Malcolm Rivera
Vietnam has had five constitutions since its independence from France in 1946, with the current 2013 Constitution being the third since the reunification of the country in 1976. While the 1946 Constitution was semi-presidential and democratic, the 1959 Constitution was fully communist, and subsequent constitutions have been influenced by socialism and the Soviet Union. There is currently no judicial review of the Constitution, with all powers concentrated in the National Assembly. However, there have been calls for constitutional reform to address issues such as human rights, land ownership, and the political system. The 2013 Constitution embodies a mixture of Confucian, socialist, liberal, and universal ideas, and Vietnam's participation in international and regional human rights bodies has improved its enforcement mechanisms for constitutional rights. The establishment of a constitutional review mechanism in Vietnam has been a subject of debate, with some arguing that it is redundant due to Vietnam's unique political, cultural, and economic circumstances.
| Characteristics | Values |
|---|---|
| Number of Constitutions since Vietnam's independence from France in 1945 | 5 |
| Dates of Constitutions | 1946, 1959, 1980, 1992, 2013 |
| Current form of government | Socialist Republic |
| Existence of a judicial review of the Constitution | No |
| Separation of powers in the legal system | No |
| Institution with all constituent, legislative, and supervisory powers | National Assembly |
| Institution that elects the President of the Republic | National Assembly |
| Term length for President of the Republic | Five years |
| Institution from which the Prime Minister is chosen | National Assembly |
| Institution with legislative power | National Assembly |
| Institution with the most universalist and liberal views | National Assembly |
| Human rights regime | Established by the 1992 Constitution and previous socialist constitutions influenced by the Soviet Union |
| Nature of rights | State-granted rather than natural rights |
| Compatibility with international human rights law | Vietnam has taken steps towards compliance, including through participation in international and regional human rights bodies |
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What You'll Learn
Vietnam's mixed constitution and human rights
Vietnam has had five Constitutions since it declared independence from France in 1945: in 1946, 1959, 1980, 1992, and 2013. The 2013 Constitution is considered a mixed constitution, embodying a mixture of ideas and discourse in its provisions on political institutions, the economy, and human rights.
During the constitution-making process in the 2010s, a wide range of political and social actors, including political leaders, national assembly deputies, government officers, legal scholars, and citizens, presented and exchanged competing views and opinions about significant constitutional issues. These views were informed by socialist, liberal, Confucian, and universal constitutional ideas.
The mixed constitution in Vietnam is shaped by both internal and external factors. Internally, it is influenced by path dependency, resulting in a blend of different constitutional ideas. Externally, it is impacted by the global diffusion of constitutional ideas, particularly the influence of international human rights laws and the shift towards a more cosmopolitan posture in comprehending human rights.
The 2013 Constitution attempts to establish a human rights regime in concordance with universal human rights standards. However, in practice, human rights in Vietnam are considered among the poorest in the world by various academics, dissidents, and non-governmental organizations. The Vietnamese government, led by the Communist Party (CPV), is the only legal political party, and elections have been criticized as rubber stamps, with the CPV consistently receiving 99% of the votes.
While the Constitution of Vietnam officially provides for freedom of religion, the government imposes legislative measures that restrict religious practice. Additionally, the Constitution guarantees equal rights for all ethnicities and the right to a healthy environment, but there are allegations of human rights abuses against ethnic minorities and land settlement issues in the Central Highlands.
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The role of the National Assembly
The National Assembly of Vietnam is the country's highest representative body of the people and the highest organ of state power. It is the only branch of government in Vietnam and is unicameral, with 500 delegates elected for a five-year term.
The National Assembly has the power to draw up, adopt, and amend the constitution, as well as make and amend laws. It also has the responsibility to legislate and implement state plans and budgets. The assembly appoints the president, the prime minister, the chief justice of the Supreme People's Court, the head of the Supreme People's Procuracy, and the 21-member government.
The National Assembly also has the power to censure other public office holders through votes of no confidence. It controls the judiciary's budget and confirms the President's nominees to the Supreme People's Court.
The National Assembly is also responsible for deciding on issues of war and peace, proclaiming a state of emergency, and ratifying or nullifying international treaties with respect to war and peace, national sovereignty, and membership of the Socialist Republic.
In terms of the role of the National Assembly in constitutional review, it is important to note that there is no judicial review of the Constitution in Vietnam. The National Assembly exercises supreme control over conformity to the Constitution of all central institutions, and its legislation is not subject to any external review.
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The impact of competing constitutional ideas
Vietnam's constitutional history since its independence from France in 1945 has been marked by competing constitutional ideas, resulting in a mixed constitution that combines socialist, liberal, and universal elements. The country has had five constitutions during this period, with the most recent one being adopted in 2013.
The 1946 Constitution, the first after independence, was shaped by diverse and competing schools of thought, including socialist and natural law-based ideologies. It was a pluralistic constitution that accommodated various, even opposing, ideologies. The 1992 Constitution, influenced by the Soviet Union, strengthened human rights protections but also reflected a statist notion of regulatory human rights, with rights being "'in concordance with the law'. This constitution was a product of the socialist human rights tradition and established the inseparability of rights from duties.
The 2013 Constitution embodies a mixture of ideas, including Confucian, socialist, liberal, and universal perspectives. It reflects competing claims and interpretations of constitutional meanings, particularly regarding political institutions, the economy, and human rights. For example, during the constitutional amendment process, members of the National Assembly advocated for more universal and liberal views, such as protecting religious freedom and reducing state regulations on belief and religion.
The mixed constitution in Vietnam is shaped by both internal and external factors. Internally, it is influenced by path dependency, reflecting the country's historical development and the diffusion of constitutional ideas over time. Externally, it is impacted by global constitutional diffusion, with ideas from other countries influencing Vietnam's constitutional design and discourse.
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The absence of judicial review
Vietnam's legal system is markedly different from those of Western liberal democracies. There is no separation of powers, with all constituent, legislative, and supervisory powers concentrated in the National Assembly. The judiciary has no role in interpreting the Constitution or reviewing the constitutionality of legal documents or political actions.
In Vietnam, the National Assembly exercises supreme control over conformity to the Constitution by all central institutions, as outlined in Article 70(2) of the 2013 Constitution. Any legislation promulgated by the National Assembly is not subject to external review, as per Article 70(2). This means that the National Assembly has the final say on the interpretation and application of the Constitution, without input from an independent judiciary.
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International influence and regional human rights bodies
The 2013 Constitution of Vietnam has been influenced by a variety of international and regional human rights bodies, resulting in a mixed constitution that embodies competing constitutional ideas, including Confucian, socialist, liberal, and universalist elements.
One notable influence is the shift in the perception of human rights. Unlike the previous 1992 Constitution, which viewed human rights as "state-granted" and tied to citizens' fulfilment of their obligations, the 2013 Constitution recognises human rights as natural rights that the state is obligated to protect and ensure. This change brings Vietnam's constitution into compliance with international human rights standards.
Additionally, Vietnam's participation in international and regional human rights bodies has influenced the development of its constitutional rights. Notable examples include the United Nations Human Rights Council, where Vietnam ratified the Convention against Torture and the Convention on the Rights of People with Disabilities in 2015. Vietnam's engagement with the Association of Southeast Asian Nations (ASEAN) and its Intergovernmental Commission on Human Rights has also played a role. Furthermore, Vietnam's implementation of the Universal Periodic Review demonstrates its commitment to upholding human rights standards.
The diffusion of global constitutional ideas has been facilitated by various external and internal actors. Externally, international bodies like the UNDP have supported legal and constitutional reforms. International NGOs, such as Human Watch and Article 19, have provided critical comments on draft constitutional amendments. Foreign governments have also contributed through transnational human rights dialogues with Vietnam.
Internal actors, including local legal scholars, intellectuals, and young Vietnamese constitutionalists and lawyers trained abroad, have played a pivotal role in introducing new constitutional ideas to Vietnam. The internet and social media have been instrumental in this process, with activists and citizens utilising online platforms to gather support and disseminate liberal constitutional proposals.
While Vietnam's constitution has made significant strides towards recognising human rights, some provisions have been criticised for falling short of international standards. For instance, restrictions on rights based on vague grounds like "national defence" and "national interests" have been deemed potentially arbitrary and incompatible with international human rights law, specifically the Siracusa Principles.
In conclusion, the establishment of a constitutional review in Vietnam should consider the influence of these international and regional human rights bodies. By engaging with these organisations and adhering to international human rights standards, Vietnam can continue to develop its constitutional framework to better protect the rights of its citizens and those living within its borders.
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Frequently asked questions
Since Vietnam declared its independence from France in 1945, there have been 5 Constitutions: in 1946, 1959, 1980, 1992, and 2013. The 1946 Constitution was the first democratic Constitution for the country, with legislative authority vested in the National Assembly. The 1959 Constitution was explicitly communist in character, establishing socialist rule in North Vietnam. The 1980 Constitution strengthened the powers of the executive and gave a central role to the Vietnamese Communist Party (VCP). The 1992 Constitution was written to meet the demands of a more liberal global political and economic landscape. The current 2013 Constitution embodies a mixture of Confucian, socialist, liberal, and universal ideas.
The Vietnamese legal system is characterised by a concentration of powers in a single institution, the National Assembly. There is no separation of powers and no judicial review of the Constitution. The judiciary does not interpret the Constitution or review the constitutionality of legal documents or political actions. Instead, constitutional protection in Vietnam is aimed at unifying the practice of state powers.
Vietnam's participation in international and regional human rights bodies, such as the United Nations Human Rights Council and the implementation of the Universal Periodic Review, have improved the country's enforcement mechanisms for constitutional rights. Additionally, the idea of establishing a constitutional review mechanism to implement constitutional provisions, settle disputes between state branches and between the state and citizens, and protect individual rights has been extensively researched. However, there is resistance to adopting Western-style independent constitutional review bodies, as it is argued that they are not suitable for Vietnam's political, cultural, economic, and historical circumstances.
