socialist rule-of-law state. Political observers have focused on the expanding role of the
National Assembly, as it has taken over functions previously reserved to the Standing
Committee, has been subject to genuine elections which include non-party members,
and has acquired the function of a vote of confidence in individual officials. It has
rejected major policies put forward by the government, such as the proposed high-
speed rail link between Ho Chi Minh City and Hanoi.^28 The effort seems to be to
revitalize the party-state system through genuine operation of formal institutions,
which serve to provide information, and to some degree check arbitrary exercise of
state power. The system is wrestling with the rule of law, even if one might not say that
it has achieved it.
Socialist constitutions follow the Leninist line as a formal matter, and this is a
model based on parliamentary sovereignty, with a single party serving as the leading
force in society. The Supreme People’s Congress and National Assembly are at the
apex of the formal structure, embodying the people’s power while not actually being
representative of it. The National Assembly, as Bui puts it, is a “pontifical insti-
tution” that has formal authority to supervise the other branches and through its
standing committee monopolizes constitutional interpretation, while being free
from external control.
29
In short, constitutionalism in the socialist states is not always
sham constitutionalism. The state may not be constrained in the conventional sense
by courts, but we see examples of genuine constitutional discourse, with some bite,
in China, and an effort to regularize state power through law in Vietnam.
There is a precedent for this kind of legislature-centered constitutional scheme
in Asia. The Five-Power Constitution of the Republic of China, inspired by the
political thought of the great Chinese statesman Sun Yat-sen, had a similar
structure.^30 It too was based on the idea of tutelage, in which a dominant political
party would exercise power on behalf of a politically immature people. Although
the people were ultimately sovereign, they were understood as being incapable of
exercising power, given China’s level of education and the tumultuous political
circumstances of the time. The prospective challenge of governing a large and
uneducated populace in the context of an ongoing civil war led the KMT to deploy
Sun’s notion of political tutelage, whereby the party would serve as a leading force
in society, gradually educating the people to the point where they could exercise
their political rights. This stage of tutelage would last for an unspecified period,
but eventually the people would be sufficiently capable of exercising authority.
31
Sun sought to blend Western constitutional structures with imperial Chinese
institutions. In addition to the standard Montesquieuan set of branches, he added
(^28) Ibid. (^29) Ibid.
(^30) Sun Yat-sen, “Address on democracy,” inThe Teachings of Sun Yat-sen: Selections from
His Writings, ed. N. Gangulee (London: Sylvan Press, 1945 ), p. 111.
(^31) Tutelage later provided a useful justification for authoritarianism when the leaders of the
Republic fled to Taiwan in 1949. By providing an intellectual underpinning for the Leninist
KMT, Sun’s notion legitimated the patronizing relationship between party and society.