Adoption of the Constitutional Council
towards the Rule of Law State and Democratization in Vietnam【Special Features：The Role of Constitutional Review Bodies in the Asian Post- Authoritarian
Democratization Process. A Comparative Perspective】

Adoption of the Constitutional Council
towards the Rule of Law State and Democratization in Vietnam
PHAN Thi Lan Huong*

Abstract
Since the introduction of the Doi Moi in 1986 for transferring from centrally-planned economy
to the open market with socialist orientation, Vietnam has made a significant effort in building
comprehensive legal framework to promote socio-economic development as well as moving
towards rule of law state and democratic society. However, the low quality of the current legal
system presents a key obstacle to Vietnam’s achievement of its development targets. The
Vietnamese legal system faces many problems such as statutory contradictions and inconsistency
which raise serious challenges in implementing legislative reforms. Under the current system, only
the National Assembly holds the power to review the constitutionality of acts issued by thecompetent agencies. The Supreme Court can only recommend to competent agencies to review laws
and regulations in the course of administrative case settlements. The Ministry of Justice holds theauthority to review regulations issued by other state authorities of ministerial and lower level. For
example, there were 5639 illegal documents issued by ministerial agencies and local governments
at provincial level in 2017 as reported by the Ministry of Justice. There still remains no mechanism
allowing individuals or organizations to request for constitutional review when legal documents areunconstitutional or illegal and violating individual rights. During the process of drafting theConstitution 2013, legislative members and researchers in Vietnam raised concerns about adopting
the Constitutional Council as a specialized model for constitutional review; however, theConstitutional Council has not been established yet under the 2013 Constitution of Vietnam.
Consequently, human rights cannot be protected effectively due to the lack of an adequate andspecialized institution for constitutional review. The question remains: does Vietnam need toestablish the Constitutional Council as a critical instrument of rule of law and democracy? Studying
foreign experience in creating specialized institutions for constitutional review is essential for
Vietnam. This paper will examine current issues of constitutional review for human rights protection*

Lecturer, Hanoi Law University.

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and the need for establishing the Constitutional Council in order to implement the rule of law andcreate a truly democratic society in Vietnam.

Contents
I.

Introduction

II. Current mechanism of constitutional review in Vietnam
III. Vietnam’s approach to the adoption of a Constitutional Council
IV. Conclusion

I. Introduction
Since the establishment of the Democratic Republic of Vietnam in 1945, it has
promulgated several constitutions including the 1946, 1959, 1980, 1992 and 2013
constitutions. The 1946 and 1959 constitutions were promulgated during the period of
Resistance War Against America. After unification in 1975 and establishing the socialist
state, Vietnam enacted the 1980 Constitution which introduced a mono-party system basedon democratic centralism, centrally-planned economy and socialist legality principle.
Notably, most of the concepts, including laws appeared as the Soviet transplants. Since the
Doi Moi reforms in 1986, which is a Vietnamese prototype of the Soviet perestroika, the1992 Constitution introduced free market economy with socialist orientation. The 1992
Constitution was amended in 2001 and 2013. The most significant constitutional challenges
appeared in 2013. Particularly, a possibility to establish the Constitutional Council came out
as the issue that most sparked an interest of domestic and international scholars.
In general, development of constitutionalism in Vietnam can be divided into three
periods: constitution under the French and American war periods, including 1946 and 1954
constitutions; post-unification constitutionalism (1980 Constitution); and constitutionalism
under transformation period from central-planned economy to opened market with socialist
orientation (1992 Constitution). This article will explore the development of54

Adoption of the Constitutional Council
towards the Rule of Law State and Democratization in Vietnam

constitutionalism in post-unification of Vietnam as a representative of the modern andfundamental legal ideologies of contemporary Vietnam.
The 1980 Constitution drew upon the constitution of the former Soviet Union sinceVietnam heavily relied on the support of the Soviet Union during the American war and after
its unification in 1975. During and after the American war, a number of Vietnamese scholars
went to the former Soviet Union to study law; and their legal ideologies were almost certainly
influenced by socialist law. Consequently, legal system of Vietnam generally followed thelegal ideology of the socialist country. In other words, the legal system of Vietnam hadfeatures of socialist law transplanted from the former Soviet Union.1 The 1980 Constitution
adopted the Soviet political ideology through three principles including: socialist-legality,
democratic-centralism, and the collective-mastery. 2 The central government played adominant role in decision making while local governments functioned as subordinate organsof the central government. The central government made important decisions related toeconomic development through a system of state-owned enterprises (SOEs). “Vietnam used
to be a closed socialist country with a command economy”.3
Due to the collapse of the former Soviet Union, the Communist Party had to find a new
strategic development for Vietnam by introducing Doi Moi Policy (Renovation policy). Doi
Moi was a turning point for reforming political policy and legal system of Vietnam. Vietnam
needs to reform its legal system to respond to the changes in the country’s economic
development. Consequently, the 1992 Constitution replaced the 1980 Constitution with arenewed focus on socialist oriented open market economy.
“The 1992 constitution represents a step forward in Vietnam's constitutional history, it isaimed at strengthening state management of society through the rule of law, building

1 Ngoc Son Bui, “Law of China and Vietnam in Comparative Law,” Forham International Law Journal 41, no. 1,

accessed May 6, 2019, https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2688&context=ilj.
2 Hualing Fu et al., Socialist Law in Socialist East Asia (Cambridge University Press, 2018), 16.
3Gail Fay, Economies Around the World (Raintree, 2012), 30.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)socialist democracy and enhancing socialist legality, so that the superstructure can wellenhance its role in paving the way and accelerating socio-economic development.”4
Notably, during the time of amendment of the 1980 Constitution, there was strong
advocacy for the separation of powers model which upheld the principle of separation of
powers and checks and balances principles for organization and operation of state bodies andwas popular in other countries; however, the Communist Party and central government
resolved to follow the democratic-centralism.
Vietnam has entered into transactional period from central planned economy to the open
market economy under socialist-oriented market economy since 1986. By doing so, Vietnam
has developed a legal system reflective of various aspects of its society. 5 For example,
regarding economic aspects, collective ownership has played a dominant role in economic
development. However, an open market economy requires the recognition of businessfreedom and private ownership. Together with state owned enterprises, the private sector
and foreign investment are guaranteed by the 1992 Constitution. For example, the 1992
Constitution, Article 25 confirms the full protection of foreign investment throughguaranteeing the right to lawful ownership of funds, property and other interests of foreignorganizations and individuals.
However, institutional regulations only contained some minor changes under the 1992
Constitution. The main features of the socialist legal model have remained. One was thedemocratic-centralism principle for organization and operation of state bodies. For example,
the National Assembly (legislative organ) is the highest organ of state power while theexecutive and judicial branches depend on the National Assembly as the subordinate organs.6
Vietnam does not have principles of separation of powers and checks and balances.
Vietnam has gained positive result in economic development since promulgation of the
1992 Constitution. However, there remained a need to amend the 1992 Constitution to better

4 David. G Marr et al., Vietnam and the Rule of Law: Proceedings of Vietnam Update Conference, November 1992

(Canberra: Australian National University, 1993), 91, http://catalog.hathitrust.org/api/volumes/oclc/29968358.html.
5 Bui, “Law of China and Vietnam in Comparative Law,” 159.
6

Marr et al., Vietnam and the Rule of Law, 52.

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adapt to the standards of globalization and integration. Vietnam revised the 1992
Constitution in 2001. Significantly, the amended Article 2of the Constitution in 2001 definedthat “the Socialist Republic of Vietnam State is a law-governed socialist State of the people,
by the people and for the people”. Hence, rule-by-law state principle requires to develop
comprehensive legal system to respond to the needs of managing the country by laws. Withinfour years from 1986 to 1990, the National Assembly passed 24 laws and 33 Decrees issued
by the State Council.7 Notably, there is different interpretation of the term law-governedsocialist State (Nhà nước pháp quyền xã hội chủ nghĩa) such as the rule of law or rule bylaw state. However, in the Vietnam’s context, rule of laws is explained as pollical party
using laws as instruments of political control; therefore Vietnam lacks inherent qualities ofrule of law state.8 Vietnam also amended the 1992 Constitution in 2013; those amendments
focused on the distribution of functions among the legislative, executive and judicial
branches under Article 2 (3) as follows: “The state power is unified and delegated to stateagencies which coordinate with and control one another in the exercise of the legislative,
executive and judicial powers.” According to this article, Vietnam maintains theconcentration of power principle in which executive and judicial branches are independent
organs and under the control of the National Assembly. Significantly, new concepts wereintroduced in the 2013 Constitution such as control [of] one another in exercise of thelegislative, executive and judicial powers and human rights are considered as a step to reachthe rule of law standards. However, the legal system of Vietnam still contains several issues
such as inconsistency, or fragmentation due to many state agencies holding law-making
powers. Decrees or circulars issued by executive organs have played a dominant role in thelegal system. In other words, substantive laws cannot be enforced without guidelines issued
by the executive organs. However, Vietnam lacks an independent mechanism forconstitutional review.
Notably, judicial review and constitutional review remain controversial issues inVietnam which must be studied continuously by Vietnamese scholars and law-makers.
7 Marr et al., 7.
8Bui, “Law of China and Vietnam in Comparative Law.”

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Hence, the question remains as to whether Vietnam needs to establish the Constitutional
Council as one element of rule of law state.
II. Current mechanism of constitutional review in Vietnam
To some extent, there is a need to distinguish the differences between judicial review andconstitutional review in the context of Vietnam. In general, judicial review differs fromcountry to country depending on a state’s political system. The judicial review refers to thecontrol of constitutionality of legislation promulgated by the Parliament. There are two
popular models of constitutional review applied around the world: the model applied by the
US and the model applied by European countries.9 In America, constitutional judicial review
refers to the power of the court to reviewing both public and private conduct in consistencewith the constitution. 10 All courts hold constitutional judicial review powers while theSupreme Court makes final decision whether any provision is inconsistent with the federal
constitution. In comparison, the European model of constitutional judicial review is a
specialized Constitutional Court. The Constitutional Court is an independent institution
which holds power to review constitutionality of legal norms.11 In France, constitutional
review is under jurisdiction of the Constitutional Council. The Constitutional Council
reviews the institutional laws before promulgation, or at the request of a competent person,
such as the President of Republic.12 Constitutional review can also be conducted by different
state organs. For each model of judicial review, jurisdiction of the reviewing agency differs
as follows:9
Albert H. Y. Chen, Hongyi Chen, and Andrew Harding, Constitutional Courts in Asia: A Comparative Perspective(Cambridge University Press, 2018), 2.
10

Theunis Roux, The Politico-Legal Dynamics of Judicia Review: A Comparative Analysis (Cambridge University Press,
2018), 15.
11

Chen, Chen, and Harding, Constitutional Courts in Asia, 3.

12 Constitution of France, Article 61, https://www.constituteproject.org/constitution/France_2008.pdf?lang=en

accessed on May 5, 2019.

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Adoption of the Constitutional Council
towards the Rule of Law State and Democratization in Vietnam“Whereas the Austrian model only provided for limited jurisdiction of certain
disputes, the German model introduced the device of the constitutional complaint,in which any individual could complain about the constitutionality of a statute or
government action, even without a specific case or controversy.”13
Unlike US and France, Vietnam has not yet established an independent model such as
the Constitutional Court/Council or the principle of constitutional judicial review. The
democratic-centralism principle ensures the concentration of state power. The National
Assembly is the highest organ of state; therefore, there is no institution that has control over
the National Assembly. Under the 1992 Constitution as well as the amended Constitution of2013, only the National Assembly and its Standing Committee hold the power to review theconstitutionality and legality of the legal documents including laws, ordinances, decrees, andcirculars issued by competent agencies. Notably, legality requires the conformance of legal
documents issued by different agencies. Under democratic centralism principle, Vietnam’s
legal system is a hierarchy requiring legal documents issued by lower agencies to correspondto legal documents issued by higher system which requires the legal documents issued by
the lower competent agencies to conform with the legal documents issued by the higher stateorgans. For example, a Ministry’s circular must comply with a Government’s decree as
ministry is under the control of Central Government.14 In other words, the top down modelof administrative system creates the hierarchy of legal system.
In brief, Vietnam does not have an independent mechanism for judicial review orconstitutional review. The National Assembly, as the highest state organ, holds powers toenact Constitution and Laws as well as to review constitutionality of these documents. The
National Assembly holds the power to review the constitutionality and legality of legal
documents issued by the organs at central level including Standing Committee of the
National Assembly, Government, Supreme People’s Court, Supreme People’s Procuracy,
13

Tom Ginsburg & Mila Versteeg, “Why Do Countries Adopt Constitutional Review?” University of Chicago Law
School, 2013, 6,
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5621&context=journal_articles.
14

Bui, “Law of China and Vietnam in Comparative Law,” 160.

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National Election Council, State Audit Office, and other agencies established by the National
Assembly;15 The Standing Committee of National Assembly also holds power to supervise
the implementation and to suspend the implementation of the legal documents issued by thecompetent organs at the Central and Provincial level in case of contradict to the Constitution
and Laws enacted by National Assembly.16
When a law or legal document is determined to be unconstitutional, only the National
Assembly can annul such a law or legal document based on the proposal of the Standing
Committee of the National Assembly. In addition, the Standing Committee has authority tosuspend or annul the legal documents issued by the executive branch. Significantly, the court
only reviews constitutionality and legality of legal documents issued by executive organs
when dealing with administrative disputes. For example, during process of handling an
administrative case, if a court finds that the legal ground for making administrative decision
is illegal or unconstitutional, then the court only can recommend to the competent agency to
examine, amend or suspend those legal documents.17 For example, Article 6 of the Law on
Administrative Court Proceeding provides that: during the time of settlement of an
administrative case, the court may recommend competent agencies and individuals to
examine, amend, supplement or annul legal documents when detecting that such documents
are contrary to the Constitution, laws or legal documents of superior state agencies.18
The Supreme People’s Court does not exercise constitutional judicial review power as
seen in the America model. In 1996, Vietnam established the administrative tribunal under
the People’s Court system, which reviews the legality of the administrative decisions or
actions which are unlawful and violate the rights/legitimate interests of citizens.19 In thiscontext, judicial review is quite narrow concept in comparison with other countries such as
the US and Japan. The court only reviews the legality of decisions or actions of the executive
15

National Assembly, Constitution of Vietnam, dated 28, November 2013, Article 70 (2).

16

National Assembly, Constitution of Vietnam, dated 28 November 2013, Article 74 (3&4).

17 National Assembly, Law on Administrative Lawsuit, Article 6.
18

National Assembly, Law on Administrative Lawsuit, No.95/2015/QH13, Article 6.

19 Nguyen Van Quang, “Grounds for Judicial Review of Administrative Action: An Analysis of Vietnam Administrative

Law,” Discussion Paper, Cale Discussion Paper (Nagoya Universi ty Center for Asian Legal Exchange, 2010), 9.

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organs. Hence, individual citizens have no access to an institution where they can request
constitutional. The judicial branch only holds power to recommend amendment, or
annulment of legal documents in the course of settlement of the administrative cases. For
example, Chief justices of district-level courts can only recommend amendment,
supplementation or annulment of legal documents of state agencies at the district level orlower level or report to chief justices of provincial-level courts for proposing the Chief
Justice of the Supreme People’s Court to recommend amendment, supplementation or
annulment of legal documents of central state agencies.20
Notably, the Law on Administrative Lawsuits 2015 created a new jurisdiction of thePeople’s Court at all levels in reviewing legal documents; however, the People’s Court isonly authorized to recommend amendments or annulments of illegal or unconstitutional legal
documents to competent agencies. Hence, the jurisdiction of the court in constitutional
review remains limited because it does not hold power to judge the legal document’s
constitutionality and legality. For example, when Da Nang People’s Council issued
Resolution No.23/2011, which limited the rights of citizens in resident registration, thepeople living in Da Nang province could not declare the decision unconstitutional as it was
not under jurisdiction of the Provincial People’s Court of Da Nang City. Nevertheless, thisresolution was ultimately determined to be unconstitutional by Ministry of Justice.21
Vietnam’s Ministry of Justice is authorized to review legal documents including law,decree, circular and decisions issued by the competent agencies as prescribed by the Law on
Promulgation of legal documents (Law on laws, 2015). In reviewing process, Ministry ofJustice in cooperation with relevant Ministries such as Ministry of Finance, Ministry ofHome Affairs to check the necessity of legal document, its consistency with Constitution,
Laws and related documents before submitting to competent organs for enactment.22

20 National Assembly, Law on Administrative Procedure (on settlement of administrative lawsuit), No.93/2013/QH13,

dated 25 November 2015, Article 112.
21 NLD.COM.VN, “Đà Nẵng hạn chế nhập cư là trái luật,” https://nld.com.vn, March 1, 2012,https://nld.com.vn/20120229112858818p0c1002/da-nang-han-che-nhap-cu-la-trai-luat.htm. accessed 8 May 2019. (Strict
citizen’s registration of Danang is illegal).
22

National Assembly, Law on Promulgation of Legal Document, No.80/2015/QH13, dated 22, June 2015, Article 39.

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Although Vietnam has not yet adopted the independent model of constitutional review,it has carried out constitutional review through its own distinct mechanism. 23 The
constitutional review is conducted during the drafting of legal documents and also after
promulgation by three organs including: Ministry of Justice (executive branch of the Central
Government); the Supreme People’s Court (judicial branch); and the Standing Committee of
the National Assembly (legislative branch). For example, in 2017, the legal documents
reviewed by the Ministry of Justice included 5639 illegal documents resulting from violationof jurisdictions, procedures, or general confliction with other laws;24 Still, this distinctive
mechanism is considered ineffective and inefficient.
It is undeniable that judicial review and constitutional review play important role inpromoting democratic values and controlling state powers. Although Vietnam aims to build
a rule of law state and a democratic society, it still lacks an independent mechanism for
implementing constitutional review. Rule of law is closely related to human rights anddemocracy, and the quality of rule of law depends on the economic and political conditionsof a country. Democratization is a process which requires a country to adopt rule of law
standards. However, the standards of rule of law are consistent with divergent of economic
systems.25 Vietnam is struggling to develop a comprehensive, consistent legal system. As aresult, the adoption of Constitutional Council for constitutional review has remained as acontroversial issue in process of amending Constitution since 1992.
III. Vietnam’s approach to the adoption of a Constitutional Council
Notably, it is essential to have a specialized institution for reviewing constitutionality
and legality of the legal documents. However, Vietnam has not yet focused on constitutional
review at the time of amendment of the 1980 Constitution. Adopting a Constitutional
23 “Cần Hay Không Hội Đồng Hiến Pháp?” accessed April 21, 2019,http://duthaoonline.quochoi.vn/DuThao/Lists/TT_TINLAPPHAP/View_Detail.aspx?ItemID=1009.
24 VCCorp.vn, “Hơn 5.600 văn bản trái pháp luật được ban hành trong 2017,” VnEconomy, August 9, 2018,

http://vneconomy.vn/news-20180809065123316.htm.
25 Randall P. Peerenboom, Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve

Asian Countries, France and the U.S. (Psychology Press, 2004).xviii.

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Council first appeared as a debate in the process of amending the 1992 constitution in 2001,
and again in 2013. The type of constitutional review model that is most suitable for Vietnam
remains at the center of the debate among politicians, legislators, and legal scholars. In his
discussion on possible establishment a Constitutional Court in Vietnam, Vu Van Cuong
argued that a law passed by the National Assembly must comply with Constitution and otherLaws, because there is no official institution with jurisdiction over the legislation’s legality.
However, there is a possibility of a law which is unconstitutional.26 He further argued that
Vietnam cannot establish a Constitutional Court, as it is simultaneously bound by two
principles that are not always interrelated: (1) the Constitution as the supreme body of law
and (2) the National Assembly as the highest organ of state. Therefore, adoption of
constitutional council is a possible solution for Vietnam.27
Constitutional review is a topic of both legal and political concern. In 2005, theResolution No.48-NQ/TW of the Politburo on the Strategy to Build and Perfect Vietnam’s
legal system by 2010 with orientation to 2020 raised the issue of renewing the constitutional
regime. A Constitutional Council was included in the draft amendment to the 1992
Constitution and has been actively discussed by lawmakers and legal professionals. The
majority of Vietnamese scholars agree that there is no possibility of adoption ofConstitutional Court or constitutional judicial review by the Supreme Court like othercountries which have the separation of powers and check and balances principles. However,Vietnam has also introduced the distribution of functions including legislative, executive,
and judicial functions. In principle, the National Assembly is the highest legislative organ,
and the government (executive branch), and Supreme Court (judicial branch) are under thecontrol of the National Assembly. No institution has the power to review laws enacted by
the National Assembly, as it is defined as the highest state organ. Hence, there is no
independent institution which can pass judgement on the National Assembly, making aConstitutional Council a suitable option for Vietnam. A Constitutional Council model should

26 “Cần Hay Không Hội Đồng Hiến Pháp?”27“Cần Hay Không Hội Đồng Hiến Pháp?”

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conform with the political conditions of Vietnam, as well as follow democratic-centralism
principle. Consequently, the Constitutional Council was adopted in the draft version of theamendment 1992 Constitution in 2013.28
During the process of collecting public comments on the amended draft, it became clearthat establishing a Constitutional Council was a highly contentious issue. In the draft for
public comments, Article 120 defines the Constitutional Council as an agency establishedby the National Assembly, consisting of the President, Vice President and Members. The
Constitutional Council shall have power to examines the constitutionality of legal documents
and to propose to the National Assembly to review constitutionality and legality of legal
documents.29
According to this article, the Constitutional Council would only hold the power toexamine the constitutionality of legal documents issued by competent agencies at the centrallevel. Therefore, Constitutional Council does not have jurisdiction to annul legislation
because it holds a lower position than the National Assembly. In other words, there remains
no institution with jurisdiction to annul laws promulgated by the National Assembly. Unlike
other countries’ models, such as France, the term of Constitutional Council members is notprescribed by the Constitution. Under the French Constitution, the members serve a term ofnine years with three members to be appointed by the President of Republic, three by the
President of the National Assembly, and three by the President of the Senate.30 The draft
includes only a general article on Constitutional Council, therefore there were comments
stating that the draft should include provisions on the terms of the members and subject torequest for constitutional review.31

28Bui Ngoc Son, “Tạp Chí Cộng Sản - Triển Vọng Của Hội Đồng Hiến Pháp ở Việt Nam,” accessed April 21, 2019,http://www.tapchicongsan.org.vn/Home/du-thao-sua-doi-nam-1992/2013/23845/Trien-vong-cua-Hoi-dong-Hien-phap-oViet-Nam.aspx.
29“Dự Thảo Hiến Pháp Sửa Đổi Năm 2013,” accessed April 21, 2019,http://chinhphu.vn/portal/page/portal/chinhphu/congdan/DuThaoVanBan?_piref135_27935_135_27927_27927.mode=det
ail&_piref135_27935_135_27927_27927.id=748.
30 Constitution of France, Article 56.
31

Bui Ngoc Son, “Tạp Chí Cộng Sản - Triển Vọng Của Hội Đồng Hiến Pháp ở Việt Nam.”

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Vietnam demonstrates the needs for adopting Constitutional Council as a new model for
implementing constitutional review. However, the amended 2013 Constitution draft did notinclude any provisions on the Constitution Council. In the course of legal reform, Vietnam
made effort to develop a comprehensive legal system for responding to the rule of law
principle and democratization.
The current constitutional review mechanism reveals many problems. First, the Ministryof Justice lacks the capacity to review all legal documents issued by the central government
and provincial level organs. Second, the People’s Supreme Court only reviews legal
documents within the settlement of an administrative case. Even so, the number of laws andlegal documents issued by state agencies has increased, especially those decisions issued by
the State President, Prime Minister, Minister and the head of the local governments. In
addition, thousands of regulations are issued by the local governments and this significantly
complicates the operation of Vietnam’s legal system. 32 Consequently, Vietnam’s legal
system is described as a “jungle of law”33 because there are many competent agencies that
hold the power to enact substantive laws (decrees and circulars) without any effective
mechanism for constitutional review or judicial review. In addition, there is a significant
need for providing guidelines for the implementation of laws enacted by legislative organs.
In other words, the laws cannot be implemented without guidelines issued by executive
organs such as government and ministries. In reality, administrative regulations provide
various conditions and administrative procedures which may limit the rights of citizens.34
However, there is no effective mechanism for reviewing these legal documents.
Consequently, legal reform has not yet met standards of rule of law state; therefore, theCentral Politburo issued the Conclusion No.01-KL/TW dated 04 April 2016 on theContinuous implementation of the Legal reform strategy for 2016-2020 period. Hence,

32 Bui, “Law of China and Vietnam in Comparative Law,” 162.
33

“Reforming How Laws Are Made in Vietnam,” accessed February 27, 2020,
https://www.cba.org/Sections/International-Initiatives/News/2014/Decembre/Reforming-how-laws-are-made-in-Vietnam.
34

Bui, “Law of China and Vietnam in Comparative Law,” 165.

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Vietnam still needs to develop a model for reviewing the legality and constitutionality oflegal documents as one of condition of a rule of law state.
VI. Conclusion
Socialist Asian countries such as China, Laos, and Vietnam face challenges indemocratization. Supervising and guaranteeing effective implementation of constitution is
crucial factors in building a rule of law state and a democratic society. “As more countries
have democratized since the 1980s, more constitutional courts have been established aroundthe world.” 35 Adoption of a constitutional review model is a key factor in ensuring theconstitutionality and legality of modern state’s legislation. Constitutional Court or
Constitutional Council contributes to legal reform and democratic development.
Significantly, reviewing legislation’s constitutionality and legality is crucial important in
Vietnam, as the legal system remains inconsistent. Particularly, the executive branch has
played important role in providing guidelines for implementation legislation. In addition, theenormous number of decisions issued by the local government are the main challenges toimplement constitutional review in Vietnam. The current mechanism for implementing
constitutional review through Ministry of Justice, Supreme People’s Court, and the Standing
Committee of the National Assembly is ineffective because there remains a need of
specialized institutions for this purpose such as Constitutional Council or Constitutional
Court in other countries. The study of constitutional council remains important and relevantto the progress of legal reform in many countries which have not yet adopted a constitutional
review model. Hence, Vietnam still needs to learn from experiences of other countries indeveloping an effective mechanism for constitutional review.

35

Chen, Chen, and Harding, Constitutional Courts in Asia, 30.

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References
Bui, Ngoc Son. “Law of China and Vietnam in Comparative Law.” Forham International
Law Journal 41, no. 1. Accessed May 6, 2019.
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2688&context=ilj.
“Cần Hay Không Hội Đồng Hiến Pháp?” Accessed April 21, 2019.
http://duthaoonline.quochoi.vn/DuThao/Lists/TT_TINLAPPHAP/View_Detail.aspx?It
emID=1009.
Chen, Albert H. Y., Hongyi Chen, and Andrew Harding. Constitutional Courts in Asia: A
Comparative Perspective. Cambridge University Press, 2018.
“Dự Thảo Hiến Pháp Sửa Đổi Năm 2013.” Accessed April 21, 2019.
http://chinhphu.vn/portal/page/portal/chinhphu/congdan/DuThaoVanBan?_piref135_2
7935_135_27927_27927.mode=detail&_piref135_27935_135_27927_27927.id=748.
Fay, Gail. Economies Around the World. Raintree, 2012.
Fu, Hualing, John Gillespie, Penelope Nicholson, and William Edmund Partlett. Socialist
Law in Socialist East Asia. Cambridge University Press, 2018.
Marr, David. G, Carlyle A Thayer, Australian National University, and Department of
Political and Social Change. Vietnam and the Rule of Law: Proceedings of Vietnam
Update Conference, November 1992. Canberra: Australian National University, 1993.
http://catalog.hathitrust.org/api/volumes/oclc/29968358.html.
Nguyen Van Quang. “Grounds for Judicial Review of Administrative Action: An Analysis
of Vietnam Administrative Law.” Discussion Paper. Cale Discussion Paper. Nagoya
Universi ty Center for Asian Legal Exchange, 2010.
NLD.COM.VN. “Đà Nẵng hạn chế nhập cư là trái luật.” https://nld.com.vn, March 1, 2012.
https://nld.com.vn/20120229112858818p0c1002/da-nang-han-che-nhap-cu-la-trailuat.htm.
Randall P. Peerenboom. Asian Discourses of Rule of Law: Theories and Implementation ofRule of Law in Twelve Asian Countries, France and the U.S. Psychology Press, 2004.

67

Nagoya University Asian Law Bulletin Vol.5 (March 2020)“ Reforming How Laws Are Made in Vietnam.” Accessed February 27, 2020.
https://www.cba.org/Sections/InternationalInitiatives/News/2014/Decembre/Reforming-how-laws-are-made-in-Vietnam.
“Tạp Chí Cộng Sản - Triển Vọng Của Hội Đồng Hiến Pháp ở Việt Nam.” Accessed April
21, 2019. http://www.tapchicongsan.org.vn/Home/du-thao-sua-doi-nam1992/2013/23845/Trien-vong-cua-Hoi-dong-Hien-phap-o-Viet-Nam.aspx.
Theunis Roux. The Politico-Legal Dynamics of Judicia Review: A Comparative Analysis.
Cambridge University Press, 2018.
Tom Ginsburg & Mila Versteeg. “Why Do Countries Adopt Constitutional Review?”
University of Chicago Law School, 2013.
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5621&context=journal_articles.
VCCorp.vn. “Hơn 5.600 văn bản trái pháp luật được ban hành trong 2017.” VnEconomy,
August 9, 2018. http://vneconomy.vn/news-20180809065123316.htm.

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