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Introduction
Constitutionalism is a theory, a discourse, and a practice of a desirable kind of government. It is associated with the idea ‘that government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations’ (Stanford Encyclopedic of Philosophy). Under the modern form, constitutionalism consists of these fundamental elements: popular sovereignty, a written constitution, rule of law, the separation of powers or other checks and balances, protection of the individuals’ liberal rights, judicial review, and judicial independence (Henkin, Reference Henkin1993: 53). Modern constitutionalism is considered a Western innovation (Grimm, Reference Grimm2016). In the late nineteenth and early twentieth centuries, modern constitutionalism spread to all over Europe, some parts of Asia, and other parts of the world (Chen, Reference Chen2010: 849–50).
As far as Asia is concerned, until the end of World War II in 1945, except China, Japan, and Siam, the rest of the Asian countries were under Western colonial domination (Chang et al., Reference Chang2014: 17). Kevin Tan points out: ‘Throughout the world, the decolonization process launched the world's greatest constitution-making epoch’ (Tan, Reference Tan2002: 3). This experience of post-colonial constitution making is particularly vivid in Asia and it provides rich data for scholarly inquiry into the relationship between modern constitutionalism and colonialism and decolonization (Kumarasingham, Reference Kumarasingham2016; Chang et al., Reference Chang2014; Tan, Reference Tan2002; Chen, Reference Chen2010). However, one important question that has yet to be studied substantially is how modern constitutionalism is related to anticolonialism. This study takes into account this question with a special reference to the case of Hồ Chi Minh in Vietnam.
I argue that modern constitutionalism offers a powerful ideational and discursive weapon for colonized people to struggle against colonialism. To understand this, I introduce the concept of ‘anticolonial constitutionalism’, defined as a form of political discourse in which anticolonialists employ the language and ideas of modern constitutionalism to combat against a predatory colonial government and to express their aspirations to a constitutional government. Anticolonial constitutionalism emerges under three conditions, namely exploitatory and arbitrary colonialism, anticolonialism, and constitutional enlightenment. The case of Hồ Chí Minh illustrates this phenomenon well. When Vietnam was under French colonialism as a part of French Indochina during the first half of the twentieth century, Vietnamese anticolonialism was vehement, and different anticolonialists employed the language and ideas of constitutionalism to oppose the colonial government. One of them was Hồ Chí Minh. A tremendously influential anticolonialist, he was enlightened with constitutionalist knowledge and employed key ideas of modern constitutionalism, namely a written constitution, the rule of law, popular sovereignty, and fundamental rights to struggle against French colonialism and to express such aspirations to a constitutional government in Vietnam.
The case of Hồ Chí Minh is significant and intriguing for several reasons. First, he is the most influential leader of modern Vietnam, a prominent figure of the international communist movement in the twentieth century, the founder and the leader of the Communist Party of Vietnam, and considered by the Vietnamese people the father and the icon of the nation. Second, while he is normally conceived of as a promoter of communism, he also employs the ideas of constitutionalism, an antithesis of communism, to struggle against colonialism and national independence. Third, his constitutional discourses are still highly influential in today's Vietnam: local constitutionalists have resorted to Hồ Chí Minh's constitutional discourses to call for change of the current socialist constitutional system.
Meanwhile, Hồ Chí Minh's constitutionalist discourses have not been fully studied. Inside Vietnam, studies of his ‘thought on state and law’ abound (Nguyễn Ngoc Minh, 1982; Institute of Legal Studies (ed.), 1993), but such studies are mainly the ideological and propagandist descriptions of his political statements. Outside Vietnam, the studies on Hồ Chí Minh are mainly biographical studies by western historians (Duiker, Reference Duiker2000; Brocheux, Reference Brocheux2007; Fenn, Reference Fenn1973). These works focus mainly on his revolutionary path and pay insufficient attention to his constitutionalist discourses. This study hopes to fill in this gap.
Given the focus of this study is on the relationship between constitutionalism and anticolonialism, I will concentrate on Hồ Chi Minh's constitutionalist discourses during the colonial period and around the time of the Declaration of Independence in 1945. Hồ Chi Minh's later adoption of the socialist constitutional ideology is associated with the fact that socialism was implemented in North Vietnam after the Điện Biên Phủ Victory of 1954 defeating the French. This deserves a separate study.
This study has implication for the trajectory of constitutionalism in contemporary Vietnam given the continuing influence of Hồ Chi Minh's constitutionalist discourse in the country nowadays. More generally, this study has implication for the relationship between constitutionalism and anticolonialism.
Modern constitutionalism and anticolonial constitutionalism
Grimm (Reference Grimm, Dobner and Loughlin2010: 3) begins his account of the global achievement of constitutionalism by these words:
Constitutionalism is a relatively recent innovation in the history of political institutions. It emerged in the last quarter of the eighteenth century from two successful revolutions against the hereditary rulers, first in the British colonies of North America, then in France. Immediately understood as an important achievement, it appealed to many people outside the countries of origin, and attempts to introduce modern constitutions started all over Europe and soon also in other parts of the world. The nineteenth century was a period of struggle for constitutionalism in a lot of countries. But after many detours and setbacks constitutionalism had finally gained universal recognition by the end of the twentieth century. Today, only a handful of the nearly 200 states in the world is [sic] still without a constitution.
In fact, constitutionalism is not a recent innovation. The ideas and institutions of legally limited government are ancient. McIlwain (Reference McIlwain2005) discusses ancient constitutionalism in the West. Tom Ginsburg (Reference Ginsburg2012) also accounts for the ‘antecedents’ of constitutionalism in pre-modern China, Japan, and Korea. Particularly, Confucian constitutionalism is the prevailing form of constitutionalism in pre-modern East Asia (Bui, Reference Bui2016; Hahm, Reference Hahm2000). Therefore, the constitutionalism that emerged in the late eighteenth century from two radical revolutions in North America and France is a specifically modern constitutionalism, not constitutionalism in the general sense. Modern constitutionalism is underpinned by political ideas (e.g., social contract, separation of power, rule of law, and natural rights) articulated in the works of enlightenment liberals, such as John Locke, Jean-Jacques Rousseau, and Montesquieu (Alexander (ed.), Reference Alexander1998). Modern constitutionalism translates these philosophical ideas into concrete forms and institutions.
Modern constitutionalism requires a particular kind of constitution. First, regarding the form, the constitution of the modern constitutionalist regime is normally written, although not necessary – as the case of the United Kingdom indicates (Raina, Reference Raina2009). Second, a constitutionalist constitution has a limiting function. That means not all written constitutions are constitutionalist. Walker (Reference Walker, Shapiro and Kymlicka1997: 165) states: ‘The defining quality of constitutionalism is not having definite texts; it is the public articulation of (at least some of) a polity's normative architecture.’ The written constitutions (for example, the constitutions of the former Soviet bloc) that merely describe the existing political system and are not designated to establish publicly normative restraints on the use of the public power are not constitutionalist at all. It is in this sense that Qianfan Zhang (Reference Zhang2010) refers to China as having a constitution without constitutionalism.
In addition to the form and functional feature, the source of the constitution in a modern constitutionalist state rests on popular sovereignty, distinguishing modern from ancient constitutionalism. Grimm (Reference Grimm, Dobner and Loughlin2010: 7) notes: ‘As an act that constituted legitimate public power in the first place, the constitution could not emanate from the ruler himself. It presupposed a different source. This source was found in the people that had decided to form a polity. The legitimating principle of the modern constitution was popular rather than monarchical sovereignty.’ In this sense, the source of a modern constitution embodies the enlightenment theory of social contract: the constitution expresses consent of the people to be governed by a constitutional government, which will protect their fundamental rights (Grimm, Reference Grimm, Dobner and Loughlin2010: 7). To ensure that the government will protect individual rights necessarily requires ‘some separation of powers and certain checks and balances’ (Grimm, Reference Grimm, Dobner and Loughlin2010: 8).
Constitutionalism is now a global phenomenon. Japanese scholar Hideaki Shinoda (Reference Shinoda2000) examines so-called ‘international constitutionalism’. American constitutionalist Michel Rosenfeld (Reference Rosenfeld2014: 178) states that ‘a large number of nation-states throughout all continents adopted new constitutions that were in the spirit of the ideal of modern constitutionalism – consisting essentially in limitation of the powers of government, adherence to the rule of law, protection of fundamental rights, and guarantees for the maintenance of an adequate level of democracy’. German constitutional scholar Dieter Grimm (Reference Grimm, Dobner and Loughlin2010: 3) also mentions ‘the universal recognition of constitutionalism as a model for the organization and legitimating of political power’.
Why does constitutionalism have such global attraction? McIlwain (Reference McIlwain2005: 24) defines: ‘Constitutionalism has one essential quality: it is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law.’ Given its nature, it is understandable that constitutionalism is appealing to the people who are struggling for a more legitimate political order in response to the different types of arbitrary rule imposed by despotic monarchial power, and more recently colonial power, military power, and single-party power. To illustrate, constitutionalism provided compelling ideas for the people to combat against the absolutist monarchy in Europe in the late eighteenth century, and in the early nineteenth century against the communist and military regimes of Central Europe, and in Asia, in the late twentieth century, against the authoritarianism during the Arab Spring in the early twenty-first century (Grimm, Reference Grimm2016; Teitel, Reference Teitel2000; Grote and Röder, Reference Grote and Röder2016).
In the same vein, modern constitutionalism provides a powerful ideational and discursive weapon for the colonized people to struggle against a predatory colonial government and to envisage a future constitutional government. I call this phenomenon as ‘anticolonial constitutionalism’. Anticolonial constitutionalism is a form of political discourse in which anticolonialists employ the language and ideas of modern constitutionalism to combat against the colonial government and express aspirations for a constitutional government. Anticolonial constitutionalism occurs under three conditions: predatory and arbitrary colonialism, anticolonialism, and constitutional enlightenment.
To begin with, predatory and arbitrary colonialism creates the conditions for anticolonial constitutionalism. Charles E. Wyzanski (Reference Wyzanski and Sutherland1968: 480) writes: ‘constitutionalism has as its antonym “absolutism”, or “tyranny”, or in modern parlance, “totalitarianism”. Constitutionalism is eulogized as “the antidote to tyranny”’ (Walker, Reference Walker, Shapiro and Kymlicka1997: 154). McIlwain (Reference McIlwain1969: 271) reinforces this, stating that: ‘the only alternative to despotism is constitutionalism’. So, constitutionalist discourse is generated due to the apprehension of arbitrary power. The negative conditions associated with any types of arbitrary government will create an environment for the emergence of constitutionalist discourse against such government. In this way, when colonialism is exploitatory, the colonial government is predatory and abuses the colonized people, and this creates the negative condition for the latter to employ the language and ideas of alternative political arrangements, such as a constitutionalist system, to oppose the former and express the wish for an alternative political arrangement.
The second condition has to do with some experience of anticolonialism. This aspect is twofold. First, anticolonial constitutionalism is conditioned by the general environment of anticolonialism in the colony. Second, the particular personal experience of anticolonialism is a necessary condition for the anticolonial constitutionalist discourse. The colonized people only employ the language and ideas of constitutionalism to oppose the colonizers when they have a sense of anticolonialism and are engaged in anticolonial activities.
The third condition concerns what can be called ‘constitutional enlightenment’. This aspect is also twofold. First, the recognition of modern constitutionalism as ‘a model for the organization and legitimating of political power’ (Grimm (Reference Grimm, Dobner and Loughlin2010: 3) must be enlightened with a certain level of popularity among the colonial population. Second, the anticolonialists must be enlightened to certain extent about the ideas of modern constitutionalism. When an anticolonialist is enlightened by the ideas of modern constitutionalism, as a relatively popularly endorsed model of just and legitimate government and as an alternative model to the arbitrary colonial government, he or she will employ the language and ideas of modern constitutionalism to oppose the colonial government. Let us turn now to consider the practice of anticolonial constitutionalism for the case of Hồ Chi Minh.
The established conditions
Exploiratory and arbitrary colonialism
The first condition of exploiratory and arbitrary colonialism is satisfied. Vietnam was colonized by France as part of the Indochinese Union established in 1887, consisting of the colony of Cochinchina (Southern Vietnam) and the protectorates of Annam (central Vietnam), Tonkin (Northern Vietnam), and Cambodia, together with the protectorate of Laos after its annexation in 1893 (Buttinger, Reference Buttinger1976: 3–43). Vietnamese historian Trần Văn Giàu (Reference Trần1973: 16–17) demonstrates that Paul Doumer arrived as governor-general of Indochina in 1897 and consolidated the colonial governmental institutions – which were maintained until the August Revolution in 1945 – and furthered the exploitation, on a large scale, of the local resources.
French colonial rule in Vietnam was despotic, as there were no institutionalized restraints on the colonial arbitrary power: no constitution, no democratic institutions to make the laws, no independent courts to enforce the laws, and no legal guarantee of fundamental rights. Nguyễn Ái Quốc wrote in the article published in the L’ Humanité on 9 January 1923:
‘On administration and law, there is an abysmal division between the Europeans and the native [colonized] people. The Europeans enjoy every freedom and reign themselves as the absolute governors. In contrast, the native people were muzzled, tied, and led; they only have the right to obey without complaints’ (Hồ Chí Minh, 2000, Volume I, 7). In addition, Nguyễn Ái Quốc describes what he calls ‘rule of despotism’ as follow: ‘In provinces, local people's hands and legs are roped. They have to suffer the protean and despotic practices of French authorities and the greedy and cruel practices of their docile subordinates, namely the mandarins, the products of the new regime. That means justice is sold to those who paid the best price’ (Hồ Chí Minh, 2000, Volume I, 8). This condition of exploiratory and arbitrary colonialism creates the conditions for the emergence of constitutionalist discourses by anticolonialists like Hồ Chi Minh.
Anticolonialism
The second condition of the anticolonial experience is also created. To begin with, the general environment of anticolonialism has been vividly documented in the work of David Marr (Reference Marr1971) who described the anticolonial movements, such as the Can Vuong Movement, the Dong Du Movement, and the anticolonial activities of the Tonkin Free School, extensively.
Hồ Chi Minh was inspired by the anticolonial movements that preceded him, and engaged in anticolonial activities following his own path. In this regard, the brief biography that follows, drawn from both Vietnamese and English literature is necessary (Song Thành ed., 2006; Duiker, Reference Duiker2000; Brocheux, Reference Brocheux2007; Fenn, Reference Fenn1973). He was born as Nguyễn Sinh Cung on 19 May 1890 in the Nghệ An province in central Vietnam to a Confucian family, and was renamed as Nguyễn Tất Thành at the age of ten. Thành studied Chinese characters and basic Confucian knowledge at an early stage, but latter changed and studied Quốc ngữ (modern Vietnamese) and French and modern knowledge of Western civilization.
On 5 June 1911, he joined the crew of the Admiral Latouche Tréville as a cook's apprentice to go overseas to the west in the hope of finding an appropriate path that would liberate the nation from French domination. Thành spent most of the next two years at sea with experiences at European and East African ports, the United States, and settled in London for four years until 1917. At the end of 1917, Thành returned to Paris where his revolutionary career actually began. The six years in Paris was a radical period and involved him to momentous revolutionary activities. One of his notable activities during this time was that in June 1919, under the name Nguyễn Ái Quốc (Nguyễn the patriot), he presented to the Versailles Conference – where the leaders of the victorious Allied Powers gather to negotiate a peace treaty – an eight point Revendications du Peuple Annamities (Demands of the Annamite People) on behalf of the Association of Vietnamese Patriots in France.
During the time in France, through means of journalism, Nguyễn Ái Quốc castigated the arbitrary exercise of the colonial power, with around sixty articles published from 1921 to June 1923 in French journals such as La Vie Ouvrire, L’ Humanité, Le Populaire, La Revue Communiste and particularly Le Paria (Song Thành, 2006: 95–6). Notable articles include Tâm địa thực dân (the Colonial Mind), Bình đẳng (Equality), Vực thẳm thuộc địa (Colonial Abyss), Công cuộc Khai hoá Giết người (The Mission of Homicidal Civilization) (Hồ Chí Minh, Vol. I, 2000). On the basis of these articles, he wrote the Le Procès de la Colonisation Francaise (French Colonialism on Trial; Vietnamese: Bản án Chế độ Thực dân Pháp), which was firstly published in France in 1925 (Hồ Chí Minh, Vol. I, 2000).
In June 1923, Nguyễn Ái Quốc departed from Paris for Moscow where he gradually became an important member of the international communist movement. On 11 November 1924, Nguyễn Ái Quốc left Moscow for Canton (presently Guangzhou) where he trained communist cadres and founded the Revolutionary Youth League of Vietnam (Việt Nam Thanh niên Cách mạng Đồng chí Hội). At meetings from the 3 to 7 February 1930 in Hong Kong, Nguyễn Ái Quốc united various communist groups to form the Communist Party of Vietnam (Đảng Cộng Sản Việt Nam).
After 30 years overseas, on 8 February 1941, Nguyễn Ái Quốc returned to Vietnam to lead the revolutionary movement. By May 1941, while most of Vietnam was under Japanese domination, at the meeting of the Eighth Central Committee of the Communist Party, Nguyễn Ái Quốc and the Communist Party decided to found the united national front named as Việt Nam Độc lập Đồng minh Hội (The League for Independence of Vietnam, briefly Việt Minh) to rally the resultant force of the mass of people for revolution against French rule and Japanese military occupation.
To connect the Việt Minh front with other revolutionary movements in China and Japan in the course of international alliance of revolutionary movements, Nguyễn Ái Quốc under the new name Hồ Chí Minh went to China on 13 August 1942. He was unfortunately arrested and imprisoned by the Chinese Nationalists in Guangxi from 29 August 1924 to 10 September 1943. In 9 August 1944, Hồ Chí Minh returned to Vietnam to continue leading the revolutionary movement.
In August 1945, through the Việt Minh front, Hồ Chí Minh and the Party launched an insurrection to seize power throughout Vietnam. The 1945 August Revolution put an end to three-quarters of a century of French colonialism in Vietnam. Subsequently, on 2 September 1945, Hồ Chí Minh pronounced the Tuyên Ngôn Độc lập (Declaration of Independence) in Ba Đình Square, declaring national autonomy and the birth of Vietnam's Democratic Republic. Hồ Chí Minh became the President of Vietnam's Democratic Republic, an office he held until his death on 2 September 1969.
In short, the environment of anticolonialism and Hồ Chi Minh's own anticolonial experience created the second condition for his constitutionalist discourse against the colonial government.
Constitutional enlightenment
The condition of constitutional enlightenment is also established. To begin with, in early twentieth century, fundamental ideas of modern constitutionalism, such as a written constitution, popular sovereignty, separation of power, and individual rights, were diffused in Vietnam (Phan, Reference Phan2006). This constitutional diffusion happened mainly through the channel of the ‘new books’ (Japanese: shin sho; Chinese: hsin shu; Vietnamese: tân thư), the term referring to the literature on western modern knowledge (including legal and political knowledge), introduced into Japan, China, and Vietnam during the late nineteenth century to early twentieth century (Đinh, Reference Đinh1997). The Vietnamese Confucian intellectuals who led the Dong Du Movement and Tonkin Free School had already been enlightened with fundamental constitutionalist ideas and employed these ideas to oppose the colonial government and called for the creation of a constitutional government in Vietnam.
Hồ Chi Minh was also enlightened with modern constitutionalism through different channels and sources. First, he acquired basic knowledge about the classical theoretical foundation of modern constitutionalism, namely Enlightenment liberalism. When he was in Vietnam, Nguyễn Tất Thành already had rudimentary knowledge of the enlightenment liberalist theories. At an early stage, he had had an inkling of Rousseau and Montesquieu's doctrines through the ‘new books’ and the reformist discourse of anticolonial Confucianists, such as Phan Bội Châu and Phan Chu Trinh (Vũ Đình Hòe, Reference Hòe2005: 141). In addition, the time he studied at the National Academy was highly instrumental in formulating his cognition of classical liberal values. In this regard, the lectures on France's civilization, democratic revolution, and political theories, provided by his teacher Lê Văn Miến- a graduate from France- were useful. Moreover, it was during the time at the National Academy that Nguyễn Tất Thành could study the French original versions of The Social Contract and The Spirit of Laws under the instruction of Lê Văn Miến (Vũ Đình Hòe, Reference Hòe2005: 92). The experiences overseas further intensified his understanding of the classical foundations of modern constitutionalism. During the time in France, Nguyễn Ái Quốc further pondered Rousseau's work and translated Montesquieu's work (Vũ Đình Hòe, Reference Hòe2005: 189). It can be speculated that the study of the classical works helped Hồ Chi Minh acquire fundamental understandings of the Enlightenment foundations of modern constitutionalism, which principally embrace the principle of popular sovereignty, the concepts of natural law and liberal rights, and the theory of separation of powers.
Second, Hồ Chí Minh's constitutionalist discourse is informed by his understanding of American constitutionalism. Recently, after the meeting with former Vietnam's President Trương Tấn Sang on 25 July 2013, Former US President Barack Obama stated: ‘At the conclusion of the meeting, President Sang shared with me a copy of a letter sent by Hồ Chi Minh to Harry Truman. And we discussed the fact that Hồ Chi Minh was actually inspired by the US Declaration of Independence and Constitution, and the words of Thomas Jefferson. Hồ Chi Minh talks about his interest in cooperation with the United States (The White House's Office of the Press Secretary, 2013). When Nguyễn Tất Thành was in Vietnam, through the ‘new books’ and Lê Văn Miến's lectures at the National Academy, he would have become aware of the American national revolution, Jefferson's Declaration of Independence, and the US 1787 Constitution. For linguistic reasons and due to limited access to documents during his time at sea, Nguyễn Tất Thành's experience in America might have initially been limited. However, he could further comprehend American constitutionalism at a later stage in his revolutionary path when his capacity in English and French gradually improved with the experiences of four years in London and six years in Paris.
Vũ Đình Hòe verified that during the time in France, Nguyễn Ái Quốc studied A. Tocqueville's Democracy in America (Vũ Đình Hòe, Reference Hòe2005: 189). Vũ Đình Hòe recounted that by the end of August 1945, Hồ Chí Minh called an American friend, asking for a formal document of the United States’ Declaration of Independence, and the American friend recorded the full text at the library of Chennault's Headquarters and sent it to Hồ Chi Minh via radio transmitter (Vũ Đình Hòe, Reference Hòe2005: 288). As will be discussed below, Hồ Chi Minh's Declaration of Independence on 2 September 1945 began with a reminder of the natural rights proposition in Jefferson's one. Also according to Vũ Đình Hòe, to prepare a constitution for the new independent Vietnam, Hồ Chí Minh advised him and his peers who served the constitutional draft committee to make reference to the United States’ Declaration of Independence and Constitution (Vũ Đình Hòe, Reference Hòe2005: 278). It can be assumed that Hồ Chí Minh's examination of the founding documents of America would have established his basic understanding of the fundamentals of American constitutionalism: the concept of natural rights, the Lockean principle of popular sovereignty, the bicameral system, the tripartite government model, and the mechanism of checks and balances.
Third, Hồ Chí Minh's constitutionalist discourse reflects his perception of English constitutionalism. It should be first noted that the four-year London-based period, albeit rather long, was the most mysterious time of Hồ Chí Minh's life. A friend of Vũ Đình Hòe, lady Borton, discovered that Nguyễn Tất Thành frequently went to a library in London city, but what he really read remained a mystery. However, Vũ Đình Hòe says that, to prepare for drafting the constitution for Vietnam, Hồ Chí Minh advised him and members of the constitutional draft committee to study English bicameralism, the Magna Carta (1215) and the Habeas Corpus Act (1679) (Vũ Đình Hòe, Reference Hòe2005: 278). Hồ Chí Minh seems to be familiar with, and hospitable to, the basic documents of the English constitutional system. Vũ Đình Hòe surmises: ‘Although our Uncle Hồ has not spoken out and written down directly, with reference to what Uncle later maintained qua President of Vietnam's Democratic Republic, I feel that when living in the United Kingdom Nguyễn Tất Thành studied rather carefully the constitutional monarchy of the friendly nation which is distant from us but has a lot in common with us’ (Vũ Đình Hòe, Reference Hòe2005: 299).
Fourth, Hồ Chí Minh is enlightened by French constitutionalism. In his reminiscences, Hồ Chí Minh said: ‘When I was a boy of thirteen years old, it was the first time that I learned about the French words “freedom”, “equality”, and “fraternity” . . . Hence, I wanted to acquaint myself with the French civilization and to discover what was concealed behind these words’ (Anonymous, 1986: 11). The long time in Paris helped him to learn more about the French revolution and the meanings of its motto. Later, in his Declaration of Independence, Hồ Chi Minh made use of the natural rights statement in the Declaration of the Rights of Man and of the Citizen (1789) – the fundamental document of the French revolution. In addition to this, the experience in the French society under the Third Republic (1870–1940) helped Hồ Chi Minh comprehend the institutions of the republic government. According to Vũ Đình Hòe (Reference Hòe2005: 189), the time in France highly intensified Hồ Chi Minh's understanding of various legal notions of ‘democratic republic’, ‘constitutional democracy’, ‘representative democracy’, ‘direct democracy’, ‘democratic president’, ‘coalition national assembly’, and ‘coalition government’.
In short, Hồ Chi Minh's constitutionalist discourse is conditioned by his being enlightened by political theories of the Enlightenment age – the foundation of modern constitutionalism, and the practices of modern constitutionalism in the United States, the United Kingdom, and France.
Hồ Chi Minh's anticolonial constitutionalism
With the established conditions, Hồ Chi Minh employed the language and key ideas of modern constitutionalism, namely the written constitution, the rule of law, popular sovereignty, and fundamental rights, to oppose the colonial regime and express the aspiration to a constitutionalist polity, as documented below, drawing mainly on his major anticolonialist writings and speeches.
The demands of the Annamite people
In June 1919, under the name Nguyễn Ái Quốc (Nguyễn the patriot) - ‘a pseudonym that he would use with pride for the next three decades’, (Duiker, Reference Duiker2000: 59), he presented to the Versailles Conference – where the leaders of the victorious Allied Powers gather to negotiate a peace treaty – an eight point Revendications du Peuple Annamities (Demands of the Annamite People, hereinafter, Demands) on behalf of the Association of Vietnamese Patriots in France. The Demands were drafted by Nguyễn Tất Thành with the help of the patriotic Confucian Phan Châu Trinh and written down by lawyer Phan Văn Trường (Song Thành (ed.) [Hồ Chí Minh's Biography]: 64–5). Generally speaking, it called for the political autonomy and basic rights for the Vietnamese people in concordance with US President Woodrow Wilson's declaration of Fourteen Points, which proposed, among other things, self-determination for all peoples (Duiker, Reference Duiker2000: 58–9). To maximize the impact of the Demands, Thành vigorously publicized it. Thành sent the Demands not only to the delegates of the Versailles Conference but also to the key members of the National Assembly and the President of France. He also arranged to have it broadcasted in a French newspaper (the L'Humanité) and additionally distributed by hand 6,000 leaflets. Thành also produced the Chinese and Vietnamese versions of the Demands. In 1920, he wrote a Vietnamese version in verse under the title Việt Nam Yêu cầu Ca [The Ballad on the Demands of Vietnam, hereinafter Ballad], which was widely disseminated inside Vietnam (Song Thành, 2006: 64–5).
The Demands and its Vietnamese poetic version, the Ballad, indicate that Nguyễn Ái Quốc employed the language and fundamental ideas of modern constitutionalism to condemn the colonial government and present an aspiration to a constitutional government in future Vietnam. Let us examine these documents in more detail. The Demands ‘avoids insisting on immediate independence for Vietnam but instead claims legal and political rights for which the French presumably stands’ while holding ‘full independence as the ultimate goal’ (Gettleman et al., 1955: 18). These claims include eight points, namely:
(1) General amnesty for all native people who have been condemned for political activity.
(2) Reform of the Indochinese justice system by granting to the native population the same judicial guarantees as the Europeans have and the total suppression of the special courts which are the instruments of terrorization and oppression against the most responsible elements of the Annamite people.
(3) Freedom of Press.
(4) Freedom to associate freely.
(5) Freedom to emigrate and to travel abroad.
(6) Freedom of education, and creation in every province of technical and professional schools for the native population.
(7) Replacement of the regime of arbitrary decrees by a regime of law.
(8) A permanent delegation of native people selected to attend the French parliament in order keep the latter informed of their needs. (Translation of the French originals in the National Archives, Washington, D.C by Gettleman et al., 1955: 19–20).
These demands clearly reflect the language and ideas of modern constitutionalism. I argue that the Demands can be interpreted as a constitutionalist discourse against arbitrary colonial power and that it expresses the aspirations of a constitutional government. In fact, it contrasts arbitrary government with a modern constitutional government. It opposed arbitrary colonial rule (condemnation of political activity, special oppressive courts, and arbitrary decrees) and called for fundamental values of modern constitutionalism (namely legal equality, civil liberty, the rule of law, and democratic participation). These fundamental demands present the aspirations of modern constitutionalism because these demands aim to establish legal restraints on the arbitrary power and protect the fundamental rights of the native people: arbitrary power will be limited when legal equality is guaranteed, special oppressive courts are abolished, civil liberty is recognized, statutory laws replace administrative decrees, and the native people are allowed to participate in the law-making process.
The Ballad was more than a simple Vietnamese translation of the Demands in verse but went a further step to call for a constitution. The seventh demand was transformed in the Ballad 1922 was as follows: ‘Bảy xin hiến pháp ban hành; Trằm điều phải có thần linh pháp quyền’ (The seventh demand is to enact a constitution; Hundreds of things must possess the spirit of law) (Hồ Chí Minh, Vol. I, 2000: 438). The first line clearly introduces a new petition for a constitution. In the second line, ‘hundreds of things’ (trằm điều) are a symbolic indication of various affairs in society and the phrase ‘thần linh pháp quyền’, according to Nguyễn Đình Lộc (2005: 29–39), is a reminder from Montesquieu's The Spirit of Laws. Nguyễn Sĩ Dũng (2004: 368–71) further explains that the term ‘spirit’ (thần linh) refers to natural law. The meaning of the two lines is relatively ambiguous. However, when we read the two lines together and situate them within the whole demands, the Ballad tends to denote the idea that a written constitution is necessary for the rule of law and the protection of fundamental rights. This can be understood as such because the call for a constitution is introduced together with the demands for civil liberty and ‘a regime of law’. The Ballad tends to demand that fundamental rights and ‘a regime of law’ must be guaranteed by a written constitution.
The constitution here is understood through a constitutionalist rather than soviet lens. Eight months after the victorious October Socialist Revolution, in July 1918, the 5th All-Russia Congress of Soviets adopted the first soviet Constitution (Yegorow, Reference Yegorow and Goncharuk1981: 31). Lenin regarded it as ‘a powerful weapon in the fight for socialism’, which ‘served and would constantly serve the working people’ (Yegorow, Reference Yegorow and Goncharuk1981: 30). Hồ Chí Minh had access to Lenin's revolutionary doctrine in July 1920 and certainly was aware of the essential spirit of the soviet Constitution. Nonetheless, he did not employ the soviet idea of constitution as a weapon for class struggle but as a framework to preclude despotism, to realize rule of law, and to protect liberal rights.
The Screams to the League of Nations
Another important document, which reflected Hồ Chí Minh's constitutionalist discourse, is the ‘Nhời Hô hoán Gửi Hội Vạn Quốc’ (Screams to the League of Nations) (30 August 1926). In 1926, when Nguyễn Ái Quốc was in China, the League of Nations convened in Paris. Taking advantage of this occasion, he and others sent the petitions to the convention. The Screams was signed by Nguyễn Ái Quốc adjacent to the signatures of Phan Bội Châu and Phan Châu Trinh (Vũ Đình Hòe, 1993: 182).
Starting with the call for ‘immediately totally independent sovereignty for the Vietnamese nation otherwise our people will soon revolt’, the Screams pledges that: ‘If we are immediately independent, our country will . . . arrange a constitutional system (nền hiến pháp) . . . in consistence with the popular rights ideals’ (Bar Association, Reference Association1975: 278). So, the Screams opposed colonialism and expressed commitment and aspiration to a liberal constitutionalist system whose ultimate goal is to protect fundamental rights, the system that was practiced in western democracies, such as France and the United States.
Reading the Screams, the Demands, and the Ballads together, they present a consistent constitutionalist discourse: the constitution is invoked as a basis to protect fundamental rights, resonating with the idea of modern constitutionalism, which stems from concern regarding the arbitrary power of the colonial authority.
The Declaration of Independence
The constitutionalist spirit of the Screams, the Demands, and the Ballads is continued in Hồ Chi Minh's Declaration of Independence. David Marr (Reference Marr, Taylor and Whitmore1995) has provided a useful description of the context of the Declaration of Independence and some treatments on its content. Rather than repeating these, I reconstruct the Declaration as the embodiment of Hồ Chi Minh's anticolonial constitutionalism. He began his Declaration by quoting the human rights statements in the US Declaration of Independence and the France's Declaration of the Rights of Man and of the Citizen:
‘All men are created equal. They are endowed by their Creator with certain inalienable rights, among them are Life, Liberty, and the pursuit of Happiness.’
This immortal statement was made in the Declaration of Independence of the United States of America in 1776. In a broader sense, this means: All the peoples on the earth are equal from birth, all the peoples have a right to live, to be happy and free.
The Declaration of the French Revolution made in 1791 on the Rights of Man and the Citizen also states: ‘All men are born free and with equal rights, and must always remain free and have equal rights.’
Those are undeniable truths. (Translation by Gettleman et al., 1955: 26–27; the Vietnamese version published in Hồ Chí Minh, Vol. III, 2000: 555).
The two quoted documents are integral to the origins of modern constitutionalism in the respective countries. The US Declaration of Independence establishes fundamental commitments to natural rights, which are the foundation of the American constitutional government. An American scholar argues that: ‘the Declaration of Independence requires all three branches of the federal government to protect inalienable rights on an equal basis. The document's principled statements about liberal equality and political participation are foundational to the Constitution's structure’ (Tsesis, Reference Tsesis2012: 695). In France, the Declaration on the Rights of Man and the Citizen was incorporated in the preambles to the Constitution of 1946 and to the subsequent Constitution of 1958, and later interpreted by the Conseil Constitutionnel as having constitutional value (Vroom, Reference Vroom1988: 265).
In the same vein, the above statement in Hồ Chi Minh's Declaration of Independence, which is resonated in the previous petitions to rights in the Screams, the Demands, and the Ballads, can be explained as an expression of the constitutional aspiration to natural rights of the individuals and the Vietnamese people to life, liberty, and the pursuit of happiness, foundational to the future constitutional government in the country. As Nguyễn Sĩ Dũng (2014) comments, ‘in reality, the rights presented in the Declaration of Independence is always the most important ingredient of constitutional law’. That means the commitments to rights in the Declaration of Independence establish the long-term goals that would guide the activities of the government in Vietnam.
Hồ Chi Minh's Declaration of Independence is a form of anticolonial constitutionalism because it contrasts the colonialists’ constitutional commitments to the colonial reality in Vietnam. It stated:
Nevertheless, for more than eighty years, the French imperialists, abusing the standard of Liberty, Equality, and Fraternity, have violated our Fatherland and oppressed our fellow-citizens. They have acted contrary to the ideals of humanity and justice.
In the field of politics, they have deprived our people of every democratic liberty.
They have enforced inhuman laws. (Translation by Gettleman et al., 1955: 27)
This juxtaposition of the ideals of constitutionalism to the reality of oppressive colonialism expresses both the opposition to the colonial role and the aspiration to constitutionalism. The implication is that fundamental civil liberty is a desirable constitutional ideal to which the colonialists were committed but encroached. This echoes one feature of modern discourse of constitutionalism, namely the criticism of power holders’ violation of fundamental rights. One example is the indictment in the US Declaration of Independence of the King George III of Great Britain for his ‘invasions on the rights of the people’.
Like Thomas Jefferson, Hồ Chi Minh expressed his aspiration not only to fundamental rights but also to a democratic political structure that can ensure these rights:
The French have fled, the Japanese have capitulated, Emperor Bao Dai has abdicated. Our people have broken the chains which for nearly a century have fettered them and have won independence for the Fatherland. Our people at the same time have overthrown the monarchic regime that has reigned supreme for dozens of centuries. In its place has been established the present Democratic Republic.
For these reasons, we, members of the Provisional Government, representing the whole Vietnamese people, declare that from now on we break off all relations of a colonial character with France; we repeal all the international obligation that France has so far subscribed to on behalf of Vietnam and we abolish all the special rights the French have unlawfully acquired in our Fatherland.
The whole Vietnamese people, animated by a common purpose, are determined to fight to the bitter end against any attempt by the French colonialists to reconquer their country. (Translation by Marvin E. Gettleman et al., 1955: 28)
This statement of the Declaration must be read in the political context that ‘leaders of the new republic of Vietnam’ were aware of the ‘French government's intention of restoration of their domination’ in Indochina (Brocheux, Reference Brocheux2007: 96). The Declaration is meant to indicate that the new regime not only abolished the monarchic regime and colonial regime but also rejected any attempt to return the colonial regime and will create a true democratic republic. Hồ Chi Minh's political discourse and practice of democratic republic is examined in more detail below.
The ‘Democratic Republic’
Hồ Chi Minh's political discourse and practice of a ‘democratic republic’ reflect the language and ideas of democracy and popular sovereignty in modern constitutionalism. The first Soviet constitution in 1918 established the soviet government or the government of the workers, peasants, and soldiers. At an early stage, Hồ Chí Minh intended to practice this form of government in Vietnam. The establishment of a government for the workers, peasants, and soldiers (chính phủ công nông binh) was envisaged in the Condensed Political Program of the Party (Chính cương Vắn tắt của Đảng) (Hồ Chí Minh, Vol. III, 2000: 3), which Nguyễn Ái Quốc presented at the founding conference of the Vietnamese Communist Party in February 1930, and reaffirmed in his appeal to the people on the occasion of the birth of the Party (Hồ Chí Minh, Vol. III, 2000: 3).
Two months after its founding, the Communist Party led a peasant insurrection whose paroxysm brought about the abolition of the local machinery of government and the replacement by the soviet regime in two provinces, Nghệ An and Hà Tĩnh, best known as Xô viết Nghệ- Tĩnh (Nghệ-Tĩnh Soviets) (1930–31) (Buttinger, Reference Buttinger1968: 179). The Nghệ-Tĩnh Soviets lasted many months and then were fiercely suppressed by the colonial authorities. The problem of the regime of Nghệ-Tĩnh Soviets was that while the members of the soviets were narrowly limited to the workers and the poor peasants, their enemies were broadly defined to include not only the foreign colonialists but also a number of strata in the Vietnamese society: the intelligentsia, the rich farmers, and the other ‘haves’. This isolated the soviets from other forces of the society, which enable the colonialists to quash the movement quickly. Although the practice of the soviet government was merely at the village level, its failure was significant: the radical proposal of the soviet government was not appropriate to the revolutionary context in Vietnam and might have excluded involvement in the revolution of many strata other than the workers, peasants, and soldiers (Vũ Minh Giang (ed.), 2008: 211).
The realization of the need to rally all forces in society for the revolution, at the congress of the Eighth Central Committee of the Communist Party held from 10 to 19 May 1941, Nguyễn Ái Quốc and the Party substantially revised the previous commitment to a government of the workers, peasants, and soldiers. The League for Independence of Vietnam or the Việt Minh front, which was proposed by Nguyễn Ái Quốc and formally founded by the Party in that congress, introduced a new project of a democratic republic with a popular government:
The League for Independence of Vietnam (briefly Việt Minh) advocates rallying all stratum, revolutionary groups, and suppressed nations to unanimously struggle against the Japanese fascist imperialism to regain the independence for Vietnam. After expelling the Japanese fascist imperialism, a people's government of the Vietnam's Democratic Republic will be established . . . The people's government of the Vietnam's Democratic Republic will be proposed by the National Assembly. (Hồ Chí Minh, Vol. III, 2000: 583)
Hồ Chí Minh's discourse of the democratic republic substantially deviated from the Leninist concept of proletarian dictatorship – the ‘foundation stone of the Soviet constitutional order’ (Towster, Reference Towster1948: 28). ‘The scientific concept of dictatorship’, Lenin wrote, ‘means nothing else but power based directly on violence, unrestrained by any laws, absolutely unrestricted by any rules’ (Towster, Reference Towster1948: 28). According to Lenin, ‘the dictatorship of the proletariat is the rule of one class, which take into its hand the entire apparatus of the new statehood, which conquers the bourgeoisie and neutralizes the entire petty bourgeoisie, the peasantry, the Babbittry, intelligentsia’ (Towster, Reference Towster1948: 29). A group of Vietnamese historians (Vũ Minh Giang (ed.) 2008: 128) pointed out that in his entire writings and speech published in Hồ Chí Minh Toàn tập, 12 Tập (Hồ Chí Minh's Complete Works, 12 Volumes), Hồ Chí Minh never mentioned the concept of a proletarian dictatorship as the model for the organization of the state of Vietnam. This group asserts:
Mostly, Hồ Chí Minh did not employ the concept of proletarian dictatorship as a form or model of organization of political power or a mechanism or instrument of the Party in the process of constructing a new society in Vietnam. Instead, to refer to a form of organization of government and society appropriate to the context and conditions of our country, Hồ Chí Minh predominantly employed the concept of dân chủ cộng hòa (democratic republic) or dân chủ nhân dân (people's democracy). Also in Hồ Chí Minh's Complete Works, the term dân chủ cộng hòa was mentioned in 733 documents and the term dân chủ nhân dân appears in 169 documents. (Vũ Minh Giang (ed.), 2008: 128)
Unlike the concept of proletarian dictatorship, ‘the people's government of the democratic republic’ was not ‘the rule of one class’. The ‘people’ here were not constricted to the proletariat class but extended widely to the entire people. Let's illustrate by the birth of Vietnam's National Assembly and Hồ Chí Minh's Government.
In a letter to the people in October 1944, Hồ Chí Minh announced the plan to ‘summon a congress of national representatives to establish an organ which will represent the sincere solidarity and unanimous action of whole of our people. Such an organ must be proposed by the congress of national representatives, which consists of all revolutionary parties and patriot associations’ (Hồ Chí Minh, Volume III, 2000: 505). On 16 August 1945, the congress of national representatives was convened in Tân Trào and founded the Ủy ban Giải phóng Việt Nam (Vietnam's Liberation Committee) presided by Hồ Chí Minh, which was later transformed into the provisional government. On 27 June 1945, the provisional government issued a proclamation, asserting that: ‘The provisional government . . . was genuinely a united national government . . . When the National Assembly is established, it will propose a formal democratic government’ (National Assembly Office, 1994: 25).
One day after pronouncing the Declaration of Independence, in the first meeting of the provisional government, Hồ Chí Minh suggested ‘organizing as soon as possible a general election in consistence with the principle of universal suffrage’ (Hồ Chí Minh, Vol. IV, 2000: 8). In an appeal to the people concerning the election, he said: ‘In this general election, anyone who wants to take care of national affairs shall equally have the right to run for election; anyone who is a Vietnamese citizen shall equally have the right to vote. Eliminating the distinctions of male and female, the poor and the wealthy, race, class, and party, anyone who is a Vietnamese citizen shall equally have these two rights. Therefore, general election is free and equal’ ((Hồ Chí Minh, Vol. IV, 2000: 133). The election was held on 6 January 1946, giving birth to Vietnam's National Assembly. The delegates came from varied backgrounds: workers, peasants, bourgeois, traditional and western intellectuals, the religious, the ex-monarch (Bảo Đại), and other activists. In terms of party membership, the representatives of the Communist Party, the Democratic Party, the Social Party, and other parties were included (National Assembly Office, 1994: 53–54).
The January 1946 election, rather than a being limited election of workers, peasants, and the soldiers as the Soviet model, was held in concordance with basic principles of the democratic election system: universal suffrage, freedom, and equality. Concomitantly, the National Assembly established by that election, rather than being a soviet council of the proletariat nominated by a single party, was a pluralist representative institution similar to the legislatures in western constitutional democracies.
On 3 February 1946, in its first session, the National Assembly established the ‘Resistance Coalition Government’ (Chính phủ Liên hiệp Kháng chiến) under the presidency of Hồ Chí Minh, which consisted of delegates from various parties and non-party members: Hồ Chí Minh (President), Nguyễn Hải Thần (Vice-President), Huỳnh Thúc Kháng (Interior), Nguyễn Tường Tam (Foreign Affairs), Vũ Đình Hòe (Justice), Trương Đình Tri (Public Health), Cù Huy Cận (Agriculture), Phan Anh (National Defense), Chu Bá Phượng (Economics), Đặng Thai Mai (Education), Lê Văn Hiến (Finances), Trần Đăng Khoa (Public Works) (National Assembly Office, 1994: 73). In the second session in November 1946, the National Assembly introduced a new government and Hồ Chí Minh was again selected as its President. He declared in the meeting of the National Assembly: ‘The Government must be a government of the entire people and gather the talents irrespective of party’ (National Assembly Office, 1994: 99).
Hồ Chí Minh's discourse of popular government also rejected the proletarian dictatorial concept of power ‘unrestrained by any laws, absolutely unrestricted by any rules’. The popular government was not envisaged to absolutely superimpose dictatorial authorities upon the people. On contrary and quite interestingly, Hồ Chí Minh mentioned the possibility of the people to replace an incompetent government. He wrote in the Revolutionary Path (1926) that: ‘Whenever any form of government becomes injurious to the people, the people must capsize it and institute new government’ (Hồ Chí Minh, Vol. II, 2000: 270), a reminiscence of the Lockean position mentioned in the United States’ Declaration of Independence. One may doubt that Nguyễn Ái Quốc wrote this statement in the Revolutionary Path intentionally to mobilize support for overturning the colonial government and he might not have believed that such a mechanism should be applicable to the government of the future independent Vietnam. However, professor Song Thành pointed out that even after the August Revolution 1945, Hồ Chí Minh insisted on the possibility of the people's dismissal of an unqualified government (Song Thành, 1993: 35). This is verified by the speech that Hồ Chí Minh delivered in 1947 in Thanh Hóa province in which he restated in a different way: ‘The people are the boss and the government is the servant. If the government injures the people, the people can expel it’ (Hồ Chí Minh, Vol. IV, 2000: 283) Song Thành (1993: 36) explains:
When the government has already belonged to the people, Uncle (Hồ) increasingly elevates the power of the people. Certainly, we should understand that the concept of ‘đuổi’ (expel) or ‘cách mạng xã hội’ (social revolution) need not be associated with a coup d'état or violence but may carry different forms: it can be a vote of no-confidence to the members of the government by the National Assembly, through which the people can constitute a new government; or it can be the criticism and dismissal of some members of the government in case they are not qualified or incompetent for maintaining their positions.
Thus, at least, during the colonial period, Leninist ‘class-ism’ far from dominated Hồ Chi Minh's discourse on a particular form of political organization for the future Vietnam. Instead, as a strategy to rally popular struggle against anticolonialism and for national independence, Hồ Chi Minh anticipated a ‘democratic republic’– with a popular executive and a popularly elected legislature – a political discourse and practice which resonated with the language and ideas of democracy and popular sovereignty in modern constitutionalism.
The 1946 Constitution
In modern constitutionalism, a democratic form of political structure and fundamental rights are prescribed in a constitution. Consistent with this feature, Hồ Chi Minh continued to pursue the project of enacting a constitution as the framework for the formation of the new ‘democratic republic’ and protection of fundamental rights.
Speaking at a first meeting of the provisional government on 3 September 1945, one day after his declaration of national independence, Hồ Chí Minh suggested: ‘Previously, because we were ruled by the despotic monarchy and then by the equally despotic colonial regime, our country did not have a constitution. Our people did not enjoy democratic liberal rights. We must have a democratic constitution’ (Hồ Chi Minh, 2000, Vol. IV: 8). This call for constitution making is consistent with his previous demands for liberal rights and a constitution in the Screams, the Demands, and the Ballads, and the Declaration of Independence. Importantly, this call for a ‘democratic constitution’ reflects the language and idea of modern constitutionalism rather than soviet constitutional tradition. ‘A democratic constitution’ is conceived as a necessary base, not for class struggle, but for turning down despotic power and upholding liberal rights.
In consistent with the above suggestion, on 8 September 1946, Hồ Chí Minh (1945) qua president of the Provisional Government issued a decree for general election (Decree No. 14/SL, dated 08/9/1945). The decree acknowledged that: ‘The Vietnamese people represented by a National Convention (Quốc dân đại hội) are the supreme power to ordain for Vietnam a democratic republic constitution’ (ibid.). The government realized that ‘at this current moment, to summon a national convention is not only feasible but also imperative for the entire people to participate in consolidating the independence and fighting against foreign aggressors’ (ibid.). On that base, the decree provided that within two months general elections will be held to create a national convention, which will include 300 members (ibid.). ‘The National Convention will have the absolute power to ordain a constitution for the Democratic Republic of Vietnam’ (ibid.).
The decree echoes modern constitutionalism's concern regarding the popular origin of constitution-making power. It acknowledges the Vietnamese people as the popular source of constitutive power, and a national convention that would represent the people to enact the constitution. It should be noted that the constitutionalist idea of popular origin of the constitution does not necessarily require a popular ratification of the constitution, via, for example, a referendum. In fact, the constitutions that prominently feature in the discourse of modern constitutionalism, such as those of Canada (1982), Germany (1949), and the United States (1787), are not popularly approved in a national referendum (Albert, Reference Albert2018: 52). The popular origin of the constitution requires the participation of the people in the constitution-making body (such as the national convention) and in the constitution-making process. Decree No. 14/SL reflects this idea. The national convention provided in the decree is not an ordinary legislature, but a constituent convention, like the Philadelphia Convention of 1787, a body created by the people to make a constitution for the first time. But different from the latter, the national convention was anticipated as more popular as it would have hundreds of popularly elected members.
As mentioned above, the general election was held on 6 January 1946 and accordingly created the body called the National Assembly. This institution approved the first constitution in Vietnam on 9 November 1946. This institution is in fact not an ordinary national assembly, but a constitutive assembly as it was created for constitution making. Shortly after the approval of the Constitution, the Indochina War broke out, and, for this reason, the National Assembly decided not to enact it, and assigned its Standing Committee and the Government the task of implementing the constitution. In addition, the National Assembly decided to extend its term until the People's Parliament, an ordinary legislature, could be elected in the proper time (National Assembly Office, 1994: 110–11).
The process of making the 1946 constitution and its contents have been examined in detail elsewhere (Bui Ngoc Son, Reference Bui2015: 67). It is sufficient to say that the fundamental contents of this document were basically in accordance with Hồ Chí Minh's previous constitutional discourse. The 1946 Constitution was, to use his terminology, a ‘democratic constitution’ created in the line with ‘popular rights ideals’. The document was the basis to pursue national independence, democracy, and liberal rights rather than an instrument for class struggle. Communist phrases, like ‘working class’ or ‘proletariat dictatorship’, were absent in that document. Furthermore, the rights provisions in the Constitution were checked in accordance with the rights petitions in Screams, the Demands, and the Ballads, and the Declaration of Independence. Finally, the political system established by the Constitution meshes with Hồ Chí Minh's project of a democratic republic. That government, instead of a government of the ‘workers, peasants, and soldiers’, was a government of the entire people, constituted and removable by the people through their representatives.
Speaking about the constitution at the closing meeting of the second session of the National Assembly, Hồ Chi Minh stated:
The National Assembly has made an achievement which glorifies the nation, that is to adopt the Constitution. 14 months after the nation was liberated, it makes the first constitution in the history of our nation. At the same time, that Constitution is the first constitutional hallmark in East Asian history. That Constitution may not be perfect, but it has been created in accordance with the real situation. The Constitution declares to the world that Vietnam has been independent. The Constitution declares to the world that in Vietnam there has been every liberal right. The Constitution declares to the world that in Vietnam women have been equal to men to enjoy every liberal right of a citizen. The Constitution demonstrates the spirit of union among the Vietnamese nationalities and the spirit of integrity and justice among the classes. (Hồ Chí Minh, Vol. IV, 440).
Thus, in addition to nationalist language, Hồ Chi Minh employed the language and ideas of modern constitutionalism, such as liberal rights, equality, and justice, to describe the substances of constitution. His speech presents the nationalist and constitutionalist aspirations, embodied in the 1946 Constitution, which the new regime aspires to achieve.
Discussion and Conclusion
The case of Hồ Chi Minh exemplifies the phenomenon of anticolonial constitutionalism. The language and fundamental ideas of modern constitutionalism are employed in political discourse opposing colonialism and expressing the aspiration to the alternative constitutionalist model. The explanatory factors of anticolonial constitutionalism have to do with two considerations.
To begin with, anticolonial constitutionalism is motivated by the fact that modern constitutionalism is a prevailing trend of legitimate political organization adopted in the ‘civilized’ world. Anticolonialists attached to the prevailing language and ideas of modern constitutionalism so as to consolidate the legitimacy of their anticolonial campaigns and to gain more support from the ‘civilized’ world, especially the western countries which are operating a modern constitutionalist system. This explained why the Demands and the Ballad employed the language and ideas of modern constitutionalism adopted by the Allied Powers to gain their support. The same thing can be said about the Screams to the League of Nations. Similarly, the fact that the Declaration of Independence and Hồ Chi Minh's constitution-making discourse employed the constitutionalist language and ideas adopted by western powers, such as France and the United States, can also be explained as an attempt to gain their support. This is further comprehensible in the historical context that the newborn Democratic Republic of Vietnam (DRV) ‘rapidly gained popular support’ but at the same time ‘had to deal immediately with centrifugal revolutionary impulses, the arrival of Chinese Nationalist troops in the north, and the British–French units driving DRV adherents out of Saigon’, and ‘no foreign government recognized the DRV's existence’ (Marr, Reference Marr2013: 1). In these circumstances, the employment of the constitutionalist language and ideas adopted by powerful foreign governments might be an attempt to obtain recognition, which is significant for the consolidation of the national independence and preventing the possible return of colonial power.
Another explanatory factor of anticolonial constitutionalism has to do with their anticolonial and aspirational nature. Anticolonial constitutionalism as a form of political discourse discloses the gap between constitutional ideals and arbitrary colonial reality, by which it motivates and mobilizes the native people to struggle against colonial rule and replace it with a constitutionalist system. It is from this consideration that Nguyễn Ái Quốc not only submitted the Demands to the Allied Powers but also disseminated and popularized them in poetic form. By this, he might hope to inspire and mobilize his people to combat against colonial rule and pursue constitutionalist values. Similarly, the Declaration of Independence declared not only the birth of the nation but also disclosed the gap between the colonialists’ constitutional commitments and colonial reality, and declared the constitutional aspirations that might inspire the people and the new government.
Anticolonial constitutionalism may have a lasting impact on national constitutional development even during postcolonial time. While its anticolonial nature may be less relevant, the aspirational nature may remain significant. This first stemmed from the fact that anticolonial constitutionalism happened at the founding moment of the nation, and the subsequent generations did not want to lose their memories of the contributions and wishes of the founding generations. Secondly, when the subsequent governments had not achieved the constitutional aspirations articulated at the founding moment, anticolonial constitutionalist discourse could still inform and inspire contemporary constitutionalist discourse. This explains why many constitutional scholars, lawyers, officials, and senior politicians, and reformists in contemporary Vietnam have referred to Hồ Chi Minh's statements on liberal rights, ‘democratic constitution’, the rule of law in the Demands, the Ballad, Screams, the Declaration of Independence, and the 1946 Constitution in their arguments for reformation of the socialist constitutional system (Bui, Reference Bui2015).
More generally, this study has implication for the relationship of constitutionalism to anticolonialism. For example, in colonial Taiwan, anticolonialists also employed the language and ideas of the rule of law, democracy, and fundamental rights (Chen, Reference Chen2014). The phenomenon of anticolonial constitutionalism and generally the relationship between anticolonialism and the aspiration to constitutionalism deserve further exploration.
About the author
Son Ngoc Bui is a Senior Research Fellow in the Centre for Asian Legal Studies of the Faculty of Law at the National University of Singapore. He holds a PhD in law at The University of Hong Kong. His research focuses on comparative constitutional law and theory, and comparative law from an interdisciplinary perspective. His work includes the book Confucian Constitutionalism in East Asia (Routledge, 2016), and journal articles published by, inter alia, American Journal of Comparative Law, Law and Social Inquiry, Illinois Law Review, Fordham International Law Journal, Washington University Global Studies Law Review, and Washington International Law Journal.
