiveness as well. After its being passed by the Government, the Law of Association will still have to go through more stages: Presentation at the National Assembly, also seeking approval from the Politbureau. If we are united in our opinion, there will surely be resonance, as many people are waiting to hear from us. If the thinking of the representatives at the National Assembly is in agreement with ours, then surely our contribution of ideas for the Law of Association will bring results.


[1] Socialisation = practically being partly State-funded (translator’s note).