Background
4.3.1 Vietnamese constitutional debates
Under the leadership of the Communist Party, Vietnam enacted five constitutions in 1946, 1959, 1980, 1992, and 2013, respectively. Originally, the government had a plan to amend the 1992 constitution, but the process ended up with the enactment of a new constitution in 2013.
The 2013 constitution-making process is the most participatory in Vietnam's post-colonial history. During the process, Vietnamese citizens engaged in relatively open constitutional discussions on issues foundational to the socialist system, including the leading role of the Communist Party in the constitutional system,[230] human rights restriction according to the principle of proportionality,[231] land ownership,[232] the role of the state-owned enterprises in the national economy,[233] the role of the military, and other institutional questions.[234]
Participants in the Vietnamese constitutional dialogue included a wide range of national intellectuals. For example, 72 Vietnamese intellectuals in different fields (for example, law, journalism, economics, mathematics, music, and historical studies) signed a constitutional petition, which was later signed by more than 10,000 people. Famously known as Petition 72, it called for free elections, the separation of powers, and the protection of human rights by a constitutional court, among other things. Another notable initiative is the Cung Viet Hien Phdp (Let's Draw up the Constitution) group whose founders included, among others, Vietnamese mathematician Ngo Bao Chau and Vietnamese physician Dam Thanh Son, both at the Chicago University. The group created a website to facilitate online constitutional discussion beyond the state-run fora, which drew the attention and engagement of many Vietnamese intellectuals and citizens.[235]
4.3.2 Prof.
Hoang’s constitutional engagementProf. Hoang Xuan Phu is a professor at the Institute of Mathematics in Hanoi, Vietnam. He holds a Habilitation (Doctor of Science) from the University of Leipzig, Germany.[236] Before joining Vietnamese constitutional debates in 2013, he had already engaged in public debates on other national issues, including legal issues, such as local authorities grabbing peasants' land,[237] citizens' rights to demonstrate,[238] and the parliamentary vote of confidence on government members.[239]
With that experience, when the state launched the initiative of constitutional amendments, it was not surprising that Prof. Hoang vigorously engaged in constitutional debates. He is a member of the aforementioned 72 Petition group. In 2013, he wrote eight constitutional essays published on his personal website. Some of these essays were circulated on the website of the Cung Viet Hien Phap group. Professor Hoang's constitutional writings touched on some of the most controversial and sensitive constitutional questions. This explains why these writings were only published on his personal website or disseminated on other unofficial platforms, not in the official media due to censorship.
Professor Hoang proposed eliminating from the Constitution the provisions on the leadership of the Communist Party of Vietnam and state ownership of lands.24 He further called for popular sovereignty,25 changing the nation's name (without the word “socialist”),26 and constitutional protection of human rights,27 including the right to demonstration.28 These arguments challenged the ideological and institutional cores of the socialist constitutional system in Vietnam, while advocating for major ideas and institutions of liberal constitutionalism. Professor Hoang's arguments are supported by references to comparative constitutional experiences in western liberal democracies such as Germany, the US, and the UK.
To illustrate, he called for “opening the soul to learn from the American Constitution and the constitutions of other powerful countries to accumulate experiences for amending our country's constitution.”29After the amended constitution was adopted in late 2013, Professor Hoang wrote four essays in 2014 to criticize this document. The first essay considers the new constitution a “misamendment,” warning of the negative impact of new provisions restricting human rights, although it also recognizes some positive changes regarding the rights to counsel.30 The second essay condemned the Constitution as an “unconstitutional constitution” as discussed below. The third essay took advantage of the official media news's misspelling hien phap (constitution) as hiep phap (rape law) to argue that new Constitution was imposed upon
24 Hoang Xuan Phu, ‘Hai Tu Huyet Cua Che Do' [‘Two Death Points of the Regime'], (Hoang Xuan Phu, 11 January 2013), Http://Hpsc.Iwr.Uni-Heidelberg.De/Hxphu/Index.Php? Page=Readwriting&W=Haituhuyetcuachedo-20130111; Hoang Xuan Phu, ‘Dang Va Nhan Dan - Vi The Bi Trao' [‘Party and People - The Position Is Swapped'], (Hoang Xuan Phu, 17 September, 2013), Http://Hpsc.Iwr.Uni-Heidelberg.De/Hxphu/Index.Php?Page= Readwriting&W=Dangvanhandan-Vithebitrao-20130917 ; Hoang Xuan Phu, ‘Uan Khuc Trong Dieu 4 Hien Phap' [‘Mystery in Article 4 of the Constitution'], 9Hoang Xuan Phu, 29 August 2013), Http://Hpsc.Iwr.Uni-Heidelberg.De/Hxphu/Index.Php?Page=Readw riting&W=Uankhuattrongdieu4hienphap-20130829
25 Hoang Xuan Phu, ‘Cho Dung Cua Nhan Dan Trong Hien Phap' [‘The People's Place in the Constitution'], (Hoang Xuan Phu, 14 February 2013), Http://Hpsc.Iwr.Uni-Heidelberg. De/Hxphu/Index.Php?Page=Readwriting&W=Chodungcuanhandantronghienphap-20 130214
26 Hoang Xuan Phu, ‘Quoc Hieu Nao Hoi Tu Long Dan?' [‘Which Nation's Name Converges People's Hearts?'], (Hoang Xuan Phu, 17 May 2013), Http://Hpsc.Iwr.Uni-Heidelberg.
De/Hxphu/Index.Php?Page=Readwriting&W=Quochieunaohoitulongdan-2013051827 Hoang Xuan Phu, ‘Teo Dan Quyen Con Nguoi Trong Hien Phap' [‘Gradual Decline of Human Rights in the Constitution'], (Hoang Xuan Phu, 15 January, 2013), Http://Hps c.Iwr.Uni-Heidelberg.De/Hxphu/Index.Php?Page=Readwriting&W=Teodanquyenco nnguoitronghienphap-20130115
28 Hoang Xuan Phu, ‘La Thuc Thi Quyen Hien Dinh Ong Trong A!' [‘It Is to Exercise the Constitutional Right, Mr. Trong Sir!'] (Hoang Xuan Phu, 26 February 2013), Http://Hps c.Iwr.Uni-Heidelberg.De/Hxphu/Index.Php?Page=Readwriting&W=Lathucthiquyenhien dinhongtronga-20130226
29 Hoang Xuan Phu, The People's Place in the Constitution (note 25).
30 Hoang Xuan Phu, ‘Hien Phap 2013 - Sua Nham Hay Doi Thiet?' [‘Constitution 2013 - Misamendment or Correct Change?' (Hoang Xuan Phu, 29 August, 2014), Http://Hps c.Iwr.Uni-Heidelberg.De/Hxphu/Index.Php?Page=Readwriting&W=Hienphap2013- Suanhamhaydoithiet-20140829
the people and may be amended or replaced in the near future.[240] The fourth essay (47 pages) critically evaluated the whole constitutional amendment process and the new substantive changes.[241] In this essay, he concluded:
Whether satisfied or disappointed with the results of the discussion on amendments to the Constitution, it is also an opportunity for many people to express their opinions. Whether or not you accept the other side's point of view, it is also an opportunity to understand each other's stance. The people have conditions to better understand the mind and reach of the ruling power and the National Assembly deputies. The authorities also better understand the people's frustrations, aspirations and capacities. This is perhaps the most remarkable achievement of the discussion on amending the 1992 Constitution.[242]
Professor Hoang recognized the procedural aspects of Vietnam's participatory constitutional amendments. The amendment process created a window of opportunity for a constitutional dialogue between the state and the people. He, however, retained strongly critical views about the substantive contents of the amendments. In his view, the amendments turn the constitution into an “unconstitutional constitution” as explored below.
4.4