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Vietnamese Constitutionalism: The Reform Possibilities

  • Pip NICHOLSON (a1)
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Professor of Law, Melbourne Law School; Director of the Asian Law Centre, Melbourne Law School.

Footnotes

References

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1. BUI, Ngoc Son and NICHOLSON, Pip, “Activism and Popular Constitutionalism in Contemporary Vietnam” Law and Social Enquiry [forthcoming].

2. FU, Hualing and BUI, Jason, “Diverging Trends in the Socialist Constitutionalism of the People’s Republic of China and Socialist Republic of Vietnam” (Paper delivered at the ‘What is Socialist about Socialist Law? Exploring Epistemic and Institutional Change in Socialist Asia’ Conference, University of Hong Kong, 28–29 October 2015) [unpublished paper] at 5 .

3. Ibid at 7.

4. Ibid.

5. BUI, Ngoc Son, “Social Mobilisation and Comparative Constitutional Theory” [unpublished paper] at 8285 .

6. Ibid at 85.

7. “GeoHive–Current World Population” GeoHive (27 July 2016), online: GeoHive <http://www.geohive.com/earth/population_now.aspx>.

8. Ibid.

9. See generally NICHOLSON, Pip, “Vietnamese Legal Institutions in Comparative Perspective: Contemporary Constitutions and Courts Considered” in Kanishka JAYASURIYA, ed, Law, Capitalism and Power in Asia: The Rule of Law and Legal Institutions (London and New York: Routledge, 1999) 257 at 257-82; VU, Dinh Hoe, “Les Quatres Constitutions du Vietnam” (1995) 24(2) Vietnamese Law Journal 24 ; and PHAM, Van Bach and VU, Dinh Hoe, “The Three Successive Constitutions of Vietnam” (1984) 1 International Review of Contemporary Law 105 .

10. Bui and Nicholson, supra note 1 at 27.

11. See VO, Tri Hao, “Integrating the Principle of Separation of Power into the Constitution Amendment 2013 within the “Keeping Face” Cultural Context” (Paper presented at ‘Constitutional Debate in Vietnam’ Conference, National University of Singapore, 19–20 March 2016) [unpublished paper]. Vo reports that the National Assembly argued that 26 million people commented on the constitutional proposals (at 12). Others point out that this 26 million counts every name as a single submission, counting singly those on group submissions.

12. BUI, Ngoc Son, “Petition 72: The Struggle for Constitutional Reforms in VietnamI-CONnect: Blog of the International Journal of Constitutional Law and ConstitutionMaking.org (28 March 2013), online: I-CONnect <http://www.iconnectblog.com/2013/03/petition-72-the-struggle-for-constitutional-reforms-in-vietnam/>.

13. See for example, Vo, supra note 11 at 13–17. Vo groups the activists in 4 ways: reformist politicians; intelligentsia; dissidents; and blue capitalists. Along with those behind Petition 72 he outlines the work of the fragmented, but resilient, intelligentsia for its multifaceted approach to advocacy.

14. Thiêm, BÙI Hải, “Pluralism Unleashed: The Politics of Reforming the Vietnamese Constitution” (2014) 9(4) Journal of Vietnamese Studies 1 ; BUI, Thiem H, “Deconstructing the ‘Socialist’ Rule of Law in Vietnam: Changing the Discourse on Human Rights in Vietnam’s Constitutional Reform Process” (2014) 36(1) Contemporary Southeast Asia 77 ; HA, Thi Mai Hien, “The Fundamentals of the Amended Constitution of 2013 on the Accountability of Constitutional Bodies and Implementation Outlook” (2015) 1 Vietnam Social Sciences 34 ; NGUYEN, Thi Huong, “Pursuing Constitutional Dialogue within Socialist Vietnam: The 2010 Debate” (2012) 13(1) Australian Journal of Asian Law 1 .

15. SIDEL, Mark, “Analytical Models for Understanding Constitutions and Constitutional Dialogues in Socialist Transitional States: Re-Interpreting Constitutional Dialogues in Vietnam” (2002) 6(1) Singapore Journal of International and Comparative Law 42 [Sidel, “Analytical Models”]. See also SIDEL, Mark, The Constitution of Vietnam: A Contextual Analysis (Oxford and Portland, Oregon: Hart Publishing, 2009) [Sidel, Constitution of Vietnam].

16. See BUI, Ngoc Son, Confucian Constitutionalism in East Asia (Abingdon, Oxon and New York: Routledge, 2016) [Bui, Confucian Constitutionalism]; BUI, Ngoc Son, “Restoration Constitutionalism and Socialist Asia” (2015) 37 Loyola of Los Angeles International and Comparative Law Review 67 ; BUI, Ngoc Son, “Confucian Constitutionalism in Imperial Vietnam” (2013) 8 National Taiwan University Law Review 373 ; BUI, Ngoc Son, “Confucian Constitutionalism: Classical Foundations” (2012) 37 Australian Journal of Legal Philosophy 61 ; BUI, Ngoc Son, “The Introduction of Modern Constitutionalism in East Asian Confucian Context: The Case of Vietnam in the Early Twentieth Century” (2012) 7 National Taiwan University Law Review 423 .

17. See BUI, Ngoc Son, “The Discourse of Constitutional Review in Vietnam” (2014) 9 Journal of Comparative Law 191 ; BUI, Ngoc Son, “Constitutional Developments in Vietnam in the First Decade of the Twenty-First Century” in Albert H Y CHEN, ed, Constitutionalism in Asia in the Early Twenty-First Century (Cambridge: Cambridge University Press, 2014) 194 ; BUI, Ngoc Son, “Central-Local Relations and the Constitutional Discourse on Political Decentralisation in 21st-Century Vietnam” in Andrew HARDING and Mark SIDEL, eds, Central-Local Relations in Asian Constitutional Systems (Oxford: Hart Publishing, 2015) 57 . See also BUI, Ngoc Son, “Social Mobilization and Comparative Constitutional Theory” [forthcoming] and BUI Ngoc Son, “Constitutional Identity Change in the Contemporary Socialist World” [forthcoming].

18. Bui and Nicholson, supra note 1 at 15–16, 50–60. However, we note the critique of this characterization of popular constitutionalism existing in the USA.

19. For an analysis of the 2001 Vietnamese constitutional dialogue, see: Sidel, “Analytical Models” supra note 15. See also SIDEL, Mark, Law and Society in Vietnam (New York: Cambridge University Press, 2008) at 149 .

20. The Chairman of the NA has commissioned an authoritative history of Vietnamese constitutional arrangements and their adaptation. While commissioned, this work has not been published at the time of this publication.

21. NICHOLSON, Penelope (Pip), Borrowing Court Systems: The Experience of Socialist Vietnam (Leiden and Boston: Martinus Nijhoff Publishers, 2007) at 222230 .

22. On the significance of political will to transplants see BERKOWITZ, Daniel, PISTOR, Katharina, and RICHARD, Jean-Francois, “Economic Development, Legality, and the Transplant Effect” (2003) 47 European Economic Review 165 . See also KAHN-FREUND, Otto, “On Uses and Misuses of Comparative Law” (1974) 37 Modern Law Review 1 .

23. 2013 Constitution of the Socialist Republic of Vietnam (adopted 28 November 2013). See also Statute of the Communist Party of Vietnam, 2011 and Resolution Number 49 NQ/TW (2 June 2005), Central Committee Communist Party of Vietnam, ‘On the Judicial Reform Strategy’ (‘Resolution 49’).

24. HAND, Keith, “Resolving Constitutional Disputes in Contemporary China” (2012) 7(1) University of Pennsylvania East Asia Law Review 51 .

25. Ibid at 51.

26. Ibid at 57.

27. BIDDULPH, Sarah, The Stability Imperative: Human Rights and Law in China (Vancouver, Toronto: University of British Columbia Press, 2015) at 82170 .

28. Ibid at 8–9. In framing this choice Biddulph draws on the work of Yu Jianrong.

29. Ibid at 191–99.

30. HE, Baogang and WARREN, Mark E, “Authoritarian Deliberation: The Deliberative Turn in Chinese Political Development” (2011) 9(2) Perspectives in Politics 269 .

31. Ibid at 269.

32. Ibid at 281.

33. Ibid at 271.

34. In earlier work Bui Ngoc Son and I have chronicled the methodological issues this analysis raises (see Bui and Nicholson, supra note 1, also admitted by He and Warren, supra note 30 at 279.

35. He and Warren, supra note 30 at 281.

36. Party Resolutions routinely note that the CPV has to maintain the peace and security of the nation, and is its absolute leader: Resolution No. 8 of the CPV dated 2 February 2002; Resolution No 48–NQ/TW, CPV Politburo Resolution on Strategy for Building and Reforming Legal System of Vietnam up to 2010, an Orientation to 2020, 24 May 2005 (Resolution 48); Resolution 49; Resolution No 900/UBTVQH11 For the Action Plan to Implement Resolution No 48-NQ/TW dated 24 May 2005 on the Strategy for Development and Improvement of Vietnam’s Legal System to the Year 2010 and Direction for the Period 2020, 12 March 2007; Conclusion 92 on Continuing to implement Resolution no. 49-NQ/TW, dated 2 June 2005, of the Politburo term IX on the Judicial Reform Strategy to 2020, 14 February 2014 (Resolution 92). See also the Vietnam National Party Congress Reports.

37. DOWDLE, Michael W, “Popular Constitutionalism and the Constitutional Meaning of Charter 08” in Jean-Phillipe BÉJA, FU Hualing, and Eva PILS, ed, Liu Xiaobo, Charter 08, and the Challenges of Political Reform in China (Hong Kong: Hong Kong University Press, 2012) 205 at 210 [Dowdle, “Charter 08”]. On reform dialogue and the role of the National Assembly, see also DOWDLE, Michael W, “Of Parliaments, Pragmatism, and the Dynamics of Constitutional Development: The Curious Case of China” (2002) 35(1) NYU Journal of International Law and Politics 1 [Dowdle, “Curious Case”].

38. Dowdle, “Charter 08”, supra note 37.

39. Dowdle, “Charter 08”, ibid at 228.

40. Dowdle, “Curious Case”, supra note 37 at 50–105.

41. Ibid at 9–10, 18, 29–30, 183–94.

42. Ibid at 199–200.

43. Ibid.

44. Bui, Confucian Constitutionalism, supra note 16.

45. SEPPÄNEN, Samuli, “Ideological Renewal and Nostalgia in China’s ‘Avant-Garde’ Legal Scholarship” (2014) 13(1) Washington University Global Studies Law Review 83 . See also SEPPÄNEN, Samuli, Ideological Conflict and the Rule of Law in Contemporary China: Useful Paradoxes [forthcoming in 2016].

46. See for example, Vo, supra note 11 at 17–19 and groups as coercive/enforcement units (police, army etc), conservative politicians and red capitalists.

47. KERKVLIET, Benedict J Tria, “Government Repression and Toleration of Dissidents in Contemporary Vietnam” in Jonathan D LONDON, ed, Politics in Contemporary Vietnam: Party, State, and Authority Relations (London: Palgrave Macmillan, 2014) 100 at 102 .

48. See Vo, supra note 11. See also BUI Hai Thiem, “Constitutionalizing Single Party Leadership in Vietnam: Dilemmas of Reform”, this volume.

49. Kerkvliet, supra note 47 at 113.

50. Ibid at 114.

51. Note the long-standing tradition of scholarly argument for reform and the ongoing manifestation of reform debates in the more recent past. See Bui and Nicholson, supra note 1 at 16–26.

52. Kerkvliet, supra note 47 at 114–16. See also THAYER, Carlyle A, “The Apparatus of Authoritarian Rule in Vietnam” in Jonathan D LONDON, ed, Politics in Contemporary Vietnam (London: Palgrave Macmillan, 2014) 135 .

53. Kerkvliet, supra note 47 at 129.

54. Ibid at 128.

55. Bui and Nicholson, supra note 1 at 42–44.

56. Vo, supra note 11 at 24–33.

57. Bui and Nicholson, supra note 1 at 16–26.

58. See e.g. POTTER, Pitman B and WOODMAN, Sophia, “Boundaries of Tolerance: Charter 08 and Debates over Political Reform” in Jean-Phillipe BÉJA, FU Hualing, and Eva PILS, ed, Liu Xiaobo, Charter 08, and the Challenges of Political Reform in China (Hong Kong: Hong Kong University Press, 2012) 97 . See also BÉJA, Jean-Phillipe, “Is Jail the Only Place Where One Can “Live in Truth?” in Jean-Phillipe BÉJA, FU Hualing, and Eva PILS, ed, Liu Xiaobo, Charter 08, and the Challenges of Political Reform in China (Hong Kong: Hong Kong University Press, 2012) 15 .

59. Bui and Nicholson, supra note 1 at 42–44.

60. See Statute of the Communist Party of Vietnam (2011) Art 9. See also its Preamble.

61. Bui and Nicholson, supra note 1 at 57.

* Professor of Law, Melbourne Law School; Director of the Asian Law Centre, Melbourne Law School.

Vietnamese Constitutionalism: The Reform Possibilities

  • Pip NICHOLSON (a1)

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