"Constitutional Dualism: Socialism and Constitutionalism in Contemporary Vietnam"
Bui Ngoc Son (PhD 2013)
in Socialist Law in Socialist East Asia (Cambridge University Press, July 2018), pp. 164-192
Introduction: In early 2013, when the Socialist Republic of Vietname released the draft Constitution to the public for comment, people called for, among other things, a change to the nation's name by eliminating the term 'socialist'. They proposed alternative names such as Democratic Republic of Vietnam, Republic of Vietnam and People's Democratic Republic of Vietnam. The new Constitution approved by the National Assembly of Vietnam on 28 November 2013 rejects the call to change the nation's name, and other substantive reforms. It retains fundamental socialist constitutional principles and the overall Leninist constitutional structure. However, it also introduces some concepts and principles that are unconventional to the socialist constitutional tradition and that resonate with the normative requirements of constitutionalism. The Constitution has still functioned as an instrument to describe the party-state's socialist principles and goals in constitutional terms, but at the same time it has begun to perform prescriptive function. This Chapter examines these two competing functions of the Constitution in socialist Vietnam, with a particular focus on the 2013 Constitution.
International scholars, namely John Gillespie, Pip Nicholson and Mark Sidel, have provided useful explorations of Vietnamese constitutional law, although they have not yet accounted for the 2013 Constitution. Recently, the Asian Journal of Comparative Law published a special issue on Vietnamese and comparative constitutional law, focusing on the constitutional debates leading to the birth of the 2013 Constitution. The featured scholars helpfully demonstrated how fundamental socialist constitutional principles were subject to social contestations, contributing to the understanding of the dynamics of constitutional law within the socialist regime. They did not, however, consider the function of the new Constitution.
In this Chapter, I will focus on the function of the Constitution in Vietnam. I propose the concept of 'functionalist constitutional dualism', which denotes two competing functions of a constitution in response to competing concerns. Within that conceptual framework, I argue that, in response to competing demands of state and social actors, the Constitution in Vietnam now has dual functions - its traditional, hegemonic socialist function and a new, nascent constitutionalist function. On the one hand, in response to the concern of the socialist elite, the constitution has predominantly remained the instrument for the party-state to describe the socialist principles, structure and goals in constitutional language. On the other hand, in response to the concerns of society, it has incrementally assumed constitutionalist function: it establishes normative constraints upon constitutional politics.
First, I will describe the background on how socialism informed constitutional history in Vietnam. Next, I critically review several relevant theories and consider how functionalist constitutional dualism may be a useful concept. I then examine the two functions of the constitution in Vietnam, before concluding with some discussions and reflections...
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