Law on Association's critical proceedings

APPENDIX
ISSUES SURROUNDING THE DRAFT LAW OF ASSOCIATION



(Compendium of discussions organized by the Vietnam Union of Science and Technology Associations, the Vietnam Central Federation of Culture and Arts Associations and the Vietnam Lawyers Association)
DESIGNING A LAW OF ASSOCIATION IN AN ENVIRONMENT OF FREE FORMATION AND SELF-MANAGEMENT FOR ASSOCIATIONS

Associate Professor Dr DINH VAN MAU
National Institute of Administration


The idea of issuing a law of Association has surfaced for a while now, since about the early 90s. At present, this enterprise has been pushed forward by a fundamental step, that is the acquirement of a draft bill forming a base on which the specialists in this field and all those taking an interest in it can discuss and contribute.
1. As one who has done some research on this issue, I would like if I may to present a few things for consideration. First of all, from the early half of the 90s until now, traditional Associations have been reinforced, developed and many new types of Associations have appeared on a national level and even down to local scale. According to statistics from the Ministry of Interior (March 2005) there are for the whole country 301 Associations with a national scale of activity. Among these there are big Federations such as the Vietnam Union of Science and Technology Associations which covers 53 member Associations and the Federation of Culture and Arts Associations covering 10 Specialised Associations and 61/64 Alliances of provincial Literature and Art Associations. At the provincial level, there are 2155 Associations approved for formation by the Provincial People’s Committees, together with a number of Associations at district level. Why is this so? There are many causes, among them the recognition of the market economy lifting the role of “interest/benefit” factors to prominence. Many groups with common interests have appeared and need to be insured, protected by means of an organization with the characteristics of an association.
Secondly, social organizations need to be official (recognized by the State) and unofficial (recognized by the group). Social organization exists in levels of administration of communities of inhabitants (for instance villages) and in organizations, including State departments/agencies. Thus, approval by the State needs to follow the multi-level principle: from Central to provincial, then district.
Thirdly, social organization is very diverse. Perhaps once the benefit of diversity is recognized, the appearance of different associations is compatible with the development of society. Diversity is unpredictable, therefore approval for formation of associations must follow the principle that such freedom can only restrained by laws with clearly defined scopes.
Fourthly, social organizations are born from collective will and its own strength. To form an association in its proper sense is to have the right to assemble its own members, to seek its own funding for expenses on activities, to set up its own mechanism for self-management, and to operate independently according to a mechanism that is beneficial to members. Thus the founders need to think about trajectory. To form an association and to set to work on its realistic survival depends on the will of the interest group; understanding (knowledge) about associations, mobilisation, resources for establishment, maintaining the association and its efficiency, organising operation are what constitute the strength of the interest group.
Fifthly, the Association manages its own affairs and is partly governed by public authorities. To build up and run a law-governed State is to place the individuals and organizations within the framework of the law and law-based management by the State, and to bring the law into effect. At the same time, it needs to be stressed that together with a law-governed State, there must be a truly civil society. The issue is to create a socially effective interaction between State and society in the direction of developmental objectives.
2. Discussions on Associations under the current condition beg the questions as to what is an Association, what is the existing situation with Associations in our country and what is the direction of their development? More important is the need of institutionalisation of Associations.
First of all, it must be affirmed that the basic principle is: The freedom to form, join and withdraw from Associations belongs to all individuals and legitimate organizations in Vietnam. This affirmation stems from the concept of the citizens as different from the subjects (feudal) in that they are free agents (including the case when they sell their labour, where it is done by their free will under contract). Freedom is their intrinsic possession, not god-given or bestowed by someone which they restore in real practice in the political system of democracy. At the same time, citizens (also subjects) possess legal powers called civil rights. Naturally the scope, limitation of the rights depend on the essential character of the political system and the socio-economic conditions. That is the potential capacity for doing anything and for being recognised as legitimate without having to carry out any act. Together with the rights, citizens also have material and non-material interests recognised as legitimate.
From this affirmation, it is proposed that the Law of Association be designed on the basis that citizens are free to form, join and leave Associations, and if the citizens need official status for their Association, they can register it with a State agency whose authority is set down is by law.
Secondly, in a law-governed State founded on civil society, Associations by all organizations and individuals must be established and operated in a legal framework and aimed to implement the law, that is to recognize the law as the supreme legal standard. And a legal framework compatible with developmental rule is necessary to ensure and protect freedom. The scope and subject of the law of Association therefore should be defined to the effect that this law recognises the Association is a free institution and it governs the relationship between the State and the Association.
The above concept of Association stems from the assertion that an Association (official or unofficial) is a necessary institution of the people in civic life. Consequently, the State must recognize that the Association is a reality born of the people’s free will. Associations exist in law-governed State therefore they must be legal; that is they must be within the framework of the law and aimed to implement the law. Thus the State has the authority to issue laws to govern the relationship between the State and Associations. Associations and the State are institutions that necessarily exist, and ought to exist in an orderly relationship. The State has the authority to manage and Associations are subjected to its management actions. However, how to manage in a way consistent with democratic politics in the system of market economy is an issue to be given attention through concrete stipulations. Whatever the stipulation can be, it may not neglect the principle of upholding the interest of the subject as central, managing is to bring benefit to society, managing does not mean to do things on behalf of Associations and to intervene into internal affairs of the free corporate body. State management in that sense is really to carry out supervision through regulations of registration, to approve of Regulations, to evaluate budgeting activities, to prevent abuse of the Association to procure profits, or do harm to members economically, to examine the participation in policy of groups, unions with unfair economic influences, to harmonise public interests.
From the above considerations, the Draft Law of Association is seen to contain stipulations that require further discussion.
Firstly, the State manages Associations by: issuing policies, mechanisms; organising implementation of policies, mechanisms and inspecting, supervising. State agencies have the right to implement those matters, not purely as responsibilities (as noted in Article 6) but as real obligations fulfilled through their material contents.
Secondly, State agencies have the right to take management measures as laid down by the law. Ministry branches and departments do not have the right to manage Associations in a “Ministry in charge” manner. Associations are responsible to the law, not to the ministry as a parent body. This has been affirmed by may Party resolutions, State legislation along principles that those who are concerned with management by branches and departments may well know. That is the difference between administrative management and business management, the separation of public administration from operation of affair units. If Associations are neither business enterprises nor affair organizations, then this principle of separation and differentiation must be applied more strictly.
Thirdly, what legal status as type of organization do the six socio-political organizations (the Fatherland Front, Federation of Unions, the Youth group, the Women’s Union, The Farmers’ Association, the Veterans’ Association) hold in society, it still is subject to review from different opinions based on the concepts of politics and non-government status.
According to the Constitution and the law on the Fatherland Front, Federation of Unions etc... these six organizations belong to the category of socio-political organizations, which means they are directly involved in politics but not in the party-led manner and not as State authorities. The socio-political organizations together with the Party and the Government form the political system. They carry out the function related to the interest of the nation, of groups and of communities. In that function, the Government is the centre of political power, the central pillar of the political system.
The socio-political organizations possess distinctive marks compared to Associations. The Associations do not directly implement political power like the Party, the Government and the socio-political organizations. Associations have voluntary members, whereas most socio-political organizations do not have (individual) voluntary members. The socio-political organizations are organised in levels like with public administration, directly linked to the organization of political power, whereas Associations are not entirely and not necessarily so. Although the socio-political organizations participate in exercising political power as stipulated, they do not manage public service, therefore there must be none whatsoever among the socio-political organizations allowed to attract Associations into the network of socio-political organizations. This is to avoid politicising the existing and future Associations.
Fourthly, the Association is ordered by regulations, unlike the Government being originally a legal order. The organization and operation of the Government is fixed by Law and regulatory documents. If the governments issue documents with the name Regulations to determine the organization or activities of a certain structure, such documents are bona fide provisions, or in the law researchers’ terminology, they are “legally vested.” From there, the content of the Law of Association chiefly creates a legal framework (model) for the organization and activities of Associations, not intervening deeply into their internal affairs.
The legal framework for Associations can be imagined to resemble a “play ground”, in which the State by its power of governing by law, only introduces prohibited items, lay down formulae for compulsory requirements (with restraining characteristics) for Associations to implement State management in order to create an administrative link between those government agencies having relevant authority and the Associations as civil corporate bodies.
From the affirmation of the concept of withdrawing public authority finance from civil corporate bodies, of which the Association is a type of structure, we need to re-examine carefully the chapters 3 (Members), 4 (Organization and Activities of Associations), 5 (Federation, splitting up and dissolution). In my opinion, their content depicts “deep intervention” into internal affairs of the Association, which means the Law takes the place of many purports of Regulations and “rigidifies” the organization and activities of Associations, who differ widely from each other in organization and in activities. As they are not public authority institutions, the Associations need not resemble each other in organization and activities, so long as substantially their organization and activities are legitimate, that is being legitimate in the wide sense of the law and not with respect to the Law of Association alone.
The Association is a very old institution, but always a new problem, as it is highly dynamic and multi-faceted. Associations belong in civil life to achieve civil objectives in the political, economical, cultural and social domains. Our country is building a law-governed State and such a State can only be governed by rule of law when it exists in a civil society. In that State, all organizations must operate within a legal framework. For that reason, a Law of Association is badly needed but this law does not have to and cannot have a structure resembling that of the law on organization of government agencies which determines a number of definite obligations, powers, and demands that the agency concerned implements them adequately, or it will be accused of dereliction if they are not fulfilled to the limit, and abuse of power if the agency oversteps that limit. The Law of Association must differ in that Associations are institutions of civil society, entitled to do everything allowed by law and in accordance with their regulations characterised by the requisite freedom to form Associations and their self-management capacity.

CONFERENCE AT THE VIETNAM UNION OF SCIENCE AND TECHNOLOGY ASSOCIATIONS (VUSTA) HEADQUARTERS, 53 NGUYEN DU STREET, HANOI ON 8 –9- 2005

REPORT
CONFERENCE TO CANVASS IDEAS FOR THE DRAFT LAW OF ASSOCIATION
(Summary)

Participants
- Prof. Academy Member Vu Tuyen Hoang and Prof. Dr Nguyen Huu Tang (Chairperson).
- Mr Nguyen Ngoc Lam, Director, Managing Bureau of NGO’s – Ministry of Interior.
- Representatives of government authorities.
- Science and Industry organizations members of the Union and individual scientists.

CONTENTS
Prof. VU TIEN HOANG
The issue to be addressed here is why Federations and Unions are placed within the governing scope of this law, while other socio-political organizations are not? Like the Decree 88, this Law does not place our Union in its proper position when referring to the alliance of workers, peasants and intellectuals.
Proposed solution 2: As long as this Law is applied to Federations but leaving the 6 socio-political organizations outside its scope, then discrimination exists, and therefore Vietnamese intellectuals are discriminated against. What can be the reason for an alliance of workers, peasants and intellectuals with intellectuals being left out? In the next stage of building the economy, I wonder how we intellectuals can keep consenting to this situation for ever. The Union has sent submission to the Central Politbureau to rectify the current way the issue is addressed. We do not demand funding, nor do we demand to be put on the same footing as the socio-political organizations but our proposal is based on the common interest in building up the nation. If we say the above alliance is the foundation, why then intellectuals are left behind? It is too late to change this. In the socialisation process of education, science and industry to motivate development and competition, intellectuals have been put at the front, like in the Constitution, but in this law, they are put at the rear, and this is not acceptable. This is wrong both in logic and in practice.

Mr PHAM SY LIEM
Vice-President, Vietnam Federation of Construction Associations
First of all, it should be asked what is the legislative aim here? Secondly, how to formulate this law. The exercise of civil rights has been stipulated by the Constitution. In forming associations, there are so many different objectives. France has laid down a law of association, but this law also governs companies, unlike in our country. We must resolve our own issues, as each country has a different set of circumstances. Social institutions also differ with each country, it is not possible to generalise. Our law is behind the French law by more than one hundred years, a reason we should now design a truly modern law. More research study is needed in logical reasoning, in consultation for critical assessment of what is in relation to our own situation.
Recently I have found out more about the civil society. Sociologists all over the world study this issue very thoroughly. The post World War 2 thinking has developed through 3 stages, and at present the attention is on modern society. The civil society is considered as one of the three components of a nation: the State, the business bloc, and civil society. Today people do not think that an elected government is a democratic one. There must be information channels to keep watch on the government, like Associations who need to have supervisory committees to act as information channels. Peaceful evolution employs fully the logic of civil society. According to a recent seminar, the civil society puts its hope in the middle class. If society progresses towards communism, all would certainly become middle class. They want to use the middle class to control or keep the wealthy class above it in check.
To mention the workers-peasants solidarity is to use a pre-Renovation concept. I do not admire at all the position of workers when I see in reality workers have to toil for foreign enterprises, and get beaten up as well. Peasants in fairly large numbers have to work for wages in Taiwan. Why is it that in modern society, the role of the middle class and intellectuals does not feature? I will leave this for the researchers to reason it out. It would be very difficult if we use old concepts to discuss law.
The Law of Association should only create a legal framework for associations to operate. Why are people required to line up and march in steps? What kind of provisions that would enable the State to operate the Associations in their stead? Bureaucratisation manifests so clearly in this thinking.
Law of the State means the State entrusts the responsibility to our organizations, whereas Associations can just abide by the Law, but the State could not stipulate that they obey this or that official. I agree with State management, but it is only right to stipulate that Associations need merely obey the Law.
The Association and the business organization directly subordinated to it are two different entities. We have the right to found a business organization, but such an organization must adhere to provisions of the business law. Non-profit Associations, on the other hand, should be tax-free. Income from the business organization to the Association must be tax-free.
Concerning State-trained professional skills, we have no need for them. The Government should stick to training their officials. There is also a need: that the Government can commission the Associations to perform some of its tasks, provide some services to the pubic.
In a number of countries, architects, lawyers who work individually on their own, like associations are assigned to self-managed. If they do not join professional charters, they can not sign documents, architect’s drawings for instances, without being registered. Only registered doctors can put their seals, signatures in prescriptions. When these things are achieved, they save the State from a cumbersome machinery and also allow Associations to develop self-manageability.

Mr LA TRONG LONG
President, Federation of Science and Technology of Hai Phong
Local Federations can not implement this law as it is set up by Municipal Executive Committees. When you submit your curriculum vitae, it does not have to go through the Ministry of Interior. The treatment of the Federations by State and Party from the Central Region to the local areas is the same as with the Fatherland Front. The Municipal Council of Ho Chi Minh City has given the Federation dozens of billion piasters to its City Branch to establish a Headquarters. Unless the Federation of Science and Technology is put under the same provisions as the other Socio-Political organizations, the situation cannot be said to reflect reality. Article 8 says they should not be the same in name, I would add that their areas of specialty should also be separated. This should also limit the situation where foreign Associations can register in the same areas as domestic Associations.
Should Public Relations Committees report, or only need to acknowledge, the time elapsed since formation has been approved? Does the State pay the expenses for an emergency general meeting if it requires to call one? If less than half the number of members turn up, what would happen? In my opinion, this article should be removed.
Regarding representation by the head of association: The Decree 108 does not stipulate like that. The question is whether the President of the Association has adequate power, as total responsibility entails the power to call general meetings and to dissolve the Association if necessary. Otherwise it’s a “straw-weight power and hefty-stone responsibility” situation.
Do Associations have the right to free speech, to publish news periodicals? Unless they do, it is pointless to form associations. In my opinion these association rights must be inscribed in the law.
Dissolution an Association: should be announced on the news media.

Mr LE XUAN THAO
President, VIFOTECH Foundation
This Law concentrates mostly on administrative management rather than on promoting the role of the Associations. It is not yet able to express the spirit of the Decree 45 and Resolution 06. I have the impression that this Law is like an extended set of Association Regulations. It lacks renovation character and appears bureaucratised. As businesses only abide by the law, so also should associations, the stipulation on State agency management should be deleted. The Central level of the Ministry of Interior, the provincial Offices of Interior Ministry can adequately be the control points for recognition of associations.
Regarding procedure, there are too many places required to be registration offices: The Ministry of Interior, the Ministry Branch in charge, district and precinct where the headquarters is… It means the number of registration control points for the formation of Associations must be increased.
Associations have the right to consult and make critical assessment of many other matters, not just those within the Association scope. For instance the unpalatable issues of water in the West Lake, if Associations can be consultants, the Government could have saved millions of dollars on this.
It is not that the Government confers any rights to Associations, it is about giving the Associations responsibility in public works, from which Associations can carry out functions with State funding. I am of the firm opinion that if the Article 2 Item 3 leaves out other Associations, it must also add Federations, Literature and Arts Associations among those.

Mr NGUYEN VAN THAT
President, Thanh Hoa Federation of Science and Economics Associations
I am most concerned about the Item 3 of Article 2. The Law provides a guideline which is not purely the work of management by State agencies. Directive 35 of 1988, Directive 45 also affirm the socio-political character of Federations, which cannot be considered as professional social organizations to be excluded. Especially in the context of promoting the role of Science and Industry in the condition of a knowledge-based economy. The perception of the issue must be put in an historical, and at the same time modern, perspective under the national condition of industrialisation.
If the law is only focussed on the management mechanism of the agency in charge, Associations will have difficulty in developing.

Mr NGUYEN AN LUONG
President, Labour Safety Association
Surrounding brother Hoang’s idea is a great question, it is a precondition of existence of this law. It is linked to the thinking concerning the intelligentia in Vietnam. Without an antecedent Decree, it is not possible to bring viewpoints into this bill.
In reality laws for Labour Union, Youth Group, Women’s Union have been in existence, but as a law for Federation of Associations has not yet come about, the latter is a victim of exclusion. Being a professional social association, we need to be governed by law. If Federations or Unions, the Writers Association, the Journalists Association are put in article 2 item 3, why are professional associations put outside the governing scope?
I propose an intermediary solution: to set aside a chapter for Federations. As socio-political organizations, they are to be governed like other organizations.
On the view that state management must improve: by opening legal corridors, promoting the role of operating in the corridor, and penalty for infringement. With this view, the idea that the State’s function is to register, to raise professional skills, is not advisable. The State should only manage the processing the registration.
Article 37: the rights of Associations are not yet correct. We are carrying out socialisation, the role of Associations must involve much more participation. The participation in developing economy and society, managing society has not been addressed, as reference is only made strictly on association affairs. Participation through consultancy, critique, appraisal tasks have not been clarified, and it stays vague because the word ‘appraisal’ is being avoided. Meanwhile, the role of Associations in fighting corruption must be clearly recognised as paramount.
This law is unique in placing the supervising committee on the same level as the managing or executive committee. Is this mechanism set up in the fear that Associations will tend to operate wrongfully, so that such mechanism is deemed necessary as counter measure? I would propose that the supervisory committee should be appointed by the executive committee and not elected at the general meeting.
Article 27: proceedings of the general meeting… are written like a set of Association regulations. The Law must serve as a set of guidelines only, why should there be the need for such stipulations?
I propose that we must report to the Politbureau. If the Federations have not yet grown to their appropriate size, then there is no rush to have a separate law. They should not be equated with their member Associations. The role of the intelligentia must be effectively manifested.


Mr DUONG TRUNG QUOC
General Secretary, Vietnam History Science Association
In the past 60 years we have not neglected the traditional factor. Every seven years the law is amended, its life is not long. It reflects our standard of drafting laws. If the commonly used concept is Association, what then is an Association? According to this draft, the meaning is superficial and has many flaws.
We also avoid an historical fact: the complexity related to politics. The former nature of our Party was the Association. Due to its political aims, it was illegal at that time. The true nature of Labour Unions is political. Whether our Federations are political or not, this needs to be clearly determined. I think if everything is directed towards the good of the country, then no Association is political. If there are exceptions, it would be difficult to integrate into the world economy.
We have to accept whether the issue is traditional or in transition. If the state of transition is not recognised, laws cannot be practical in real life, and furthermore will cause harmful damage. It is necessary ti create appropriate corridors, and accept that amendments will continue to be made in the next 5-10 years. International integration is imperative, but it must be gradual.
If we go back to the principle of 60 years ago, it is necessary to clarify: this Law is about the right to form Associations. Unless we can do this, we will not avoid feeling we are stepping backward in history, even in comparison to our friends. There must be security in the formation of Associations. The Decrees of 1956, 1957 have mentioned the right to form Associations, which must heighten our efforts, our awareness of citizens’ democracy.
The Associations are allowed to have member Associations by stipulations, but the Federation is not a subject for governing. The draft document is thought to be water tight, in fact it is very loose. It has the characteristics of being the corridor for forming many branch associations, and liable to lead to an almost ungoverned situation.
The basic principle must be assured: continuity, transitional process, ensuring integration.


Prof NGUYEN HUU TANG
All of you comrades have expressed your views passionately, responsibly since this morning. The Party Group in Federations will have official views later.
I would like to sum up:
The Law of Association brings about a progressive step. If it is spacious, open, it will be able to mobilize all the people’s strength. To foreign countries, they would see how open our society is, and whether it is capable of integration into international economy. Therefore we should not be hasty in issuing a law when preparation is not yet thorough. This law will affect the whole of society, and many people. That is why it is imperative to ensure maintaining democratic freedom and creativity for development to be possible.
The Law is on a large scale, it is impossible to write it at a micro-level. Existing in our society… are tightly organized socio-political groups, but they are hardly more tightly organized than the Unions or Federations of Associations. The social professional groups, and a group larger than these is society itself. It is imperative therefore to determine clearly which group is which in order to govern, and not get confused. Lack of equality should not allowed to manifest.
Foreign countries will find it difficult to interact with mass-organizations. As it is the Law is not correct in carrying out Decree 45 of the Politbureau. Should we design a law with orientation-guiding characteristics or one with tight bureaucratic management nature? If it is on a large scale, it should be pure law and not the details covering the social organizations.
I concur with brother Duong Trung Quoc’s view: the Law is about the right to form Association. It must determine the responsibility of the State towards Associations.
For publicising, we only need to have a framework law. The question of ideas, opinions, and petitions required to be submitted, these must be written in decree-formulated documents. We could design just a small, compact law, of a framework nature. If we could participate in the drafting committee, we will be able to directly contribute our views.
There is a confusion between social professional organizations and public authorities. Why does the Government have to embrace wholesale all affairs and activities, instead of promoting the strengths of professional associations such as in management, supervision? If this confusion continues, it will be very difficult to work.
I propose: if the draft bill is to be introduced at the end of the year, more careful research, clear stipulations of functions and responsibilities of Unions/Federations of Associations are needed. I am thoroughly undecided about the content of the present draft.
CENTRAL OFFICE OF THE VIETNAM FEDERATION OF CULTURE AND ART ASSOCIATIONS
51, TRAN HUNG DAO, HANOI, 28TH OCTOBER 200..


REPORT ON THE CANVASSED IDEAS PRESENTED AT THE CONFERENCE ON THE “LAW OF ASSOCIATION”



Participants:

- Presidents, Vice-presidents, Editors-in-Chief of Central Culture and Art Associations which include: the Vietnam Fine Art Association, the Vietnam Musicians Association, the Vietnam Cinematography Association, the Vietnam Popular Performative Arts Association, the Vietnam Art Photographers Association, the Vietnam Actors Association, the Vietnam Architects Association, the Vietnam Culture and Art Association for Ethnic Minorities, Local Culture and Art Associations of Phu Tho, Ha Tay, Hoa Binh, Hai Duong, Thai Binh, Ninh Binh provinces.

- Representatives from Central Agencies: Comrade Do Kim Cuong, Head of Performative Arts Department, Central Committee for Cultural Ideology; Comrade Nguyen Van Sim, Deputy Head of NGO Department, Ministry of Interior; Comrade Hoang Van Tan, Deputy Secretary General, Vietnam Federation of Economics Science.


CONTENT PROCEEDINGS

Comrade LE PHUC, Permanent Vice-President of the Vietnam Federation of Culture and Arts Associations, declares the reason for organising the conference, introduces participating representatives, and lists the required objectives of the conference.

Prof Dr TO NGOC THANH
President, Vietnam Popular Performing Arts Association
The Association of Culture for Fatherland Salvation came to existence in 1943, since then has always operated under Party leadership and marched in step with the nation’s development. According to you comrade, the Law of Association document cannot equate all Associations in its content, contains many issues, many articles, items and chapters that are irrational (Who leads? Who manages? It is not made clear. In the process of operation, with whom reports are lodged and from whom permissions are requested? Does not the Ministry of Culture and Information have adequate capacity to manage the creative activities in literature and arts..?) We propose that the Ministry of Interior exercises caution and wisdom in the drafting and issuing of documents.

Comrade CHU CHI THANH
President, Vietnam Art Photographers Association
- A number of articles in the document are not yet clear, not quite sensible, especially the chapters, articles and items on the economic and financial issues of Associations, how to distribute profits to ensure legality and compliance with economic principles.
- Specific activity and import of each Association differ, it is not possible to equate Culture and Arts Associations with Bee Keeping or Gardening Associations…

Comrade BINH NGUYEN
President, Culture and Arts Association of Ninh Binh
- The document contains many shortcomings, forced levelling of statuses, organizational regimes, scale of activity, specificity of operation for socio-political organizations and socio-political professional organizations needing clear definitions.
- It is imperative to clarify and cogently affirm the leadership role of the Party, the management tasks of the State and administrative role of the Government in Association-type organizations. The text of the law must embody all viewpoints, policies, guidelines, ideological stances, especially the basic spirit of the Decrees of the Party, being the major directive orientation for activities of Associations. The Ministry of Interior needs to have concrete and uniform written documents on such issues as permanent staff organization, regulations for organization of activities…

Asst Prof TRAN LUAN KIM
President, Vietnam Cinematography Association
- We concur with the above views, however, what is our opinion on the content of this document? In my view, this is a big and regrettable mistake in perception on the part of the Ministry of Interior and the Ministry of Finance. Such a homogenizing evaluation is very disappointing.
- The issuing of the Law is necessary, et the contents in each chapter, section, article appear to be extremely contradictory, going against the spirit of the Central Resolution 5.

Musician DO DONG QUAN
President, Vietnam Musicians Association
- According to you comrade, this is not a law, being an extremely passive document with an unconvincing content, totally unacceptable. I would like to remind you and stress that after the great success of the General Meeting of the Central Culture and Arts Professional Associations, when the Culture and Arts world is feeling enthused and excited in a healthy atmosphere to continue with creating valuable cultural and art works in the service of the Fatherland, of the people, the above document appears as a “thunderbolt” announcing a “cold hard rain.”

Writer DO KIM CUONG
Head, Department of Performative Arts, Central Information and Culture Committee
- The view of the Central Cultural Ideology Committee is that it always supports the formation and standardising the institutional organization of activities such that they can embody the Party policy, viewpoint and ideology on the issue of Culture and Art. Regrettably, the document contains too many irrational issues still. Without recognising and evaluating the great efforts of those in the field of Culture and Art, a number of articles put under constraint, impede the creative development of Culture and Art. Many purports contradict each other, even go against the spirit of National Assembly Resolutions. Perhaps expert advisors are required to participate in designing and finalising the above document.

Poet PHAM TIEN DUAT
Chief Editor, Vietnamese Performing Arts Forum Magazine
The design and introduction of the Draft Law of Association to the National Assembly is necessary, but it may require reconsideration right from naming. I think it should be called the “Law on NGO’s in Vietnam” and Culture and Art Associations should not be included in its scope.

Musician NGUYEN THANH VIEN
President, Culture and Arts Association of Hoa Binh
The document on the Law of Association does not express fully the spirit of the Central Government Resolution 5 (8th Congress); Directive 18 of Party Secretariat, Central Government Resolution 10 (9th Congress). The issues of religion, causing unrest among ethnic minorities in the western highland provinces, have deep impact on general development, of which culture is a part. Legal provisions and practical measures are necessary but attention must also be paid to rational quality and timeliness.

Comrade LE CHUC
President, Vietnam Theatre Actors Association
We need to consolidate our viewpoints in order to build our law. It must have a high degree of representation for those in the Culture and Arts field. This text creates a chain reaction of intense disagreement.

Artist TRAN KHANH CHUONG
President, Vietnam Fine Art Association
In the struggle to build a law-governed State, there must be law and activities must ensure their legality. However the law is developed and implemented, it must be done in the care and thorough understanding of the Party’s line, viewpoint on literature and arts, following closely the nation-wide developmental situation, the political and unsurpassed nature of Socialism. The content of this text is not yet rational, being contradictory in its subject matters, revealing a confused position. This document must be re-studied in greater depth to ensure full rights and sustained development of culture and arts along the Party line.

Comrade HOANG VAN TAN
Deputy Secretary General, Vietnam Federation of Economic Science Associations.
I am in full sympathy as we have compatible perceptions and share basic attitude towards this document. The Vietnam Federation of Economic Science Associations has many Associations with diverse, multilateral functions, beyond the managing reach of the Ministry of Interior, Provincial People’s Committees. Therefore, this document does not satisfactorily meet the common expectation.

REPRESENTATIVE OF VIETNAM ARCHITECTS COMMUNITY
We agree with the views, that the content of the document has not yet stipulated concretely on the organised system for Associations, from Federations to Central professional Associations. We propose that the Ministry of Interior stipulates more clearly by a tighter document, but it should be more dynamic and flexible in order to respond to the demands of the creative development of Culture and Arts.

Associate Prof Artist VU GIANG HUONG
President, Vietnam Federation of Culture and Arts Associations
- The issue of designing the draft Law of Association is one of necessity. I think that the Law of Association must guarantee the rights of those working in the scientific, culture and arts fields… It must embody democracy and human rights. It must unite the various strata of people, enforce solidarity between the intelligentia in culture and arts and in science with peasants, workers and other strata.
- The Law of Association not applicable to the 6 Associations and religious organizations, are these Associations outside the law or are they the Party’s organizations(?) Therefore, it is proposed that references to the 6 Associations and religious organizations must be clearly made in the Law of Association, possibly set aside completely in a separate Chapter.
- In Article 4, chapter 1, to the clause “contributing to the economic social development of the nation…” the word cultural must be added.
- In Article 5, how are activities of the Associations involving the work of the Government to be funded by the Government?
- Article 19 must be re-examined.
- As we have known, the former identity of the Vietnam Federation of Culture and Arts Associations is the Association of Culture for Fatherland Salvation, officially formed in 1948 under the direct leadership of the Party Central Executive Committee, and the Culture and Arts Associations have successfully carried out the tasks of developing culture and arts since then. When the Central Committee’s Resolution 5 was made (8th Congress), the Culture and Arts Associations were defined as professional Socio-political Associations. The conclusion of the Central Committee Resolution no. 10 on continuing to implement Resolution 5 has provided us with directive guidelines for the Culture and Arts Associations, affirming their great contribution in building the moral intellectual foundation for society.
- As mentioned above, the birth of the Law of Association is necessary, but this Law of Association as drafted by the Ministry of Interior (in its 6th version) has yet to be appropriate to the Culture and Arts Associations and Vietnam Economic Science Associations. It can be said this is an unacceptable document, as the relationship between the Ministry of Interior and the Culture and Arts and Economic Science Associations is one of co-ordination. The Ministry of Interior should only manage the Associations on the State administrative basis, but should not manage their professional activities.

PETITION

1. The Culture and Arts Associations from Central to local areas with a membership of 30,000 artists and writers is a large Federation, with the prestige of being founded nearly 60 years ago by the Party. Therefore, to guarantee democratic rights, justice, to encourage creative activities by artists and writers in the construction of a progressive example of culture and arts for the nation, the Ministry of Interior needs to draft a separate Law or a separate Chapter stipulating the activities of the Culture and Arts Associations from Central to local areas, the operational foundation for which is to resemble that of the 6 socio-political Associations (as expressed in the 10th Central Committee Meeting).
2. The drafting of the Law of Association must take departure from the spirit of the Resolutions, Central Party Directives and needs to have participation from professional experts to directly contribute constructive ideas.

SUMMING UP OF CONFERENCE

Comrade LE PHUC
Permanent Vice-President, the Vietnam Federation of Culture and Arts Associations
Though the conference today, we have been united in our viewpoints and have expressed our disagreeing attitude towards this document. The Vietnam Federation of Culture and Arts Associations will combine the views and prepare a petition to the National Assembly before the draft bill is to be passed.
CONFERENCE AT THE VIETNAM UNION OF SCIENCE & TECHNOLOGY ASSOCIATIONS (VUSTA) HEADQUARTERS
53 NGUYEN DU ST., HANOI, 23rd DECEMBER 2005

SCIENTISTS PROPOSE A NEW DRAFT

- In one week, the experts of the Vietnam Federation of Science and Technology Associations completed a draft with 6 chapters, 58 articles.
- The governed subjects introducing a new draft is a rare thing in the history of legislation!

In the afternoon 23rd December, the Vietnam Federation of Science and Technology Associations (VUSTA) called a meeting to announce a main text of collected proposed views amending the Interior Ministry’s draft Law of Association. Of highly special interest was that they also introduced a new draft bill designed by the scientists themselves… after one week’s working on it. The Representatives of Research Committee of the Prime Minister and of the Government Office were surprised and delighted with this eventuality.

Mr TRAN QUOC THUAN
Deputy Director, National Assembly Office
There Has Never Been A Draft Bill With Such A Comprehensive Proposal Contributed To It!
The fact that scientists, having declared the draft Law of Association as not meeting its demands, took upon themselves to write a new one, is a highly laudable effort. This should be valued as a positive contribution. If the draft they produce is agreeably received by many people, there is a great possibility it will become law.
The National Assembly is a parliament house activity. And the principle of parliament houses is the making of decisions by majority vote. If you can persuade the National Assembly, your draft will become law, and your viewpoint meets the demands. The introduction of a new draft is a contribution of ideas and not aimed as replacement, ignoring the draft committee. In other words, “I work pro bono for you and I have the right to introduce a work competitive to yours.” This is form of total contribution of ideas, should be applauded by public opinion, as it expresses democracy. Until now, I have not personally seen a draft bill receiving contributing ideas in so total a manner as to have a completely new document introduced like that.

Only Govern The Relationship As Arising

After more than ten years, the 8th draft Law of Association produced by the Ministry of Interior has as many as nine chapters, 61 articles. However, as the HCM City Law Magazine has informed, at the meeting for gathering opinions on 13th December before its introduction to the Government, the draft has encountered strong reactions from the professional and scientists groups. As a result, in barely one week the scientists of VUSTA have proposed a new draft with six chapters, 58 articles. The fundamental difference with the VUSTA draft regards this law only as governing the relationship between the State and Associations as it arises during the formation, organization and operation of Associations. On the other hand, the Interior Ministry’s draft regards this law as an instrument to manage Associations, as well as to stipulate the procedures for formation and activities of Associations. Nevertheless, VUSTA is also “diplomatic” in introducing solution number two: the principal text based on the amending of the Ministry of Interior’s draft.
Dr (of Law) Hoang Ngoc Giao, representing the VUSTA group of authors, stated that their amendments are based on the principle that the Government acknowledges that the citizens’ right to form associations is already enshrined in the Constitution. Therefore the provisions for organizing and operating Associations reduce the danger of bureaucratization, enabling Associations to be more active, promoting more creative ideas for the community. Analysing the danger of “unofficial” associations such as Aged Care Association, Same-Origin Friendship Association… being vulnerable to be (bureaucratically) “tormented”, Mr Giao said: “The Interior Ministry’s draft is not yet thorough, that’s is why VUSTA proposes that both the registered and the non-registered Associations must be recognized. However, un-registered Associations cannot open bank accounts under the Association’s name, cannot have a seal, cannot conduct businesses as a corporate entity.”
On the procedure of forming an Association, Mr Giao says the amendments made are based on the principle of registering without the need of applying for permission. The Interior Ministry also says registration, however procedure-wise, it is “really complicated by its four stages, and further it is not clear,” thus it is practically an application process. Therefore we have designed that after a certain number of days informing the State authority, the founding committee has the right to call a general meeting without an approval document. Mr Giao affirms that “registration is only aimed at ensuring that the State authorities have reliable information on the Associations” and making clear that the mechanism of settling disputes is the administrative tribunal when public servants abuse their power over Associations.

Except For Prohibitions, Associations Can Do Everything

Dr Giao stress especially the management role of the State with respect to Association activities imperatively as “being law abiding. It is like the provisions of activities related to health, the environment… must adhere to the stipulations by those relevant Ministries. On the other hand, it is necessary to design such that everyone working at the Associations are liable to be subjected to supervision and inspection by the special State agencies.” The group of authors also suggest that a registry of Associations needs to be set up and this registry must be regularly announced publicly and listed on the Internet. “The funding bodies therefore can access the addresses they need; government officials can also get hold of the number of Associations operating in their domains of governance”, says Mr Giao.
Dr Giao states that instead of general prohibitions, such as “this illegal activity harms the interest..”, the VUSTA authors design practically that there are seven acts to be prohibited. “More can be added if necessary but once listed, it means apart from these prohibited items, Associations can do any other things. It is different from the fact that public servants are only allowed to do the things stipulated by law.”
Of special interest is the elaboration the VUSTA authors made about listing in the law those services the State can commission Associations to provide, which “must adhere to the public tendering principle. Otherwise, this could easily lead to negative consequences, as in many cases even where only a simple transfer is involved, for instance in the hunger abolition and poverty reduction area…”
The VUSTA Vice-President, Associate Prof Dr Ho Uy Liem, adds if the stipulation is not clear, arbitrary intervention from State authorities will take place. “The Federation of Medicine and Pharmacy Associations is under our management, but at our General Meeting, the Ministry of Health sends a Vice-Minister over to stand as candidate without consulting us.” The President of the Federation of Literature and Art Associations, artist Gang Huong, also agrees: “A perusal reveals the draft law written by you comrades as containing many reasonable items. We have worked well so far together with the Ministry of Culture and Information, signing a set of regulations every two years. Only when we have to adhere to the law, such as sending paintings overseas for exhibitions, permission from the Ministry is requested. Even in elections, only the number of votes counts, whereas someone introduced by the executives is not trusted. The Law of Association must help them to develop, not to leave it to the Ministry to dictate over Associations.”

Draft Law Must Incorporate Ideas from the Subjects It Is Meant to Govern

Mr Pham Tuan Khai, Deputy Head of Government Office’s Draft Committee, says: “I think your work today is excellent. If this can be done with all laws, it would be superb. The Government Decree 101 recently issued has stressed that it is necessary to gather the views of subjects over whom the law is meant to govern, to see how it will affect them. I must say on reading what you comrades have written, they are things of deep concern. Scientifically speaking, these proposed views are appropriate and worth discussing.” Mr Khai completely agrees with the innovative idea of forming and setting up public registry for Associations. “I also applaud the fact that you comrades have listed the acts to be prohibited, the more concrete they are, the better. Our view is that this law only stipulates the right of citizens to form associations, practical matters should be left to Association regulations.”
Madame Pham Chi Lan of the Prime Ministerial Research Committee, declares: “I personally prefers the draft proposed by the VUSTA experts to the 8th draft of the Interior Ministry, because it states more clearly about the types of Associations and it is more encompassing, more rational, especially the recognition of non-registered types of Association as it is the legitimate right of citizens.” Mme Lan repeats her past view in that the stipulation for State management by a Ministry in charge and People’s Committees “is unnecessary.” She says: “I work at the Chamber of Commerce for so many years now without having to report to the Hoan Kiem District, and they in no way can understand our nationwide activities. My most general idea is to respect absolutely the right to form associations, to create conditions for Associations to operate but not to check up on them.”
Dr Nguyen Vi Khai of the Prime Ministerial Research Committee exclaims: “The work of today’s session is extremely useful!”, as he has recognised that a price will have to be paid for having a law drafted in the isolation of four walls, that is when it is thrust into real life later. To Mr Khai, the progress towards an egalitarian civil society is necessary, and history will turn a new leaf. He promises that after Government members contribute their views, if the Prime Minister, before signing for introducing it to the National Assembly Standing Committee, proposes that the Research Committee to be the “goal keeper”, they will present the views as have been exchanged here.
In summing up, Assoc Prof Dr Ho Uy Liem says there has been a high number of agreed points, and a few points of disagreement still as there are differences in thinking. He hopes that before introducing it to the National Assembly, there will be many occasions yet for exchange of views with the drafting agency.

PHAM LOI
(Ho Chi Minh City Law Magazine, 26 – 12 – 2005)
CONFERENCES ORGANIZED BY VIETNAM LAWYERS ASSOCIATION AND VIETNAM FEDERATION OF SCIENCE AND ECONOMICS ASSOCIATIONS

To carry out the duty of participating in drafting laws and critically appraising policies, the reach agreement with the Interior Ministry in the spirit of Circular 1674/BNV-TCPCP dated 7/7/2005, the Vietnam Lawyers Association, the Vietnam Federation of Science and Technology Associations and the Interior Ministry’s NGO Bureau have collaborated in organising 3 scientific seminars contributing ideas for the draft Law of Association at three zones:
- Northern zone: on 21-10-2005 organised at Chi Linh, Hai Duong province.
- Central zone: on 18-11-2005, organised at the City of Da Nang.
- Southern zone: on 20-12-2005, organised at Bien Hoa, Dong Nai province.
Representatives attending the seminars were members of the Draft Committee, the Editorial Board for the Law of Association, Home Affairs Branch of Central Party Committee, Foreign Affairs Branch of Central Party Committee, Ministry of Finance, Central Committee of the Vietnam Fatherland Front, leaders of Associations with nationwide operation, scholars, legal experts with knowledge of association activities.
Below are excerpts of a number of texts presented at the above seminars.
VIETNAM FEDERATION OF FRIENDSHIP ORGANIZATIONS

IDEAS CONTRIBUTED TO THE 6TH DRAFT LAW OF ASSOCIATION

I. Constraints and Shortcomings in the Draft Law
The draft bill has a number of very basic constraints as follows:
1. The draft has not created a legal basis to ensure the unification of Vietnamese mass movements to serve the objective of achieving national unity.
The “stratification”, splitting 6 socio-political groups and those “Associations without members” off from the ranks of subjects for whom this Law applies did not allow a wholistic approach to the system of grassroots organizations of Vietnam, in order to determine the relationships between grassroots organizations, to promote the central role of the socio-political organizations in Vietnamese mass movements. This is also the result of a “levelling scarifying” approach towards all the organizations being subjected to the application of stipulations in the draft bill, without distinguishing the role and position of the socio-political organizations, the wide ranging organizations of mass alliances with a Party leadership mechanism, from those of other organizations.
The determination of procedure for forming an Association as referred to in the Draft also create a danger for pluralising mass movements in Vietnam. With these stipulations, any group of individuals can form an entirely new youth organization independent of the Ho Chi Minh Communist Youth Group, or a new friendship organization independent of the Vietnam Federation of friendship organizations, the organizations of intellectuals, journalists, writers, lawyers etc… completely independent of the socio-political organizations who currently exist and operate under Party leadership.
The provisions for Associations as raised in the draft have not catered for the fact that we have many mass organizations with an ordered system going from Central to local regions, their establishment, and therefore the conditions and procedures of formation do not resemble those of independent Associations.
2. Many provisions of the Draft do not sit well with the reality and trend of diversification in assembly forms of current mass movements.
The draft only offers one model for organising Associations with stipulations that are too concrete, pertaining to the internal affairs of Associations (for instances Article 14, main purports of Association regulations; Article 16, principal content of the general meeting to form an Association; Chapter 3 on Members, Article 20, Membership of the Association; Article 21, Official members; article 22, Associate members; Article 23, Honorary members; Article 27, Organization structure of the Association; Article 27, Skeletal contents of general meetings for term elections; Article 30, Principle of voting; Article 32, Responsibility and power of the executives etc…)
The rigid application of a model for organization is not compatible with the diversification trend of organising forms for today’s mass organizations.
3. The determination of relationship between the State and Associations is not yet adequate and contains inappropriate subject matters.
The draft has not produced a legal basis enabling the Government to classify the mass organizations, establish levels of different relations with respect to different types of organization; such as the type of organization with regular partnership relations, or the type of organization with partnership relation depending on programs and projects etc… The above establishment of the legal basis is very necessary in reinforcing the political system, create the bond between the Government and the core socio-political organizations, promoting the role of the organizations in various facets of the political, economic and social life. This is a method that even Western nations apply to maintain and reinforce their own political systems.
The draft has not produced a legal basis enabling the Government to transfer a number of function to mass organizations in order to implement and to meet the requirements of a socialisation policy from the Party and the State.
The stipulation on the Government distributing the task of “State management of organization” of the Associations among the Ministries in reality is establishing a subjective mechanism, which is incompatible with the policy to promote the role of partnership, of critical appraisal of society by mass organizations, and is at odd with the reality that many associations operate in many areas, towards many objectives, with the policy to cut down on staff level in the administrative machinery.
4. The draft lacks many stipulations, measures of sanction so basic and necessary for ensuring social stability and security, national benefit and safety.
The draft does not stipulate which types of association are not allowed to be formed. This is extremely necessary to found a legal base for State functional agencies and processing levels, as there will be certainly many complex situations springing up in practice.
The draft has not paid sufficient attention to the issue of State management of Association finances. This is a vital issue that is given great attention by all Western countries, considered as the most effective means to supervise and manage the activities of Associations.
The draft does not yet have concrete stipulations about external relations of the Associations. Who can receive funding from overseas? In what conditions can it be received? What purposes is it used for? What purposes can it not be used for? According to what principle do Associations join international organizations? Which international organizations they are not allowed to join? Which Associations have the right to represent a rank of Vietnamese citizens in a certain international multilateral mechanism, organization or forum?
The text content on formation of foreigners associations and foreign organizations in Vietnam is still too sketchy, not able to establish a legal basis on which our Government can stipulate concrete provisions for formation procedure, scope and area of activities.

II. Some Suggestions and Proposals
The issuing of the Law of Association ought to respond to some needs of the nature of principle as follows:
- To create conditions conducive to formation and operation of Vietnamese mass organizations in meeting the demands of the Vietnamese public.
- To ensure the unity of Vietnamese mass movements under Party leadership; to diversify in form but not to pluralize; to guarantee national autonomy and security, not to let foreign organizations and individuals interfere in our internal affairs;
- To create conditions for establishing partnership relations between mass organizations and the State, to intensify socialisation through the promotion of the role of mass organizations in the political, economic, and social life of the nation;
From such standpoint, we would like to put forward a few proposals as follows:
1. Regarding the subjects of application: they should be all Vietnamese citizens and citizens’ organizations (except perhaps the religious organizations, but the large socio-political organizations and Vietnamese NGO’s should not be excluded). The foreign individuals and organizations should not yet be included in the subjects of this Law.
2. The concept of “Association” should only be based on 4 main marks, as being a voluntary organization, having corporate entity status, having regular activities, being non-profit oriented. (The issue of members’ interests should not be rigidly stipulated as there are Associations not oriented towards serving or protecting members’ interests).
There should be principle-based stipulations: An Association is an organization with corporate entity status, voluntarily established by Vietnamese citizens from the legitimate needs or interests of Vietnamese citizens, to hold regular non-profit oriented activities within the framework of the Socialist Republic of Vietnam’s Constitution and law.
3. There should be a chapter on “The relationship between the Government and Associations” where apart from the points raised in Article 6, there should be stipulations such as:
- The Government recognizes that Associations involve large scale gatherings and exert great influence among the ranks of the mass public, possess capability and effectiveness in the protection, intensification or embodiment of, response to the aspirations, interests of the mass public; [the Associations] are organizations representing the ranks and strata of the mass public in their relationship with the Government.
- The Government consults the opinions of organizations representing the ranks and strata of the mass public before issuing the decisions and policies that affect, exert influence on the public interests represented by those organizations.
- The Government may transfer a number of functions to organizations representing the ranks and strata of the mass public with appropriate capacity.
- The Government to subsidize funding and assist with other necessary conditions to organizations recognised as representing the ranks and strata of the mass public, in order to develop activities towards the protection, intensification or embodiment of, response to the aspirations, interests of the ranks and strata of the mass public.
- The Government to create conditions for associations to participate in appropriate State programs, objectives, projects, to subsidize funding for associations with activities meeting the objectives and obligations of the Government.
- Regarding management responsibility of Ministries, stipulations need only be made for registration, management of activities according to law. The issue of distributing the responsibility of managing associations to various Ministries should not be considered.
4. Regarding registration procedure on formation, there should be stipulations on the Government’s consultation with organizations representing the ranks and strata of the mass public about the formation of Associations operating in related fields or domains. There should be stipulations on organizations that are not permitted to be established.
5. The stipulations on Associations should concentrate on matters concerning the relationship between Associations and the Government, the law, the community, society. There should not be stipulations on purely internal issues of Associations. The following articles need to be added:
- The Government to encourage Associations who operate with the mass public as subjects or in certain areas to collaborate closely with those organizations representing the ranks and strata of the mass public operating with the same subjects and in the same areas, in order to increase effectiveness in operation, in serving the interests, meeting the needs and aspirations of the ranks and strata of the mass public.
- Associations can campaign to raise funds from individuals and organizations to enable them to carry out their work according to the Association’s tenets and aims, and have the responsibility to report on their finance, assets to the State agency in charge of finance administration as stipulated by law.
- Regarding international relations and activities, there should be stipulations on the conditions under which foreign aid, the use of overseas funding, stipulations on joining international organizations and international activities. There should be stipulations on the exclusive capacity given to organizations representing the ranks and strata of the Vietnamese people to represent the Vietnamese people in international relations with mass organizations of other countries in related fields and domains.
LOGICAL AND PRACTICAL BASES FOR DETERMINING THE SUBJECTS OF APPLICATION OF THE ASSOCIATION LAW
Assoc. Prof. Dr LE VAN HOE
National Institute of Administration Ho Chi Minh

The right to form Associations is a fundamental right of citizens recognised by almost all democratic countries and recorded in the Constitution. As a result of the exercise of this right, Associations develop more and more to become an indispensable institution in the organised structure of society. They have an important position, play a great role in the construction and growth of democracy, and provide an impetus to social development in all areas. Because of that important role, all Governments attach special attention to Associations, carry out the practical implementation of:
- Stipulations under the form of the Law of Association based on the freedom of citizens to form associations, to acknowledge the Associations’ autonomy in management, at the same time the State reserves the right to dissolve Associations should they infringe on Constitutional order and national unity. All Laws of Associations in various countries set forth their concepts of an Association. The German Republic Law of Federations (in 1964) defines: “The Association is a voluntary gathering of individuals and corporate entities for a relative length of time to achieve a common aim and follow a set of regulations in fulfilling the collective will which is organized under any legal form.” With this concept, the subject of application of the Law is vast, covering even companies with capital, co-operatives, mutual insurance alliances are also subjects of application (Article 17).
- Together with social progress and the democratic process, the internationalising of Associations develops not only nationwide, but also worldwide. Domestic Associations operate more and more with an international temper, as if this is a sine qua non trend. Nevertheless, the formation of Associations is always on a voluntary basis, and follows professional interests, common tastes, concerns or common development objectives (environment protection, scholarly interest promotion…)
In Vietnam, following the success of the August Revolution in 1945, the Vietnam Democratic Socialist government was established, the citizens’ freedom and democratic rights – civil rights, were recognised, including the right to form Associations. On 22 April 1946, President Ho Chi Minh issued the Decree no. 52/SL stipulating the procedure of application for Vietnamese citizens wishing to form Associations (or mass-organizations, Groups). On 9 November 1946, the first National Assembly of the Democratic Republic of Vietnam ratified the Constitution, in which the Article 10 has stipulations on Vietnamese citizens rights to:
- Freedom of speech
- Freedom to publish books
- Freedom to organize and form associations
- Religious freedom
- Freedom of residence, to travel within and outside the country.
On 31-12-1959, the National Assembly passed a new Constitution (the 1959 Constitution), fundamentally changing the 1946 Constitution. In Article 25 of Chapter 3 on the basic rights and obligations of citizens, it stipulates that: Citizens of the Democratic Republic of Vietnam have the rights to freedom of speech, of the press, of assembly, of forming associations and of public demonstration. The Government guarantees the necessary material conditions for citizens to enjoy these rights.” To make concrete the Constitution, the National Assembly issued the Law of Association. Following this, the Constitutions of 1980, 1992 stipulate the basic rights of citizens to form Associations (Article 67 of the 1980 Constitution, Article 69 of the 1992 Constitution). It is precisely on the basis of the Constitution and other legal documents stipulating on Associations that the Associations in our country have been formed, actively operated in the construction and defence of our Nation and Socialism.
Entering into the era of socio-economic renovation, along side the socialist-oriented development of market economy, the Associations and Federations in our country have developed vigorously. Many Associations and Federations have activities reaching beyond the national territory; many associations are veterans with over half a century of operation history; many are newly formed, although young of age but definitive in their role and position. While the citizens aspiration to form new associations continues to grow, Association aims and forms of activities have become more and more diversified and complex, giving rise to no few problems related to forming an Association, to State management action over Associations, to the issues of settling disputes and dealing with infringements in Association activities… In this context, the need for a Law of Association to replace the Government’s Decrees has become more and more demanding and urgent. Right from the 8th Congress (in 1966), our Party has affirmed that: “The Government needs to issue a Law on forming associations and create necessary conditions for the activities of mass-organised groups.” Then, at the 9th Congress (in 2001) the Party continued to affirm and press for: “Widening and diversification of forms of public gathering for participation in mass groups, social organizations, professional, cultural, friendship, welfare, humanitarian associations... [by] expediting the issue of the Law of association.”
Although the Party’s policy of issuing the Law of association has been in existence for nearly 10 years, while the reality of organising and operating Associations, Federations has become more and more complex, the National Assembly has not yet passed a bill for the Law of Association. There are several reasons for this, among them the issue of awareness leading to unconcensual views on the contents of the stipulations of the Law, especially the subjects of application (or the governed subjects of the Law). In our opinion, this is related to the following issues:
Firstly, regarding terminology, besides the term “socio-political organization” being used to designate the Vietnam Fatherland Front, the Vietnam Federation of Labour Unions, the Vietnam Women's Union, the Ho Chi Minh Communist Youth Group, the Vietnam Farmers’ Association, the Vietnam War Veterans Association, there is the term “other organizations.” In Article 10 of the 1992 Constitution, the term “other organizations” is understood in a very wide sense, encompassing socio-political organizations and organizations that are not political ones, the economic units. Even among the socio-political organizations, there are three with the word “Association” used in nomenclature. In place of the term “social organization”, there is also the term “people’s group,” “mass organization.” These terms are often used in Party documents. In the 8th Congress Document, however, the term “socio-political organization” is used (not counting the Fatherland Front), while in the 9th Congress Document, except for six, other organizations are designated as “mass organizations,” “social organizations,” “professional, cultural, welfare-humanitarian associations…” Right in the legal documents issued after the 1992 Constitution was amended and appended by the National Assembly, the above highly varied terms were used, causing extreme difficulty in discerning them. For example, the Law of State organization of 2002 with Article 7 employing the term “people’s organization”, while in Article 8, Item 2, organizations are listed as including socio-political organizations. social organizations, economic organizations. The Resolutions from the Standing Committee of the National Assembly on “the Assembly Representatives receiving citizens, receiving and relaying applications, expediting, following up processes of resolving appeals, prosecutions and petitions by citizens”, includes Resolution 3, Point 1, Item c employing the terms socio-political organizations, social professional organizations, economic organizations… Thus from the Constitution, the law, derivative legal documents and Party documents, widely different terms are used to refer to organizations currently existing in our country; and the important fact is that such terminology usage is not unified, with political organizations implicitly recognised but not officially explained as being the Party’s organizations. The above usage of terminology clearly indicates, with the concept of Association being elucidated, a state of disarray. And this is also a cause leading to different viewpoints in the determination of the subjects of application of the Law of Association. For that reason, to determine precisely the subjects of application of this Law, the concept of Association must be determined first, the particular characteristics of this organization should be clearly defined. In our opinion, they are:
- The Association is an organization without public power, i.e. not a State agency, a public authority.
- The Association is not a political organization, i.e. not an organization whose formation based on the solidarity of individuals with a common worldview who operate with the aim of asserting that worldview through political means, that is to say through participating in the exercise of power and contesting for social power. In our country, the social organization tacitly recognised by all is the Vietnam Communist Party. The Party is the leader of the political system: this system is understood as the mechanism through which the people exercise their power.
+ Economic organizations; these organizations are formed with the aim to engage in an enterprise, to procure profits, being opposite to the non-profit nature of Associations.
+ The voluntary nature in the solidarity of citizens and organizations for forming Associations.
+ Associations work in a regular, stable manner for the common aims of members on the basis of professional interests, preferences and developmental aspiration of members.
+ [Associations are] Oriented towards the common objectives of social development in Vietnam, these objectives being: “A wealthy people, a strong country, a just, democratic and civilized society.”
+ Associations participate in the mechanism of critical appraisal of society with regards to the activities of the political Party and the Government, ensuring the legitimate rights and interests of members.
+ Associations are governed by law and has juridical status of a legal entity.
With the above characteristics in mind, the authors of the 6th Draft Law of Association put forward a definition in Article 4: “An Association is a voluntary organization with juridical status of a legal entity, operates regularly, for non-profit purposes, with the aim of protecting legitimate rights and interests of its members, contributing to the national socio-economic development.” This is not yet sufficient, nor precise. The Association is not a voluntary organization but a voluntary gathering (alliance) of citizens, nor is it a gathering of individuals, but is also an alliance of an Association with some other Associations to become a Federation. The important factor in that alliance is the voluntary nature, the stability of the basis of common interests, preferences, the compliance with the collective orientation in social development, via means of implementing and maintaining the members’ common wish. The concept of an Association in our opinion must be able to express all the above specific attributes.
Secondly: All organizations with the above attributes are subjects of application of the Law of Association. However, because of the particular characteristics of each country, especially of the particular political system that each has, the concepts of an Association for all countries do not completely resemble each other. For Vietnam with the political system as a mechanism to express the people’s power, under the leadership of the Vietnam Communist Party, the Government is defined as the supporting pillar of the system, with socio-political organizations allowed to participate in the exercise of social power, at the same time to be the inspector, the social critic with regards to the issuing, implementation of guidelines, policies, laws by the Party and the Government, directly in the organising of the ranks and strata of society into members of organizations to exercise State power. In this aspect, the socio-political organizations are political by nature. However, socio-political organizations are also social. Representing their members being the ranks and strata of society, they work towards looking after and protect the legitimate interests of those ranks and strata, at the same time they pursue together with other organizations the objective of creating social harmony, for the sake of a prosperous nation, a fair, democratic and civilized society.
The political attribute and the social attribute of socio-political organizations, whose typical instance is the Vietnam Fatherland Front, are tightly interlinked, exhibit resilience through many stages of history, a factor constituting the specific characteristics and particularly important role of those organizations. Those attributes therefore cannot be watered down or separated in any way. Thus, in our opinion, Article 3 of the 6th draft Law of Association, the Vietnam Federation of Labour Unions, the Ho Chi Minh Communist Youth Group, the Vietnam Farmers’ Association, the Vietnam Veterans Association, the Vietnam Women's Union and other religious organizations, is reasonable. This does not mean, however, that these organizations operate outside the legal framework. At present, our Government has a Law of the Vietnam Fatherland Front, on the basis of implementing Article 9 of the Constitution, on the notion that the Fatherland Front is a voluntary political alliance of individuals and organizations, being the political base for people’s political power, it operates with the purpose of promoting the tradition of mass solidarity, heightening popular consensus on political and moral issues of the people, contributing to the construction and reinforcing of the people’s political power, together with the Government, taking care and protecting legitimate interests of the people, mobilizing the people in exercising their control, solemnly implementing the Constitution and the law, supervising activities of State agencies, elected representatives and cadres, officials of the government. The member organizations of the Front, among them the five socio-political organizations as mentioned above, possess a position and a character like those of the Front, at the same time having a position and socio-political character compatible with the attributes of the ranks and strata of society whom they represent. Meanwhile, the Law of the Vietnam Fatherland Front mainly stipulates generally about the Front. Therefore if this Law is not applicable to socio-political organizations then it is necessary to add to the Law of the Fatherland Front those stipulations about socio-political organizations, or to issue a Law of Socio-political Organization replacing the current Law of the Vietnam Fatherland Front.
Thirdly: Vietnam is on the course of renovation, construction and development of a socialist-oriented market economy, at the same time implementing the policy of integration into the world economy. Under the impact of market mechanism and globalisation/internationalisation trend, at the same time the powerful impact of achievements from the scientific and industrial revolution leading to great shaking-up in the class structure of society, structure and mechanism to serve interests, in social psychological state, in lifestyle… All those aspects constitute the whole of the mechanism of governing by law, which includes the implementation of the law. For that reason, the renovation of legislative activities to adapt to the above changing situation is objective, in that it is necessary to enhance the predictability and orientation of all laws. The important thing in dealing with these issues related to democratic institutions, among them the Association, is to adhere to the principle of Government by rule of law: individuals, organizations are allowed to do all the things not prohibited by law.
A CONTRIBUTION OF IDEAS TO THE DRAFT LAW OF ASSOCIATION
Dr PHAM VAN TAN
Vietnam Federation of Science & Technology Associations

The draft Law of Association is a carefully researched work of the collective of the drafting group. The 7th draft has already had a number of amendments made on legal basis through several seminars run by the Interior Ministry, Federations and agencies to do with other than organizations or opinions expressed on the mass media. The attitude of seeking visibility, promoting democracy in the preparation of the documents on legal provisions, listening to opinions from the subjects-to-be covered by the governing scope of the legal document, have been necessary and to be valued and respected.
Nevertheless, we would like to express a number of our ideas surrounding some contents of the Law of Association related to the existence and development of socio-political organizations as follows:
I. The content of the Law of Association is essentially that of Decree 88CP.
Decree 88/2003/ND-CP issued on 30-7-2003 has revealed restrictive aspects of the law over Federated Association activities as well as over the socio-political organizations, which have been established and guided in their activities by the Party. Firstly: Decree 88 has created a differential way of dealing with socio-political organizations. In official Party documents, the Federated Associations have been defined as socio-political organizations of the scientific and industrial intelligentia, but Decree 88 has homogenised Federated Associations, the Party’s socio-political organizations with a function of assembling, uniting the Party-following section of the intelligentia by means of social professional and occupational organizations. Secondly: When the State management function of the Ministries and Departments was stipulated, it was understood that such provisions put agencies in charge of professional associations, mixing it into the set functions assigned to these agencies, leading to a tendency to bureaucratize those government services in need of being transferred to NGO’s, professional associations, who are waiting for the Government to gradually transfer public services to professional associations in order to create favourable conditions for association professional activities in the sense of being self-funded, self-responsible and in compliance to the rule of law.
2. The Party’s guiding viewpoints on socio-political organizations must be closely followed to in designing the Law of Association.
In contributing ideas on the Draft Law of Association, many researchers, leading cadres of Party and Government agencies have suggested that members of the drafting team have not studied carefully the official Party documents in reference to socio-political organizations such as the Vietnam Union of Science and Technology Associations, the Vietnam Federation of Culture and Arts Associations who have been established and guided in activities by the Party. As a result, in the Draft Bill, the Party leadership of the intelligentia – being one of the three forces constituting the Workers-Peasants-Intellectuals alliance under Party leadership – was removed. It is therefore necessary to study the Party and Government documents in order to grasp complete penetration of the Party’s viewpoints on socio-political organizations, among them the Federated Associations or Unions of Associations. And we will see clearly the Party’s process of taking cognisance of the position and role of the Federated Association as an organization representing our nation’s intelligentia.
In practice, the Federated Associations’ activities are guided by the Politbureau, the Central Party Secretariat, and directly by the Central Party Department of Science and Education. Organizing General Meetings, selecting the Heads of Federated Associations agencies and General Meeting staff are done by the Politbureau, the Party Secretariat who give guiding inputs, on the basis of nominations to the Personnel Department of the Central Committee as proposed leaders for Federated Associations. The Federations’ regulations are to be approved by the Government. Summing-up Report and draft Regulations for the Federated Associations presented at the General Meeting have already been lodged with the Party Secretariat for [approval of] the contents of the Report as well as the draft Regulations. Thus the stature of the Federated Association has surpassed the legal provisions for an ordinary professional Association in tenets, aims of activities, formation criteria, and in managing Federation of Associations. Representatives of the Central Party Departments of Ideological and Cultural Affairs, of Science and Education and Ministry of Science and Industry (circular 932/BKHCN-KHCNN sent to the Government Office) maintain that the Draft Law is not suitable for the socio-political organizations, the professional socio-political organizations, and is at variance with the Party’s viewpoints.
3. The concept of an Association should clearly determined, and classification of Association types should be stipulated in the Law of Association.
The Association is not an organization in the system of public authorities, i.e. it is not a State administrative agency. The Association is characterised by its voluntary nature, regular activities, and durability on the basis of professional interests, preferences and aspirations of members, oriented in the general aim of social development. Associations have the right to participate in mechanisms of critique and appraisal of society with respect to the Party’s and Government’s activities, ensuring their members’ legitimate rights and interests. The Association is not a political organization, in that it is not established on the basis of fostering solidarity of individuals of the same worldview who operate with the aim of asserting that worldview through a political trajectory, that is to say through participating in the exercise of power and contesting for social power. In our country, the social organization tacitly recognised by all is the Vietnam Communist Party. The economic organizations are not Associations either, as these organizations are founded with the aim of establishing enterprises and procuring profit, opposite to the non-profit nature of Associations. Therefore the Draft Law of Association has put forward a definition of an Association that is not yet sufficient, not precise. The Association is a voluntary gathering of citizens, not only of individuals but also an agglomeration of Associations to become Federations/Unions of Associations on the basis of being voluntary, having same interests, preferences, in the general collective orientation towards the development of society.
The above-mentioned special organizations are all subjects of application of the Law of Association. However, in our country, the political system operating as a mechanism executes the people’s power under Party leadership whereby: the Government manages, the socio-political organizations participate in the exercise of political power, at the same time these are supervisory organizations, offering critical appraisal of society with respect to the issuing and implementation of guidelines, policies and laws by the Party and the Government, directly organising the ranks and strata of society being members of the organizations to exercise State power. The political attribute and the social attribute of the socio-political organizations differ sharply from those of social organizations and professional organizations. The differences should be objectively recognized in putting forward the stipulations governing those organizations in the Law of Association. There should be therefore a classification of Associations according to the Party’s viewpoints and compatible with the general rules for all types of Associations. For the socio-political organizations, which have been established or recognized by the Party, there should be common stipulations on Association. Special Laws have been issued for governing each socio-political organization separately (for instances the Law of Fatherland Front, the Law of Youth Group, the Law of Labour Union) will be amended to govern in congruence with the Law of Association. For the case of the Law of Association not being applicable to the socio-political organizations, amendments should be made to the stipulations on socio-political organizations in the Law of Vietnam Fatherland Front, or a new Law of Socio-political Organization issued to replace the Law of Vietnam Fatherland Front. The Law of Association may be changed in name into: the Law of Non-government Organizations.
Another point to be noted is that in our country there are many official Associations, namely those with status of corporate entity (being registered, having a rubber stamp / seal) and also numerous unofficial Associations. Both forms exist and are active, therefore the Law of Association must take this reality into account, cannot neglect to have concrete articles and items governing the activities of unofficial Associations.
4. Concerning State management of Associations
Apart from the Ministry of Interior and provincial People’s Committees being responsible for the State management of the Associations, the Draft Law also reserves the right to manage them for various Ministries and Departments. This may be understood as the Associations being State-managed twice, by the Interior Ministry and by a Ministry in charge. In the Draft Law, there is a big confusion between management by the State and the administrative management of Associations. Stipulating the State’s management function for Ministries and Departments with respect to Associations will be understood as setting agencies up as parent bodies of professional associations, thus mixing this task of controlling the latter in with the functions of State management by government administrative agencies, leading to a tendency to bureaucratize Association activities. Duplicating or replicating management function not only will reduce the initiative and self-confidence of the Associations, it will also undermine the function of supervision and critical appraisal of society by Associations, and turn democracy into an empty formality. Furthermore, it will produce overlapping in management. This shortcoming has appeared in implementing the Decree 88/2003/ND-CP, created great difficulty to Associations’ activities in the intervening time.
The Law of Association is mainly a legal framework for the organization and activities of Associations, without the need to intervene deeply into the internal affairs of Associations. The Government needs only to stipulate the prohibited items, and determine the mandatory rules for the Associations to follow in abiding by the State administrative management. The Articles stipulating on Membership, Organization, Association activities, Federated Association, joining, splitting up, and dissolution of an Association may already intervene much too deeply in Associations affairs, making rigid the organization for and activities of Associations, which in the first place differ widely among themselves in organization and activity. The Associations being so diverse, as long as organization and activities comply with the law, there would be no need to narrow their compliance down to that of the Law of Association alone. It is therefore necessary to have a Law of Association, but the content of the Law must be compatible with, objective, correct on the viewpoint and guidelines of the Party, and it cannot replace the Associations’ capacity to self-manage.
SOME IDEAS TO CONTRIBUTE TO THE DRAFT LAW OF ASSOCIATION
Lawyer TRAN CONG DANG
President, Lawyers Association of Da Nang City

From a study of the 7th Draft Law of Association, I would like to contribute a few concrete propositions as follows:
Article 3: Subject of application – the solution 2 should be adopted. It is concise and at the same time convenient for future application.
Article 4: Point 1 – I would suggest adding the word “stabilization” to the phrase “contribute towards”… contribute towards the stabilization, development of society and economy of our country.
Article 7 (Item 3) and Article 39 (Item 1) – State management by the Ministry - departmental involvement is not necessary, as it will make for multiple levels and tiers. And in fact there are many Associations which the Department is not capable of managing, or which may not be put directly under any ministry or department, such as the Lawyers Association.
Article 9 (Item 5): The requirement to have independent assets and to discharge responsibility by means of those assets is not feasible, because only after forming the Association can one’s own assets be accumulated, either through Association fees or activities. Moreover, if assets are not specified as to consist of what items, having what value, then how can they be realistically accounted for? It is possible that a few pieces of furniture, a few computers are amply counted as assets.
Article 9 (Item 3); Article 12 (Item 5): The concrete necessary number of members required to form a Association should be stipulated immediately, one should not wait for a Government document to specify this;
Article 11 (Item 1 Point a): I propose to add at the end of item a [Point a?]… “able to express the particular characteristics of the Association.” Usually the name of an Association is related to its particular characteristics, the nature of the activities of that Association.
Article 12 (Item 7) – the word “have” should be deleted because it is redundant. The sentence will be changed to: The asset inventory document serves as security for Association activities.
Article 33 (Item 1), point a: to be changed to - Being Vietnamese citizen, aged fully 18 years or more (the word “fully” added). One more criterion to be added: must be a member of the Association.
Article 40 (Item 2): Joining, withdrawing from being member Association of the federation… Delete the word “being”;
Articles 43 & 44 – Subdividing, splitting up of the Association – should be merged into one article for the sake of conciseness, as essentially, subdividing and splitting are the same thing.
Article 32 (Items 4&5) – Settlement of assets when the Association is split up: I propose merging these items into one.


ISSUES SURROUNDING THE DRAFT BILL FOR THE
LAW OF ASSOCIATION


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