The 2013 Constitution of Vietnam: Improvement toward Constitutionalism and Challenges【Research Article】

The 2013 Constitution of Vietnam:
Improvement toward Constitutionalism and Challenges
TO Van Hoa *THAI Thị Thu Trang **Abstract
This paper examines the 2013 Constitution of Vietnam through the lens ofconstitutionalism. It focuses on two important aspects of constitutionalism, i.e. constitutional
protection and human rights protection. 1 The paper first discusses the constitutional provisions
on the constitutional supremacy, constitutional protection, followed by a critique on thechallenges to the realization of constitutional supremacy and implementation of the humanrights limitation clause in Vietnam. The paper shows that the 2013 Constitution of Vietnam
does reflect, from its words, values of constitutionalism such as enhanced provisions on
constitutional supremacy and human rights. However, the paper argues that Vietnam is facing
significant challenges in bringing the supreme value to the constitution in practice.

ContentsI.

II.

The 2013 Constitution and its supremacy
1.

On the supremacy of the Constitution

2.

On the protection of the constitution

3.

On the procedures of amendment and supplement of the constitution

The 2013 Constitution and the protection of human rights

III. Challenges against the supremacy of the 2013 Constitution

Corresponding author, Associate Professor, Doctor of Laws Hanoi Law University.
Doctor of Laws, Hanoi Law University.
1
Constitutionalism is recently accounted on in the Vietnamese legal research. It is proposed that the concept is composed of someessential elements, such as a constitution having the effect of limiting the exercise of power, people’s sovereignty, human rights
protection, constitutional protection and separation of powers. (See Son, Bui Ngoc, “The Constitutionalism in Vietnam”, Journal of
the State and Law, no. 11 (2009): 12 – 24; Dung, Nguyen Dang, “From Constitutionalism to the Constitution”, Journal of Political
Theories, no. 2 (2012): 81 – 84; Giao, Vu Cong and Tam, Nguyen Minh, “Some Theoretical Accounts on Constitutionalism”,
Jurisprudence Journal, no. 8 (August 2019): 24-28).
*

**

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1.

Preserving the supremacy of the Constitution and challenges in establishing a
constitutional protection mechanism in Vietnam.

2.

On the implementation of the principle of limiting human rights under Clause 2, Article
14 of the 2013 Constitution.

3.

On the dynamics between the Constitution, the law and Party leadership

IV. ConclusionI.

The 2013 Constitution and its supremacy“The supremacy of the Constitution” can be understood as the accrediattion of theConstitution’s ultimate value within the legal system in a theoretical sense, and the absoluteadherence to the Constitution in the political landscape, state operations and social life. The“supremacy” in question means that as far as the political system is concerned, no institutions shallbe prioritized over the Constitution, whether expressly or impliedly.
Compared to the previous versions of the Constitution, the 2013 Constitution has included
provisions that reflected the maturity in common preconceptions about the supremacy of theconstitution. That is expressed through provisions on the effect of the constitution, protection of theconstitution and the due process for amendment and supplement of the constitution.
1.

On the supremacy of the Constitution

The first two constitutions of Vietnam – the 1946 Constitution and the 1959 Constitution – haveno assertions for the highest-priority status of the constitution. It was only until 1980 that theConstitution first claimed its supremacy in effect in the following terms:“The Constitution of the Socialist Republic of Vietnam is the fundamental law of the state,bearing in it effect of the highest order.
All other legal provisions must adhere itself to the Constitution.” 2This provision was carried over to the 1992 Constitution (amended in 2001). 3 Within the
Vietnamese legal system, only the Constitution may be referred as the fundamental law, which

2
3

Article 146, the 1980 Constitution.
Article 146, the 1992 Constitution (as amended in 2001).

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intends to emphasize that Constitution shall provide the foundation for the entire legal system andalso serve as the highest law. Consequently, all legal documents must be in adherence to theConstitution.
The 2013 Constitution has carried on this sentiment that began in 1980 and 1992. However, its
development has surpassed the precursors. Article 119 of the 2013 Constitution stipulates:“1. The Constitution is the fundamental law of the Socialist Republic of Vietnam, bearing
in its effect of the highest order.
All other legal provisions must adhere itself to the Constitution”.

While the 1980 and 1992 Constitutions still regarded themselves as the fundamental law of theState, the 2013 Constitution has now assigned itself the fundamental law of the Country – theSocialist Republic of Vietnam. This is a minor difference in the wording, but it expresses a significant
leap in perception. “Country” is an entity that consists of three components: borders, populations,and a state with a legal system to rule over the its land and populations. Meanwhile, “State” refers
only to the governmental system as part of “Country”. When something asserts its representation of“the Socialist Republic of Vietnam”, it represents the highest regarded virtues to the entire country.
In other words, the constitution has now been transformed from the law that establishes state structure
to the law that protect the society by prescribing the highest values of the country by which stateorgans must abide. Vietnam The constitution certainly bears values more supreme than the will ofstate organs.
2.

On the protection of the constitution

Protection of the Constitution is an essential issue to its supremacy in effect. If all
unconstitutional violations are not defined and not applied and countered with appropriate measures,the offender will be free from all sanctions. As a result, there would be no meaning for the existenceof the constitution. No matter how the constitution asserts its fundamentality and supreme legal status,
all contents do not have any substance. Theories on constitutionalism always hold in highly
developed countries with strong constitution protection mechanisms. For example, Germany has“Bundesverfassungsgericht”, which means “the Federal Constitutional Court”, and France has“Conseil Constitutionnel” – “the Constitutional Council” - which has recently obtained similarcapacities to the German Bundesverfassungsgericht. It is obvious that without a proper constitution
protection mechanism, the supremacy of the Constitution cannot be truly upheld.
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In the constitutional history of Vietnam, the emergence of the Constitution did not coincide withthe requirement to preserve it. The 1946 Constitution did not have a rule for constitutional protection.
The 1959 Constitution did not mention constitutional protection either, though there was a rule that
stipulated the capacity to indict for unconstitutional laws. Accordingly, the National AssemblyStanding Committee reserved the power to “amend or annul all decrees, resolutions, and directives
that are not adherent to the Constitution as well as laws and ordinances" 4. There were only restrictions
on unconstitutional documents ratified by the Governmental Council, and nothing on
unconstitutional documents ratified by higher institutions like the National Assembly Standing
Committee, the President, and the National Assembly itself. The 1980 Constitution made no
substantive changes to the 1959 Constitution in this regard. Therefore, it was the State Council 5 that
had the power to “suspend, amend or annul all resolutions, decrees, decisions of the Minister Council
that are not adherent to the Constitution as well as laws and ordinances” 6. Eventually, in the 1992
Constitution (amended in 2001), the power to contend with unconstitutional documents wasconsiderably expanded. Except for documents ratified by the National Assembly, all unconstitutional
documents from all government institutions may be subject to suspension or annulment. The power
to annul unconstitutional documents adopted by the President, the National Assembly Standing
Committee, the Government, the People’s Supreme Court, and the People’s Supreme Procuracy
belonged to the National Assembly. 7 The National Assembly Standing Committee reserved thepower to suspend such documents and recommend them to the National Assembly for annulment.
On the other hand, the power to annul unconstitutional documents of the provincial People’s
Committee was reserved by the National Assembly Standing Committee. The power to suspend or
annul documents ratified by a Minister, other members of the government, decisions and directivesof the provincial People’s Committee and its Chairman was reserved by the Government. 8 Even
though the scope of subject documents was expanded, the 1992 Constitution (amended in 2001) did
not address constitutional protection directly.
In the 2013 Constitution, all provisions regarding the annulment authority and the range ofinstitutions subject to document annulment have been inherited entirely from the 1992 Constitution(amended in 2001). 9 Additionally, the 2013 Constitution has also provided new stipulations for the

Clause 7, Article 53, the 1959 Constitution.
This body is an equivalent of the National Assembly Standing Committee which emerges in the 2013 Constitution of Vietnam.
6
Clause 8, Article 100, the 1980 Constitution.
7
Clause 9, Article 84, the 1992 Constitution (amended in 2001).
8
Clause 4 and Clause 5, Article 114, the 1992 Constitution (amended in 2001).
9
Clause 10, Article 70; Clause 4 and Clause 7, Article 74; Clause 4, Article 98, the 2013 Constitution.
4
5

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protection of the supremacy of the Constitution.
First, the 2013 Constitution was drafted with meticulous emphasis on legislative technique. All
articles have been presented in precise legal writing. Therefore, their legality is more pronounced
compared to the previous constitutions. Provisions on human rights, fundamental citizen rights are a
few of the most notable examples. Whereas the 1992 Constitution (amended in 2001) only states ingeneral that “rights and duties of citizens are determined by the Constitution and laws”, the 2013
Constitution stipulates that “human rights, citizen rights shall only be restricted under the provisionsof legislations in cases of national security, social order, social ethics and welfare of thecommunity.” 10 Whereas the 1992 Constitution (amended in 2001) only states in general that “allcitizens are equal in the application of the law”, the 2013 Constitution supplements it by stipulating“no one shall be discriminated by their political, civil, economic, cultural and social positions” 11.
Furthermore, whereas the 1992 Constitution (amended in 2001) stipulates: “Citizens are free to
conduct business in accordance with the law”, the 2013 Constitution supplements by stipulating:“Everyone is free to conduct businesses that were not expressly prohibited by the law”. 12
The above provisions of the 2013 Constitution clearly present significant improvements inlegality compared to the 1992 Constitution (amended in 2001). The entire structure and legal wordingof the 2013 Constitution underscore its gradual emancipation from its preconceived form of apolitical/legal manifestation, as was seen in the 1980 and 1992 Constitutions. It gradually becomesa zeitgeist legal document. It is clear how relevant parties in legal interactions established by theConstitution shall calibrate their behavior. Under constitutional rules of such pronounced legislative
characteristics, unconstitutional behaviors can now be identified more easily, which results in agreater need for the constitutional protection.
Second, the establishment of the 2013 Constitution marks the first time in the constitutional
history of Vietnam to explicitly monitor the problem of the constitutional protection and supporting
mechanisms. According to the definition, constitutional protection means to contend and apply
sanctions to all unconstitutional actions, regardless of the offender being any governmental
institution. This is a key definition to preserve the supremacy of the constitution. In accordance withthis sentiment, Clause 2 of Article 119 stipulates: “The National Assembly and its subordinate
institutions, the President, the Government, the People’s Supreme Court, the People’s Supreme
Procuracy, other institutions of the State, and the entire People bear the duty to protect the
Article 51, the 1992 Constitution (amended in 2001); Clause 2, Article 14, the 2013 Constitution.
Article 52, the 1992 Constitution (amended in 2001); Clause 2, Article 16, the 2013 Constitution.
12
Article 57, the 1992 Constitution (amended in 2001); Article 33, the 2013 Constitution.
10
11

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Constitution. Constitutional protection mechanisms shall be determined by the legislation.”
This provision in Clause 2 of Article 119 is still considerably vague in clarifying the
responsibilities of the constitutional protection. However, this provision has expressed three essential
increments in the common perception of the constitutional protection in Vietnam. First, it presents
the explicit imperative to protect the constitution. The term “constitutional protection” being firstmentioned in this Constitution shows the comprehensive sentiment toward this problem. Second, theresponsibility to protect the constitution is now pronounced. Even though this responsibility has not
yet been assigned to a specific body, the need for a protection mechanism is determined. Third, aprotection mechanism has been mentioned. Although Article 119 does not clearly stipulate it, there
must be dedicated institutions for constitutional protection, and there needs to be a proper process
for the prosecution of unconstitutional actions to be reviewed and determined publicly. The second
sentence of Clause 2, Article 119 can be considered as a vivid call upon the National Assembly tolegislate for constitutional protection. This is clearly a new and significant improvement on theconceptions and general thought on the supreme status of the constitution and the need to constructa constitutional protection mechanism in Vietnam.
3.

On the procedures of amendment and supplement of the constitution“The process of Constitution drafting has significant importance in legislation activity. A
constitution that is constructed by a certain procedure with democratic technology and science, when
all steps are carried out perfectly and subprocesses are logical and airtight, must be of high value.”
13

However, the process to create or amend a constitution does not only ensure the quality of theconstitution, but it also reflects the opinions on the power of constitutions in general. Because aconstitution is a fundamental law with an absolute effect of a country, it requires a procedure to create,
amend, and supplement that fully emphasizes such importance. Conversely, through the steps andprocedures in the legislative process, one can also assume the conceptions and opinions based on therespect a society of any country pays to its constitution. The more airtight the constitution drafting
process and the broader the public participation are, the higher the political credibility to the resulting
constitution is, and by association, the more pronounced the effort to uphold the supreme effect ofthat constitution shall be.
In the constitutional history of Vietnam, the first constitution enacted in 1946 stipulated theprocedure to amend the constitution. Firstly, the constitution amendment process shall only initiate

13

Lien, Hoang The, 2013 Constitution: New breakthroughs, Hanoi: Judicial Publishing House, 2015, page 285.

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when a single-majority of votes within the Parliament is in favor of the amendment; then the
Parliament shall vote to appoint a Constitutional amendment drafting committee. Finally, the changes
ratified by Parliament shall be affirmed by the general public 14 through a referendum. In practice,
due to the emergent situation regarding wars after the Constitution was ratified, this affirmation
process was never implemented.
The 1959 Constitution did not inherit the procedure of its predecessor. This constitution
stipulates in simplistic terms about the constitutional amendment with only two matters. First, only
the National Assembly may amend the Constitution; second, the amendment shall only be initiatedupon a single-majority of the vote among delegates of the National Assembly. 15 In the 1959
Constitution, there is neither stipulation on the procedure of the constitutional amendment, nor steps
nor designations to take. The 1980 Constitution and the 1992 Constitution (amended in 2001) inherit
both elements of the 1959 Constitution regarding the amendment. 16
Unlike the three previous constitutions, the 2013 Constitution stipulates in considerable detailthe process to enact and revise a constitution. The process shall be suggested only by either the
President, the National Assembly Standing Committee, the Government, or at least one-thirds of all
the National Assembly delegates. A two-thirds majority of the National Assembly is required toendorse the suggestion. Then, the revision process can begin officially by the National Assembly
establishing a Constitutional Drafting Committee. This committee shall be established based on therecommendations of the National Assembly Standing Committee. In the drafting process, thedrafting committee must organize polls for the People to express their opinions. Constitutionalchanges shall be adopted by at least two-third majority of the National Assembly. Constitutionalreferenda may be held should the National Assembly deem it necessary. 17
The participation of the people in the process of creating and amending the Constitution underthe 2013 Constitution is significant. This process requires the poll and the opinion review of thePeople as a prerequisite before a draft is presented to the National Assembly. 18 There are no specificrequirements for the level of participation. However, in the resolution of the Constitution, eachVietnamese individual and household must be afforded an opportunity to participate in the opinion
polling. The 2013 Constitution also stipulates the extent to which the People assert their role indeciding whether or not a Constitution draft would be ratified through a referendum. This is similar
Article 70, the 1946 Constitution.
Article 112, the 1959 Constitution.
16
Article 147, 1980 Constitution; Article 147, the 1992 Constitution (amended in 2001).
17
Article 120, the 2013 Constitution.
18
Clause 3, Article 120, the 2013 Constitution.
14
15

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to the affirmation vote as stated in the 1946 Constitution. However, the difference lies in this process
being optional and may only be initiated upon resolution of the National Assembly. 19
Therefore, in general, the process to create and amend the Constitution stipulated in the 2013
Constitution is thorough and airtight with detailed procedures. This reflects the consistency and thepriority of the Constitution. The participation of the population is mandatory, and in certain
circumstances, it provides the definitive impact upon the creation and amendment of such
constitution. Along with the removal of the exclusive power to enact a constitution of the National
Assembly by the 2013 Constitution as its precursor, the 2013 Constitution has attached itself more
firmly and fundamentally to the base power vested in the people. This element reinforces the politicalcredibility and priority status of the Constitution in a Constitutional Socialist Vietnam, especiallyregarding the dynamics between the institutions of the same political system.

II. The 2013 Constitution and the protection of human rights
Compared to the 1992 Constitution (amended in 2001), the 2013 Constitution has expressedmore clearly on the perception in Vietnam regarding the natural human rights. The 2013 Constitutionemphasizes the comprehensive approach to human rights as seen in Article 3 and Clause 1 of Article
14 of the 2013 Constitution which state that the Socialist Republic of Vietnam recognizes, enshrines,
and protects human rights. This shows that the State fully understands the dynamics between itself
and human rights as a principle. This sentiment was not clear enough in Article 50 of the 1992
Constitution (amended in 2001). In Chapter II of the 2013 Constitution, civil and political rights are
firstly mentioned instead of economical, cultural, and social rights as seen in the 1980 Constitution
and the 1992 Constitution.
For the respect for natural, comprehensive, and universal human rights, the 2013 Constitution
has also expressed a development in its conception of the dynamic between state agencies and humanrights in comparison with the 1992 Constitution (amended in 2001). Rather than being bodies that“grant” or “protect” human rights, state agencies are responsible for recognizing, respecting, andensuring the practice of human rights. The bound of state agencies to human rights is now highly
legislative. In other words, the 2013 Constitution now bars state agencies from being “arbitrary” inmatters concerning human rights. This is reflected by the following aspects.
First, Clause 2, Article 14 of the 2013 Constitution clearly stipulates a condition to limit rights,
19

Clause 4, Article 120, the 2013 Constitution.

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stating that "human rights and citizens' rights can only be restricted according to the provisions oflegislative acts". Though this regulation only places conditions on formality, it is highly normative.
In the current legal system of Vietnam, almost any state agency has the right to issue legal documents.
Previously, there was no provision in the Constitution that is similar to Clause 2, Article 14 of the2013 Constitution, which means that any legal document and accordingly almost every agency could
restrict human rights. The state, whether it is a central or local state administrative agency, canarbitrarily restrict human rights in a constitutional and legal manner. In accordance with theprovisions of Clause 2, Article 14 of the 2013 Constitution, all restrictions on human rights mustcomply with the law adopted by the Legislature, which means only in cases where the National
Assembly has foreseen in the law. Any legal document with a restrictive effect against human rightthat has not been specified or contemplated in a legislative act is considered unconstitutional. Any
restrictions on human rights, therefore, must be authorized or contemplated by the National
Assembly. Government agencies are no longer allowed to arbitrarily restrict human rights.
Second, many provisions in the 2013 Constitution on specific human rights, especially civil andpolitical rights, clearly state that any restrictions, including procedures for implementation or
assurance of implementation must comply with the provisions of the legislation. In the 1992
Constitution (amended and supplemented in 2001), common phrases are found in the provisions on
specific human rights that “citizens have rights… as prescribed by law” or “[infringement of rights
of citizens] must comply with the provisions of law”. For example, Article 71 of the 1992
Constitution (amended and supplemented in 2001) stipulates that “No one shall be arrested without
a decision of the People's Court, a decision or approval of the People's Procuracy, except for when
they are caught red-handed. The arrest and detention of people must be in accordance with the law”;
Article 73 states that “No one may enter another person's residence without his consent, except incases permitted by law; the search of residences, the opening, controlling and seizure of citizens'correspondence and telegrams must be conducted by competent persons in accordance with the law".
If the above provisions are exercised by promulgating legal documents, state agencies could infringeon human rights and that would still be considered completely constitutional. It would only take awritten decision or a normative document adopted by an administrative agency to conduct aninfringement of human rights which is still considered "lawful” or” permitted by law” or “as requiredby law”.
In the 2013 Constitution, such arbitrary terms have been eliminated by the provision that“human rights, citizen rights may only be restricted by the legislation”. Arrests are redefined asfollows: “No one shall be arrested without a decision of the People's Court, or a decision or an123

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approval of the People's Procuracy, except in the case of a criminal being caught red-handed. The
arrest, detention and imprisonment of people are prescribed by legislation.” 20 Intentional entry intoanother's residence is regulated as follows: "The search of a residence is prescribed by legislation." 21
The opening and seizure of letters and telephones are regulated as follows: “No one may open,
control or seize correspondence, telephones, telegrams, and other forms of private informationexchanges of other people, unless it is allowed by legislation." 22 This adjustment in the way ofregulating human rights in the 2013 Constitution adds constitutional value to human rights andsignificantly limits the arbitrariness of state agencies when dealing with issues of human rights. As
affirmed by key members of the 1992 Constitutional Amendment Committee, “this represents
progressive thinking in acknowledging the possibility of the direct application of constitutional
norms, and, at the same time, noting the binding force on the State to take responsibility for theprotection and the assurance of human rights.” 23 This remark is reasonable because if a government’s
decree has limiting effect over a fundamental right without a manifest permission in a legislative act,such decree shall be in direct violation to the Constitution and Article 14, Clause 1 of the 2013
Constitution can be applied to annul the decree. On the other hand, if a legislative act bears provisions
that have limiting effect over a fundamental right and the limitation is not based on the interest ofnational security nor public morality, health, order or safety, the same constitutional provision may
be applied to hold such legislative act unconstitutional.
Third, even though the phrase "according to the law" is still used in some provisions on humanrights in the 2013 Constitution, the discretion of state agencies regarding human rights is limited
compared to the 1992 Constitution (amended in 2001). For instance, Article 23 of the 2013
Constitution stipulates the right to freedom of movement as follows: “Citizens have the right to freely
move and reside in the country, have the right to go abroad and return home from abroad. The
exercise of these rights is prescribed by the law.” 24 Similarly Article 25 regulates that citizens havethe right to freedoms of speech, the press, access to information, assembly, association anddemonstration. The exercise of these rights is prescribed by law.” 25 On the other hand, the 1992
Constitution (amended and supplemented in 2001) stipulated the right to freedom of movement as

Clause 2, Article 20, the 2013 Constitution.
Clause 3, Article 22, the 2013 Constitution.
22
Clause 2, Article 21, the 2013 Constitution.
23
Hung, Sinh Nguyen et al., Constitution of the Socialist Republic of Vietnam in 2013 and legislative achievements during the 13th
National Assembly term. pg.102.
24
Author extra in italics.
25
Author extra in italics.
20
21

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follows: “Citizens have the right to freely move and reside in the country, have the right to go abroad
and return from abroad in accordance with the provisions of the law” 26. The freedom of speech, thepress, assembly, etc. were defined as follows: “Citizens have the right to freedom of speech andfreedom of the press; have the right to be informed; have the right to hold meetings, to form
associations, and to demonstrate in accordance with the provisions of the law.” 27Thus, if it is stipulated that citizens have certain rights (freedom of movement, freedom ofspeech, freedom of the press, etc.) "in accordance with the provisions of the law" as the 1992
Constitution (amended and supplemented in 2001) means, it implies that the entire scope as well asprocedures and limitations are decided by state authorities, including the National Assembly as wellas the government and the governmental agencies, when promulgating legal normative documents.
In the 2013 Constitution, it is recognized that people have those rights first and then specificallystates that "the exercise of these rights is prescribed by law", which means that the law, including
administrative regulations, only provides on procedures for people to exercise the human rights
recognized by the Constitution. Combined with the provisions on restriction of rights in Clause 2,
Article 14 makes it clear once more that all restrictions on rights must be stipulated or envisaged bylegislation, which means, authorized by the National Assembly. Other state agencies, by their own
promulgated legal documents, may prescribe only the manner and procedures for exercising theirrights and must not violate the limitations set forth by the legislation.
The provisions on human rights of the 2013 Constitution not only bring about truly progressive
and universal values of mankind, but also serve as a tool to restrict the arbitrariness of state agencies
for the purpose of ensuring human rights. This clearly demonstrates the improvements in the spirit
and ideology of the socialist rule of law that Article 2 of the 2013 Constitution has recognized.

III. Challenges against the supremacy of the 2013 Constitution
1.

Preserving the supremacy of the Constitution and challenges in establishing a
constitutional protection mechanism in Vietnam.

Constitutional protection is difficult because the constitution, as the fundamental law, regulates
the organization and sets the standard for the operation of the nation's highest state organs from the
National Assembly as the highest state power, to the President as the Head of State, to the26
27

Article 68, the 1992 Constitution (amended in 2001). (Author extra in italics)
Article 69, the 1992 Constitution (amended in 2001).

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Government as the highest state administrative agency and to the Supreme People's Court as thehighest judicial body. The actors who violate the constitution can be powerful authorities at both
central or local levels, making constitutional protection even more difficult to be done. Yet, the issue
is important for the guarantee of constitutional supremacy in practice.
To protect the constitution, countries must build a strong constitutional protection mechanism.
Without a constitutional protection mechanism, there will be no way to prevent or deal withunconstitutional activities conducted by powerful state agencies. In the course of making the 2013
Constitution, the drafters were already aware of the need for a specialized constitutional protection
agency. In fact, the 2013 Draft of the New Constitution, which was published for public consultationin January 2013, included the Constitutional Council as the constitutional protection institution,
along with two other constitutional bodies, the National Election Council and the State Audit. 28
However, at the final stage of the National Assembly session for approval, the Constitutional Council
was removed from the draft. Instead, the 2013 Constitution stipulates that there should be aconstitutional protection mechanism specified by legislation. This shows that the construction of aconstitutional protection mechanism in Vietnam still faces many obstacles, and it is still not readyfor the 2013 Constitution to recognize the presence of a constitutional protection agency as anindependent constitutional body. Until now, 10 years after the 2013 Constitution took effect, theNational Assembly has still not been able to make a law specifically providing for an independent,
effective and efficient constitutional protection mechanism.
Based on the criteria for building a constitutional protection mechanism, we can see that thedifficulty of establishing a constitutional protection agency in Vietnam comes from the particularityof the principle for the allocation of state power. According to the Party's principle, the model for
protecting the constitution must be "suitable to the political system and specific situation of ourcountry". 29 Regarding the organizational and operational characteristics of the Vietnamese state
apparatus, the socialist state apparatus model attaches great importance to two fundamental
principles: the people's sovereignty and the unity of power. Accordingly, the National Assembly, as
the highest representative body, is determined to be the agency with the highest position of power inthe state apparatus. There is no intention or vision of any other agency more powerful than the
National Assembly. Even when the 2013 Constitution was adopted with an emphasis on the necessity
Chapter X, the Draft of the New Constitution published for public consultation in January 2013. The Constitutional Council is
stipulated in Article 120.
29
According to the conclusion of the 5th plenum of the XI Central Committee (quoted in Report No. 287/BC-UBDTSĐHP on the
explanation, reception and revision of the 1992 Constitution Draft on the basis of the people's opinions of the Drafting Committee forAmendments).
28

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of controlling state powers, 30 yet no mechanism has been foreseen for the control over legislative
power. This is the main reason leading to the difficulties in building the constitutional protection
mechanism in Vietnam. Because while the National Assembly is certainly a potential subject ofconstitutional control, no willingness or intention of such constitutional control institution has been
made available.
2.

On the implementation of the principle of limiting human rights under Clause 2,
Article 14 of the 2013 Constitution.

The advantages of setting the principle of restriction of rights in the 2013 Constitution havebeen mentioned above. However, the implementation of this principle is also a big challenge. The
first difficulty comes from the vague interpretation of the principle's content, which leads toconfusion in the implementation process.
Clause 2, Article 14 of the 2013 Constitution reads as follows:“Human rights and citizens' rights can only be restricted according to the provisions oflegislation in cases of necessity due to reasons concerning national defense, national security,
public safety, public morality, public health.”

Currently, the common interpretation of the provision is that any restriction of rights can only
be made when such restrictions have been contemplated by a legislative act of the National Assembly.
This means that the National Assembly must “foreshadow” or “pre-approve” such restrictions. For
instance, the law that the National Assembly prescribes on the limitation of rights will set theframework for the restriction. In other words, the establishment of a law will establish the principleof restriction; it is to limit the content of the restriction; it is to identify the subject with limited
authority. The Government, ministries, or local authorities rely on the issuance of regulatory
documents. A criminal offense under the law may restrict a right [mostly stipulating how the
restriction of a right is to be exercised] but must “follow” the framework provided by the law.
However, authorities and researchers hold different views on the explanation of this principle inpractice.
The first group of views proposes that the phrase "restriction as prescribed by legislation" means“restriction as prescribed by law”, which can be understood as any form of restriction of rights could

30

Clause 3, Article 2, the 2013 Constitution.

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be provided by and specified in legislative acts or governmental regulations. In other words, humanrights can be effectively restricted by any form of law. 31
The second group of views deems that any restriction of rights must be prescribed clearly instatutory laws adopted by the National Assembly. In other words, the National Assembly, must not
only allow for any restriction of human rights but also determine, via its legislation, the scope anddetails of such restriction. Government and governmental agencies can issues legal regulations but
their regulations must not include provisions that have the effect of limiting rights. 32
The third group of views holds that "restriction as prescribed by legislation" means the
restriction of the rights specified in the law or legal documents of state agencies authorized by the
National Assembly. 33 Based on this view, apart from the National Assembly, state agencies
authorized by the National Assembly to legislate in specific fields will be able to proactively regulate
the issue of limitation of rights in the fields of their mandate. However, this understanding partiallydoes not meet the spirit of the 2013 Constitution for setting out the principle of limiting rights tocontrol the restriction of the rights of state agencies, because Vietnam still lacks legal provisions toensure the control over legislative authorization activities. For example, there is no regulation on the
responsibility of the National Assembly for the inspection and supervision of documents. Though
regulations are promulgated on the basis of legislative mandate, there is no clear regulation on thetime limit for legislative authorization.
Although the application of this principle in the understanding of the third point of view is
prominent, it has not really eliminated the other two views. The ambiguity in the understanding andapplication of the principle of limitation of rights in Clause 2, Article 14 of the 2013 Constitution
above shows an urgent need for an official explanation from the body competent to interpret theconstitution. Otherwise, it will lead to arbitrary application of this principle.
The next difficulty posed in the implementation of the principle of restriction of rights is thedetermination of conditions for restricting rights: "in case of necessity for reasons of national defense,
national security, social order and safety, social ethics, and public health". How to ensure that theDat, Bui Tien, “The Principle on Limitation of Human Rights: Meaning, the Need for Interpretation and Application”, Legislative
Research Journal, no 19 (August 2017): 13-20.
32
Tuan, Dang Minh, “Issues That are Untouched by the Draft Amended Constitution”, Legislative Research Journal, no 5 (March2013): 54-63; Nghi, Pham Huu, “The Issue Concerning Restriction of Human Rights in International Law, National Constitutions andthe 2013 Constitution of Vietnam”, Vietnam Journal of Human Rights Law, no. 1, 2018: 39-28.
33
Quang, Truong Hong, “The Need to Explain the 2013 Constitution's Restrictions on Human Rights and Civil Rights", Journal of
the State and Law, no. 3 (March 2018): 3 – 13; Hoa, To Van, "The Thought of Limiting Human Rights and the Principle of Limiting
Constitutional Fundamental Rights under the 2013 Constitution the 2013 Constitution", Jurisprudence Journal, no. 8 (August 2018):
28-42.
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provisions restricting that right have met the conditions set forth by the Constitution? How to assessthe “necessity” to restrict rights in those five areas? Practices show that the determination of meeting
constitutional conditions is completely based on the subjective will of legislators, in case there areindividuals and organizations that think that the regulation on limiting certain rights is unnecessary.
Is it extremely difficult to solve? In many countries, the role of the Court in the control of limited
rights is very important. Through its adjudication function, the Court can assess whether theprovisions restricting rights are really necessary, appropriate, and proportionate to the purpose of therestriction. But in Vietnam, the Court has not yet fully promoted its position in the matter ofconsidering the constitutionality of a law in general and the issue of limited rights in particular. On
the other hand, according to current legal regulations, the scope of lawsuits to court does not include
suing legal documents, even if the Court during the adjudication process detects legal documents
showing signs of contravention of the law. Based on the Constitution, the Court can only recommend
competent state agencies to consider amending and supplementing such legal documents and request
agencies to respond to the Court on the results of handling of such legal documents. The Court settle
the case on the basis of giving recommendations in accordance with law” 34. Those provisions are notenough for the Court to control whether the restriction of the rights of state agencies is really inaccordance with the necessary conditions in one of the five cases set out by the Constitution. On theother hand, the lack of a constitutional protection mechanism as mentioned in the first challenge isalso the reason why it is difficult for Vietnam to assess whether the process of implementing theprinciple for limiting the rights of state agencies has been consistent with the spirit of the 2013
Constitution or not.
3.

On the dynamics between the Constitution, the law and Party leadership

A society under the rule of law is a society in which all organizations and individuals, in any
respect, must respect and comply with the common standards of society, which are usually definedin the constitution. Political parties, the state, social organizations and the people need to be deeply
aware of the supremacy of the constitution and law to ensure the appropriateness in the process of
exercising their power. The rule of law creates a principled order in the arrangement of power
positions of the political party, the state and the people, expressed through the relationship between
the constitution, the law, and the leading role of the political party.
The rule of law society derives from the ideal that social power within a country belongs to the34

Clause 7, Article 2, the Law on Organization of People's Courts 2014.

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people. The people are the subject with the highest power in deciding the issues of society. The
instrument for the people to protect their supreme power is the constitution. Next, the political party,
especially the ruling party, is the subject that has the role of leading the country’s development. In
the rule of law state, the ruling party can only do this through holding state power [a legitimate stateestablished on the basis of a constitution and empowered by the people]. Thus, the relationshipbetween the state, the ruling party and the people in the exercise of power is quite complicated and
it is difficult to distinguish whether the domination of the party or the people is decisive for the
exercise of power of the state.
We can see this issue more clearly in the practice of exercising the legislative power - "aparticularly important power of a society" 35 . In this regard, the state is the official subject withlegislative power, but the ruling party governs legislative activities through party members who aremembers of the parliament and the government. They will be expressed and supported by MPs for
adoption. On the other hand, the legislative power will be controlled by the people to ensure that theenacted laws protect people's lives because the people are the subjects of establishing the state by
voting and the functions of the state government. Fundamentally, the state is for the people. So, whowill have the ultimate decision on the content of a law? In a society under the rule of law, the rulingparty can dominate and direct the parliamentary and parliamentary activities through the role ofpoliticians holding state positions. The quality of a law is assessed based on its ability to meet theneeds of the people. Ensuring this is first and foremost that laws must be constitutional. Even if a
law is supported by politicians, if it is contrary to the constitution, i.e. it goes against the generalspirit of the social contract, it must be amended or repealed. Thus, constitutional control in legislative
activities is very important and must be ensured.
As analyzed in terms of the 2013 Constitution and the rule of law, in the spirit of upholding therule of law, the 2013 Constitution partly identified the role of the ruling party, the state, and thepeople in the exercise of power. However, Vietnam's legal and political tradition has not entirely
ensured that principled order. The influence of the Party during the struggle for national liberationand in the period of national construction and development has built up the people's deep trust in the
Party's leadership, creating the concept of the supremacy of the Party to decide on state and social
issues. This is clearly reflected in the Constitution of Vietnam. Both the 1980 Constitution and the2013 Constitution affirm the leadership of the Communist Party in state and society by a specific
Giang, To and Cuong Nguyen Van, “The Ruling Party Through Legislative, Executive and Judicial Power in Vietnam”, Vietnam
Lawyers Association, Dec 13, 2022, http://hoiluatgiavn.org.vn:8080/dang-cam-quyen-thong-qua-quyen--lap-phap-hanh-phap-va-tuphap-o-viet-nam-d2552.html.
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provision in the constitution. Since then, the activities of the state and society are practically under
the leadership of the Party. In view of the implementation of the 2013 Constitution, the concept of
the Party’s ultimate decision is a challenge for ensuring constitutional supremacy.
Returning to the exercise of the legislative power to prove this statement. Just like in othermodern countries, the ruling party governs the activities of the state, especially the legislative ones.
In Vietnam, this dominance has more pronounced manifestations. Not only the role of the National
Assembly deputies as Party members to participate in the legislative process, but the drafting of bills
is also often directed by the competent committee. The opinions of the committees determine thedirection of the bill, even the specific content of the bill 36. If it is approved by the Party Committee
or with bills related to important issues, which may be the consensus of the Politburo or the Central
Committee of the Party, that will be the basis for deciding the bill to be approved by Parliament.
Meanwhile, the review of constitutionality is not an independent stage. It may arise at the stage ofapplication of the law, which has been accompanied by the examination and appraisal of the bill. The
concept of the Party's supreme decision-making has created the attaching importance to theconformity with the Party's guidelines, when bills are considered for approval, and it has led to therestriction of constitutional activities in Vietnam. Thus, the tradition of operating political power in
Vietnam creates ambiguity in determining the position of power among the ruling Party, the State,
and the people. This entails the challenge of linking the People's power to the constitutional
protection.

V.

Conclusion

The conception of the 2013 Constitution marks an advancement in the thoughts on
constitutionalism in Vietnam. Compared to previous constitutions, components of constitutionalism
are more clearly manifested, at least from the wording of the new constitutional provisions. The
2013 Constitution has more comprehensively affirmed the constitutional supremacy and initiallyaffirmed that a constitutional protection mechanism needs to be built. Not only that, the 2013
Constitution placed the Party, State together with the people in the spirit of respecting the law andfurther strengthened the sense of protection of human rights and basic rights of citizens in modern

Giang, To, Cuong Nguyen Van, “The ruling party through legislative, executive and judicial power in Vietnam”,
http://hoiluatgiavn.org.vn:8080/dang-cam-quyen-thong-qua-quyen--lap-phap-hanh-phap-va-tu-phap-o-viet-nam-d2552.html.
Accessed on 22/10/2021.
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society. Although the advantages of the 2013 Constitution on the idea of the rule of law have beenrecognized, they are accompanied by considerable challenges in the implementation of theConstitution. The lack of a specific constitutional protection mechanism and legal-politicaltraditions makes the awareness of constitutional issues not raised. The problem of constitutionalism
in Vietnam is not about what are stipulated in the constitution but how to address theses issues fully
and properly so that constitutional values really thrive in practice.

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