A. Introduction
The twenty first century has witnessed the global resurgence of constituent power in both academic debate and the practice of constitutional adjudication and design. In general terms, constituent power refers to the power to establish or make a constitution.Footnote 1 In democratic constitutional theories, constituent power normally refers to the people’s power to make a constitution, which is differentiated with the constituted powers excercized by ordinary institutions such as the legislature, executive, and judiciary.Footnote 2 In practice, as Cheryl Saunders observes, “people now expect actually to be involved in the constitution-making process and not just symbolically associated with it.”Footnote 3
Comparative constitutional law scholarship on constituent power has largely focused on democratic settings. Little attention has been paid to how this power is designed and practiced in socialist regimes. In many socialist regimes, the constituent power is not exercised by the people, but by an ordinary legislature. However, in some cases, ordinary citizens have widely engaged in the process of constitution-making despite political control. To illustrate, in Vietnam’s 2013 constitution-making process, the citizens vehemently demanded for the people’s practice of constituent power through referendum,Footnote 4 although in Cuba the citizens approved a new constitution in a referendum in 2019.Footnote 5 The socialist practices of constituent power can be hardly captured by the existing comparative scholarship on this power.
To fill in the academic gap, this Article explores the design and practice of the constituent power in both former and current socialist regimes. It identifies three paradigms of the socialist constituent power. In the revolutionary paradigm, the power is used at the founding moment after a communist revolution to establish the legal foundation for a socialist state. In the Soviet, post-revolutionary paradigm, constitutent power is a power of the ordinary legislature used for the replacement of an existing by another socialist constitution. In the contemporary reformist paradigm, the socialist constituent power is still vested in an ordinary legislature but its design and practice integrate ideals and practices of democratic constituent power, including public engagement in constitutional reforms, as the conseuqnce of the people’s truggle for the people’s constituent power and the global diffusion of the idea of the popular constituent power. The reformist paradigm is illustrated by a case-study of Vietnam, using original resources. This study has implications for understanding the Soviet legacies and contemporary dynamics of constituent power in the socialist regimes, and for the comparative study of constituent power generally.
This Article is structured as follows. Part I explores democratic theories of constituent power. Part II turns to consider the design and practice of socialist constituent power and theorize about models of the socialist constituent power. Part III provides a case-study of discursive struggle for this power in contemporary Vietnam. Part IV concludes.
B. Democratic Theories of Constituent Power
I. The People’s Constituent Power
In democratic theories, constituent power is the people’s power.”Footnote 6 This concept is connected to Rousseau’s theory,Footnote 7 but has been fully developed by French political writer Emmanuel Joseph Sieyès. Sieyès distinguishes between “constituent power” (pouvoir constituant) exercised by the people or “the Nation” in extraordinary moment and “constituted powers” (pouvoir constitue) exercised by ordinary institutions—a parliament, an executive, and courts in normal time. In normal time, the people act through ordinary institutions, but in extraordinary time, they repudiate the existing ordinary institutions and execute their original constituent power to directly establish a new constitutional order.Footnote 8 To justify the French Revolution, Sieyès argues that the people exercised their constituent power through the extraordinary representatives—like the Assembly of the Third Estate—as opposed to the constituted powers exercised by ordinary representatives.Footnote 9 Sieyès’s theory of constituent power integrates Rousseau’s theory of social contract and general will with Montesquieu’s theory of separation of powers. The separation of power implied the creator of the separationist scheme, and it is the constituent power as presenting the general will to create separated, constituted powers.Footnote 10
The theory of constituent power is further articulated by the German constitutional theorist Carl Schmitt. Schmitt defines constitution-making power or constituent power as “the political will, whose power or authority is capable of making the concrete, comprehensive decision over the type and form of its own political existence.”Footnote 11 Who makes such a decision? Schmitt recognizes that the authors of constituent power varied over times—they can be the prince or the people. He also accepts the idea that the people can delegate the constituent power to their elected representatives.Footnote 12
II. Democratic Paradigms of Constituent Power
The concept of constituent power was overlooked in English-speaking constitutional scholarship for years but has witnessed a renaissance in the twenty-first century.Footnote 13 Several treatises and other academic writings have extensively explored the concept.Footnote 14 This body of scholarship complicates and challenges the conventional accounts of the concept of constituent power. For example, Andrew Arato distinguished the revolutionary from the post-revolutionary or post-sovereign paradigm of constituent power. In the revolutionary paradigm, the people exercise the legally unlimited constituent power, which creates a new democratic constitutional order as a legal rupture from the past constitutional order. This paradigm is evident in eighteenth century constitution-making in the United States and France following two radical political revolutions. In the post-revolutionary paradigm, the constituent power is exercised within a legal framework through multiple stages, which creates a new democratic constitutional order while maintaining legal continuity with the past constitutional order. This paradigm is manifest in constitution-making in Central Eastern Europe and South Africa.Footnote 15
Gary Jacobsohn and Yaniv Roznai challenge Sieyès’s binary account of the constituent and constituted powers. Their alternative relational approach conceptualizes the possibility of the practice of the constituent power by the constituted power. Using the case of amending the 1949 Constitution of Hungary, they argued that constituent power can be exercised through the mechanism of constitutional amendments, which lead to constitutional revolution or the fundamental transformation of the constitutional order. Constituent power exercised in this way is not extralegal but under the law—the amendment rules in the existing constitution.Footnote 16 This echoes Arato’s concept of post-revolutionary constituent power.
A related view sees the people as the amenders of the constitutions through constitutional referendums.Footnote 17 In the last three decades, constitutional referendums, meaning “any direct citizen vote on the specific issue of constitutional change or constitutional creation,” were commonly used in both constitutional amendments and making new constitutions.Footnote 18 Xenophon Contiades and Alkmene Fotiadou argue that amendment formula designed to facilitate the direct participation of the people in the constitutional amendment process through referendums “replicate the constitutional moment when the pouvoir constituant was exercised.”Footnote 19
Beyond academic debate, the concept of constituent power has been practically used in both constitutional adjudication and design. On constitutional adjudication, the concept is used in the context of judicial review of unconstitutional constitutional amendments. Richard Albert points out that “courts that have annulled constitutional amendments for exceeding the scope of the amendment power must believe either that they can accurately identify an exercise of constituent power or, more likely, that they can recognize when a constitutional change has been supported by something less than constituent power.”Footnote 20 Apart from judicial review of amendments, the concept of constituent power has informed twenty-first century constitution-making practice around the world. Although the idea of constituent power was originally introduced as a conceptual normativity, it generates practical consequences today—the public participation in the constitution-making process.Footnote 21
C. The Socialist Constituent Power
In the socialist regimes, there is no a clear distinction between constituent power and constituted power. Rather, the ordinary legislature is considered the highest body of the state power and is vested with both constituent and legislative powers. This part explores the formal design and practice of the socialist constituent power and theorizes about various paradigms of the socialist constitutent power.
I. The Design and Practice of the Socialist Constituent Power
1. The Soviet Origin
The constituent power of an ordinary legislature is established in the Soviet constitutional tradition. The Soviet model of constituent power includes two elements. First, the institution of elected representatives—called either Congress of Soviet or Supreme Soviet—is the highest body of state power. This means this institution is above other state institutions—for example executive and courts. Second, the Soviet legislature is an ordinary legislature but enjoys both constituent and legislative powers.
The Soviet Russian Constitution of 1918 was adopted by the All-Russian Congress of Soviets.Footnote 22 The Constititon establishes that “the All-Russian Congress of Soviets is the supreme power of the Russian Socialist Federated Soviet Republic.”Footnote 23 The Constitution then establishes that the All-Russian Congress and the All-Russian Central Executive Committee deal with questions of state, including ratification and amendment of the constitution.Footnote 24 This means the All-Russian Congress enjoys constituent power: The power to ratify the constitution.
The Lenin Constition of 1925, enacted by the Congress of Soviets,Footnote 25 confirmed the constitutent power of the Congress of Soviets. The All-Russian Congress of Soviets is defined as the supreme power in the Russian Socialist Federated Soviet Republic (RSFSR)Footnote 26 and is vested with the power:
To establish, amend or modify the fundamental principles of the Constitution (Fundamental Law) of the RSFSR and to ratify amendments or modifications of parts of the Constitution (Fundamental Law) of the RSFSR passed by the All- Russian Central Executive Committee of Soviets during the intervals between the All-Russian Congresses of Soviets.Footnote 27
The power to establish fundamental principles of the constitution is a constituent power. The Congress of Soviets’s adoption of the Lenin Constition of 1925 is the embodiment of its constituent power in practice.
The Congress of Soviets also practiced the constituent power by adopting a new Soviet constitution in 1936 or the Stalin Constitution.Footnote 28 The Congress of Soviets dissolved following the enactment of the 1936 Constitution, and was replaced by the Supreme Soviet of the Soviet Union. The 1936 Constitution confirms that Supreme Soviet, “the supreme organ of state power of the Union republic,”Footnote 29 is “the sole legislative organ of the Republic”Footnote 30 and “adopts the Constitution of the Republic.”Footnote 31 Thus it continues the Soviet tradition to vest the constituent and legislative powers in the same body of elected prepresentatives.
The Supreme Council of the Soviet Union practiced the constituent power by adopting a new Soviet Constitution in 1977.Footnote 32 According to the 1977 Constitution, the Supreme Soviet of the USSR, “the supreme organ of state power of the USSR,” is empowered to adopt the Constitution and laws of the USSR.Footnote 33 Thus, the Supreme Soviet is both an ordinary legislature and the permanent body of constituent power.
2. Transnational Diffusion
During the Soviet era, the Soviet model of constituent power was adopted in other socialist constitutions in Europe, Africa, Latin America, and Asia, which were connected to the broader Soviet constitutional diffusion and the transnational spread of communism.
In Europe, many socialist constitutions followed the Soviet model to vest the constituent power in an ordinary legislature. To illustrate, the Constitution of the People’s Socialist Republic of Albania, from 1976, provides that the People’s Assembly “approves and amends the Constitution and the laws.”Footnote 34 Similarly, the Constitution of the Czechoslovak Socialist Republic, from 1960, states that “[t]he National Assembly shall enact the Constitution and other laws, and shall supervise their implementation.”Footnote 35 The Constitution of the German Democratic Republic, from 1968, also provides that the People’s Chamber is, “the supreme organ of state power in the German Democratic Republic,” and “is the sole constituent and legislative organ in the German Democratic Republic.Footnote 36 The Constitution of the Republic of Hungary, from 194 as amended in 1972, empowers the parliament to “enact the constitution of the Hungarian People’s Republic” and “enact laws”.Footnote 37 The Constitution of the Socialist Republic of Romania, from 1965, stipulates that the Grand National Assembly, “the supreme body of state power,” has the power “to adopt and amend the Constitution of the Socialist Republic of Romania.”Footnote 38 Thus, these socialist constitutions in Europe do not clearly distinguish between constituent and legislative powers. They vested these two powers in the same body: An ordinary legislature.
In Africa and Latin America, some socialist constitutions followed the Soviet model of constituent power. The Constitution of the People’s Democratic Republic of Ethiopia, from 1987, provides that the National Shengo of the People’s Democratic Republic of Ethiopia has the power to “enact, amend and supervise the observance of the Constitution and Proclamations.”Footnote 39 The Constitution of the Republic of Cuba, from 1976, confirms that “the National Assembly of the People’s Power is the sole organ with constituent and legislative authority in the Republic.”Footnote 40 These constitutions authorize the ordinary legislature to practice the constituent power.
In Asia, many socialist constitutions adopted the Soviet model to vest the constituent and legislative power in the same ordinary legislature. The Constitution of the People’s Republic of Kampuchea, from 1981, provides that the National Assembly has the power “to adopt or amend the Constitution and the laws.”Footnote 41 In the same vein, the Socialist Constitution of the Democratic People’s Republic of Korea, from 1972, confirms that the Supreme People’s Assembly, “the highest organ of power of the Democratic People’s Republic of Korea,” shall exercise the power “to adopt or amend the Constitution, laws and ordinances.”Footnote 42 Similarly, the Constitution of the Lao People’s Democratic Republic, from 1991, establishes that the National Assembly has the power “to draft, endorse, and amend the constitution” and “to consider, endorse, amend, or abrogate laws.”Footnote 43 The Constitution of the Democratic Republic of Vietnam, from 1959, also provides that the National Assembly, “the highest organ of state authority,” exercises the power “to enact and amend the Constitution” and “to enact laws.”Footnote 44 The second socialist constitution of Vietnam, from 1980, even confirms that “[t]he National Assembly is the only body vested with constituent and legislative power.”Footnote 45 These socialist constitutions in Asia, like their Soviet and European counterparts, empower the ordinary legislature to exercise the constituent power.
3. Contemporary Reform
After the collapse of the Soviet Union, there are only five socialist regimes—China, Cuba, Laos, North Korea, and Vietnam—in the world, and there are some changes to the entrenchment and practice of constituent power in these regimes. China’s socialist constitutions—adopted in 1954, 1975, 1987, and 1982 respectively—do not formally establish the constituent power of the legislature, although in reality, the national legislature, the National People’s Congress, made new constitutions.Footnote 46 North Korea retains but amended the 1972 socialist Constitution, and the current version of the document, as amended in 2023, only empowers the Supreme People’s Assembly to amend, not to adopt the constitution.Footnote 47
The Constitution of the Lao People’s Democratic Republic, from 2015, continues to confirm that the National Assembly’s the national legislature, has the power “to consider and adopt the Constitution and Laws.”Footnote 48 In practice, the National Assembly adopted the Laos’ 2015 Constitution but with significant public participation.Footnote 49 The current Constitution of Cuba adopted in 2019 continues to establish that National Assembly of the People’s Power is the sole organ with constituent and legislative authority.Footnote 50 In practice, the adoption of the constitution involves strong public consultation followed by referendum (“popular affirmation”).Footnote 51
In Vietnam, the National Assembly adopted the third socialist constitution in 1992, which continues to confirm that “[t]he National Assembly is the only body vested with constituent and legislative power.”Footnote 52 The National Assembly adopted the third socialist constitution in 2013, the current constitution in Vietnam. During the process of making this constitution, the public strongly advocated for the practice of constituent power by the people through referendum. Eventually, the Constitution was still adopted by the ordinary legislature and continues to confirm the constituent power of the National Assembly.Footnote 53 However, in response to the public activism, the Constitution ambiguously recognizes the people’s constituent power in the preamble and promises referendum in future constitution-making and amendments.Footnote 54
II. The Socialist Paradigms of Constituent Power
Like the practice of constituent power in democracies, the practice of this power in the socialist regimes present various paradigms in different periods. These paradigms can be characterized as revolutionary, Soviet post-revolutionary, and contemporary reformist.
1. The Revolutionary Paradigm
In the revolutionary paradigm of Soviet Russia, the socialist constituent power is used after a communist revolution to establish the legal foundation for a socialist state. The condition leading to the practice of this power is a communist revolution. The constituent power was used to make a socialist constitution of 1918 immediately after the Russian Revolution in 1917 that overturned the emperial government. By nature, the socialist constituent power in the revolutionary paradigm is an extraordinary power in subjective, procedural and substantive senses. The subject of the socialist constituent power is a supreme body of the revolutionary government—All-Russian Congress of Soviets. In terms of procedure, the use of the socialist constituent power is extralegal. The power is practiced outside the existing political order and is not limited by pre-established fundamental legal rules. Substantively, the practice of the socialist constituent power seeks to codify the achievements of the communist revolution, overturn the previous political regime, and establish a new socialist constitutional order.Footnote 55
Similar to the revolutionary paradigm of the democratic constituent power, the socialist revolution occurred after a social revolution overturning a political regime. The nature of the revolutions, however, is different, which leads to the different goals in the use of the constituent power. The socialist constituent power is used after a communist revolution and hence aims to create a socialist legal order and political regime, where the democratic constiturent power is practiced after a democratic revolution and hence seeks to establish the foundation for a liberal democracy.
The cases of China and Cuba present variations of the revolutionary paradigm of socialist constituent power. In both cases, the communist revolutions did not lead to the immediate use of the constituent power. The Chinese Revolution culminated in the creation of People’s Republic of China in 1949, but it was not until 1954 that the China’s National People’s Congress adopted the first socialist constitution.Footnote 56 In the same vein, the Cuban Revolution overthrew the government of Fulgencio Batista in 1959, but the first socialist constitution was only adopted by the people in a referendum in 1976.Footnote 57 The delayed constitution-making in Cuba and China can be artributed to the communist conception of a constitution as product of capitalist societies. Yet, when the revolutionary governments need to institutionalize their revolutionary achievements and lay down the foundation to build the socialist state and the socialist legal system, they need to resort to the constituent power.
2. The Soviet Post-revolutionary Paradigm
In the Soviet post-revolutionary paradigm, the socialist constituent power is used for the replacement of an existing socialist constitution by another socialist constitution. In this paradigm, the socialist constituent power is an ordinary power in subjective, procedural, and substantive senses. First, the subject of the socialist constituent power is an ordinary legislature constitutionally defined as the supreme power of the state. There is no extraordinary constituent assembly created for the exclusive purpose of practice of the constituent power. The ordinary legislature is also a permanent body of constituent power. The exercise of the constituent power by the legislature created by popular elections does not mean the people is the subject of the power. In functional terms, the socialist legislature is dominated by a communist party, and operates as a platform to institutionalize the party’s socialist policy.Footnote 58 Consequently, the communist party is the real subject of socialist constituent power. The ordinary legislature is a formal intermediate body for the party to practice the constituent power. Second, the process to exercise the socialist constituent power is not extra-legal but regulated by the existing constitution. Particularly, the constitution provides for the author of constituent power. Third, substantively, despite formal replacement, the use of the socialist consitutent power does not replace the existing socialist constitutional order but seeks to codify socialist political elite’s new projects for political, social, and economic development.Footnote 59
The socialist constituent power is rested on epistemological foundations different from the democratic theories of the constituent power. These epistemological foundations of the socialist constituent power include the statist conception of constitution, Marxist historical materialism, and the principle of democratic centralism.
First, unlike the Russeauian constitutional theory, a socialist constitution is not a social contract of the people to create the state.Footnote 60 Rather a socialist constitution is considered a document for the socialist state to project a fundamental program for social, economic, and political development.Footnote 61 As the socialist constitution is the document of the state, the power to make it belongs to the state, not the people. The national legislature is the supreme power of the state, hence it presents the state to exercise the constituent power, although in reality it is controlled by the communist party. In addition, as socialist constitutions are an mallable political instrument of the state, they will be amended or replaced when political elites adjust or replace their program for socialist development. Consequently, the elites need to use the constituent power as a normal power in normal times. This explains why the legislature is a permanent body of constituent power.
Second, the socialist constituent power is shaped by Marxist historical materialism. Marxist historical materialism perceives constitutions as the reflection of economic conditions.Footnote 62 Consequently, socialist constitutions can be replaced by new constitutions when the material conditions change. The socialist constitutions, therefore, anticipate their replacements, reflected in the the socialist constitutional design of the constituent power.
Third, socialist constitutions reject the Montesquieuian principle of separation of power and establish the principle of democratic centralism.Footnote 63 According to this socialist principle, the national legislature centralizes all state powers, but for efficiency, it mainly practices the legislative power, delegates executive and judicial powers to other state institutions—the government and the courts—and supervise the practice of the executive and judicial powers.Footnote 64 The legislature delegates state powers through its practice of the constituent power. Therefore, it has both constituent power and legislative power.
The socialist constituent power is entrenched in the existing constitution—for example, the constitutional provision establishing the constituent power of the legislature. The constitutional entrenchement of the socialist constituent power has three functions: Expressive, prescriptive, and preventive. First, the provision on the legislature’s constituent power expresses the reality that the existing constitution is made by the legislature. This expression also demonstrates the power of the legislature. Second, the provision prescribes that the legislature has the power to make a new constitution to replace the existing one. The prescriptive entrenchement allows constitutional reform within existing socialist polity. Third, the entrenchment of the constituent power of legislature seeks to prevent constitutional revolution. The entrenchment means only the existing legislature can make a new constitution to ensure that the new constitution, despite formal constitutional replacement, continues the socialist constitutional project. The constitutional mandate of the constituent power of the legislature aims to preclude the exercise of this power by actors outside the socialist constitutional order which may lead to the replacement of the socialist political regime.
3. The Contemporary Reformist Paradigm
The design and practice of constituent power in transitional socialist regimes like Cuba, Vietnam, and Laos do not neatly fit with democratic and conventional Soviet models of constituent power. Rather, it occurs in a grey zone in which the constitutient power is principally socialist but partially reflect democratic practices and ideals. In the contemporary reformist paradigm, the socialist constituent power is used for constitutional replacement and integrates some practices and ideals of democratic constituent power. The reformist features of the socialist constituent power are manifested in Vietnam in three aspects— subject, process, and substance.Footnote 65
First, the subject of the socialist constituent power is still the ordinary legislature but reflects the ideal of the people’s constituent power. On one hand, the subject of the socialist constitutient power remains the ordinary legislature due to ideological commitments—to constitutional statism, Marxist historical materialism, and democratic centralism—and political concerns—preventing constitutional revolution. On the other hand, the ideal of the people’s constituent power is recognized in the constitution in response to the people’s demand for the practice of their constituent power and the global diffusion of the people’s constituent power.Footnote 66
Second, the process of the practice of the socialist constituent power involves the people. The people do not enjoy the constituent power but engage in the practice of this power through participation in process of constition-making. Through public discourse, the people demand for transferring of the constituent power from the national legislature to the people. As the consequence of this discursive, contentious dynamic, the constitution formally recognizes the role of the people in the process of practice of the constituent power, through, for example, the procedure of constitutional referendum.
Third, substantively, the practice of the socialist consitutent power seeks to codify the socialist political elite’s agenda for political, social, and economic reforms.Footnote 67 The substances of these constitutional reforms may include non-socialist ideals, such human rights and market development. Consequently, the practice of the constituent power contintues the socialist constitutional project but introduces new reformist elements to this project to render the project adaptive to domestic social change and the international dynamics, including globalization.Footnote 68
Apart from Vietnam, the reformist model can also capture the dynamic and design of the socialist constituent power in Cuba and Laos. The subject of the constituent power in Cuba is the National Assembly, an ordinary legislature, but the 2019 Constitution formally recognizes the people’s constituent power in the preamble as well as in the rule of referendum in constitutional reform.Footnote 69 The process of the practice of the constituent power involves the public participation and referendum, although the referendum is managed by political elites. Substantively, the constituent power is used to codify the Communist Party of Cuba’s project for political, social, and economic reforms, including the constitutional recognition of private ownership.Footnote 70 The socialist constitutional project remains but is adapted to the changing society.
In Laos, the 2015 Constitution was adopted by the ordinary legislature, but the process of constitution-making significantly involved public participation, which is the base for the claim in its preamble that “[t]his Constitution is the fruit of the process of the people’s discussions throughout the country.”Footnote 71 The public participation reflects the democratic ideal of constituent power to some extent. The 2015 Constitution replaced the 2003 Constitution, continues the socialist constitutional project but adopts non-socialist ideas, such as human rights.Footnote 72
Comparatively, like the post-revolutionary paradigm of democratic constituent power in Central Europe and South Africa, the reformist paradigm of socialist constituent power is not extra-legal but under the law. However, different from the democratic paradigm, the socialist paradigm of constituent power continues rather than dismantles the existing constitutional project. The reformist use of the socialist constituent power is not to facilitate democratic transformation but to consolidate and adapt the existing socialist regime to the changing domestic and international environment.
D. Case Study: The Socialist Constituent Power in Vietnam
The global return of constituent power is resonated in Vietnam. In 2013, the national legislature adopted a new constitution.Footnote 73 During the constitution-making process, sectors of society—civil society organizations, legal scholars, activists, and other intellectuals—called for returning the constituent power to the Vietnamese people, particularly their power to adopt the new constitution in a national referendum.Footnote 74 This section explores the 2013 debate on constituent power. This section employs the method of discourse analysis to understand social meanings behind words and texts. It uses original resources in Vietnamese, including draft and final constitutions, newspaper articles, online posts, letters, and petitions.
I. The Discursive Struggle for The People’s Constituent Power
1. Initiation
The public debate on constituent power emerged around 2010 when the state planned to amend the 1992 Constitution for the second time. The starting point is the June 2010 interview of Vietnamnet, one of the most popular online state newspapers in Vietnam, with Mr. Nguyên Văn An, the former President of the National Assembly.Footnote 75 I Mr. Nguyên Văn An advocated for the practice of the constituent power in Vietnam in two forms—participation and referendum in the constitutional amendment process.Footnote 76 He considered the people’s exercise of constituent power necessary for the nation’s socialist social and economic development. In addition, he contended that constituent power is connected to the principle of the democratic republic, the founding regime in Vietnam.Footnote 77
Mr. Nguyên Văn An further justified constituent power on the base of sovereignty. He opined that through constitutional change, sovereign in Vietnam was changed from the people to the legislature.Footnote 78 He argued that Vietnam’s first Constitution adopted in 1946 established the constituent power of the people, citing its relevant provisions on constitutional referendum.Footnote 79 When things changed with the adoption of the socialist constitutions of 1959, 1980, and 1992, he continued. He indicated that these socialist constitutions, adopted by the legislature, transferred the constituent power from the people to the legislature—the National Assembly. He questioned:
Who has the authority to transfer that power? The obvious answer is that only the People have that power. However, there is no document that transfers the constituent power of the People to the National Assembly, but the National Assembly itself decided to delegate the power to make the Constitution [to itself].Footnote 80
This statement questioned the legitimacy of the constituent power enjoyed by the legislature. The transfer of constituent power also means the transfer of sovereign from the people to the legislature. He lamented: “This is a very, very fundamental change, a detachment from the true owner of the country. The National Assembly has both constituent and legislative power, so it is called the one who both plays the football and whistles.”Footnote 81
However, he argued that in reality “the National Assembly is very formalistic” because of the dominant role of the Communist Party of Vietnam.Footnote 82 He said:
Currently about 90% of National Assembly deputies are party members. Therefore, many people believe that, in theory, the National Assembly decides, but in reality, the Party decides. The decision of the National Assembly is just an extension of the decision within the Party. Thus, full Democracy changed to partial Democracy through National Assembly, but because both the People and the National Assembly are very symbolic, many people think that the Party is the real power.Footnote 83
This implies that the constituent power has been actually transferred to the Party. Mr. Nguyên Văn An then called for returning the constituent power to the people, which also meant restoring popular sovereignty.Footnote 84
Mr. Nguyên Văn An’s discursive advocacy for the people’s constituent power is informed by democratic ideals: As the people are the master of the country, they must have the power to make the constitutionFootnote 85 through which they delegate their power to the state institutions.Footnote 86 In addition, the constitutional discourse is also a critical response to the Vietnamese institutional arrangement and politics. The constitutional transfer of the constituent power from the people to the ordinary legislature has been questioned as illegitimate as the transfer is carried out by legislature itself. However, as the legislature is controlled by the Party, it is critically argued that the Party is the real onwer of the constitutent power.Footnote 87
2. Expansion
In 2011, when the National Assembly was considering amending the 1992 Constitution, intellectuals and other people expanded the discussion on the people’s constituent power in various forums. For example, the newspaper Ngư ờ i LaoĐộng (Labors) reported the debate on constituent power in workshop on constitutional amendments held in Hanoi on December 7, 2011 attended by over 200 participants.Footnote 88 In the meeting, Trần Ngọc Đường, a member of National Assembly Office, stated that in a rule of law state, the people, not the National Assembly, is the owner of the constitnent power.Footnote 89 In the same vein, Lê Văn Cảm, a senior law professor from Vietnam National University-Hanoi, lamented that the post-1946 Vietnamese Constitutions failed to recognize the people’s constituent power and their right to constitutional referendum.Footnote 90
Intellectuals, activists, and other individuals called for popular constituent power in various forums. Lê Hiếu Đằng, an activist lawyer, stated: “The Constitution must be approved by the people; its adoption by the National Assembly is only indirect, although the National Assembly is the representative institution.”Footnote 91 Nguyễn Sĩ Phương, a Vietnmese scholar in Germany, also concerned: “If the constitution is not approved in a referendum, this means that the state sets its own legal measures, standards and limits; then that country does not rule out the risk of turning to dictatorship or totalitarianism.”Footnote 92 Assembly deputy Trần Du Lịch questioned: “The National Assembly is the highest body of state power, which has constituent and legislative powers. So, what powers do people have in terms of state power?”Footnote 93 In response to the concern that the people may not have sufficient knowledge to vote on the constitution, Đinh Ngọc Vượng, a legal scholar, explained that “the people themselves are voters who wisely elect the National Assembly and People’s Councils at all levels. When voting for the National Assembly and the People’s Council, they are wise people, and when discussing important issues of the country, why are they not qualified enough?”Footnote 94 Lê Hiếu Đằng added: “Our intellectual level and economy have been stable, so we have enough conditions to conduct a referendum on the Constitution.”Footnote 95 Nguyễn Đình Lộc, a constitutional law scholar and former Minister of Justice, anticipated: “In future, there will definitely be a constitutional referendum. Saying that power belongs to the people, it is appropricate for the people to vote in a referendum.”Footnote 96
In 2012 when the government was preparing the draft amendments to the constitution, the public debate turned to constituent power as a design and practice matter: The amended constitution must affirm the people’s constituent power, and the charter itself must be promulgated by the people, not the National Assembly.Footnote 97 For example, Nguyễn Cửu Việt, a law professor at Ho Chi Minh City University of Law, argued for the people’s the power to adopt the Constitution.Footnote 98 To support this claim, he referred to comparative experience of constitutional referendum:
In recent decades and in the 21st century, the rate of constitutions issued by referendum is much higher than before, especially in advanced states. That proves that the spirit of the people’s sovereignty principle is increasingly asserted in the Constitutions around the world. Therefore, it is time for us to stipulate the right to vote – the vote of the people on the Constitution after the National Assembly has passed it [. . .] Abolish ideas in the Constitution on the power of the National Assembly to make and enact the Constitution.Footnote 99
In addition, Nguyễn Cửu Việt cited Rousseau to argue that “it is very important to use state power directly (through universal voting), because it is the highest expression of sovereignty.”Footnote 100 Thus, he invocated comparative experience and Enlightenment theory to advocate for the design and practice of the people’s constituent power.
In November 2012, the first draft of the constitutional amendment was debated in the National Assembly, and the public call for the people’s constituent power was reflected in the legislative platform. To illustrate, Hà Hùng Cường, an assembly deputy and Minister of Justice, argued that: “The promulgation of the Constitution and amendment of the Constitution are among the most important issues of the country. So, the Constitution must be made and decided by the people; in other words, the people must be the owner of the constituent power.”Footnote 101 He supported his claim on historical, contemporary, practical, and comparative grounds. First, the 1946 Constitution confirms popular sovereignty as the lasting principle of the country, and explicitly provides for the people’s vote on the constitution in a national referendum.Footnote 102 Second, the 1992 Constitution also confirmed the principle of popular sovereignty and the people’s right to referendum, which must include constitutional referendum.Footnote 103 Third, the right to referendum was never practiced in Vietnam, because it was not mandated, and its implementation depended on the state’s will.Footnote 104 Fourth, “many countries stipulate that it is mandatory to bring a draft constitution to the referendum before and after the approval of a national assembly or parliament.”Footnote 105 Hà Hùng Cường’s proposal, however, is ambiguous. He suggested undertaking public consultation on the draft amendment to the Constitution before its approval by the National Assembly.Footnote 106 As a design issue, he proposed the amended Constitution should include a new requirement on referendum on constitutional amendments to be applied in futurte amendments. Many other deputies also agreed that the amended Constitution must empower the citizens to change the Constitution through referendum.Footnote 107
3. Explosion
The National Assembly adopted a resolution, which provided that public consultation on Amendments to the 1992 Constitution began on January 2, 2013, and ended on March 31, 2013.Footnote 108 The draft includes this provision: “The Draft Constitution is approved when it is voted for by at least two-thirds of the total number of National Assembly deputies. Referendum on the Constitution is decided by the National Assembly.”Footnote 109 So, it still confirmed constituent power by the National Assembly. During three months of constitutional consultation, the public call for popular constituent power boomed in both informal and formal platforms. In informal venues—for example, websites, blogs, and Facebook—different social groups and civil society organizations demanded for the popular constituent power and concomitantly constitutional referendum.
Petition 72, a petition of 72 intellectuals,Footnote 110 considered constituent power a key point.Footnote 111 It defines that “the constituent power (the power to build, enact or amend the constitution) is the power to create other powers (legislative, executive and judicial) that must belong to the entire people, not to any organization or body of the government, including the National Assembly.”Footnote 112 On that conceptual base, Petition 72 included two design demands, and a practice demand related to constituent power. On design, it suggests the constitution’s preamble must recognize the people’s constituent power.Footnote 113 In addition, the Petition also proposed that the body of constitution must include a provision ensuring the people’s right to vote on the Constitution through a transparent and democratic referendum.Footnote 114 On practice, Petition 72 demanded that the new amended constitution itself must be ratified by the people in a referendum.
The Hanoi Law Alumni’s Open Letter focused on and expanded the practical demands of Petition 72.Footnote 115 The Letter called for people’s constituent power and constitutional referendum. Apart from citing the 1946 Constitution’s recognition of referendum and the 1992 Constitution’s principle on popular sovereignty, the Letter justified constituent power on the base of social contract theory:
The constituent power is a natural power that belongs to the people and therefore the right to vote on the Constitution of the people is also natural. The people are owners of the Constitution, meaning that the Constitution is a contract between the people about the creation of a state and the design of principles of coexistence in society. The Constitution is of the people and aims to serve the interests of the people. Therefore, it is the people who must directly decide the contents of the Constitution. It is indispensable to recognize and organize for people to exercise their power to vote on the Constitution and this is the right time to do this.Footnote 116
On that basis, the Letter not only suggested the inclusion of a provision on constitutional referendum in the draft amended constitution but also called for “carrying out procedures for the people to approve the Constitution in this amendment in a democratic, fair and transparent manner.”Footnote 117 The law graduates reasoned the fact that the 1992 Constitution did not require referendum on constitutional amendment does not prevent the practice of referendum on the amended constitution “because the constitutional referendum is natural and inherent power of the people.”Footnote 118 This echoes Yale Law Professor Akhil Reed Amar’s argument that the American people “retain an unenumerated, constitutional right” to change the government and the amend the Constitution in the way not explicitly provided in Article V of the US Constitution.Footnote 119
The Declaration of Free Citizens is even more radical.Footnote 120 It completely rejected the draft of the amended constitution and the constituent power by the existing National Assembly, and called for the creation of something like the Philadelphia Convention to make a new constitution as the expression of the popular will: “We want to organize a Constituent Convention, to make a new Constitution really presenting the will of the entire Vietnamese people, not the will of the Communist Party like the current Constitution.”Footnote 121
The Petition of Civil Society Organizations also called for popular constituent power but was less radical than other petitions.Footnote 122 It contends that the constituent power belongs to the people exercised through the National Assembly. Its proposal focuses on constitutional design, not the practice of constituent power. It suggests the Constitution’s preamble should recognize the people’s constituent power.Footnote 123 The Petition called for writing in the Constitution a provision stipulating referendum as a required process of constitutional ratification.Footnote 124
The Suggestion of Seven Vulnerable Groups also called for the confirmation of people’s constituent power in the constitution’s preamble and a provision on constitutional ratification through referendum.Footnote 125 However, the group did not demand for the practice of referendum on the amended constitution.
In official venues, consultation meetings and state media, voices for constituent power were vehement. Consider the views on some meetings on constitutional consultations. In a workshop held by the Central Committee of Vietnam Fatherland Front on February 19, 2013, Mr. Nguyễn Khánh, former Deputy Prime Minister, proposed that the people must vote on the amended constitution and the constitution itself must confirm constitutional referendum, because constituent power is the people’s direct power, and constitutional referendum is the highest expression the popular sovereignty.Footnote 126 In the same meeting, Mr. Phan Hữu Dật, Vice Chairman of National Ethnic Advisory Council of Central Committee of Vietnam Fatherland Front, emphasized the connection of popular sovereignty with the increasing social awareness of the popular sovereignty:
Due to the broader ideological awareness, stemming from the perception of the power of the people, everything is based on the people, and so some people think that the highest authority of our country is the people. This means that if the National Assembly plans policies that are not in line with people’s hearts, a referendum must be held. This means that the new Constitution needs to ensure the right of the people to referendum.Footnote 127
On February 22, 2013, the Journal of Legislative Studies of National Assembly Office and Law and Development Magazine of Vietnamese Lawyers Association held a seminar to comment on the amendments to the 1992 Constitution.Footnote 128 In the meeting, Deputy Chairman of the National Assembly Nguyễn Văn Yểu stated: “The people expect the Constitution to express the reality that power belongs to the people as well as better present human rights and citizens’ rights in Vietnam.”Footnote 129 Nguyễn Minh Đoan, a law professor at Hanoi Law University, questioned: “Why does the draft Constitution still not recognize the constituent power of the people? [. . .]Don’t we have the conditions or we don’t believe in the wisdom of the people?”Footnote 130
On February 28, 2013, the Youth Union and the Hanoi Law University jointly hold a conference to collect opinions of young intellectuals, young lecturers and students of universities on amending the 1992 Constitution.Footnote 131 The media reported: “Many opinions agree with the view that the Constitution must be approved by the people because this is a widely recognized right in advanced countries in the world.”Footnote 132 Law lecturer Phạm Đức Bảo passionately averred: “This constitutional amendment must bring the content of the people’s right to vote on the Constitution and on matters related to national destiny. Definitely, the right to referendum, the constituent power must belong to the people.”Footnote 133
Official media reported or interviewed individuals on popular constituent power and constitutional referendum. For example, according to the Dân trí online, colonel Nguyễn Huy Viện from Military Medical Academy emphasized that constitutional referendum is the “international standard of constitution-making.”Footnote 134 He argued that other Asian countries—for example, South Korea, Singapore, Malaysia, and Thailand—achieved better developments than Vietnam because they have incorporated international experiences not only in education and economic development but also in constitution-making and institution-building. He then suggested that Vietnam’s Constitution should incorporate “human constitutional values becoming universal in the world,” such as a constitutional referendum, to achieve better development in future.Footnote 135
Similarly, in an interview with the Đại Đoàn Kết newspaper, Professor Vũ Hoan, Chairman of Hanoi Union of Science and Technology Associations, insisted it is right for the Party to allow the people to vote on the Constitution:
In civilized countries today, it is true that people have the right to vote on the Constitution. Thus, it is true to the aspirations of the entire people. In fact, our people have a tradition of following the Party. So, do not hesitate to let the people vote on the Constitution. Therefore, it is necessary for the people to approve the Constitution.Footnote 136
In an interview with Thanh Niên newspaper, Dr Dương Thị Thanh Mai, Former Director of Institute of Legal Science under the Ministry of Justice, justified that constitutional referendum is consistent with the Party’s directions on constitutional amendments—State power belonging to the people and enhancing direct democracy in the process of building the rule of law state.Footnote 137 However, she maintained that the inclusion of a provision on constitutional referendum in the Constitution is not for immediate use but for its use in next amendments.Footnote 138 Differently, Lê Hồng Hạnh, Director of the Institute of Legal Science, insisted on the immediate use of constitutional referendum in his interview with Tiền Phong newspaper in February 2013.Footnote 139 He said: “Whether or not referendum is included in the Constitution, it is also the responsibility of state organs to ensure that the people carry out it. I do not see any reason not to stipulate the people’s right to vote on this amended Constitution.”Footnote 140
Although many individuals and groups conflated referendum with people’s constituent power, a dissident in Đà Lạt named Mai Thái Lĩnh penned a long piece distinguishing them.Footnote 141 Using both English and French terms, he argued that constituent power (pouvoir constituent):
[I]s the power of the people - understood as a whole. That power cannot be dispersed or split and divided equally among the people. In a democracy, that power can be delegated to an agency (e.g., the Ordinary National Assembly or the Constituent National Assembly) but that body must be truly elected by the people in accordance with the principles of democratic elections.Footnote 142
He then defined the right to referendum as “the right of every citizen to participate in the vote to approve or reject a constitution, or a constitutional amendment project.”Footnote 143 On that conceptual base, Mai Thái Lĩnh disagreed with the call for constitutional referendum because he believed that this practice could be easily abused to legitimize the existing regime.Footnote 144 Rather, like the Declaration of Free Citizens, he supported the democratic creation of a constituent assembly which he considered “the root” of democratization.Footnote 145
4. Dialogue
In response to the public discourse, the Government recognized popular constituent power. In a meeting in April 2013, the Government confirmed: “It is necessary to define constituent power as the highest expression of people’s sovereignty, including the right to constitutional initiatives, the right to participate in the process of drafting the Constitution and finally the right to vote through referendum.”Footnote 146 Several members of Government agreed to incorporate a provision on referendum in the Constitution this time for future practice after the National Assembly adopted the Law on Referendum.Footnote 147 Ten members out of 25 in the Government, voted to include a provision into the Constitution, which stated: “The draft Constitution will be voted in a referendum after it is approved by the National Assembly with at least 2/3 of the total number of the National Assembly delegates voting for it. The referendum process and procedures are determined by law.”Footnote 148
The constitutional reformers’ response to the call for constitutional referendum is ambiguous. On March 2, 2013, in the meeting with the Ho Chi Minh City government on organizing the public constitutional consultation, Mr. Nguyễn Sinh Hùng, President of the National Assembly and President of the Constitutional Amendment Committee, said: “Many people suggested letting the people to vote in a referendum; here the Party is letting the people comment. So, they decide this Constitution.”Footnote 149 The next day, a citizen named Dương Phi Anh contested in a post on the Website Lets Draw up the Constitution:
Mr. Chairman of the National Assembly! In our opinion, ‘comments’ are not a ‘referendum’ on the Constitution; ‘comments’ are not a ‘decision’ on the Constitution; and the ‘referendum’ is not the ‘decision’ on the Constitution! So, seriously, in the statement, did the President of the National Assembly misunderstand the concept [. . . .]?Footnote 150
In addition, the citizen argued the Chairman’s saying that “[t]he Party is letting the people comment” is conceptually wrong because people only authorize the state, not political organizations, to make the constitution.Footnote 151
In different forums, reformers promised future constitutional referenda. For example, on March 26, 2013, the Vietnamese Communist Party’s Online Newspaper organized an online dialogue on constitutional amendment.Footnote 152 Speaking at the forum, Mr. Lê Minh Thông, Deputy Head of the Editorial Board of the Drafting Committee for the Amendment of the Constitution, admitted that the call for constitutional referendum is “the people’s legitimate demand,” but maintained that because the National Assembly is making the Law on Referendum, constitutional referendum can be considered after the law is implemented.Footnote 153 Similarly, Deputy Minister of Justice Hoàng Thế Liên stated that in this round of constitutional amendment, collecting people’s comments on the draft amendments was concentrated in three months—January to March—and would continue until September, but referendum would be required in future amendments.Footnote 154
Suc reformer’s response did not appease the public. In both informal and formal venues, the call for constitutional referendum continued. For example, in the meeting of the Central Committee of the Vietnam Fatherland Front on July 4 in Hanoi, Lù Văn Que, Chairman of Ethnic Advisory Council, said that all classes of people want the Constitution to be approved by them to take effect.Footnote 155 He added: “I think that if the Party sends the Constitution to the people for their approval, it will increase the trust between the two sides and if you do that, the bad guys will not be able to destroy [the regime].”Footnote 156
On July 6, 2013, the Petition 72 group continued to petition for constituent power and constitutional referendum.Footnote 157 The group posted a follow-up petition to the National Assembly, the President of State, and the Prime Minster, stating that:
Everyone says the Constitution must belong to the people, to be decided by the people. As everyone knows, with the current organization of elections and personnel structure, the National Assembly is not really the representative of the people. This amendment of the Constitution generated different opinions on the fundamentals of political institutions… Therefore, it is imperative to organize a referendum on the amended Constitution. Public opinion welcomes National Assembly delegates, members of the Government and a number of organizations when discussing the amendments of the Constitution with the view that the National Assembly is a legislative body, constituent power belongs to the people, and the Constitution must be approved by referendum.Footnote 158
Individuals continued to call for constituent power in unofficial venues. One example is the Comment on the Draft Amendments to the 1992 Constitution by Cù Huy Hà Vũ, a prisoned dissident lawyer.Footnote 159 He proposed that the amended Constitution should confirm popular constituent power and constitutional referendum. He justified this on the familiar grounds—the principle of popular sovereignty of the republic regime and the right to constitutional referendum in the 1946 Constitution—and added that his father Cù Huy Cận was the General Secretary of the Drafting Committee of the first Constitution.Footnote 160
Despite the continued demands for constitutional referendum, the new version of the amended Constitution submitted to the National Assembly did not include a provision on referendum as a mandatory role of amendment procedure. In a report to the National Assembly on October 22, 2013, Mr. Phan Trung Lý, Head of the Editorial Board of the Draft Constitutional Amendments, invoked the Constitution’s endurance to justify that it should not specify a provision on constitutional referendum:
The Constitutional Amendment Committee found that the referendum is an important content, demonstrating the people’s direct democratic rights. Therefore, the provision on referendum needs to be further affirmed in the Constitution. However, specifying the specific contents and objects of the referendum must be based on the practical situation of each stage of national development. Therefore, in order to ensure the long-term stability of the Constitution, it is not necessary to specify the specific contents and objects of the referendum in the Constitution but let the law stipulate.Footnote 161
5. Constitutional Design of Constituent Power
On November 28, 2013, the amended Constitution was overwhelmingly approved by a 97.59% vote of the National Assembly deputies in present without subsequent referendum.Footnote 162 The congressional consensus and the practice of constitutional consultation served as the base for the reformers’ claim that the Constitution expresses the people’s will.Footnote 163 In contrast, in informal forums, some individuals condemned that by adopting the Constitution the National Assembly institutionalized the Party’s will, not popular will.Footnote 164
The 2013 Constitution continued to confirm the constituent power of the National Assembly. Article 69 stipulates that “[t]he National Assembly shall exercise constituent and legislative powers.”Footnote 165 Article 70 specifies that the National Assembly has the powers to make and amend the Constitution.Footnote 166 Article 120 provides the “[t]he Constitution shall be adopted when at least two-thirds of the total number of the National Assembly deputies vote for it.”Footnote 167 Referendum is not required. However, in response to the public demand, the Constitution ambiguously expresses popular constituent power and institutionalizes constitutional referendum. The Preamble states that “the Vietnamese People create, implement and defend this Constitution.”Footnote 168 Article 6 stipulates that “[t]he People shall exercise the state power in the form of direct democracy and of representative democracy through the National Assembly, People’s Councils and other state agencies.”Footnote 169 This provision in theory allows for referendum, including constitutional referendum. Article 29 confirms that “citizens who reach the age of eighteen have the right to vote in referenda organized by the State.”Footnote 170 However, Article 120 does not require referendum as a mandatory rule of constitutional amendments and constitution-making but lets the National assembly decide on the holding of a constitutional referendum.Footnote 171
II. Analysis
1. Why People’s Constituent Power?
The public call for people’s constituent power in Vietnam is animated by the normative appeal of the idea of constituent power. The normative weight of popular constituent power is both universal and contextual. The idea of people’s constituent power, as well as related ideas, such as popular sovereignty and constitution as an agreement between the state and the people, is intrinsically attractive as they are normatively connected to universal aspirations to human freedom and concomitantly constitutional self-government.Footnote 172 In addition, the idea of constituent power is sociologically appealing in the Vietnamese context. The idea that the people as the author of the constitution, the source of the constitutional self-government, is naturally attractive to the Vietnamese people who have struggled for political reforms and democratization under single-party rule.Footnote 173
The justifications of popular constituent power come from national and comparative constitutional sources. One common justification of popular constitutive power is that this power was recognized at the founding moment of the Vietnamese constitutional history.Footnote 174 The fact that the first Constitution of 1946 was made by a constituent assembly created by democratic elections and its recognition of constituent power through its provisions on constitutional referendum provide the historical, nationalist foundations for the justification of similar recognition and practice in contemporary Vietnam.Footnote 175 The experience and design of constitutional founding provide a powerful base for the justification of popular constituent power because this indicates the sense of national pride. In addition, the historical justification presents reconstituting as continuity, not as a radical break with the past. Due to these weights, the historical justifications of constituent power invited dialogic engagement among the society and the state.Footnote 176
Another common justification of constituent power adheres to the contemporary constitutional design. Particularly, provisions on people’s sovereignty and the right to referendum in the existing Constitution of 1992 provide the contemporary base for the justification of popular constituent power.Footnote 177 Like the historical reasoning, the alignment with the existing constitutional design presents the change to popular constituent power, albeit fundamental, not as a legal rupture but a legal continuity.Footnote 178 This adherence renders the arguments for popular constituent power more acceptable to the state and hence invites the state’s dialogic response.
Apart from national resources, the justifications of popular constituent power are drawn on comparative constitutional theory, design, and practice. Particularly, theories of social contract by Locke and Rousseau, the foreign design of popular constitution-making, and the foreign practices of constitutional referenda are commonly used to justify the call for popular constituent power and constitutional referendum in Vietnam.Footnote 179 The influence of comparative constitutional law and theory in Vietnamese discourse on constituent power is through diffusion. The translation of works by enlightenment thinkers into Vietnamese contributed to the diffusion of ideas of social contract in Vietnam. Furthermore, through popular media and Internet, intellectuals, law professors, retired politicians, and other individuals helped spread the contractual constitutional ideas and foreign design and practice of constituent power among the public.Footnote 180 This constitutional diffusion consolidated comparative justifications of popular constituent power.
Apart from normativity, the public call for popular constituent power is due to social necessity. The Vietnamese debate on the idea of constituent power is not instrumentally political but socially relevant. The idea was not advocated by political leaders. Some politicians, like Nguyễn Văn An, supported the idea only when they retired. Some government members did not initiate the idea, although they accepted the idea as a response to the public discourse.Footnote 181 Rather, the idea of constituent power was initiated and mobilized by sectors of society to enable the entire people to decide on constitutional solutions to social problems. As indicated in the public discourse, retired politicians, intellectuals, and other citizens were concerned with the practice of the constituent power by the National Assembly because they believed that the institution was dominated by party members and hence failed to represent the public will.Footnote 182 The citizens believed the constitutional solutions for the social problems must be publicly debated and then decided by the entire people. Therefore, they created their own platforms to deliberate constitutional questions, mobilized sectors of the society to engage in a public constitutional dialogue, and demanded for practice of popular constituent power through constitutional referendum so that they can decide constitutional solutions to social problems.
The public struggle for popular constituent power in Vietnam is also a public demand for recognition of dignity. The public demand for recognition stems from constitutional resentment: The emotional reaction and critique of the unsatisfactory design and practice of constituent power.Footnote 183 The sources of the resentment are varied—the illegitimate transfer of sovereignty from the people to the party, the National Assembly’s formalistic exercise of the constituent power due to party’s control, its failure to present the people’s will, and the inadequate reflection of popular voice in the process of constitutional reforms.Footnote 184 Therefore, the call for constituent power and constitutional referendum is the demand for the recognition that people’s will is worthy of respect; their constitutional authorship must be recognized; and their constitutional voices must be heard. The demand for recognition also explained why many, such as thirty organizations of civil society, called for the mere constitutional acknowledgement of the popular constituent power without demanding its immediate practice.Footnote 185
2. Approaches to Constituent Power
There are two approaches in the Vietnamese debates on how to practice the popular constituent power—reformist and revolutionary. The reformist approach calls for the design and practice of popular constituent power through constitutional referendum as the base to strengthen institutional renovation of the socialist regime.Footnote 186 Actors adopting this approach are mainly retired politicians, legal scholars, and organizations of civil society. Their justifications are drawn mainly on national historical and contemporary constitutional resources, although the comparative sources are also referenced. The reformists are, however, divided into two strands—operational and deferral. The operational approach, as supported by legal scholars and other individuals, demands for the constitutional design and immediate practice of popular constituent power.Footnote 187 The deferral approach, as supported by other legal scholars and others, only demands for the design, and agreed with later practice of popular constituent power.Footnote 188
The revolutionary approach calls for the design and practice of popular constituent power within the existing socialist regime as the base for transformation into a liberal democracy. This approach is adopted by the Petition 72 group and other individual activists.Footnote 189 The evolutionary justifications of popular constituent power mainly draw on liberal-democratic constitutional theories, and design and practice of popular constituent power in liberal democracies, although the national resources are also invocated. The revolutionary approach locates the existing National Assembly within the project of fundamental political change.Footnote 190 The institution is regarded as the platform to adopt a democratic constitution, followed by people’s ratification via referendum.Footnote 191 Supporters of the evolutionary approach underlined that the referendum must be preceded by equal, open, and frank discussions of different views, because they worry that referendum will be controlled by existing political elites. The revolutionary approach is resonated with the relational theory of constituent power—the existing constituted power may participate in the exercise of the constituent power. In addition, the revolutionary approach aims at fundamental change while maintaining legal continuity. As the approach is radical, the revolutionary call for popular constituent power could only be expressed in unofficial platforms.
3. Consequences
The public debate on constituent power generates institutional and ideational consequences. One institutional effect is procedural. The public call for constituent power puts pressure on the party-state to expand the time for constitutional discussions. The discuss also compels the state to engage in a constitutional dialogue with the society on the constituent power. In fact, in their public speeches, National Assembly deputies, Government’s members, and constitutional amenders responded to the call for popular constituent power and referendum.Footnote 192
Another institutional aspect of the influence is substantive. The state’s response is a combination of reception, rejection, and resistance. As indicated, many Assembly deputies and several Government’s members accepted the idea of popular constituent power and referendum put forward by reformists and revolutionaries.Footnote 193 The amenders also partially adopted the idea as reflected in the new constitutional preamble’s recognition of the Vietnamese people as the author of the constitution. The new amendment rule also enables possible holding constitutional referendum.Footnote 194 Thus, the state sought to appease the public by recognizing the people’s constituent power.
However, the state rejected the call for abolition of constituent power of the National Assembly because this abolition was not suitable to the existing constitutional design in Vietnam.Footnote 195 The new Constitution continued to vest constituent and legislative powers in the National Assembly. As “democratic centralism” remained the dominant principle of constitutional design in Vietnam,Footnote 196 the state’s rejection of popular constituent power is understandable. The institutional entrenchment of the constituent power by the National Assembly seems at odd with the expressive recognition of the people’s constituent power in the constitutional preamble.Footnote 197 One possible explanation comes from a concept of representation: The National Assembly elected by the people may be considered the people’s representatives to practice the constituent power.Footnote 198 However, in response to the public’s concern that the institution failed to represent the people due to Party’s domination, the state compromised by including a provision on possible constitutional referendum at the Assembly’s discretion.
The fact that the state did not hold a referendum on the amended constitution was not merely because of unsuitability. There must have been a stronger negative sense, which can be captured by the idea of resistance.Footnote 199 The state resisted holding a constitutional referendum because the state could have lost the control in the referendum, which may have damaged the existing socialist regime. The constitutional consultation already generated a public constitutional debate and activism beyond the state’s agenda for consultation on amendments. The public discussed sensitive issues beyond the state’s expectation, such as popular constituent power, change of nation’s names, and abolition of party leadership. Constitutional activism among the civil society might have also exceed the state’s anticipation. A constitutional referendum could have triggered a social movement mobilizing regime change beyond the state’s control. This is more complicated as the democracy movement had already developed before the constitutional reform.Footnote 200 Actors of democracy movement advocating regime change may have joined constitutional activists to campaign for the public’s gainsaying to the constitution in the referendum, which may have been beyond the state’s control.
Apart from institutional influence, the public discourse generates important ideational influence. The discourse spreads new ideas about constituent power among the public. The idea that the constitution belongs to the people and should be made by the people was familiar with the Vietnamese constitutional intellectuals but might not have been so for the public before the 2013 debate.Footnote 201 However, the public debate introduces to ordinary people the idea that the constitution belongs to the people, not the mere product of the state. The public awareness of the people’s constituent power limits the state’s official interpretation of the National Assembly’s constitution-making power.
Neither democratic nor conventional Soviet models can capture the dynamic practice and dissonant design of the constituent power in contemporary Vietnam. The Vietnamese experience can be understood as a contemporary reformist paradigm of socialist constituent power. The subject of the constituent power is the National Assembly, an ordinary legislature. However, in response to the public demand, the ideal of the people’s constituent power is embodied in the 2013 Constitution to some extent.Footnote 202 The Vietnamese equivalent of the “we, the people” statement commonly used in constitutional preambles does not authoritatively establish but expresses the people’s constituent power.Footnote 203 This echoes the democratic ideas of constituent power. In addition, the amendment rules allow for referendum, which reflects the idea of direct democracy.Footnote 204 The process of the practice of the constituent power in Vietnam involves complicated interactions of both political control and social contestation, including the public discursive struggle for the people’s constitutent power. Substantively, the socialist consitutent power is used to codify the Party’s project for socialist reforms. The socialist constitutional project is continued but integrates new ideas and institutions, such as human rights, and controls of state power, and judicial protection of justice.
As the reflection of the dynamic practice, the formal design of the constituent power in Vietnam, as embodied in the 2013 Constitution, is dissonant, incorporating competing socialist and democratic ideals.Footnote 205 The dissonant nature of the constituent power widens the space for the continued debate and dialogue on constituent power, and related concepts such as popular sovereignty and referendum in Vietnam. As the constitutional rules and principles on constituent power incorporate competing ideas, it opens the doors for different interpretations and contestations. The rejection of the practice of the people’s constituent power and the dissonant constitutional design of this power create the condition for the discursive return of the popular constituent power once the state introduces constitutional reform in future.
E. Conclusion
This Article explores various models of the socialist constituent power. This Article has implications for understanding the Soviet legacies and the contemporary dynamics of the constituent power in the socialist regimes, and comparative study of constituent power generally.
The Soviet Union is dead, but the Soviet constitutional legacies, including the legacy of legislature’s constitutent power, are still alive in the contemporary socialist world. The legislature’s constituent power is explicitly confirmed in the current constitutions of Cuba, Laos, and Vietnam.Footnote 206 The Soviet, socialist orign shapes the normative and institutional foudations of the constitutional systems in these countries, and resists constitutional reforms. The persistence of Soviet model of legislature’s constituent power in the current socialist constitutions illustrates the continued influence of the Soviet constitutional tradition. At the same time, the Soviet legacies interact with democratic ideas, leading to the dynamics of socialist constitutional reforms, including the reform of the constituent power. This Article has illustrated the reformist model by the case of Vietnam. This model also resonates to some extent with the dynamic practice of constituent power in Cuba and Laos.
The socialist experience can enrich the comparative inqury into the constituent power in general. First, Constitutional revolution does not necessarily involve democratic use of constituent power. Following communist revolutions, socialist elites also used the constituent power to launch a new socialist legal order. The relationship between constituent power and socialist constitutional revolution requires further exploration. Second, constituent power can be used for not only constitutional revolution but also for constitutional reform. To facilitate constitutional reform, constitutent power continues the existing constitutional project in general but introduces new fundamental priniples, ideas, and institutions. These new constitutional fundamentals may co-exist, compete, but do not negate the existing ones. Finally, an interesting aspect is the constitutional design of the constitutent power. Although the idea that constituent power is not extra-legal is resonated in the experience of constitution-making in Central Europe and South Africa, the fact that the constitution itsef provides for rules of how the constituent power is used may be unique to the socialist regimes where constitutional replacements are often necessary to cope up with social and economic change.
Acknowledgments
The author declares none.
Competing Interests
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