Introduction
In 2011, the Vietnamese National Assembly adopted a plan to amend the 1992 Constitution. The amendment process culminated in the enactment of a new constitution on November 28, 2013, which effectively replaced the 1992 charter.[217] After its adoption, state media praised the Constitution as the nation's great achievement,[218] while criticisms of the constitution were published in unofficial platforms.[219] Among the critical views, Professor Hoang Xuan Phu penned a 25-page paper castigating the 2013 Constitution as an “unconstitutional constitution,” published on his personal webpage.[220] This chapter explores this paper from a comparative perspective.
Professor Hoang's paper is unique in Vietnamese constitutional discourse. It is perhaps the first and only account of Vietnam's constitution as an unconstitutional constitution. The authorship of the paper is also special. Professor Hoang is a mathematician, not a legal scholar, let alone a constitutional scholar. It is quite unusual for a professor of mathematics to produce an extensive treatment on constitutional law. However, this is understandable in the Vietnamese context. Vietnamese constitutional debate in 2013 involved a range of national intellectuals beyond legal academics. More generally, Vietnamese national intellectuals regardless of their academic background have often engaged in debating national affairs. This may be in part because the Vietnamese culture expects public intellectuals to contribute to public affairs.
Professor Hoang argues that Vietnam's 2013 Constitution is an unconstitutional constitution because some subsequent provisions in the Constitution violate fundamental principles established in other preceding provisions. This chapter explores Professor Hoang's account of an unconstitutional constitution, while situating it within the broader national constitutional debates in Vietnam and comparative scholarship on unconstitutional constitutional amendments and unconstitutional constitutions. It argues that Professor Hoang's account of an unconstitutional constitution is a political, critical, and normative discourse on Vietnam's Constitution.
First, his account is not a judicial doctrine but a political discourse of a public intellectual on unconstitutional constitutions. The discourse is informed and motivated by political events, particularly the preceding, broader, national constitutional debate, and the adoption of the new constitution. Second, his discourse is critical in the sense that it is an intellectual interpretation of some principles of Vietnam's 2013 Constitution in line with liberal constitutionalism and international law. It also relies on comparative analysis to castigate other provisions in the socialist Constitution of Vietnam as unconstitutional. Third, the discourse is normative as it calls for constitutional amendments to make the Constitution constitutional by incorporating liberal and universal norms.Professor Hoang's arguments echo the arguments justifying the doctrine of unconstitutional constitutional amendments and the doctrine of unconstitutional constitutions in comparative scholarship. The implication of this chapter is that the unconstitutional constitution is not necessarily a judicial doctrine but can be a political theory which may inform public constitutional discourse. In addition, comparative inquiry into unconstitutional constitutions and amendments can be extended to public discourse, beyond courtrooms and constitutional texts.
4.2