The Constitution of Vietnam A Contextual Analysis

by Sidel, Mark

ISBN13: 9781841137391

ISBN10: 1841137391

Format: Paperback

Pub. Date: 2009-08-28

Publisher(s): Hart Publishing

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Summary

This new book examines constitutional debate and development in one of the most dynamic and rapidly changing societies in Asia, and will be of use to scholars and students of comparative law, comparative constitutional law and Asian law, and practitioners interested in Asia or in Vietnam. The book discusses and analyses the historical development, principles, doctrines and debates which comprise and shape Vietnamese constitutional law today, during a time of reform and debate. The chapters are written in sufficient detail for anyone coming to the subject for the first time to develop a clear and informed view of how the constitution is arranged, how it works, and the main points of debate on it in Vietnamese society. It is written in an accessible style, with an emphasis on clarity and concision. The book discusses and analyses the origins of Vietnamese constitutional thought; the first (1946) Constitution of independent Vietnam; Constitutional dialogue and debate in the late 1940s and 1950s, including the work of dissidents in the 1950s; the 1959 Vietnamese Constitution; constitutional dialogue and debate in the 1960s and 1970s; the 1980 Constitution; the rise of doi moi (renovation) and debates over constitutionalism in the 1980s; the 1992 Constitution, including the role of legislative, executive and judicial sectors, constitutional power and enforcement, constitutional rights and obligations, and other issues; constitutional dialogue and debate in the 1990s; the constitutional debate and revision process of 2001 and the current Vietnamese Constitution the rise of debate over judicial independence and constitutional enforcement and review in Vietnam; comparison to constitutional developments and debates in China; constitutions and constitutional issue in the former South Vietnam; the links and tensions between state and party constitutions; and concluding analysis of 60 years of the development of Vietnam's Constitution and constitutionalism.

Author Biography

Mark Sidel is Professor of Law, Faculty Scholar and Lauridsen Family Fellow at the University of Iowa.

Acknowledgements	p. vii
Introduction	p. 1
Key Themes in Vietnam's Constitutions and Constitutional Debates	p. 5
Introduction	p. 5
The Special Problem of Party Constitutions	p. 8
The Death of South Vietnam's Constitutions-and the Beginnings of Re-Reading in Vietnam Today	p. 15
The Constitution of 1956	p. 15
Southern Constitutional Politics in the 1960s	p. 20
The 1967 Constitution	p. 22
Further Reading	p. 26
The 1946 Constitution: A Charter for Independence and Unity	p. 27
The Ethos of the 1946 Constitution	p. 27
Rights and Duties in the 1946 Constitution	p. 28
The Economic System	p. 30
The Role of the Legislature and Its Standing Committee	p. 30
Referenda and Recall Processes in the 1946 Constitution	p. 32
Referenda	p. 32
Recall	p. 32
The Role of the President	p. 33
The Government	p. 34
Local Government	p. 36
The Judiciary	p. 37
Interpretation, Enforcement and Amendment of the Constitution	p. 38
The 1946 Constitution in the Light of History	p. 38
The Aftermath of the 1946 Constitution	p. 39
Further Reading	p. 44
The 1959 Constitution: A Charter for Socialism in the North	p. 45
Defining the Nation in the 1959 Constitution	p. 48
The Economic and Social System of Early Socialism	p. 48
Rights and Duties of Citizens	p. 50
The Role of the National Assembly in a Socialist State	p. 51
The Role of the President	p. 55
The Role and Functions of the Government	p. 55
The Challenges of Local Government	p. 56
The Role of the Judiciary and Procuracy	p. 58
Amendment and Revision of the Constitution	p. 60
The Problems of Referenda and Recall-and Democratic Decline in the 1959 Constitution	p. 60
The 1959 Constitution and the Years After	p. 62
Further Reading	p. 65
The 1980 Constitution: A Charter for Reunification under Socialism	p. 67
The Relationship between the Party and the Constitution	p. 69
The Role of the National Assembly, Local People's Councils and Mass Organisations	p. 70
The Role of Government and Executive Agencies	p. 71
Economic Policy in an Era of Socialism	p. 73
The Rights and Obligations of Citizens	p. 74
The Roles of the Courts and Procuracies	p. 76
Key Problems in Implementing the Constitution	p. 79
The 1980 Constitution in Historical Perspective	p. 80
Further Reading	p. 82
The 1992 Constitution: A Charter for Renovation (Doi Moi)	p. 83
The Framework of the 1992 Constitution	p. 84
The Preamble: Setting the Stage by Reviewing Vietnamese History and the Role of the Constitution	p. 84
The Political System: The Role of the Communist Party	p. 86
The Political System: Institutional Elements	p. 89
The Economic System	p. 90
Culture, Education, Science and Technology	p. 92
Rights and Duties of Citizens	p. 92
The National Assembly	p. 96
The State President	p. 98
The Government	p. 100
Local People's Councils and People's Committees	p. 102
The Courts and the Procuracy	p. 103
The National Flag, Emblem, National Anthem, Capital and National Day	p. 107
The Role of the Constitution and its Amendment	p. 107
The Contentious 1990s in Vietnam and the Constitution	p. 107
Further Reading	p. 109
Revising the 1992 Constitution: Debates and Decisions after Fifteen Years of Renovation (Doi Moi)	p. 111
The Implications of Constitutional Debate	p. 111
The Process of Revising the 1992 Constitution	p. 113
Broadening the Debate	p. 115
Channelling the Debate and Agreeing on Constitutional Amendments	p. 118
Continuing the Debate at the National Assembly	p. 119
The 2001 Revisions to the 1992 Constitution	p. 120
Vietnam's Patriotic Traditions	p. 120
Strengthening a 'State Governed by Law' and Government Coordination (Not Separation of Powers)	p. 120
Strengthening the Constitutional Discussion of Corruption, Bureaucratism and Officials' Links to Citizens	p. 121
Gradually Increasing Recognition of Social Organisations	p. 121
Economic Reform, the Private Economy, Markets and International Economic Integration	p. 121
A Renewed Emphasis on Science and Technology	p. 123
Enhancing the Role of Foreign Investment	p. 123
Strengthening the State Commitment to Education at a Time of Rapid Economic Reform	p. 123
Strengthening Outreach to Overseas Vietnamese	p. 123
Strengthening Government Accountability-Votes of Confidence on Government Officials in the National Assembly	p. 124
Clarifying the Roles of the National Assembly, the Government and the Prime Minister	p. 125
Narrowing the Jurisdiction and Functions of the Supreme People's Procuracy	p. 125
Dealing with Difficult and Controversial Amendments	p. 126
The Aftermath of the Constitutional Amendment Process	p. 127
Further Reading	p. 129
Implementing Constitutional Guarantees: The Problem of Associational Rights	p. 131
Freedom of Association and Its Implementation in Vietnam	p. 131
The Role of Associations and Other Voluntary Organisations	p. 133
Control Mechanisms in the Legal Regulation of Social Organisations, 1946-90	p. 135
Opening Channels for Social Organisations through the Transition from 'Approval' to 'Registration' in the 1992 Science and Technology Decree	p. 138
Recognition of Social Organisations in the 1995 Civil Code	p. 140
The Long Road toward the Constitutional Guarantee of Freedom of Association: The Law on Associations in Vietnam	p. 141
The Battleground of the 2003 Decree on the Organisation, Operation and Management of Associations	p. 142
Debating the Constitutional Guarantee: The Conflicts over the Law on Associations	p. 145
Should Party-Related Mass Organisations be Subject to the Law on Associations?	p. 147
Should the 'Dual Management' Role of the State be Maintained?	p. 148
How Complex and Cumbersome Should Registration of Associations Be?	p. 149
The Problem of Geographic Restrictions on Registration	p. 149
Should Non-Resident Vietnamese, Foreigners and Foreign-Invested Enterprises in Vietnam be Permitted to Join Vietnamese Associations?	p. 150
Detailing the Constitutional Guarantee: The Alternative Draft Law on Associations (2005-06)	p. 150
Conflict, Denouement-and Beginning Again	p. 150
Awaiting the Constitutional Guarantee of Freedom of Association	p. 152
Implementing the Constitutional Guarantee: Key Issues for the Future	p. 152
Prohibited Purposes and Activities and the Scope of Constitutional Guarantees to Form Associations	p. 153
Should the 'Dual Management' Role of the State be Maintained?	p. 153
Will Party-Related Mass Organisations be Subject to the Law?	p. 154
How Complex and Cumbersome Should Registration of Associations Be?	p. 154
Geographic Restrictions on Registration	p. 155
Organisational Membership: Non-Resident Vietnamese, Foreigners and Foreign-Invested Enterprises in Vietnam	p. 155
The Special Role of Government Appropriations	p. 156
The Scope of Advocacy Allowed to Associations	p. 157
The Role of Taxation in Associational Formation and Regulation	p. 157
Fighting for Civil Society? Constitutionalism and the Conflict over the Law Governing Freedom of Association	p. 157
Further Reading	p. 159
The Problem of Judicial Independence in a Party-Dominated State	p. 161
The Do Son Land Case and the Emergence of Judicial Interference onto the Public Stage	p. 163
Sidestepping a Constitutional Guarantee through Policy and Official Letters (Cong Van)	p. 170
Judicial Interference Unresolved	p. 173
The Long and Tortuous Road Ahead for Judicial Independence in Vietnam	p. 173
Demanding Results from the Courts, Not Seeking Their Autonomy	p. 174
Official Letters and the Perversion of Judicial Autonomy	p. 176
Party Regulation versus the Constitutional Guarantee of Judicial Autonomy	p. 177
The Results of Do Son	p. 177
Lifting the Veil on Interference with the Judiciary and Legal Process	p. 178
Further Reading	p. 181
Enforcing the Constitution: The Debate over 'Constitutional Protection' and a Constitutional Court	p. 183
Early Discussion of Constitutional Review, Enforcement and Protection in Vietnam (1946-57)	p. 185
Constitutional Supervision and Enforcement (1959-92)	p. 186
The 1992 Constitutional Framework and Beyond: Constitutional Enforcement and Review in the Vietnamese Constitutional Scheme	p. 186
The Constitutional Revision of 2000-01 and the Debate on Constitutional Review and Enforcement	p. 188
The Renewed Discussion of Constitutional Review after the 2001 Constitutional Revisions	p. 191
The Current Debate: Delineating Options and Debating Structures for Constitutional 'Protection', Enforcement and Review	p. 193
Constitutionality and the Hierarchy of Law: The Problem of Over-Reaching Local and Ministry Legislation and Legal Documents	p. 195
Motorcycle Rights: Constitutionalism Hits the Streets in Hanoi and the Implications for Constitutional Review and Enforcement	p. 197
Moving Forward on Constitutional Debate	p. 200
The Future of Constitutional Review and Enforcement in Vietnam	p. 207
Further Reading	p. 210
The Future of the Vietnamese Constitution	p. 211
Bibliography	p. 213
Index	p. 217
Table of Contents provided by Ingram. All Rights Reserved.