CONSTITUTIONAL MOBILIZATION.

• Published date: 01 January 2018
• Author: Son, Bui Ngoc
• Date: 01 January 2018

INTRODUCTION 116
                I. CONSTITUTIONAL MOBILIZATION: A LACUNA IN COMPARATIVE
                CONSTITUTIONAL SCHOLARSHIP 119
                II. A GENERAL THEORETICAL FRAMEWORK 123
                 A. Constitutional Mobilization 123
                 B. Constitutional Opportunity 124
                 C. Constitutional Framing 125
                 D. Constitutional Resources 128
                 E. Constitutional Change 130
                III. A DIALOGICAL THEORY OF CONSTITUTIONAL MOBILIZATION 132
                 A. Dialogical Opportunity 134
                 B. Dialogical Frame 135
                 C. Dialogical Resource 136
                 D. Dialogical Constitutional Change 137
                PART IV. EXPLORATORY DESCRIPTION 137
                 A. Background 137
                 B. Petition 72 138
                 C. "Let's Draw up the Constitution." 139
                 D. Petition ofThe Alumni of the Hanoi Law University 145
                 E. "Declaration of Free Citizens." 147
                 F. The Letter of Catholic Bishops' Conference of Vietnam 151
                 G. The Civil Society's Three Petitions 155
                PART V. EXPLANATORY ANALYSIS 164
                 A. Constitutional Opportunity 165
                 B. Constitutional Frame 167
                 C Constitutional Resource 170
                 D. Dialogical Constitutional Change 171
                 1. Constitutional Dialogue 171
                 2. The Failure of Revolutionary Change 174
                 3. Reformative Constitutional Change 175
                 4. Cultural Constitutional Change 177
                VI. CONCLUSION 178
                

INTRODUCTION

Comparative constitutional scholarship has been dominated by the questions of how courts are structured and how they shape constitutional law. However, constitutional development is also driven by and responds to social mobilization. Several American scholars have accounted for the effects of social movements on constitutional law in the United States.' Like in the United States, people around the world are mobilizing for social change, including constitutional change. (2) Unfortunately, the emerging discipline of comparative constitutional law (3) has largely neglected constitutional mobilization. This Article introduces this phenomenon and concept, theorizes about it, and offers an original case-study.

First, this Article develops a general theoretical framework defined by the following key concepts. Constitutional mobilization is the process by which social actors employ constitutional norms and discourses to advocate for constitutional change. Constitutional opportunity refers to the general political and constitutional environments in which constitutional mobilization operates and to the particular political and constitutional processes that provoke constitutional mobilization. Constitutional framing concerns the process of identifying constitutional problems and proposing constitutional solutions and involves invocation of constitutional language, ideas, norms, or symbols presented in national constitutions, transnational constitutional law, and international law. Constitutional resource takes the form of state actors who play the influential role in constitutional change. Constitutional change is understood as multiple concepts which include three types of change: revolutionary, reformative, and cultural.

Second, this article develops a contextual theory to answer this question: Under what conditions, how, and why do social actors mobilize for constitutional change in authoritarian regime? The theory holds that, in an authoritarian regime, social actors seize the opportunity presented by the constitution-making process to mobilize the public and political leaders to engage in a popular, national constitutional dialogue, which results in reformative and cultural constitutional changes.

Third, on that theoretical ground, this Article offers an original, empirical case-study of Vietnam. The Vietnamese case is intriguing. Vietnam is ruled by a communist party like China, but in many ways the Vietnamese are experimenting with constitutional law in ways that Chinese citizens cannot. Without necessary constitutional opportunity, despite the dynamics of the weiquan (right defence) movement, (4) Chinese citizens cannot initiate a national constitutional dialogue as Vietnamese citizens did, although they have sometimes been able to appropriate other political opportunities to advocate for removing policies deemed to be unconstitutional. (5) For example, constitutional activists, like Liu Xiaobo and the Charter 08 signatories, were able to advocate for their ideas but they were also met with serious punishment, harassment, and even faced detainment by the Chinese government. (6) Also worth noting are the firm steps taken by the Chinese government in 2013 to quell the constitutionalism debate. (7) In contrast, in 2013, Vietnamese citizens successfully seized the opportunity of constitution-making to mobilize a national constitutional dialogue, which resulted in reformative changes reflected in the new 2013 Constitution. (8) These collective efforts were carried out by a coalition: a group of seventy-two intellectuals; law graduates; the "free citizens" group; the Cung Viet Hien phap (Let's Draw up the Constitution) group--an online forum providing constitutional analysis; the Vietnamese Catholic bishops; and civil society groups and organizations. (9) The Vietnamese government not only tolerated the vehement constitutional mobilization but also engaged in an open (albeit controlled) constitutional dialogue with their citizens. (10) The success of the Vietnamese people in reworking their constitution is notable, especially as Vietnam is a key player in the security and stability of Southeast Asia in general" and their domestic constitutional politics may be viewed as an example for the region.

This case-study is conducted on empirical grounds and with primary sources. I directly participated in the process of constitutional debates in Vietnam in early 2013 via several fora, such as official media events, conferences, and workshops, which enabled me to meet and exchange with constitutional intellectuals involved in mobilization, constitution-makers, and National Assembly delegates. Moreover, in January 2017, I interviewed social actors in Hanoi who had engaged in major constitutional mobilizations, members of the Constitutional Amendment Committee, members of the Editorial Board of Constitutional Amendment, Assembly deputies, and National Assembly officers. (12) In addition, this case-study also relies on primary sources: written texts, speeches, and oral records of both social actors and state actors published in Vietnamese.

This case-study has implications for China which shares with Vietnam a communist regime but presents significant constitutional divergence. More generally, this Article proposes establishing constitutional mobilization as a new area of empirical comparative constitutional inquiry based on case-studies, exploration, and contextual theorization.

The remainder of this Article is structured as follows. Part II identifies constitutional mobilization as a global but understudied phenomenon. Part III develops a general theoretical framework. Part IV introduces the dialogical theory of constitutional mobilization under the specific condition of authoritarianism. Part V offers a descriptive exploration of the case of Vietnam and Part VI provides an explanatory analysis. Part VII concludes with general reflections.

I. CONSTITUTIONAL MOBILIZATION: A LACUNA IN COMPARATIVE CONSTITUTIONAL SCHOLARSHIP

On December 26, 2012, a group of seventy-two prominent Chinese scholars published a Reform Consensus Proposal, calling for constitutional change in China, on the grounds of "fundamental consensus on democracy, the rule of law, respect for human rights and other principles of constitutionalism demanded in a modern society." (13) The Proposal was echoed in the constitutionalism debate in the following year (2013), which "drew hundreds of participants, including academics, public intellectuals, journalists, rights activists, state-affiliated think tank researchers, and government officials." (14)

Coincidentally, on January 19, 2013, a group of seventy-two prominent Vietnamese intellectuals published a constitutional petition. (15) This petition, however, was more radical and, ultimately, consequential. Now known as Petition 72, it advocated for more fundamental constitutional changes, including democratic and free elections, human rights consistent with the Universal Declaration of Human Rights and other international human rights treaties, private ownership of lands, the separation of powers among branches of the government and other forms of checks and balances, judicial independence, a constitutional court, a civil military, and referendum on the new Constitution. (16) The group submitted the petition to the Constitutional Amendment Commission and then mobilized to obtain the signatures of 14,000 Vietnamese people. (17) This petition was the starting point of the vehement wave of civic activism in Vietnam in 2013, in which thousands of citizens, intellectuals, civil society groups and organizations advocated for constitutional change.

The above stories illustrate a distinctive constitutional phenomenon which I call "constitutional mobilization." Constitutional mobilization is a global phenomenon which occurs in various institutional settings including well-established democracies, new democracies, and authoritarian regimes. (18) In the United States, "Jacksonianism, abolitionism, the labor movement, the second wave of American feminism, the Civil Rights movement, the gay rights movement, and the New Right" deployed constitutional litigation to mobilize for changes in judicial interpretations of the U.S. Constitution. (19) Civic society has also involved in mobilizing constitutional change in Europe, Latin America, Africa, and South Pacific. (20) In Asia, in addition to the above Chinese and Vietnamese stories of constitutional mobilization, other recent stories of constitutional mobilization include Hong Kong's 2013 Umbrella Movement mobilizing for direct election of the chief executive provided for in the Basic Law (Hong Kong's mini-Constitution), Taiwan's 2014 Sunflower Student Movement demanding to hold a citizens' constitutional conference to amend the...