Constitutional Council or Constitutional Court?

(Baonghean)At the upcoming session, the National Assembly will discuss the new Constitution – amending the 1992 Constitution. The Drafting Committee for the amended Constitution plans to send to National Assembly deputies a monograph on the model of Constitutional Councils in several countries around the world. The intention of the Drafting Committee is to provide additional material so that National Assembly deputies have more grounds to consider before choosing a form of constitutional protection for our country's Constitution.

Currently, 8% of countries worldwide (primarily developing countries) have chosen the Constitutional Council model, while 92% have established Constitutional Courts to review and adjudicate on unconstitutional acts. Nguyen Minh Tuan, who participated in compiling this monograph, stated: “Countries that established Constitutional Councils all have a very late tradition of constitutional protection. Most have gone through periods of less democracy and rule of law, and the political context did not create the necessary need for a constitutional protection body.”

Therefore, the Constitutional Council is a safe political choice for leaders in the context of political transition that has not yet created the conditions for the establishment of a Constitutional Court. Thus, leaders can more easily intervene in the organization and operation of this body. Establishing a Constitutional Council allows countries to nominally have a constitutional protection body, but one that is easier to control and manage. Therefore, Constitutional Councils in most countries tend to be more political than judicial in nature. They serve as a forum for reconciliation and compromise between the political forces of different nations, while also possessing some degree of jurisdiction to adjudicate constitutional disputes.

Given its overarching political nature, this body is unlikely to deliver definitive rulings on unconstitutional cases. However, the constitutions of these countries have been and are currently working towards reforms to transform the Constitutional Council from a politically charged body into an independent body with jurisdiction. In other words, the Constitutional Council, regardless of the country, is considered the initial stage, the first step on the path to forming a Constitutional Court in the process of democratization, aiming to tightly control unconstitutional acts occurring in that country. It is often argued that the choice between a Constitutional Council and a Constitutional Court depends on the "political institutions and customs" of each nation.

So, which model should we choose now to best suit our "political institutions and practices"? A Constitutional Council or a Constitutional Court?

We know that constitutional rights belong to the people, but specifically, the opinions and discussions of the National Assembly deputies will be very important in the near future.

At the upcoming National Assembly meeting, Mr. Nguyen Dinh Quyen, Vice Chairman of the National Assembly's Judicial Committee, stated that he will reject the Constitutional Council model and instead advocate for a Constitutional Court model. Mr. Nguyen Van Phuc, Deputy Head of the Drafting Committee for the revised Constitution, affirmed: "Scientists have noted that the Constitutional Court model is more suitable than the Constitutional Council model in the long term." Many delegates in the drafting committee argued: "It is necessary to clarify the reasons why we chose to follow a model that accounts for only 8% of countries worldwide, and to consider the next steps for reform in Vietnam to build an effective constitutional protection mechanism."

Thus, we see that the trend of choosing a constitutional protection model through a Constitutional Court is receiving considerable attention from the National Assembly's Constitutional Amendment Drafting Committee. The Constitutional Amendment Drafting Committee is also continuing to revise and refine the text for submission to the upcoming National Assembly session. The debate on this issue is very broad. The drafting committee is awaiting feedback from the entire population…

Thach Quy