Kim Them Do
Summary: “The Constitutional Law-Making Process: Theory and Practice through the Constitutions of Vietnam” analyzes the formulation and implementation of Vietnam’s Constitutions across different historical periods. It compares the theoretical foundations of constitutional law with the country’s specific socio-political realities.
The article explores key questions, such as whether the Vietnamese Constitutions of 1946, 1959, 1980, 1992, and 2013 genuinely reflect and uphold universal constitutional principles or they primarily function as legal instruments serving the political agenda of the ruling Party.
It also addresses the practical respect for constitutional norms, particularly the tension between the Communist Party’s leadership role and constitutional supremacy. The article advocates for reforms to ensure the Constitution becomes a truly democratic document—capable of reshaping the relationship between the State, the Party, and the People in a more balanced and modern direction. One such reform includes the establishment of an independent Constitutional Court.
Overall, the article offers a critical and scholarly perspective on Vietnam’s constitutional evolution, highlighting its strengths, shortcomings, and the challenges ahead in building a robust legal foundation for the country’s future.
General Theory
Content
The Constitution is the supreme legal instrument that sets forth the fundamental principles for the organization of the state apparatus, defines the authority of public institutions, and outlines the country’s economic, cultural, and social frameworks, as well as the basic rights of citizens. All state agencies and citizens are obliged to comply with the Constitution.
The Constitution possesses independent and absolute legal authority—it does not require validation from any other legal document to ensure its effectiveness. This distinctive nature can be understood from both historical and philosophical perspectives. Historians explore the origins and evolution of constitutional systems, while philosophers such as John Locke, Montesquieu, and Rousseau laid the theoretical foundations for constitutionalism through concepts such as natural rights, the separation of powers, and the social contract. Issues of legitimacy, the nature of political regimes, the delimitation of state power, and the protection of private property rights are also central to constitutional theory.
More than just a legal text, the Constitution embodies a noble ideal—it represents the collective political will of the people in establishing a democratic, peaceful, just, and prosperous society. Given its profound impact on national institutions, governmental structures, and the daily lives of citizens, the Constitution transcends jurisprudence and becomes a universally binding legal and political norm.
Law-Making Power
In Qu’est-ce que le Tiers-État? (1789), Emmanuel Joseph Sieyès—an influential thinker of the French Revolution—asserted: “The nation is the people; the people exist before everything and are the source of everything. The will of the people is always legitimate. That is the law.” In his work, Sieyès distinguishes between two key concepts: constituent power (pouvoir constituant) and constituted power (pouvoir constitué).
Constituent power refers to the original, sovereign authority that resides with the people. It is through this power that a constitution is established, thereby creating and defining the scope of state power.
In contrast, constituted power refers to the authority granted to state institutions under the framework of the Constitution. It is not inherently sovereign but derives its legitimacy from the constituent power. Constituted power, therefore, is the framework of authority set forth by the Constitution, including the powers of state institutions and the rights of citizens. These rights and powers are granted and limited by the Constitution itself.
Modern legal theory holds that constituent power represents the supreme political will of the people, exercised in the establishment or amendment of the Constitution. This power is unrestricted, non-transferable, and not bound by conventional legal procedures. Because of its supreme authority, Americans often refer to the Constitution as the „rule of rules,“ while in Vietnam it is commonly referred to as the “mother law” (luật mẹ) of the legal system.
Process
The constitutional law-making process refers to the formal procedures by which a constitution is created or amended. It typically involves several key stages: initiation, preparation, drafting, adoption, and promulgation. The objective of this process is to establish a legal foundation for the functioning of state institutions and is grounded in the principle that all state power originates from the people.
In Western democracies, constitutional initiatives often arise from political crises, revolutions, or the demand for institutional reform. Depending on the context, the body responsible for drafting a constitution may be a National Assembly, a Constituent Assembly, or a specialized constitutional committee. Public consultation—through debates, seminars, or referendums—is commonly employed to reflect the people’s will.
Historically, there is no single, universally accepted model for the constitutional law-making process, as it is shaped by the unique historical, political, and cultural conditions of each country. For instance, the U.S. Constitution of 1787 followed a clearly defined drafting process and remains in force today. In contrast, post-revolutionary France underwent numerous constitutional changes amid political turmoil, with the current Constitution of the Fifth Republic dating back to 1958. In Germany and Italy, constitutional development occurred in the context of post-World War II reconstruction and the rejection of fascist regimes.
In Vietnam, the constitutional law-making process is deeply intertwined with the history of national independence and socialist construction. The dominant constitutional ideology is based on the model of People’s Democracy, under the leadership of the Communist Party. Unlike Western systems, Vietnam does not follow a liberal tradition of constitutionalism or rule of law in the Western sense. Article 69 of the 2013 Constitution exemplifies this distinctive approach.
Article 69 states that the National Assembly is the highest representative body of the people and the supreme state power organ, holding both legislative and constitutional functions. The Constitution is not subject to direct approval by the people; instead, public participation is limited to consultation. Amendments to the Constitution are driven primarily by political imperatives of the ruling Party and do not require referendums or robust oversight by civil society. As a result, the constitutional amendment process lacks transparency, efficiency, and public accountability.
Practice Through the Constitution in Vietnam
Vietnam has enacted five Constitutions: in 1946, 1959, 1980, 1992 (amended in 2001), and 2013. Each reflects the historical and political context of its time, shaping and guiding the country’s overarching developmental and ideological trajectory.
The 1946 Constitution
The first Constitution of the Democratic Republic of Vietnam was initiated by President Ho Chi Minh shortly after the Declaration of Independence on September 2, 1945. A Constitution Drafting Committee, established on September 20, 1945, included seven members, with President Ho Chi Minh playing a central role.
Following public consultation, the draft was approved by the First National Assembly on November 9, 1946. However, due to the outbreak of the resistance war against French colonialism, the Constitution did not undergo full promulgation. Despite these circumstances, the 1946 Constitution is widely regarded as the most democratic in Vietnam’s constitutional history, reflecting progressive ideas and an early commitment to the rule of law.
The 1959 Constitution
Following the victory at Dien Bien Phu in 1954 and the subsequent signing of the Geneva Accords, Vietnam entered a new revolutionary phase. The First National Assembly decided to revise the 1946 Constitution and established a 28-member Drafting Committee, chaired once again by President Ho Chi Minh. The draft was circulated for discussion within the Communist Party and among the people.
The National Assembly officially adopted the new Constitution on December 31, 1959. Comprising 10 chapters and 112 articles, this Constitution formally committed the country to the path of socialist development. It reaffirmed the structure of a democratic republic, emphasized people’s sovereignty, and institutionalized the principle of democratic centralism as the foundation of state organization.
The 1980 Constitution
Following national reunification in 1975, the Sixth National Assembly initiated a revision of the 1959 Constitution. A 36-member Constitution Drafting Committee, chaired by Comrade Truong Chinh (then Chairman of the National Assembly Standing Committee), was tasked with developing a new constitutional framework under the guidance of the Communist Party Central Committee.
The new Constitution was presented during the seventh session of the Sixth National Assembly and adopted on December 18, 1980. It consisted of 12 chapters and 147 articles. This version explicitly defined the State as a dictatorship of the proletariat, emphasized collective ownership by the working class, and aimed to build socialism and eventually advance toward communism.
Compared to the 1959 version, the 1980 Constitution was more ideologically rigid, heavily centralizing state power. It lacked clear provisions for democratic governance or legal accountability as understood in modern constitutional democracies.
The 1992 Constitution (Amended in 2001)
By the late 1980s, the 1980 Constitution had become increasingly outdated, unable to meet the demands of economic reform (Đổi Mới) and international integration. In accordance with the Resolution of the Sixth National Party Congress (1986), the Eighth National Assembly undertook a comprehensive constitutional revision.
Between 1989 and 1992, multiple revisions were made, including changes to electoral rights, the structure of the People’s Councils, and the formation of a Constitution Amendment Committee chaired by State Council Chairman Vo Chi Cong. Following consultation with the Politburo and the public, the fourth draft was submitted to the Eighth National Assembly and approved on April 15, 1992.
The resulting Constitution, with 12 chapters and 147 articles, maintained the socialist orientation of the State but introduced significant reforms to reflect a transition to a socialist-oriented market economy. Although the model of power separation familiar in Western systems was not adopted, the document attempted to clarify roles and responsibilities among state institutions.
In 2001, further amendments were introduced to reflect ongoing development needs. On December 25, 2001, the Tenth National Assembly passed Resolution No. 51/2001/QH10, officially amending the 1992 Constitution.
This amendment marked an important step toward establishing a rule-of-law state and promoting a socialist-oriented market economy characterized by multi-sectoral development and various forms of ownership.
The 2013 Constitution
In preparation for the country’s continued development during the transitional period toward socialism, the 13th National Assembly resolved to revise the 1992 Constitution. Guided by documents from the 11th National Party Congress (2011) and subsequent Party resolutions, the Constitution Amendment Drafting Committee was established to evaluate implementation and prepare a new draft between 2011 and 2013.
Following public consultation, the revised Constitution was adopted by the National Assembly on November 28, 2013, during its sixth session. The 2013 Constitution comprises 11 chapters and 120 articles—one chapter and 27 articles fewer than its predecessor. While introducing several updates in both content and drafting technique, the Constitution continued to affirm the orientation of building a socialist state governed by the rule of law, „of the people, by the people, and for the people,“ under the leadership of the Communist Party of Vietnam.
Both the 1992 and 2013 Constitutions reflect Vietnam’s commitment to economic modernization, market expansion, international integration, and the progressive recognition of citizens’ rights—within the overarching framework of a socialist-oriented state under Party leadership.
Paradoxes in Vietnam’s Constitutional Law-Making Process
Reflecting on the Đổi Mới (Renovation) policy initiated by the Communist Party of Vietnam in the late 1980s, one can observe numerous achievements. Economic liberalization has driven sustained growth, improved living standards, and elevated Vietnam’s international standing. The country has deepened integration into the global economy through numerous bilateral and multilateral trade agreements.
However, despite these successes, theoretical tensions remain—especially regarding the model of a socialist-oriented market economy operating within a rule-of-law framework. A key area of paradox lies in the interplay between the State, the Party, and the People in the constitutional law-making process. These paradoxes reveal structural contradictions that persist in Vietnam’s political and legal system.
Party Monopoly and the Constitution
The Communist Party of Vietnam (CPV) maintains a comprehensive leadership role in the process of constitutional amendment. Every revision of the Constitution has followed a directive issued through Party Congress resolutions or Central Committee decisions.
One notable historical example is the Party’s stance following the 1979 border war with China. This position was clearly reflected in the Preamble of the 1980 Constitution, which referred to victory over „Chinese hegemons“—a pointed, albeit indirect, reference to China that conveyed a strong nationalist and anti-interventionist message.
After the Sixth and Seventh Party Congresses (1986 and 1991), which marked a shift in both political and economic thinking, the 1992 Constitution no longer directly referenced China but emphasized principles such as sovereignty, independence, and non-interference. As Party resolutions evolved to prioritize administrative reform and international cooperation, the 2013 Constitution reflected a shift toward multilateralism and global integration—demonstrating a more open foreign policy stance aligned with Vietnam’s commitments to ASEAN, the US, Japan, the EU, and beyond.
Most recently, Resolution No. 60-NQ/TW (April 12, 2025), issued by the 13th Party Central Committee, has directed the restructuring of the administrative apparatus and clarified the role of the Vietnam Fatherland Front. This resolution was followed by National Assembly Resolution 194/2025/QH15, which included proposed amendments to Article 9 of the 2013 Constitution concerning the role of the Fatherland Front, alongside broader institutional reforms and adjustments to citizens’ rights.
While these changes illustrate the process of “institutionalizing Party resolutions,” they also highlight a structural paradox: constitutional change is initiated andshaped exclusively by the Party, not by the people. Although the National Assembly is tasked with organizing consultations and technical reviews, the process remains top-down and time-consuming, with limited public influence or scrutiny.
Party Monopoly and Parliament
Vietnam’s constitutional framework simultaneously affirms two core principles: the Communist Party’s comprehensive leadership (Article 4) and the National Assembly’s position as the highest organ of state power (Article 69). However, the relationship between the two is inherently asymmetrical. The National Assembly operates within parameters defined by the Party, and this is especially evident during legislative elections.
Under the model of „nominated by the Party, elected by the people,“ all candidates for the National Assembly are introduced by the Vietnam Fatherland Front, a mass organization led by the Party. As a result, citizens vote only within a pre–determined list of candidates, limiting the space for genuine political competition. While the Constitution guarantees voting rights, the absence of a pluralistic party system significantly restricts electoral choice. Statistics show that over 90% of National Assembly deputies are Communist Party members.
The Party argues that this model ensures political stability and national unity, claiming that it reflects the will and trust of the people. However, such claims often lack empirical support. Assertions like “the people support” or “the people trust the Party” are rarely backed by independent sociological data or objective surveys, making them politically convenient but analytically unsubstantiated.
Party Monopoly and the People
Since its founding in 1930 and throughout Vietnam’s modern constitutional history, the Communist Party has never organized a national referendum. Major decisions—including the signing of the Geneva (1954) and Paris (1973) Accords, the national reunification (1975–76), the promulgation of five Constitutions, Vietnam’s accession to the World Trade Organization, and the signing of numerous Free TradeAgreements (FTAs)—have all been approved by the National Assembly under the Party’s leadership, without direct public consultation.
Article 29 of the 2013 Constitution stipulates: “Citizens have the right to vote when the State holds a referendum.” Although the Law on Referendums was enacted in 2016, it has yet to be applied to any significant political decision, including constitutional amendments. In practice, this renders the right to referendum symbolic rather than operative.
Moreover, Vietnamese citizens do not directly elect key national leaders such as the General Secretary, President, or Prime Minister. These roles are decided through internal Party processes, not through universal suffrage. Constitutional amendments—arguably the most consequential decisions in a political system—are not subject to public vote or deliberated through participatory democratic mechanisms.
As a result, the people do not play a decisive role in shaping the country’s political destiny. Instead, their involvement is largely limited to mobilization, compliance, and material contributions to initiatives that are designed, approved, and implemented under the Party’s guidance.
Prospect
While Vietnam has made undeniable economic and diplomatic progress, its constitutional law-making process reveals several unresolved paradoxes. These contradictions lie in the tension between constitutional guarantees of popular sovereignty and the reality of one-party dominance. The legal framework grants citizens rights in theory but restricts their practical realization through tightly controlled mechanisms.
Until reforms address these structural imbalances—particularly in terms of public participation, independent oversight, and accountability—Vietnam’s constitutional development will continue to be characterized by Party-driven legitimacy, rather than a genuinely popular mandate.
In the present and foreseeable future, efforts to improve Vietnam’s constitutional framework face significant challenges. The Communist Party of Vietnam (CPV) remains firmly committed to the principle of its “comprehensive and absolute leadership.” In practice, the Party’s internal affairs—including personnel appointments, disciplinary actions, internal elections, and policy formation—are treated as internal matters. These processes are not subject to the same administrative, civil, or procedural legal constraints that govern state institutions. As such, the Party operates outside the jurisdiction of public law and is not held legally accountable in the way that state authorities are.
This persistent paradox—wherein the Party is both above the National Assembly and the People, and yet outside the formal legal system—undermines the coherence of the constitutional order. A notable example is the recurring appointment of Mr. Nguyen Phu Trong as General Secretary.
According to the Party’s internal regulations, age limits apply to leadership roles. Yet at the 11th Party Congress, Mr. Trong, then 67 years old, was approved as a “special case.” At the 12th Congress, he was again reappointed as a “special case of a special case.” By the 13th Congress, his third reappointment earned the description “special of special of special.” These repeated exceptions to the Party Charter illustrate how even internal rules can be flexibly applied or bypassed, eroding the credibility of constitutional commitments and the principle of the rule of law that the Party itself claims to uphold.
Pathways to Reform
Despite these contradictions, the medium- to long-term outlook for constitutional improvement is not without hope. The potential for reform will depend on the interaction of external pressures—such as international obligations, global integration, and diplomatic partnerships—with domestic forces, including internal demands for political accountability and broader societal expectations for democratic governance.
If strong enough, these combined pressures could eventually catalyze a shift in the current paradigm. In such a scenario, direct democracy could emerge as a legitimate and necessary model, gradually reshaping the relationship between the State, the Party, and the People in a more balanced and modern direction.
To regain political legitimacy and demonstrate genuine respect for the rule of law, the Party must undertake serious and immediate reforms. Among the most urgent are:
- Enacting a Law on Party Accountability with regard to state management;
- Establishing independent oversight mechanisms within the Party;
- Expanding democratic practices in Party congresses and conferences at all levels;
- Creating a ConstitutionalCourt to ensure the independent and supreme enforcement of the Constitution.
Such measures would represent meaningful steps toward embedding the Party within the legal order it purports to lead and respect.
A Fragile but Worthy Hope
If the Party returns to operating within the formal framework of constitutional law, and if the people are empowered to exercise their sovereign power in the constitutional law-making process, then the Constitution can evolve into more than a political tool—it can become a true measure of institutional civility, democraticmaturity, and national governance capacity.
Under such conditions, a future Constitution—reformed through genuine public participation and democratic deliberation—could become not only a legal document but also a cultural and historical achievement. It would stand as a proud legacy for the current generation and a meaningful inheritance for those to come. It remains an extremely fragile hope—but one that is worth preserving.
KIM THEM DO 