Analytical Models For Understanding Constitutions And Constitutional .
Singapore Journal of International & Comparative Law (2002) 6 pp 42 - 89 Analytical Models for Understanding Constitutions and Constitutional Dialogue in Socialist Transitional States: Re-Interpreting Constitutional Dialogue in Vietnam Mark Sidel* Introduction A th eo ry of co n stitu tio n al instrum entalism has dom inated scholarly understanding of Vietnam’s constitutions and other socialist and transitional socialist constitutions since the 1950s. The instrumentalist theory is relatively clear-cut: Constitutions in Communist Party-run s o c ia lis t c o u n trie s have been, and rem ain, a m eans of political c o n tro l by a single party, a way of expressing Comunist Party political, econom ic and so cial policy in c o n stitu tio n a l term s, a m ethod for m obilizing action, and a malleable document subject to redrafting andadoptionby a com pliant legislature as tim es and policy changed. T his a n a ly sis has d o m inated fo reign*1*&as well as V ietnam ese * 1 A ssociate P rofessor of Law, University of Iowa College of Law and R esearch Scholar, O berm ann C enter for Advanced Studies, U niversity of Iowa. 475 Boyd Law Building, Iowa City, Iowa 52242 USA [mark-sidel@ uiowa.edu]. My thanks to Li-ann Thio, Ben Kerkvliet, Bill Neilson and o th er colleagues for com m ents. See, eg, Ivo Vasiljev, ‘D em ocratic Republic of Viet-Nam’, in Viktor Knapp (ed), International Encyclopedia ofComparative Law: National Reports (vol ID) (Tubingen: JCB M ohr (Paul Siebeck); New York: O ceana/International A ssociation of Legal Science, 1973); Phuong-Khanh T Nguyen, ‘Introduction to th e 1980 C onstitution of th e Socialist Republic of Vietnam’, (1981) 7 Review of Socialist Law 347-351; David Ziskind, ‘Labor provisions in Asian co n stitu tio n s', (1984) 6 Comp Lab L 117. For generally instru m en talist analyses of or including th e 1992 C onstitution, see Russell Heng, ‘The 1992 revised C onstitution of Vietnam: Background and sco p e for chan g e’, (Dec 1992) 14 C ontem porary Southeast Asia; Carlyle T hayer, ‘Recent political developm ent: C onstitutional change and th e 1992 electio n s’, in Carlyle T hayer and David Marr (eds), Vietnam and the Rule o f Law (C anberra: ANU, 1993); T han Nguyen Luu, ‘To slay a p ap er tiger: Closing th e loopholes in Vietnam ’s new copyright law s’, (1996) 47 Hastings LJ 821; C hristy McCormick, ‘Exporting th e First Amendment: A m erica’s R esponse to Religious P ersecution A broad’, (1998) 4 J Int’l Legal Stud 283; Li-ann Thio, ‘Im plem enting Human Rights in ASEAN C ountries: Prom ises to keep and miles to go before I sleep ’, (1999) 2 Yale HR & Dev LJ 1; W endy Duong, ‘G ender equality and w om en’s issues in Vietnam: T he V ietnam ese w om an - w arrior and p o e t’, (2001) 10 Pac Rim L & Pol’y J 191; Lan Cao, ‘Reflections on m arket reform in post-w ar, post-em bargo V ietnam ’, (2001) 22 W hittier L Rev 1029; Brian Quinn, ‘Legal reform and its con tex t in V ietnam ’, (2002) 15 Colum J Asian L 219.
6 Sing JICL Constitutional Dialogue in Vietnam 43 u n d e rsta n d in g 2 of Vietnam’s constitutions, as it has dominated our perception of Chinese and other socialist constitutions,3 and of the Soviet and east European constitutions before the end of Party rule. Traditional instrumentalist theory remains the lens through which most foreign understanding of Vietnamese, Chinese and certain other constitutional processes are understood. That doctrine was always too simple, of course, even in earlier decades, when it indeed served some useful analytical purposes. But instrum entalist theory is now substantially unsuited to understanding the complexity of constitutional 23 2 3 See, eg, Do Xuan Sang, ‘The C onstitution,’ in An Outline o f Institutions o f the Democratic Republic o f Viet Nam (Hanoi: Foreign Languages Publishing House, 1974), at 9-21; Pham Van Bach and Vu Dinh Hoe, ‘The Three Successive Constitutions of Vietnam ’, (1984) 1 International Review of C ontem porary Law, no 1 105-18; Ngo Ba Thanh, ‘The 1992 C onstitution and th e Rule of Law', in T hayer and Marr (eds), Vietnam and the Rule o f Latu (C anberra: ANU, 1993). This is also the dom inant analytical m odel in Vietnam as ex p ressed by V ietnam ese scholars, lawyers and political officials over several d ecades. See, eg, Hien phap xa hoi chu nghia: Mot so van de ly luan co ban (Socialist co nstitutions: Some fundam ental th eoretical issues) (Hanoi; Social Sciences Publishing House, 1977); Do Muoi, Sua doi hien phap, xa y dung nha nuoc phap quyen Viet Nam, day manh su nghiep doi m oi (Revising th e C onstitution, building a law-governed sta te in Vietnam, day m anh th e cause of renovation) (Hanoi: T ruth Publishing House, 1992); Dao Tri Uc, Tran Thi Tuyet (eds), Binh luan khoa hoc Hien phap nuoc Cong hoa xa hoi chu nghia Viet Nam nam 1992 (Scientific com m entary on th e 1992 Constitution of th e Socialist Republic of Vietnam ) (Hanoi: Social Sciences Publishing House, 1995); Phan T rung Ly (ed), Hien phap nam 1946 va su ke thua, phattrien trongcac hien phap Viet Nam (The 1946 C onstitution and its inheritance and developm ent in Vietnamese constitutions) (Hanoi: National Political Publishing House, 1998); Nguyen Dang Dung and Ngo Due Tuan, Luat hien phap Viet Nam (V ietnam ese constitutional law) (Bien Hoa: Dong Nai G eneral Publishing House, 1999); Hoang T rung Tieu and Hoang Hoa, Tim hieu Hien phap Viet Nam (U nderstanding th e C onstitution of Vietnam ) (Bien Hoa: Dong Nai General Publishing House, 2000). Instrum entalism has also dom inated much of th e earlier w ork on Chinese constitutionalism , and appropriately so. See, eg, Jerom e Cohen, ‘China’s changing C onstitution’, (1978) 76 China Q uarterly 794; Jill B arrett, ‘W hat’s new in China’s new Constitution?’(1983) 9 Rev Socialist L 305; Tony Saich, ‘The Fourth Constitution of the People’s Republic of China’, (1983) 9 Rev Socialist L 113; Pu Zengyuan, ‘A com parative perspective on th e United S tates and C hinese co n stitu tio n s’, (1989) 30 Wm and Mary L Rev 867; Janet Ainsworth, ‘Interpreting sacred texts: Prelim inary reflections on constitutional d isco u rse in China’, (1992) 43 Hastings LJ 273; R Randle Edwards et al, Symposium on China and Constitutionalism : Introduction, (1995) 9 J Chinese L 1; Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption o f Chinese Sovereignty and the Basic Law (Hong Kong: Hong Kong U niversity Press, 1997). For a som ew hat different perspective, see Cai Dingjian, C onstitutional Supervision and In terp retatio n in th e People’s Republic of China, (1995) 9 J Chinese L 219.
44 Singapore Journal o f International & Comparative Law (2002) debate in Vietnam and perhaps other transitional societies. As change has come to these societies, albeit slowly and under single party rule, our understanding of the role of their constitutions, constitutional dialogue and constitutional change remains mired in the past. This article seeks to disinter the instrumentalist lens through which we view socialist constitutions and, by interpreting recent and active constitutional dialogue in Vietnam, to step beyond traditional theory in our understanding of how Vietnam and other Party-controlled socialist and transitional socialist states move to update and redraft their constitutions. Instrumental constitutional theory can no longer effectively explain and analyze what is occurring in transitional states such as Vietnam, where constitutional dialogue and debate has assumed a transitional form as well. This process of transitional constitutional dialogue and debate is utilized with great effectiveness by multiple, overlapping, often conflicting forces within these states to achieve their purposes, all m oderated and, to greater and lesser degrees, controlled by a ruling Party - though in very different ways than the instrumentalism of the past. In Part I of this article, I briefly discuss the instrumentalist background to western understanding of Vietnamese and Chinese constitutionalism. In Part II, I discuss the divergent goals and formulations that informed the constitutional dialogue that occurred in Vietnam in 2001 and early 2002, when a Party-led constitutional amendment process became a wide-ranging if m oderated and controlled debate on the appropriate substance of Vietnam’s constitution, the role of constitutional amendment and revision, and of a constitution itself. I also review the key themes that dominated the Vietnamese constitutional debate, themes that will dom inate the analysis of Vietnam ese constitutional debate and amendment in Part III. Part III discusses how those themes fared in a conflict-ridden constitutional amendment process that bears little relationship to earlier constitutional efforts in Vietnam, China and other Party-directed states. This was a process that the Party struggled, ultimately with success, to control, but not before a wide-ranging debate enveloped the National Assembly on key them es on the amendment agenda and on them es that the Party had sought to remove from debate. In Part IV, I develop an initial framework for understanding a new stage of constitutional dialogue in Vietnam and similarly situated states. Part IV analyzes this process in the context of the Vietnamese constitutional revision project and sets out some broader analytical understandings that challenge the traditional instrumentalist theory, a doctrine now entirely unsuited to understanding the complexity of constitutional debate in these transitional societies. It also explains the spectrum of options open to a key political force, such as the Communist Party,
6 Sing JICL Constitutional Dialogue in Vietnam 45 in this expanded but m oderated transitional constitutionalism, and the ways in which this process can strengthen rather than weaken both the legitimacy and the authority of a ruling group. I. T he T raditional A nalysis of Socialist Constitutions An instrumentalist analytical model has had substantial and lasting power in explaining the role of constitutions in Vietnam, China and other Party-dominated states at least in part because it has some substantial analytical authority. In Vietnam, as in China and other Partydominated states, a vision of constitutions as controlled and manipulated, rhetorically generous but politically dominated, and always subject to direction from a ruling party, has generally and reasonably accurately analyzed the role of constitutions in these states. Constitutions certainly have been an important means of control, of expressing policy, of mobilizing unified action, and a changeable form subject to wholesale revision when policy requires. Such an analytical framework correctly dominated western understanding of the Chinese constitution for at least four decades after the founding of the People’s Republic in 1949, and understanding of Vietnam’s constitutional processes for virtually all of the history of the Democratic Republic of Vietnam (1954-1976) and the Socialist Republic of Vietnam (1976-present), which absorbed southern Vietnam after the war. Yet there have been scholars and other observers dissatisfied with the harder formulations and the simplicities of an analytical model in which a constitution is nothing but a tool of the Party, who sought an initial understanding of the role of constitutional dialogue in such states even at times when the socialist countries were ruled by authoritarian regimes far stricter than those now in place in such countries as Vietnam and China. Instrumentalism has always awaited challenge, or at least complexity. Bernard Fall, the distinguished journalist and historian of Vietnam, for example, valued and sought to understand the complexity of Vietnamese constitutional discussions even at a time when little source material was available and the dominant western (and Vietnamese) view of these processes was, necessarily and correctly, fiercely instrumentalist.4Fall presaged that challenge in ways not taken 4 Fall’s work on V ietnam ’s co n stitu tio n s includes all or p art of a num ber of his works: B ernard Fall, Viet-Nam Witness 1953-1966 (New York: Praeger, 1966); Bernard Fall, The Viet-Minh Regime: Government and Administration in the D em ocratic R ep u b lic o f Viet-Nam (G reen w o o d P re s s a n d S o u th e a s t A sia P ro g ra m s, Cornell U niversity 1975) (1956); B ernard Fall, The Two Viet-Nams:
46 Singapore Journal o f International & Comparative Law (2002) up by his successors in the study of constitutions and constitutionalism in Vietnam.*3*5 Some western scholars have also known of, and occasionally even sought to understand, the debate on constitutionalism in China that has waxed and waned since the late 1970s.6 Yet the instrumentalist analysis of Vietnam’s and China’s constitutions has always remained dominant, not only because ruling parties remained dominant but also because of a lack of detailed source material, the almost complete absence of a known, specific national context for constitutional debate, that might have informed a more nuanced analytical approach. And, of course, times change as well: there can be little doubt that Vietnam, like China, is a more open state and society today than when Vietnam’s 1959, 1980 or 1992 constitutions were adopted. Now, in the wake of a sweeping constitutional dialogue that took place in Vietnam in 2001 and early 2002, scholars now have some of the data necessary to begin a reappraisal of the processes of constitutional dialogue in Vietnam and similarly-situated states. It is thus time for a thorough analytical reappraisal of the role of c o n stitu tio n a l dialogue and c o n stitu tio n a l d raftin g p ro c e s s e s in Vietnam, a conceptual rethinking that is made possible by expanding debate within Vietnam, Vietnam’s relatively more open society, and especially ex ten siv e new d a ta now available from V ietnam on 5 6 A Political and Military Analysis (New York: Praeger, 1967); B ernard Fall, ‘Constitution-W riting in a Comm unist State: The New C onstitution of North V ietnam ’, (1960) 6 Howard LJ 157; B e rn a rd Fall, ‘Die N eue V e rfa ss u n g d e r D e m o k ra tisc h e n R ep u b lik V ie tn a m ’, (1960) 6 O steu ro p a R echt 145; Bernard Fall, ‘Die R e c h tsla g e in d e r D e m o k ra tisc h e n R e p u b lik V ie tn a m ’, (1958) 3 O s te u r o p a Recht 198; B ernard Fall, ‘The Labor M ovem ent in th e Communist Z o n e of V iet-N am ’, (1956) 45 M o n th ly Lab Rev 534; B e rn a rd Fall, ‘Local G o v e rn m e n t and A dm inistration Linder th e Viet Minh’, (1954) 27 Pac Aff 50; B ernard Fall, ‘N orth Viet-Nam’s C onstitution and G overnm ent’, (1960) 33 Pac Aff 282; Bernard Fall, ‘N orth Viet-Nam’s New Draft C onstitution’, (1959) 32 Pac Aff 178. Of th ese, and of th e m aterials in English, th e Howard Law Journal and Pacific Affairs articles evince a special in terest in p ro cesses of constitutional dialogue in Vietnam. For further discussion of this them e, see Mark Sidel, ‘New d irections in th e study of V ietnam ese law’, (1996) 17 Mich J Int’l L 705. See, eg, Andrew N athan, China’s Transition (Colum bia U niversity Press, 1997); A rthur W aldron, ‘China’s coming constitutional ch allenges’, O rbis 39 (W inter 1995). See also Mark Sidel, ‘D issident legal sch o lars in China’s cities, their organizations, and th e C hinese state in th e 1980s’, in D eborah Davis e ta l (eds), Urban Spaces in Contemporary China: The Potential for A utonom y and Community in Post-Mao China (New York: Cambridge U niversity P ress, 1995).
6 Sing JICL Constitutional Dialogue in Vietnam 47 c o n s titu tio n a l dialogue and amendment processes.7 In the new analytical reappraisal that emerges in this article and that will be expanded to discuss constitutional processes in transitional socialist societies in another essay,8 a new model of the role of constitutional dialogue and constitutional change in a transitional Vietnam stands alongside the traditional instrumentalist theory of Vietnam’s constitutions and constitutional dialogue. Yet at the outset, it is important to reaffirm that Vietnam’s constitutions and constitution-making processes continue to reflect instrumentalist theory in im portant ways. A single Party continues to dom inate constitutional drafting, m oderate and tem per constitutional dialogue, and limit constitutionalist options. But Vietnam’s recent constitutional amendment and dialogue processes are not only instruments of Party policy and are not entirely the puppetry of a dominant party. Recent constitutional amendment and dialogue processes in Vietnam - one might call them struggles - also reflect and support a different analytical model. This is an analytical framework of contention and battle in which cycles of relatively open dialogue amongst government, business, local, academic and other elites are interspersed with the re-imposition of controls, leading again to relatively open dialogue. In this analytical framework, constitutions are considerably more than a means of control and mobilization; in the Vietnamese case, a constitution has also become a platform for wide-ranging debate on the political and social arrangements in a transitional state. The Vietnamese constitution and its amendment and dialogue processes have thus become a forum for dialogue - albeit moderated, bounded and controlled dialogue - as well as a framework for management and mobilization. In this analytical framework, as this article shows, constitutional dialogue is coordinated and directed but not entirely controlled by direct fiat. A less restrained constitutional dialogue and constitutional amendment process can be effective in helping to preserve constitutional legitimacy, facilitating reasonably open discussions on constitutional forms and powers, enabling dialogue among elites and resolving their 7 8 The greater op en n ess in d eb ate on constitutional issues in Vietnam is m irrored in an enhanced public availability of th a t dialogue for sch o lars in terested in research on th ese pro cesses. This article thus relies heavily on V ietnam ese com m entaries on th e 2001 am endm ent process, including d eb ates in several National A ssem bly sessions, frank com m ents on th e draft text provided to th e C onstitutional A m endm ent Comm ission and published in th e p ress or on th e National A ssem bly w ebsite, and o th er windows into a gradually m ore open constitutional process. Mark Sidel, Transitional Constitutionalism in Asia (m anuscript in draft, 2002).
48 Singapore Journal o f International & Comparative Law (2002) conflicts, opening new paths for exploring constitutional implementation and powers, all while preserving political control over the boundaries and results of constitutional dialogue and constitutional amendment. In short, constitutional dialogue and constitutional amendment in a socialist transitional state like Vietnam serve both constitutionalist and authoritarian goals. II. U nderstanding and Re-interpreting Constitutional Dialogue in V ietnam : Purposes, T heory and Key T hemes in V ietnamese Constitutional D ebate Vietnam has adopted four constitutions since it declared independence from France in 1945 and established a socialist republic, first in the north and then extended to the south in 1975. Three of those constitutions, promulgated in 1959, 1980, and 1992, were adopted under a command economy and a single party state (of which the single party state remains a central feature of contem porary Vietnamese political and social life). The 1946 Constitution, adopted at a time in which the Democratic Republic of Vietnam was new, reflects a broader acceptance of diverse econom ic and social forces in V ietnam ese society.9 Constitutional amendation per se played little role in Vietnam’s first four decades: Each of the post-1945 constitutions reflected the dominance of party power, and minor tinkering with the machinery of state organization and the forms of comm and rhetoric were usually 9 For discussions of earlier V ietnam ese constitutional drafting and th e su b stan ce of the earlier constitutions, see Pham Van Bach, and Vu Dinh Hoe, ‘The T hree S u ccessive C o n stitu tio n s of V ietnam ’, (1984) 1 In tern atio n al Review of C ontem porary Law, no 1 105-18; Ngo Ba Thanh, ‘T he 1992 C onstitution and th e Rule of Law’, in T hayer and Marr (eds), Vietnam and the rule o f laur (Canberra: A ustralian National University, 1993); Hien phap xa hoi chu nghia: Mot so pan de ly luan co ban (Socialist constitutions: Some fundam ental theo retical issues) (Hanoi; Social Sciences Publishing House, 1977); Dao Tri Uc, T ran Thi Tuyet (eds), Binh luan khoa hoc Hien phap nuoc Cong hoa xa hoi chu nghia Viet Nam nam 1992 (Scientific com m entary on th e 1992 C onstitution of th e Socialist Republic of V ietnam ) (Hanoi: Social Sciences Publishing House, 1995); Phan Trung Ly (ed), Hien phap nam 1946 ua su ke thua, phat trien trong cac hien phap Viet N am (T h e 1946 C o n s titu tio n an d its in h e r ita n c e an d d e v e lo p m e n t in V ietnam ese co n stitu tio n s) (Hanoi: National Political Publishing House, 1998); Nguyen Dang Dung and Ngo Due Tuan, Luat hien phap Viet Nam (C onstitutional law in V ietnam ) (Bien Hoa: Dong Nai General Publishing House, 1999). For a sense of th e scen e aro u n d th e tim e of th e drafting of th e 1946 C onstitution, see David Marr, Vietnam 1945: The Quest for Pouter (Berkeley: U niversity of California Press, 1997)-
6 Sing JICL Constitutional Dialogue in Vietnam 49 accomplished through ‘re-constitutionalization’ - the enactm ent of a new and somewhat differently worded constitution - rather than amending a more perm anent document.10 In the mid and late 1980s, Vietnam turned to market liberalization as a solution to pressing economic problems and international isolation. Like China and several other socialist states, but unlike later developments in Russian and eastern Europe, the Vietnamese Communist Party consciously, intentionally and unambivalently maintained Communist Party control over these economic and social liberalizations. Vietnam’s 1992 Constitution, the fourth adopted since 1945, began to reflect that growing space in Vietnam’s economy and society. The 1992 Constitution also sought to recruit and harness entrepreneurial peasants, business people, southerners of Chinese descent, intellectuals and other formerly castigated groups to the Party’s economic agenda, and began attempting to cautiously and gradually remake a state machinery to suit economic flexibility and continued political control.11 A. ‘Constitutional Revival’, Constitutional Legitimacy, Constitutional Relevance: The Divergent Origins of Constitutional Revision in Vietnam In December 2001, ten years after adopting the 1992 Constitution, Vietnam adopted important amendments to it for the first time. The 2001 am endm ents12 were originally envisioned several years; indeed, 10 11 12 T h e p h e n o m e n o n of ‘re - c o n s titu tio n a liz a tio n ’ as an a m e n d m e n t p ro c e s s in non-transitional, com m and socialist system s is w o rth y of discussion in its own right, if som ewhat outside th e scope of an attem pt to theorize on constitutional am endation in th e rapidly transitioning socialist states. T hat th e form er practice of adopting new docum ents rath e r th an am ending th e old affects cu rren t practice is unm istakable. For background on th e 1992 C onstitution, see Russell Heng, ‘The 1992 revised C onstitution of Vietnam: Background and sco p e for change’, (Dec 1992) 14 C ontem porary Southeast Asia; Carlyle A Thayer, ‘R ecent political developm ent: C onstitutional change and th e 1992 elections’, in T hayer and Marr (eds), Vietnam and the Rule o f Law (Canberra: ANU, 1993); Ngo Ba T hanh, ‘The 1992 C onstitution and th e rule of law’, in T hayer and Marr (eds), Vietnam and the Rule o f Laui (Canberra: ANU, 1993). For Vietnam ese d iscu ssio n s of th e 1992 C onstitution see supra n o te 2. O nly m in o r c h a n g e s w e re m a d e to th e 1992 C o n s titu tio n u n til 2001. The 2001 am endm ents w ere ad o p ted by th e National A ssem bly in mid-Dec 2001, th en officially prom ulgated by Vietnam’s P resident in Jan 2002. See discussion infra on th e adoption and prom ulgation of th e C onstitutional am endm ents. R e fe re n c e is m a d e to th e 2001 a m e n d m e n ts b e c a u s e N a tio n al A ssem b ly a d o p tio n (a f te r w id e-ran g in g d e b a te ) w as th e key c o n s titu tio n a l an d p o litic a l a c tio n ta k en .
50 Singapore Journal o f International & Comparative Law (2002) Party, government and academic discussion on Constitutional amendment had begun some years earlier, and Constitutional revision had been included in the National Assembly’s work plan for 2000.13 The substance and process of constitutional amendm ent came under discussion at the Communist Party’s Ninth Congress in April 2001, and the Party issued instructions on and encouraged a controlled revision process.14 After further consultations with the Party’s Political Bureau, the Standing Committee of the National Assembly established a Constitutional Amendment Commission in May 2001 to draft the amendments and explanatory documentation.15 As originally discussed, the amendm ent process had two goals, both primarily rooted in reaction to the substantial change in Vietnamese society and state policies since the adoption of the 1992 Constitution, but one aimed considerably broader and deeper than the other. Perhaps a more narrowly tailored aim was to ‘bring the constitutional and legal 13 14 15 See R e so lu tio n on th e P ro g ra m fo r M aking Laws a n d O rd in a n c e s in 2000 (R es No 33/1999/QH 10), ad o p ted by th e T enth National Assem bly during its Sixth Session, 18 Nov to 21 Dec 1999 (National Assem bly 2000 w orkplan) (w w w .cpv.org.vn/studies). In a section of th e Central C om m ittee’s re p o rt th at dealt with ‘constru ctin g a socialist law-ruled s ta te ’ and ‘reform ing th e system and m odes of activity of the S tate’, th e C entral C om m ittee encouraged ‘th e stu d y and proposal to the National A ssem bly of revisions and supplem ents to som e articles of th e 1992 C onstitution in o rd er to conform to th e new situ atio n ’. ‘Day m anh cai each to chuc va h oat dong cua nha nuoc, p h at huy dan chu, tang cuong phap che (Trich bao cau chinh tri cua BCHTW Dang khoa VIII tai Dai hoi dai bieu toan quo lan thu IX cua Dang)’, Nguoi Dai bieu Nhan Dan, 1 May 2001. Shortly after th e closing of th e Party Congress, th e National A ssem bly’s Standing C o m m ittee affirm ed th e p rio rity g iv en to am e n d in g th e 1992 C o n stitu tio n , callin g C onstitutional am endm ent and am endm ents to im portant organizational laws ‘a key elem ent th at m ust receive co n cen trated priority and p rep aratio n ’. The A ssem bly’s Standing C om m ittee w as in stru cted to p rep are to estab lish a C o n s titu tio n a l R ev isio n C o m m issio n a n d b e g in th e r e s e a r c h a n d d ra ftin g p ro c e s s . A fter ‘re p o r tin g to a n d re c e iv in g th e a g re e m e n t of th e [P a rty ] P o litic a l B ureau’, th e Standing C om m ittee set up th e C onstitutional Revision Commission to prepare Design o f the issues requiring revision and supplementation in the 1992 Constitution on the organization o f the state machinery. ‘Ky h o p dau tien trien khai nghi quyet Dai hoi Dang lan th u IX’, Nguoi Dai bieu Nhan dan, 1 Jun 2001. For rep o rts on constitutional d iscu ssio n s at th e May 2001 Assem bly session, see ‘National Assem bly ninth sessio n to stren g th en rule of law in Viet Nam’, VNS, 23 May 2001; ‘Quoc hoi nghe bao cao ve Du an Nha may thuy dien Son La’, Bao Lao Dong, 20 Jun 2001. T he National Assem bly 2000 workplan, supra note 13, stipu lates th e form ation of th e C onstitutional A m endm ent Commission. As formed, it w as officially term ed th e ‘Drafting Com m ittee for Amendm ent of and Supplem ent to th e C onstitution’ and had 22 m em bers.
6 Sing JICL Constitutional Dialogue in Vietnam 51 framework into line with the country’s shift from a centrally-planned economy to a socialist-oriented market system ,’16a reactive conception of constitutional revision that would infuse the Vietnamese process until its end in December 2001. This formulation focused on strengthening the state machinery, reform of Vietnam’s cumbersome and often corrupt national and local administrative system, reducing and shortening governmental procedures, decentralizing decision-making, reducing the size of government bureaucracy, making administration more resp o n siv e to citizen s, and upgrading th e civil serv ice, w ithout explicitly addressing the broader and even more complex questions of political and structural relationships among Vietnam’s executive, legislative and judicial institutions as a necessary element in reaching those goals. Yet a different and not altogether consistent formulation of the goals of the Constitutional amendment process also emerged in the spring and early summer of 2001. This formulation went further, calling the goal of the constitutional process a ‘clarification of the responsibilities, functions and relations among legislative, executive and juridical bodies in conformity with the new situation.’17 This somewhat broader and deeper formulation might well have implied a broader revision of the 1992 Constitution (and even a new document) rather than individual amendments, and it was an approach quickly abandoned by the Party in the spring and summer of 2001 - but raised repeatedly by legislators and other observers in the Constitutional debate that would follow in the fall and winter of 2001. A com m on goal seem ed to include ‘a m ajor ov erh au l of the c o n stitu tio n a l system aimed at encouraging produ
substance of Vietnam's constitution, the role of constitutional amendment and revision, and of a constitution itself. I also review the key themes that dominated the Vietnamese constitutional debate, themes that will dominate the analysis of Vietnamese constitutional debate and amendment in Part III. Part III discusses how those themes fared in
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The Constitutions were approved by the Apostolic See on October 2, 1988, and were promulgated on February 10, 1989. They became effective on March 21, 1989. In the proper law of the Congregation, as clearly stated in C 5.1, the Constitutions "contain the more important norms for the ordering of life within the monasteries."
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took care to publish the definitive and authentic text of the Constitutions. This text had validity and was in force from March 25,1983, the day of the solemnity of the Annunciation of the Lord, until the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life duly approved these same Constitutions.
