Comparative analysis
4.5.1 Unamendability vs unconstitutional constitution
Unamendability can be legal, judicial, or political. Legal unamendability is entrenched in the constitution; judicial unamendability stems from courts' constitutional interpretation; and political unamendability is created by politicians.
The latter is connected to Richard Albert's conceptualization of constructive unamendability[276] Apart from the procedural aspects, there are substantive aspects of the political construction of unamendability. Substantive aspects of the constitution are made unamendable not by the constitution itself or by judicial interpretation but by politicians in the amendment agenda.Vietnamese political leaders are willing to amend the constitution, but their amendment agenda deliberately constructs basic socialist constitutional principles as unamendable to protect the existing socialist regime. This political construction of unamendability generates Professor Hoang's discourse of unconstitutional constitution.
Vietnamese constitutional amenders established principles of constitutional amendments. Accordingly, amendments must continue to confirm the overall socialist political system, the leadership of the Communist Party of Vietnam, and the socialist-oriented market economy, and the inseparability between citizens' rights and their duties.[277] These principles of constitutional amendments actually establish political limits on the amendment power. Consequently, core commitments to the socialist political and economic system (such as party leadership, the statist form of land ownership, and statist rights) are politically unamendable despite the absence of formal constitutional barriers. Therefore, the 2013 Constitution continues these socialist constitutional identities established in the preceding 1992 Constitution, although there were vehement calls among the society for amending these aspects during the amendment process.
The political limits of constitutional amendments in Vietnam aim to reject core norms of constitutionalism and to defend core norms of constitutional socialism. The new 2013 Constitution is conceived as unconstitutional not because of what it changes, but because of what it failed to change due to political unamendability.4.5.2 Constitutionalism and unconstitutional constitution
In comparative scholarship, the doctrine of unconstitutional constitutional amendments and the doctrine of unconstitutional constitutions rest on the ideas of liberal constitutionalism. These doctrines attempt to ensure that existing holders of power cannot change fundamental norms defining their power to protect fundamental values of liberty.
Liberal constitutionalism influenced the Vietnamese constitutional discourse in 2013.[278] This is in part due to the diffusion of ideas of liberal constitutionalism in Vietnam via several channels, such as translations of works by liberal thinkers (such as Rousseau’s The Social Contract and Montesquieu’s The Spirit of the Laws), and writings by Vietnamese legal scholars educated overseas.[279] Professor Hoang’s theory of an unconstitutional constitution is also informed by ideas of liberal constitutionalism. Although he claims that he bases his theory exclusively on the 2013 Constitution, he in fact interprets its fundamental principles (such as popular sovereignty, protection of human rights, the right to private property) in line with liberal constitutionalism. He refers to the comparative experience of western constitutional governments to justify his argument. The fact that the 2013 Constitution includes vague principles creates the space for alternative interpretations, including this critical interpretation as an unconstitutional constitution.
Professor Hoang uses the liberal construction of some fundamental principles of Vietnam’s Constitution as the criteria to evaluate other provisions in the text.
Consequently, his theory is actually that the 2013 Constitution is unconstitutional because some of its provisions contradict fundamental norms of liberal constitutionalism. In this regard, Professor Hoang’s theory of an unconstitutional constitution resonates with the arguments justifying unconstitutional constitutional amendment doctrines: namely, some core values of liberal constitutionalism (such as fundamental rights and popular sovereignty) are so fundamental that they must be beyond the scope of constitutional amendments. It also echoes the Honduran Court's theory of an unconstitutional constitution: both emphasize that some parts of the constitution collide with other parts on fundamental rights.4.5.3 International law and unconstitutional constitution
In comparative scholarship, the theory of unconstitutional constitutions conceives international law, particularly international human rights law, as “criteria for invalidating substantive constitutional provisions.”[280] According to Landau, Dixon, and Roznai,
the Honduran Court's explicit rationale focuses largely on a vision of Honduran constitutionalism that subordinates norms in the domestic constitution to certain precepts of international law, such as international human rights law. The Court suggests that it has the power to declare parts of the constitutional order to be incompatible with international principles and therefore to hold them “inapplicable”. The Court thus suggests a hierarchy in which the domestic constitution is itself subordinate to some aspects of the international legal order.[281]
As indicated above, Professor Hoang's theory of an unconstitutional constitution is also based on international law, particularly international human rights law. He uses international legal standards to evaluate some provisions in Vietnam's constitution regarding human rights and land ownership. However, he does not suggest a hierarchy: the domestic constitution is not subordinate to international law. Rather, his strategy is to construe some provisions in the constitution according to international legal standards and use this international interpretation as the framework to evaluate other constitutional provisions. He does not claim that some provisions are unconstitutional because they violate international law. His claim is that some provisions are unconstitutional because they violate the Vietnamese constitutional commitments to comply with international treaties the country signed. This claim still remains within the domain of domestic law.
4.6