Unamendability and unconstitutional constitution
Recent comparative scholarship has moved from the doctrine of unconstitutional constitutional amendments[221] to the doctrine of unconstitutional constitutions and even unconstitutional constituent power.[222] Richard Albert has explored four different conceptions of an unconstitutional constitution in Canada, Mexico, South Africa, and the United States.[223] He argued that “despite their unconstitutionality in different senses of the concept, each constitution is nonetheless rooted in democratic foundations.
The strength of these foundations, however, varies as to each.”[224] Albert's account focused on procedural aspects of unconstitutionality within democratic constitutions.David Landau, Rosalind Dixon, and Yaniv Roznai, in a recent paper, turned to the substantive dimensions of unconstitutional constitution.[225] Their inquiry is based on a 2015 case from Honduras where the Supreme Court ruled term limits provisions in the original 1982 constitution as unconstitutional.[226] They demonstrate that:
The Court focused on the parts of Articles 239 and 42 punishing attempts to change the term limit, holding that these articles were in tension with fundamental rights of freedom of expression found elsewhere in the Honduran Constitution and in regional and international human rights instruments, and which themselves were linked to the political rights of voters and candidates.[227]
The Honduran Court's theory of unconstitutional constitution rests on the collision between some parts of the constitution with other fundamental parts of the existing constitution and with international human rights law.[228] Landau, Dixon, and Roznai conclude:
some judicial review of original constitutional texts can be justified by using the same arguments currently used to justify the unconstitutional constitutional amendment doctrine. This may mean that the Honduran decision is not an isolated occurrence, but instead the harbinger of a broader trend, which we predict global constitutionalism will see more of.[229]
Professor Hoang's discourse of “unconstitutional constitution” resonates to some extent with the Honduran Court's theory of an unconstitutional constitution.
He also argues that some parts of Vietnam's Constitution are unconstitutional because they collide with other fundamental parts of the same document and with international human rights law. However, Professor Hoang's account is not a judicial doctrine but a political account of Vietnam's Constitution as an unconstitutional constitution. So, why does it matter? It matters in both a national and a comparative sense. Nationally, his account helps better understand the sources of constitutional dynamics in Vietnam. It reveals the dissonance within Vietnam's constitution and between it and transnational constitutional norms. This constitutional cacophony creates the space for dynamics of constitutional discourse in the country. Comparatively, Professor Hoang's account suggests that the unconstitutional constitution is not necessarily a judicial doctrine but can be a political theory which may inform the constitutional public discourse of intellectuals, citizens, legislators, and government officers.4.3