Since the introduction of the Doi Moi in 1986 for transferring from centrally-planned economy to the open market with socialist orientation, Vietnam has made a significant effort in building comprehensive legal framework to promote socio-economic development as well as moving towards rule of law state and democratic society. However, the low quality of the current legal system presents a key obstacle to Vietnam’s achievement of its development targets. The Vietnamese legal system faces many problems such as statutory contradictions and inconsistency which raise serious challenges in implementing legislative reforms. Under the current system, only the National Assembly holds the power to review the constitutionality of acts issued by the competent agencies. The Supreme Court can only recommend to competent agencies to review laws and regulations in the course of administrative case settlements. The Ministry of Justice holds the authority to review regulations issued by other state authorities of ministerial and lower level. For example, there were 5639 illegal documents issued by ministerial agencies and local governments at provincial level in 2017 as reported by the Ministry of Justice. There still remains no mechanism allowing individuals or organizations to request for constitutional review when legal documents are unconstitutional or illegal and violating individual rights. During the process of drafting the Constitution 2013, legislative members and researchers in Vietnam raised concerns about adopting the Constitutional Council as a specialized model for constitutional review; however, the Constitutional Council has not been established yet under the 2013 Constitution of Vietnam. Consequently, human rights cannot be protected effectively due to the lack of an adequate and specialized institution for constitutional review. The question remains: does Vietnam need to establish the Constitutional Council as a critical instrument of rule of law and democracy? Studying foreign experience in creating specialized institutions for constitutional review is essential for Vietnam. This paper will examine current issues of constitutional review for human rights protection and the need for establishing the Constitutional Council in order to implement the rule of law and create a truly democratic society in Vietnam.
Thi Lan Huong Phan (Tue,) studied this question.