Socialist Constitutional History

This chapter examines constitutional history in the five socialist countries. Their constitutional history can be analytically divided into three periods: pre-socialist, Soviet-era, and transitional. During the pre-socialist period, the five countries had their own constitutional history, which was predominantly informed by traditional values (e.g. Confucianism in China, Vietnam, and Korea, and Buddhism in Laos) and liberal modern values, although some socialist ideas were also partially adopted in some cases, such as the 1946 Constitution of Vietnam. In the Soviet era, except for the belated constitution-making in Laos, the four other countries made, replaced, or amended the socialist constitutions which were predominantly informed by five elements of socialist constitutional identity. Immediately after the collapse of the Soviet bloc, the five countries adapted their socialist constitutional system in the early 1990s in a transition with three separate elements: independent states, economic reforms, and institutional adjustment. The examination of socialist constitutional history has implications for comparative constitutional history.

Socialist Constitutional Identity

This chapter demonstrates that the socialist constitutional identity includes five core elements, namely instrumentalism, vanguardism, “democratic centralism,” statist rights, and statist economy, which are antithetical to liberal constitutionalism. These are the fundamental, aspirational constitutional principles and ideas characterizing all socialist constitutions, including the five current constitutions in China, Vietnam, Laos, North Korea, and Cuba.

Introduction

This book seeks to fill the academic gap in the existing literature on comparative constitutional law by examining how and why five current socialist countries (China, Cuba, Laos, North Korea, and Vietnam) have changed their constitutions after the fall of the Soviet Union. Adopting an interdisciplinary approach which integrates comparative constitutional law with social sciences (particularly political science and sociology), this book explores and explains: the progressive function; institutional and socio-economic causes; legal forms, processes, and powers; and five variations (universal, integration, reservation, exceptional, and personal) of socialist constitutional change. It uses qualitative methodology, including the support of fieldwork. It contributes to a better understanding of dynamic socioeconomic, legal, and constitutional change in socialist countries and comparative constitutional law and theory, generally.

Conclusion

This conclusion summarizes trends and major points in socialist constitutional change, and addresses broader implications. The socialist constitutions’ history or progress indicates the trend to incremental adaption of core socialist constitutional institutions. In some case, socialist constitutional change leads to partial adoption of some institutions of liberal democracy and market economy. But, the resistance to institutions of liberal constitutional democracy is also vehement in several cases. In addition, the divergence between socialist and liberal political and economic institutions is increasingly sharp. This institutional divergence is mainly due to socialist and local constitutional innovation. The partial adaption, resistance, and local innovation suggest that socialist constitutional change has not converged with “the end of history.” The socialist constitutions are increasingly dissonant documents, which is the condition for continuing evolution of the socialist constitutional order. Socialist constitutional change is connected to the broader global constitutional landscape. Constitutional change to improve the material wellbeing of living conditions is a part of human development.

Theorizing Socialist Constitutional Change

This chapter theorizes socialist constitutional change, using a holistic approach, which integrates conceptualist, functionalist, causalist, and institutional accounts. Conceptually, it adopts a non-binary approach to constitution and constitutional change, seeking to accentuate and situate the formal constitution and formal constitutional change within the broader constitutional order. Functionally, socialist constitutional change can be characterized as progressive constitutional change. Epistemologically rooted in Marxist progressivism, the function of constitutional change in socialist countries is to facilitate the active role of the party-state in improving living conditions of local residents. This progressive constitutional change is driven by a range of top-down and bottom-up factors: leadership change; the party’s changing policy for social and economic development; constitutional and economic globalization; and social demands and social economic transition. The legal form for constitutional change is varied, including: implicit replacement through amendment, explicit replacement through amendment, ordinary replacement, and ordinary amendment. The chapter concludes by categorizing five variations of the socialist models of progressive constitutional change: universal, integration, reservation, exceptional, and personal.

The Personal Model

This chapter focuses on seven constitutional amendments in North Korea under Kim Jong-il and Kim Jong-un’s rule. The Suryong (supreme leaders) system informs and legitimizes the process and substance of constitutional change in North Korea, the experience characterized here as the personal model of socialist constitutional change. The change of Suryong normally induces constitutional change. The Constitution was, also, amended to incorporate Suryong’s new ideas and guidance. Procedurally, the constitutional amendments are formally approved by the legislature with a two-third majority vote, but amendment approval is effectively controlled by a Suryong. Substantively, constitutional change in North Korea improves the Suryong-Dominant Party-State System to facilitate the government’s role in improving the material wellbeing of living conditions. The need to improve the material wellbeing generates new ideas about socio-economic development, the institutional adjustment to facilitate effective management of the economy and the society at large, and empowering the citizens to some extent.

The Exceptional Model

This chapter focuses China’s constitutional amendments in 1999, 2004, and 2018 in the global era. China’s Constitution and its amendment processes are surrounded by controversial constitutional dynamics, which struggled for rights and constitutional change. This chapter examines the formal constitutional change and the functional constitutional dynamics. It demonstrates that, in the era of globalization, constitutional change in China is being shaped by Chinese constitutional exceptionalism: the country’s confident attitude and belief in developing its own socialist constitutional model as a competitive alternative to those of the West.

The Universal Model

This chapter investigates the making of Vietnam’s 2013 Constitution. Compared with previous experience in Vietnam and with the experience in the other four socialist countries, the 2013 experience features the local adherence to universal norms in the process and substance of socialist constitutional change. This model of socialist constitutional change is, therefore, characterized as the universal model. The adherence to these universal norms informs and legitimatizes the process of the constitution-making. But, the global norms are contextualized by their intricate interaction with socialist, local elements: the party’s reformist program, legislature’s constituent power, party’s control of participation, and the party’s control of international involvement. Procedurally, the interplay of global and socialist factors results in a more open national constitutional dialogue and a less authoritarian paradigm of constitutional imposition. The three aspects of dissonance (internal to the socialist constitution of Vietnam, between the socialist constitutional ideals and external Vietnamese reality, and between the socialist and global constitutional norms) result in the pragmatic incorporation of universal ideas, principles, and institutions into the socialist Constitution of Vietnam, e.g. people’s constituent power, limited power, and human rights.

The Reservation Model

In a national referendum on February 24, 2019, Cubans overwhelmingly ratified a new constitution after an extensive process of public constitutional debates and consultation. This chapter focuses on the process and substances of the 2019 constitution-making. It demonstrates that the 2019 Constitution introduces progressive change to improve the socialist constitutional system and material wellbeing of the living conditions of the local people. Compared with the four other socialist countries this book considers, Cuba is characterized by the reservation model of socialist constitutional change. Constitutional change reserves unique features of Cuban Caribbean Marxism: the revolutionary commitment to communism and the praxis of “socialist democracy” in the form of mass rallies, consultations, and referenda. The adherence to Cuban Caribbean Marxism informs and legitimatizes the process and substances of constitutional change in this country.

The Integration Model

On December 8, 2015, the National Assembly of the Lao People’s Democratic Republic (LPDR) (or Laos) approved a new Constitution, replacing the 2003 one. This chapter focuses on that constitutional replacement through amendment. It demonstrates that Laos introduces progressive constitutional change—notably, the redefinition of the position, structure, and functions of state institutions, including the imposition of term limits on executive power holders; strengthened commitment to a market economy; new commitments to human rights protection, judicial independence, and adversarial trials; and the creation of new institutions, namely, the local people’s councils, the state audit, and the election committee—to facilitate the improvement of the socialist constitutional system which in turn promotes the improvement of the material well-being of the living conditions of the Lao multi-ethnic people. The adherence to the integration of the Lao multi-ethnic people legitimatizes the process and substance of constitutional change in this country. The Lao story, therefore, indicates the integration model of socialist constitutional change.