A Quest for Due Process Doctrine in Vietnamese Law: From Soviet Legacy to Global Constitutionalism

Abstract

Due process—the ‘soul’ of a modern constitution—was not seriously taken into account under purely socialist legal systems in general as well as in pre-2013 Vietnamese constitutions in particular. Since the 2013 Constitution, Vietnamese jurisprudence has incorporated the human rights-limitation principle (substantive due process) for the first time and strengthened the application of universal fair trial rights (procedural due process). This constitutional development is the result of the fact that, over the past two decades, the class-based perception of human rights has been increasingly less important and has been almost replaced by universalism. This article claims that, because of the influence of Soviet jurisprudence, the Vietnamese version of due process has been characterized by the fact that human rights could be arbitrarily trumped by public interests and that fair trial rights have been problematically limited to criminal proceedings and almost ignored in non-criminal procedures. This article analyses the importance of, and the challenges involved in, incorporating the human rights-limitation principle into the 2013 Constitution and argues for an extension of fair trial rights to all kinds of criminal, civil, administrative, and mixed procedures in keeping with global constitutionalism.