models used for constitutional review in various foreign countries, energetically
using a comparative-law approach, discussed the need to establish constitutional
review in Vietnam, and reviewed various potential models in the context of
Vietnamese politics.
Broadly speaking, among the various judicial review models, the majority of
Vietnamese legal scholars and commentators advocate a special constitutional
court. Observing the international conference on constitutional protection jointly
organized by the National Assembly Office and the Vietbid Joint Program Support
Office (JOPSO) in Saigon in 2009 , John Gillespie, an expert in Vietnamese law at
Monash University, states,
Few commentators seem [to] want the Supreme Court to review the
Constitution. They question the willingness and capacity of judges in
the existing judicial system to assert themselves against governmental
officials, much less against party officials. Instead they are attracted to
[the] German model of constitutional courts that has been successfully
adopted in countries as diverse as Korea, Thailand, and Indonesia.^68
As a positive reflection of a decade of debate, the Constitutional Proposal
suggests a “constitutional protection mechanism, building and gradually perfecting
the strengthened mechanism for reviewing and supervising the constitutionality
and legality of the actions of the legislative, executive, and judicial bodies in
concordance with the polity and the reality of Vietnam.”
69
Renovating the
constitutional protection system is now on the agenda for revising the Constitution.
However, which constitutional protection model will be adopted is still unknown.
Whether a constitutional court or a constitutional commission will be created or
whether the Supreme Court will be authorized to practice judicial review may be
decided in late 2013.
Further clarification of political institutions’ functions and relationships
In the last constitutional amendments, in concordance with the principle of
distribution of powers, the reformers introduced some clarifications of the func-
tions of political institutions. This trend will continue in the next round of
amendments. The Constitutional Proposal submits that the Constitution should
define more clearly the authorities, the responsibilities, and the relations of polit-
ical institutions; the scope of significant national affairs decided by the National
Assembly; the relations of the President of State to the National Assembly and the
Government; the authorities and responsibilities of the Government and the prime
Adjudication in Vietnam) (Hanoi: People’s Police Publishing House, 2007 ). I personally
contributed one volume to the debate. See Bui Ngoc Son,Bao hien o Vietnam(Consti-
tutional Protection in Vietnam) (Hanoi: Judicial Publishing House, 2006 ).(^68) Gillespie, “Juridification of state regulation in Vietnam,” p. 89.
(^69) “Constitutional Proposal.”