ABSTRACT
Introduction Vietnam remains a one-party authoritarian regime; yet despite the restrictive political environment there has been a strong demand for judicial review in Vietnam in order to protect rights and promote the rule of law. This chapter examines the 2013 constitutional amendment debate on the establishment of a judicial review mechanism and sheds light on the contestation of major social forces in Vietnam. The seemingly technical discourses on constitutional amendments and constitutional review reveal actual competition of political ideas and intellectual creativity on what the rule of law and constitutionalism mean in the Vietnamese political context. Yet the contestation of constitutional ideas within the one-party regime contains its own ambiguity regarding the position of the Communist Party within the constitutional structure, and, in particular, regarding the power of a constitutional review mechanism. Despite the creativity and significant diversity of constitutional discourses, public intellectuals1 in Vietnam seem to take the leadership of the Communist Party for granted and try to reconcile liberal concepts of constitutionalism with the constraints of the political regime instead of defying it. The topics I examine in this chapter, the justifications of constitutional review and proposals of judicial models, each illustrate the contestation and ambiguity of constitutional ideas in contemporary Vietnam. I argue that while the progressing constitutionalism inspires the public intellectuals’ demands for a strong and independent judicial review mechanism, the political constraints of the one-party regime continue to be a hindrance to the establishment of such a mechanism, as the reality of the supremacy of the Party unsurprisingly prevails over the ideational supremacy of the constitution. I suggest that, in the end, proponents of judicial review in Vietnam cannot avoid tackling the question of political reforms and the reform of legal education as necessary conditions for establishing a serious judicial review mechanism. I will start by laying out the background of the ideational transformation in Vietnam over the past two decades and during the 2013 constitutional amendment process. Next I will examine the contestation and ambiguity of constitutional ideas regarding the justifications of
constitutional review and proposed models of judicial review. I will end with a forward-looking conclusion on the implications of the contestation of ideas for constitutional reform in Vietnam.
