Constitutional Model According to the 2013 Constitution

certain limitations. Requesting a constitutional mechanism, even a simple one at that time, was difficult.

The 1946 Constitution, after being adopted, was not recognized and applied in practice because the whole country entered the 9-year resistance war against France. However, the provisions of the 1946 Constitution left great values for the entire Vietnamese legal system, and at the same time had provisions that laid the foundation for the constitutional model in Vietnam.

2.1.2. Constitutional protection under the 1959 Constitution

Background : The 1959 Constitution was promulgated after the end of the resistance war against France, when the North was completely independent. The Constitution was unanimously approved by the 1st National Assembly of the Democratic Republic of Vietnam, 11th session, at the meeting on December 31, 1959. The 1959 Constitution was born during the period when the country was still divided, the war had not ended, and peace had not been restored. The 1959 Constitution was built on the foundation of inheriting, amending and supplementing the provisions of the 1946 Constitution. The 1959 Constitution was built during the war, bearing the characteristics of the wartime legal system, when military orders occupied the supreme position in the power system.

The 1959 Constitution initially recorded the appearance of the first constitutional mechanism in Vietnam. The National Assembly constitutional mechanism was built on the basis of the provisions of the 1946 Constitution along with the reference to learning from the experience of the socialist legal system. This means that Vietnam will move towards the parliamentary constitutional model that socialist countries have chosen. The 1959 Constitution and the first constitutional mechanism were born in the context of the legal system being strongly influenced by socialist law in a passive, mechanical and stereotyped way.

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Characteristics of the constitutional model:

The constitutional model under the 1959 Constitution does not exist in the form of a specialized constitutional body. The constitutional mechanism is initially based on the foundation of regulations for certain state agencies to have the authority to inspect and supervise certain types of documents. Regarding the legal basis for constitutional activities, the 1959 Constitution indirectly stipulates the supreme legal value of the Constitution compared to legal documents issued by the National Assembly, and legal documents must not be contrary to the Constitution. The 1959 Constitution stipulates the authority for the National Assembly to handle legal documents, especially the right to promulgate legal documents. According to the provisions of Article 48, laws and resolutions of the National Assembly must be approved by more than half of the total number of National Assembly deputies, except in the cases specified in Article 112 of the Constitution.

The 1959 Constitution defines the agencies that issue amendments and the procedures for passing legal documents, and indirectly stipulates that the Constitution is the document with the highest legal effect, creating a certain legal procedure that legal documents under the Constitution must comply with, creating conditions for the constitutional model to operate.

Although the constitutional model is still overshadowed compared to the basic institutions of other Constitutions, the 1959 Constitution has recognized the first constitutional values. Although the constitutional model has just been formed, it is a great step forward in constitutional thought in our country.

2.1.3. Constitutional protection under the 1980 Constitution

Background: The 1980 Constitution was established when the country was completely independent, creating favorable conditions for the country to move towards socialism. The 1980 Constitution was the first Constitution with legal value nationwide, welcomed by the people, affirming independence and sovereignty as well as the socialist path that the nation had chosen.

The 1980 Constitution recognized and inherited the constitutional mechanism stipulated in the 1959 Constitution. The National Assembly's constitutional mechanism was built and developed on the basis of the provisions of the Constitution along with the selection of advantages from the 1959 Constitution. The 1980 Constitution and the National Assembly's constitutional mechanism initially came into practice in the context of a completely independent country.

Characteristics of the constitutional model : The 1980 Constitution still stipulates the continued use of the constitutional model as in the 1959 Constitution, with the National Assembly as the center, using inspection and supervision mechanisms to protect the value of the Constitution. In Clause 3, Article 83, the 1980 Constitution of the Socialist Republic of Vietnam stipulates: The National Assembly has the duty and power to exercise the supreme supervision over compliance with the Constitution and laws. The National Assembly is identified as the highest representative body of the people, the highest state power body of the Socialist Republic of Vietnam. The National Assembly is the only body with the right to make the Constitution and legislate. The National Assembly exercises the supreme supervision over all activities of the State. Based on the prescribed authority, the National Assembly continues to be the body protecting the supreme legal value of the Constitution.

To ensure the implementation of the constitutional mechanism, the 1980 Constitution fully and consistently stipulated the legal value of the 1980 Constitution. Article 146 of the 1980 Constitution stipulates: The Constitution of the Socialist Republic of Vietnam is the fundamental law of the state, with the highest legal value. All other legal documents must be consistent with the Constitution. The provisions recorded in the Constitution clearly demonstrate the legal value of the Constitution, creating the foundation and basis for putting the Constitution into social practice and making the constitutional mechanism applicable in the legal system. The provisions are concise but contain great innovation in the entire constitutional history of our country, bringing the Constitution back to its true value.

The National Assembly constitutional model is applied, however, there are no legal regulations on the order and procedures for reviewing and handling documents that are contrary to the Constitution, and there is no timely way to handle legal documents that are contrary to the Constitution to ensure the supreme value of the Constitution. From the central to local levels, state agencies have the duties, authority, and supervision to inspect the Constitution, but there is no specialized agency to handle violations related to the Constitution.

Inheriting the quintessence of previous Constitutions, the 1980 Constitution also stipulates the mechanism for compliance with and implementation of the Constitution by state agencies, organizations, and citizens. However, the constitutional model under the 1980 Constitution is still formalistic, lacking in order, and difficult to operate effectively. The spirit of constitutionalism and protection of the Constitution has been formed, but due to many objective conditions, the constitutional model has not yet existed in its true nature.

2.1.4. Constitutional protection under the 1992 Constitution

Context of birth : The 1992 Constitution is a Constitution of great practical value when it was promulgated at a time when the country was beginning to open up to global integration, the domestic economy was shifting from a centrally planned economy to a multi-sector socialist-oriented economy, and Vietnamese society was also undergoing great changes.

Continuing to inherit and maintain the ideology of the 1946, 1959, and 1980 Constitutions, the 1992 Constitution still chooses the model of protecting the National Assembly's constitution through the National Assembly's supervision and inspection of laws as a mechanism to protect the Constitution. The constitutional model under the 1992 Constitution institutionalizes more specifically and clearly the supervision and enforcement of laws, clearly defining the specific powers of the National Assembly and other state agencies in enforcing the law.

Characteristics of the model : The 1992 Constitution established a constitutional mechanism through inspection and supervision of state and people's power agencies.

The National Assembly exercises the function of supreme supervision over all activities of the State and supreme supervision over compliance with the Constitution, laws, and resolutions of the National Assembly. In addition, other agencies also exercise the function of supervision over compliance with the Constitution and supervision of other legal documents so that they do not contradict the content of the Constitution.

2.2. Constitutional model according to the 2013 Constitution

Background: The 2013 Constitution was adopted by the National Assembly on November 18, 2013, effective from January 1, 2014. The 2013 Constitution is the fifth Constitution, the Constitution that opens a new era of the Socialist Republic of Vietnam. The 2013 Constitution was built in a special historical context, during a period when the world and the country were gradually changing. The 2013 Constitution was built on a certain, solid foundation, inheriting the achievements of previous Constitutions along with the historical experience of more than 60 years of constitutionalism, stemming from the urgent need to amend the 1992 Constitution in a more complete and positive direction.

The 2013 Constitution has institutionalized new issues, aiming to perfect the legal system in practice. The 2013 Constitution has not yet recognized the institution of a specialized constitutional body. Not recognizing a institution related to the protection of the Constitution means still adhering to the basic features, continuing to apply the model of constitutional protection according to the 1992 Constitution amended in 2001: the constitutional model based on the inspection and supervision mechanism of the National Assembly.

During the 10 years before the 2013 Constitutional amendment, the issue of constitutional protection was raised. In 2004, there were demands for a constitutional protection mechanism when legal documents appeared that clearly and fully demonstrated violations of the Constitution. The Ministry of Public Security issued Circular No. 02/2003/TT-BCA on January 13, 2003, stipulating that each person could only register one motorbike or scooter. The consequences of the Circular caused disruptions in

In society, people seek ways to increase the number of motorbikes owned without paying attention to the provisions of the Constitution on the right to own property. The Circular was issued and implemented for about 2 years but only met with opposition from experts in the field of the Constitution. When people encountered great difficulties in implementing it, they spoke out about the inadequacy of the Circular. Based on the provisions on property ownership in the Constitution, it can be seen that Circular 02/2003 violated the Constitution. Article 58 of the 1992 Constitution stipulates that citizens have the right to own legal income, savings, housing, means of living, means of production , etc. The provisions of the Circular have limited the right to own means of living of the people, property obtained from legal income cannot be limited in quantity. People can own one, two or even more motorbikes depending on their economic conditions. Under pressure from public opinion as well as the obvious unconstitutionality of the Circular, the Ministry of Public Security had to issue Circular No. 17/2005/TT-BCA dated November 21, 2005, abolishing the above unconstitutional provision. Although the provision is no longer legally valid, the period of time the provision exists in practice has caused many consequences that the whole society must accept. It was from this time that the requirement for an effective constitutional mechanism emerged. After a period of consideration, the Party and the State also made an initial assessment of the practical situation as well as the theory to build a constitutional mechanism. The initial viewpoint of the Party and the State supported the formation of a constitutional body in Vietnam through a series of important legal documents such as Resolution 48 dated May 2, 2005 of the Politburo on the strategy for building and perfecting the legal system until 2020 and the Political Report of the Party Central Committee - the 10th National Congress of the Party in 2006. Under the ideological support of the Party and the State, leading Vietnamese scientists in the field of the Constitution, with the help of foreign experts, began to build the first foundations for a specific constitutional model.

that Vietnam can apply. In the initial stage, there are options for the constitutional judicial mechanism in our country, including:

Option 1: Establish a Constitutional Protection Committee under the National Assembly. The Constitutional Protection Committee will be organized similarly to other Committees of the National Assembly, performing the task of reviewing the constitutionality of sub-law documents issued by state agencies. The Committee is not allowed to review legal documents issued by the National Assembly and the authority granted is purely advisory in reporting the results of the constitutionality review to the National Assembly.

Second option: assign the constitutional protection task to the judicial agency whose subject is determined to be the Supreme People's Court. The Supreme People's Court is directly empowered to perform the constitutional protection task and review legal documents of state power agencies.

The third option: establish an independent constitutional body. The constitutional body is independent of the National Assembly, has its own authority, order and procedures for constitutional protection. This option focuses on effective constitutional models in Europe including: the Constitutional Court and the Constitutional Council. These are two major models in the world and have been effective when put into practice.

The proposed options, without discussing the advantages, disadvantages, limitations, and difficulties that may be encountered during implementation, are all models that, if built, would be a major step forward in the protection of the Constitution in our country. Along with the support for building a new constitutional mechanism in our country, there are also opinions opposing the formation of a new constitutional mechanism. Individuals who oppose the construction of a new constitutional model put forward arguments based on subjective thinking about the necessity of a new constitutional mechanism.

First, the parliamentary constitutional model can still continue to exist and operate normally. Why is there a need for change when the documents violate the law?

There are not many constitutional mechanisms in existence, and changes will bring negative consequences to the country. There should only be changes to increase the effectiveness of the National Assembly's constitutional mechanism, not to completely change it and build a new one.

Second, perfecting the law-making process limits possible errors. The argument is that perfecting the legal document-making process with procedures, processes, and promulgating agencies fully, strictly, clearly, and accurately defined will limit unconstitutionality in practice.

Third, this is also the most important counter-argument when affirming that the establishment of any constitutional body in any form violates the principle of centralization in the Soviet style. When establishing a constitutional body, the power of the National Assembly will be threatened, the principle of centralization of power will not be implemented as intended. The argument is based on the perception of a Constitution with a primarily political function when orienting the provisions in the Constitution to only exist to implement certain purposes of the political system.

The process of debate and contribution of opinions on the constitutional model took place more vigorously at the time of the beginning of the process of amending the Constitution. Scientists as well as the people hoped that a judicial body or any constitutional mechanism could appear in the new Constitution. That hope grew even greater when in the draft of the 2012 Constitutional amendment: the model of the Constitutional Council was recorded as a chapter of the draft Constitution. There are still many questions about the authority as well as the procedures, the effectiveness of the model of the Constitutional Council, however, compared to the existing constitutional mechanism, it is a noteworthy step forward. However, despite being expected, due to various reasons, mainly subjective, the model of the Constitutional Council was not recorded in the Constitution of the Socialist Republic of Vietnam in 2013. At the same time, there are no regulations on constitutional protection.

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