Hoang’s account of unconstitutional constitution

4.4.1 What is an unconstitutional constitution?

Professor Hoang believes that

unconstitutional legislations are not rare. But the constitution that is also unconstitutional is so rare that it can be considered the “specialty” of the [Vietnam's] regime.

He may not be aware of the comparative experience of unconstitutional consti­tutions and amendments elsewhere, but his explanation of the unconstitutional constitution in Vietnam resonates with the comparative insights.

His theory of an unconstitutional constitution is based on logical inference rules, which understandably echoes mathematical reasoning due to his academic background. He formulates this logic:

Since all provisions in a constitution are considered “norm”, when two norms contradict each other, one can use one to negate the other and vice versa, and in the end, both become unconstitutional. However, we will not completely negate both, but “forgive” the term that takes precedence in the constitution and use it to evaluate other provisions. So, what is the basis for determining the priority position in the constitution? According to the framers' mindset, Chapter I must have the highest priority, and Chapter II has a higher (more important) priority than the following chapters. Within a chapter, what is put first is perhaps also considered more important than what is placed behind.^[244]

Chapter I in Vietnam's Constitution established principles fundamental to the subsequent provisions on rights and state institutions. Within Professor Hoang's logic, the subsequent provisions on rights and state institutions can be consid­ered unconstitutional if they violate the constitutional principles established in Chapter I.

Three of the seven unconstitutional contents mentioned above have been commented and criticized a lot during the discussion of the Draft 1992 Amendment of the Constitution. However, the authorities still defied and tried to keep it... And as an instinct, every time it makes a mistake, the authorities' reasoning and propaganda machines often capture conflicting opinions as hostile or reactionary. Now, in this essay, all the arguments are purely based on the 2013 Constitution. So, if you still try to attribute the conclusions drawn here as reactionary, then it is no different than consider­ing the Constitution of the contemporary regime as reactionary.^[245]

Apart from the principles in the existing constitution, Professor Hoang also refers to international law, particularly the United Nations Charter and the 1948 Universal Declaration of Human Rights, to prove that a certain provision of the 2013 Constitution is unconstitutional. However, he contends that this international reference does not mean invoking external documents, but only to confirm that the provision under consideration violates Article 12 of the 2013 Constitution, which provides that the Socialist Republic of Vietnam com­plies with the United Nations Charter and international treaties to which it is a signatory.^[246]

The next sections will focus on his arguments on three controversial issues which were prominent in the 2013 Vietnamese constitutional debates: human rights, land ownership, and popular sovereignty.

4.4.2 Human rights

The issue of human rights was one of the most contentious issues in the 2013 constitutional debates. The 1992 Constitution already included a provi­sion on human rights and a lavish list of fundamental rights. In 2013, how­ever, reformers advocated for a more universal understanding of human rights as opposed to the socialist conception of rights as given to citizens by the state. In another direction, reformers called for the inclusion of more rights in the new constitution in accordance with international human rights treaties that Vietnam ratified.^[247]

Professor Hoang’s argument on the unconstitutionality of a human rights provision in the 2013 constitution echoed that broader human rights discourse in Vietnam. He argued that Article 14 on human rights in Chapter II contradicts the principle of human rights established in Article 3 of Chapter I. Article 3 newly added this provision: “The State... acknowledges, respects, protects and guar­antees human rights and citizens’ rights.”^[248] Article 14 of the new Constitution basically retained a provision of the preceding 1992 Constitution, which states that human rights and citizens’ rights “are recognized, respected, protected and guaranteed in concordance with the Constitution and the law.”^[249]

Professor Hoang opines that:

Citizens’ rights can be unique to each country, but human rights are univer­sal in the world, not something bestowed by the authorities of each country. Normally, the State must recognize all human rights, whether or not they are specifically mentioned in the Constitution and law or not. Human rights mentioned in Article 3 of the 2013 Constitution must carry such meaning. Therefore, the fact that Clause 1 Article 14 of the 2013 Constitution restricts human rights, only “recognizes... according to the Constitution and the law”, is a violation of Article 3 of the 2013 Constitution.^[250]

In other words, Article 14's statist position on human rights contradicts Article 3 on human rights which should be read as a universalist commitment (human rights beyond the state's positive creation by law).

Why is there such an unconstitutional constitutional provision? Professor Hoang explains:

This unconstitutionality is not accidental, but a traditional product of “miraculous syndrome”, which is the dominant way of thinking, that people can only do and enjoy only what the authorities allowed. It stems from the misconception that the rulers are “much higher than” all of the People and have “the right to kill” over the People's community. It is a serious disease, has bound our People and hindered the development of our people for dec­ades, turning our People into a “thinking slave.” The so-called “doi moi” (which has been carried out since the 80s of the 20th century) is just that the government is compelled to “untie”, or more precisely speaking to “loosen”, giving back to the People a portion of their inherently self-sustaining right to live and self-employment. Therefore, if you want to truly liberate the People, liberate the People from the chains, you must be determined to erase this “miraculous syndrome.”^[255]

The new 2013 Constitution presents a dissonant move. It signals a commitment to universal human rights, while retaining the hegemony of right statism.

4.4.3 Land, ownership

Land ownership is another controversial issue in the 2013 Vietnamese constitu­tional discourse. The debates focused on the question ofwhether the Constitution should allow for private ownership of lands. The debates on this question were informed by several cases in which authorities confiscated peasants' lands for developmental projects, leading to violent protests. Reformers believed that the 1992 Constitution which provided for the state's exclusive ownership of lands was the source of land disputes and official corruption. Therefore, they called for the privatization of land ownership.^[256]

As mentioned above, Professor Hoang wrote several pieces on land issues before and during the constitutional amendment process. Understandably, this issue prominently returned in his account of the unconstitutional constitution. He argued that Article 53 of the 2013 Constitution, which continued to provide for state ownership of all lands, is unconstitutional. His argument was based on historical, contemporary, and international grounds.

First, he traced the unconstitutionality of the 2013 Constitution's continued nationalization of lands back to Vietnamese constitutional history. He demon­strated that the first constitution of the country enacted in 1946 protected “The ownership of property of Vietnamese citizens.”^[257] He infers that: “Obviously, land is a form of property, so the private ownership of land by citizens is also guar­anteed by the 1946 Constitution. That is what has become evident and also the solemn commitment of this regime at its inception.”^[258] The next Constitution of 1959, Professor Hoang indicates, continued to provide for the protection of private ownership of property generally and explicitly recognized the “ownership of land by peasants.”^[259] The third Constitution of 1980, however, nationalized all lands under the form of “people's ownership of lands”^[260] which actually means the state's ownership of lands.

When the VI National Assembly (1976-1981) passed the 1980 Constitution on December 18, 1980, the 1959 Constitution was still in effect. Therefore, the vote of the 6th National Assembly to abolish private legal ownership of land and assert that all “land... belongs to the entire people” (Article 19 of the 1980 Constitution) is a gross violence to the Constitution in effect.^[261]

In other words, he believes the 1980 Constitution is unconstitutional because it violated the preexisting 1959 Constitution.

Second, Professor Hoang argued the 2013 Constitution is unconstitutional because it still retains the same provision nationalizing lands established by the 1980 and 1992 constitutions. Particularly, he contends that Article 53 of the 2013 constitution (which establishes the state ownership of lands and excludes the right to private ownership of lands) violates the constitutional right to private property established by Article 32 of the same constitution.^[262]

Third, he castigated Article 53 of Vietnam's 2013 Constitution for violating Article 17 of the Universal Declaration of Human Rights, which guarantees the right to private property. That also means the violation of Vietnam's constitu­tional commitment to conforming with the international treaties it ratified.

Finally, Professor Hoang proposed that to make the 2013 Constitution con­stitutional, it should abolish the provision nationalizing lands and allow for pri­vate land ownership.^[263]

4.4.4 Popular sovereignty

The 2013 constitutional debates in Vietnam featured the two interrelated ques­tions: people's sovereignty and the Party's leadership. Reformers questioned the constitutionalization of hegemonic power of the Communist Party on the grounds of people's power. Critics called for the elimination of Article 4 in the 1992 Constitution, estabishing the leadership of the Communist Party, which may open the door for the practice of the people's power through free elections.^[264]

As mentioned above, during the constitutional amendment process, Professor Hoang wrote several articles criticizing the constitutionalization ofthe Communist Party. This question returned in his account of the new constitution as unconsti­tutional. He contends that Article 4 in the new Constitution, which continued to mandate the Party's leadership, is unconstitutional because it violates Article 2 of the same document which established the principle of popular sovereignty.^[265]

Article 2 provides that “The Socialist Republic of Vietnam is a socialist rule of law State of the People, by the People and for the People,” and that “the people are the masters of the Socialist Republic of Vietnam; all state powers belong to the people.”^[266] Article 4 confirms that “The Communist Party of Vietnam... is the force leading the State and society.”^[267] Professor Hoang questioned the con­stitutionality of Article 4 on the ground of Article 2, reasoning that:

If “all state power belongs to the People” then at least the right to choose and determine “the force leading the State and society” must also “belong to the People”. This is the most fundamental and core right among “state pow­ers”. Only when the people exercise that basic right can the State be consid­ered “of the People, by the People”, and that the State can be “owned by the People”. But in reality, the People have never elected the Communist Party of Vietnam as “the force leading the state and society”. Why then did the framers write in Article 4 of the 2013 Constitution that “The Communist Party of Vietnam... is the force that governs the State and society?”^[268]

Professor Hoang has anticipated arguments that the people vest in the National Assembly (elected by the people) the constitution-making power to establish the leadership of the Communist Party. He, however, considers such an argument to be “sophism”^[269] due to these reasons:

First, the National Assembly was elected among the candidates selected by the ruling force and therefore did not represent the will and aspiration of the entire people.^[270]

Second, the Constitution does not have any provision empowering the National Assembly to select a vague force leading the state and the society. The Constitution only vests the five-year term of the National Assembly to select par­ticular government offices corresponding to its specific terms. He underlined: “The National Assembly is only empowered for a five-year term and cannot be allowed to elect indefinite titles or powers as in Article 4 of the 2013 Constitution!”^[271]

Third, the National Assembly is vested with the constitution-making power, but “constitution” must be understood in the “normal and sound sense.”^[272] He said:

It is impossible to abuse the constitution-making power to arbitrarily write in the Constitution “abnormal” provisions. In normal constitutions of the world, it is not possible to constitutionalize a permanent leadership of a sin­gle political party towards the state and society. In the name of “special circumstances”, the National Assembly may introduce some “unusual” con­tents to the Constitution, but that will only be considered “in accordance with the people's hearts” if it is approved by the majority of the people in a national referendum.^[273]

Professor Hoang Xuan Phu concludes:

The people of this generation do not have the right to decide for the People of the generations to come... In any case, the People of this generation and the incumbent National Assembly are not allowed to constitutionalize the eternal power to “lead of the State and society” of any “force”.^[274]

He suggests that to resolve the problem of unconstitutionality, either Article 2 or Article 4 of the Constitution must be amended or abolished:

If Article 4 is kept, Article 2 must be amended to delete the contents “State of the People, by the People, for the People”, “owned by the People”, and “all state power belongs to the People” out of the Constitution. Since the deleted content is characteristic of the “Republic” regime, the country name must also be changed, for example replacing the word “Republic” with “Party Nation”, similar to the model of “Kingdom”. On the contrary, if Article 2 is kept intact with the institution of “Republic”, then only way is to delete the content of Article 4.^[275]

4.5