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Sa Huỳnh wrote this article in Vietnamese and published it in Luat Khoa Magazine on July 29, 2025.

Threatening the Political Interests and Stability of the Regime On April 4, 2025, South Korean President Yoon Suk Yeol was impeached, becoming the second president in the country’s history to be removed from office by a unanimous Constitutional Court ruling. The scene of tens of thousands gathered to await the verdict highlights the profound power of such an institution.

The concept of a constitutional court may seem unfamiliar in Việt Nam, as the current legal system has no equivalent. However, the idea is not entirely new. During the lively public consultations for the 2013 constitution, the topic of “tài phán hiến pháp” (constitutional review) was briefly considered, only to be quickly extinguished.

The story of why this proposal failed offers a crucial insight into the limits of legal reform in Việt Nam. Drawing on the research of Professor Bùi Ngọc Sơn titled, Why Do Countries Decide Not to Adopt Constitutional Review? The Case of Vietnam, this analysis explores the discussions surrounding a constitutional review mechanism during the 2013 reform and the reasons it ultimately failed. [1]

What is Constitutional Review? There are three main models for constitutional review—the mechanism by which a state determines the constitutionality of its laws.

The first is the centralized model, which entrusts this power to a special, dedicated body, such as a constitutional court or a constitutional council. This court or council operates independently and is not subordinate to any other agency or organization. It only has the sole function of reviewing the constitutionality of laws, with its decisions being final and binding. [3] This model is common in countries like South Korea, Germany, and France, and was also a feature of the 1956 Constitution of the Republic of Việt Nam. [4]

The second is the decentralized model, where there is no special court. Instead, all courts at all levels have the authority to examine the constitutionality of a law, with the Supreme Court serving as the final arbiter. [5] The United States is the most well-known example of this model, which was also stipulated in the 1967 Constitution of the Republic of Việt Nam. [6] A mixed model also exists, as in Brazil, which combines a specialized constitutional court with review powers for ordinary courts. [7]

In general, constitutional review is not favored in socialist countries. In these states, the constitution is seen not just as a legal document but as a programmatic text for implementing socialism, and judicial review is often regarded as a “reactionary institution.” [8] As a result, most socialist countries, including the former Soviet Union, have not established such a mechanism. When a similar body does exist, like in Poland (1982), it typically functions as a subordinate committee whose findings must still be approved by the legislature. [9]

Discussions on Constitutional Review before the 2013 Constitution From the late 1990s into the early 2000s, the groundwork for a debate on constitutional review was laid as Việt Nam established an administrative adjudication mechanism, culminating in the 2010 Law on Administrative Procedures. [10] Amid this broader atmosphere of judicial reform aimed at building a rule-of-law state, proposals from scholars to establish a constitutional review mechanism began to gain attention from the legislature and the authorities, including a notable 2009 article, “On Constitution-Making” (Bàn về lập hiến), by Bùi Ngọc Sơn in the Legislative Studies Journal. [11][12][13]

The discussion gained significant momentum after the National Assembly adopted Resolution No. 06/2011/QH13 on Aug. 6, 2011, officially forming a committee to amend the 1992 Constitution. Following this, proposals for a constitutional review mechanism were discussed with great vigor. Pháp luật Việt Nam newspaper published articles quoting prominent scholars on the topic, and the ministry itself published an essay by one of its department heads, Nguyễn Xuân Tùng, analyzing global models and proposing one suitable for Việt Nam. [14][15][16]

This momentum culminated in a concrete proposal in the early 2013 Draft Amendment to the 1992 Constitution. [17] Chapter X, Article 120 of the draft outlined a Constitutional Council, a semi-independent body tasked with reviewing the constitutionality of legal documents. However, its proposed power was limited to making non-binding recommendations, similar to the Polish model established in 1982. [18] Even as discussions shifted to analyzing the specifics of this council, the proposal—or any stronger version of a constitutional court—was ultimately not approved by the National Assembly. [19][20][21]

Why Did Constitutional Review Fail in Việt Nam? Despite the active contributions of scholars and some legislators, the proposal to establish a constitutional review mechanism in Việt Nam was unsuccessful. [22] In his research, Bùi Ngọc Sơn argues that the ultimate reason was the belief among the political elite that such a body would pose a threat to their interests. He contends that while authoritarian governments may align themselves with the language of constitutionalism to enhance legitimacy, they are willing to forgo potential economic benefits to ensure their political power is not undermined by the recognition of democratic rights. [23]

This opposition from the elite played out through resistance from key state agencies. When the Draft Amendment was introduced, the proposed Constitutional Council faced opposition from the Ministry of Public Security, the Supreme Court, and the Procuracy. The Ministry of Public Security, for instance, had no desire to see its lawmaking and law enforcement processes potentially “overturned.” Bùi Ngọc Sơn gives the example of the Ministry’s 2005 proposal to limit citizens to owning only one motorbike—an idea supporters of constitutional review hoped would have been subject to challenge.

The Supreme Court and the Procuracy had similar reasons for opposition. An independent Constitutional Council would have the authority to re-examine its final rulings and would undermine its existing power and supervisory functions.

Bùi Ngọc Sơn explains that the political elite’s negative view of constitutional review stemmed from powerful historical associations. The concept evoked two unwelcome memories: the collapse of the Soviet Union, after which post-socialist states established constitutional courts, and, more importantly, the legacy of the Republic of Việt Nam.

The language used by supporters of the proposal became a major issue. They often used the term "bảo hiến" ("constitutional protection"), a phrase deeply tied to the former South Vietnamese state, which had its own Constitutional Protection Institute. Because this term was a key part of the distinct legal vocabulary of a rival regime, its use in the 2013 debates was enough to make the new proposal seem politically suspect. In the eyes of the current elite, it was perceived as being linked to an alternative, and defeated, political system.

Beyond historical associations, Việt Nam’s political elite also drew negative lessons from observing constitutional review in neighboring countries. They saw, for example, how Thailand’s Constitutional Court was used in an attempt to impeach Prime Minister Thaksin, and how Cambodia’s opposition party used its Constitutional Council to challenge election results. Although the Cambodian court ultimately upheld the ruling party's victory, the incident itself served as an alarming precedent for Vietnamese political leaders.

Through such examples, Professor Sơn argues that Việt Nam’s political leadership “knows” the past far better than it anticipates the future. By reflecting on history and observing their neighbors, they readily conclude that constitutional review would threaten their political interests and the stability of the regime.

As long as the political elite remain firmly in control, Sơn contends, any new mechanism that inherently expands democratic space—however promising or broadly supported—will be seen as an unacceptable threat to their existing power. Thus, even a popular proposal for constitutional review was ultimately destined to fail.

References: 1. Bui, Ngoc Son. “ Why Do Countries Decide Not to Adopt Constitutional Review?: The Case of Vietnam. ” Chapter. In Constitutional Courts in Asia: A Comparative Perspective , edited by Albert H. Y. Chen and Andrew Harding, 335–64. Comparative Constitutional Law and Policy. Cambridge: Cambridge University Press, 2018.

2. Thuvienphapluat.Vn. (2025, July 14). Chỉ thị 20/CT-TTg năm 2025 về nhiệm vụ cấp bách, quyết liệt ngăn chặn, giải quyết tình trạng ô nhiễm môi trường do Thủ tướng Chính phủ ban hành. THƯ VIỆN PHÁP LUẬT . https://thuvienphapluat.vn/van-ban/Tai-nguyen-Moi-truong/Chi-thi-20-CT-TTg-2025-nhiem-vu-cap-bach-quyet-liet-ngan-chan-tinh-trang-o-nhiem-moi-truong-664771.aspx

3. Sinani, B. (2024). Global Patterns of Constitutional Judicial Review Systems: Two major models of constitutional judicial review in the world. Juridical Tribune – Review of Comparative and International Law , 14 (1), 156–173. https://doi.org/10.62768/tbj/2024/14/1/10

4. Wikipedia. (2025, March 26). Hiến pháp Việt Nam Cộng hòa 1956 . https://vi.wikipedia.org/wiki/Hi%E1%BA%BFn_ph%C3%A1p_Vi%E1%BB%87t_Nam_C%E1%BB%99ng_h%C3%B2a_1956

5. See [3]

6. See: https://1975.luatkhoa.com/wp-content/uploads/2025/04/Hien-phap-VNCH-1967.pdf

7. Rosenn, K. S., University of Miami Law School, & University of Miami School of Law Institutional Repository. (2000). Judicial review in Brazil: Developments under the 1988 Constitution [Journal-article]. University of Miami School of Law Institutional Repository , 7 , 291. https://core.ac.uk/download/pdf/214392708.pdf

8. Page 338 of [1].

9. See [8]

10. Tcct. (2022, January 4). Tài phán hành chính ở Việt Nam từ khi giành độc lập năm 1945 đến nay . Tạp Chí Công Thương. https://tapchicongthuong.vn/tai-phan-hanh-chinh-o-viet-nam-tu-khi-gianh-doc-lap-nam-1945-den-nay-86222.htm

11. Đào Trí Úc, Nguyễn Như Phát, 2007, Tài phán hiến Pháp và xây dựng tài phán hiến pháp ở Việt Nam hiện nay

12. TS LÊ ĐĂNG DOANH. (2007, June 10). Đã đến lúc lập tòa án hiến pháp. Tuổi Trẻ Cuối tuần . https://tuoitre.vn/da-den-luc-lap-toa-an-hien-phap-204912.htm

13. https://quochoi.vn/tulieuquochoi/anpham/Pages/anpham.aspx?AnPhamItemID=38

14. Thuvienphapluat.Vn. (2020, October 7). Nghị quyết 06/2011/QH13 sửa đổi Hiến pháp Việt Nam năm 1992 do Quốc hội ban hành. THƯ VIỆN PHÁP LUẬT . https://thuvienphapluat.vn/van-ban/Bo-may-hanh-chinh/Nghi-quyet-06-2011-QH13-sua-doi-Hien-phap-Viet-Nam-nam-1992-do-Quoc-hoi-ban-hanh-127965.aspx

15. PV. (2011, July 27). Lập cơ quan tài phán Hiến pháp là cần thiết. Báo Pháp Luật Việt Nam . https://baophapluat.vn/lap-co-quan-tai-phan-hien-phap-la-can-thiet-post115350.html

16. Bàn về mô hình tổ chức bảo vệ hiến pháp tại Việt Nam . (n.d.). https://www.moj.gov.vn/qt/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID=1473

17. Viện Hàn lâm Khoa học xã hội Việt Nam. Toàn văn Dự thảo sửa đổi Hiến pháp năm 1992. (n.d.). https://vass.gov.vn/tin-tuc/toan-van-du-thao-sua-doi-hien-phap-nam-1992-t7817.html

18. Page 340 of [1].

19. Kiên, T. (2013, August 15). Lựa chọn mô hình tài phán hiến pháp – những vấn đề phổ biến và đặc thù quốc gia – Võ Trí Hảo . Cùng Viết Hiến Pháp. https://hienphap.wordpress.com/2013/08/15/lua-chon-mo-hinh-tai-phan-hien-phap-nhung-van-de-pho-bien-va-dac-thu-quoc-gia-vo-tri-hao/

20. Kiên, T. (2013, September 9). Nên mở rộng thẩm quyền của Hội đồng Hiến pháp – Nguyễn Như Phát . Cùng Viết Hiến Pháp. https://hienphap.wordpress.com/2013/09/09/nen-mo-rong-tham-quyen-cua-hoi-dong-hien-phap-nguyen-nhu-phat/

21. Nghiên cứu mô hình cơ quan bảo vệ Hiến pháp phù hợp của nước ta . (n.d.). Ban Nội Chính Trung Ương. https://noichinh.vn/nghien-cuu-trao-doi/201308/nghien-cuu-mo-hinh-co-quan-bao-ve-hien-phap-phu-hop-cua-nuoc-ta-292083/

22. Daibieunhandan.Vn. (2013, June 1). Sự ra đời của Hội đồng Hiến pháp biểu hiện sự tôn trọng tính tối cao của Hiến pháp. Báo Đại Biểu Nhân Dân . https://daibieunhandan.vn/su-ra-doi-cua-hoi-dong-hien-phap-bieu-hien-su-ton-trong-tinh-toi-cao-cua-hien-phap-10135910.html