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Functions of the National Assembly under the 2013 Constitution and recommendations for effective implementation

(LLCT) - Since the 1980 Constitution, the National Assembly was organized following a socialist model with three functions: “exercise constitutional and legislative power, decide significant national affairs, and exercise supreme control over all activities of the State”. These three functions are still enshrined in Article 69 of the 2013 Constitution and other current legal instruments. 

1. Functions of the National Assembly stipulated in the 2013 Constitution

a) Exercising constitutional and legislative powers

The 2013 Constitution agrees with the 1992 Constitution’s description of the National Assembly as the highest representative organ of the people, and the highest state power of the Socialist republic of Viet Nam. Diverging from the 1992 Constitution, however, the 2013 Constitution does not stipulate that the National Assembly is the “only” organ that holds constitutional power.

Article 69 of the 2013 Constitution states that “the National Assembly exercises constitutional and legislative powers.” Article 83 of the 1992 Constitution, (amended and supplemented in 2001), stipulates: “The National Assembly is the only organ with constitutional and legislative powers.” Thus, according to the 1992 Constitution, the National Assembly is the only organ with the power to approve or amend the constitution and the law.

The 2008 Law on the National Assembly’s promulgation of legal documents listed six steps: (i) building the law development program; (ii) drafting laws; (iii) verifying proposed laws; (iv) the consideration and deliberation of the Standing Committee of the National Assembly; (v) deliberating, incorporating, revising, and adopting laws; and (vi) announcing laws. Steps (iii), (iv) and (v) are main tasks that are directly handled by the National Assembly. 90% of proposed laws are submitted by the Government. Therefore, the National Assembly is not the sole decision-maker in the process of building the constitution and the legal system. As a result, the 2013 Constitution paved the way allowing the National Assembly to authorize the Government to participate in legislation. This is reflected in Article 100 of the 2013 Constitution, which states: “The Government, the Prime Minister, Ministers, and Heads of ministry-equivalent agencies shall issue legal documents exercising their duties and authorities, review the implementation of these documents, and handle illegal documents according to the law”. The 2013 Constitution clearly distinguishes constitutional power from legislative power.

b) Making decisions on critical issues of the country

The 2013 Constitution gives a brief and general description of significant national affairs that fall under the National Assembly’s jurisdiction, emphasizing the socio-economic affairs prescribed in Clause 4 of Article 70. The National Assembly has the power “to decide on fundamental national financial and monetary policies; to introduce, change, or abolish taxes; to decide on the division of revenue and expenditure tasks between the central and local budget; to determine the safe limits of national, public and government debt; to decide on state budget estimates and the allocation of the central State budget; and to approve the final accounts of the state budget.” The focus on determining fundamental policies, transparency and the specification of certain content has shown the National Assembly’s power in ensuring state integrity toward significant national affairs, particularly economic and financial issues. This forms the foundation for appropriate decentralization among central and local agencies and promotions local creativity and involvement in the country’s socio-economic issues.

Clause 14, Article 70 of the 2013 Constitution addresses issues related to foreign policy and national sovereignty apart from the maintenance of the National Assembly’ authority in deciding fundamental foreign policy. The section lays out specific and reasonable adjustments by defining the National Assembly’s power to ratify, join, or withdraw from treaties related to war, peace, national sovereignty, or the membership of the Socialist Republic of Vietnam. This also includes treaties concerning important international and regional organizations; treaties on human rights, fundamental rights, or citizen obligations;, and other treaties not consistent with the National Assembly’s laws or resolutions. This transparency is the constitutional foundation for establishing the legal framework toward an improved standardized way to guarantee and implement national sovereignty and foreign policy in the near future.

c) Exercising supreme oversight

The 2013 Constitution does not stipulate that the National Assembly exercises supreme oversight power over “all activities of the Government” (Paragraph 4, Article 83). Instead, it narrows the scope of the National Assembly’s supreme oversight power.

According to the 1992 Constitution, the National Assembly has authority over the activity of any local or central state organ, even those at the grassroots level. The 2013 Constitution limits this power to the activities of the highest level state organs and agencies established and ratified by the National Assembly, such as the President, the Standing Committee of the National Assembly, the Government, the People’s Supreme Court, the People’s Supreme Procuracy, the State Audit Office, and the National Election Council (Article 70 of the 2013 Constitution). This scope is consistent with the reality of the National Assembly’s supreme oversight power and implementation.

The 2013 Constitution also asserts the National Assembly’s supreme oversight power over independent institutions such as the State Audit Office, the National Election Council, and other state organs established by the National Assembly.

Clause 2, Article 84 of the 1992 Constitution places regulations on entities run under the National Assembly’s supreme oversight, including the President, the Standing Committee of the National Assembly, the Government, the People’s Supreme Court, and the People’s Supreme Procuracy. However, the 2013 Constitution expands the scope of this power to include other institutions like the State Audit Office, the National Election Council, and other agencies established by the National Assembly. These regulations align with the characteristics of the National Assembly’s oversight activities. The reason for this change is because the 2013 Constitution added two independent constitutional institutions (agencies) - the National Election Council and the State Audit Office (Chapter X). Because these bodies were established under the National Assembly’s power, they must be included in the National Assembly’s functions and powers. Moreover, the addition of these independent bodies to the constitution contributes to clarifying the people’s sovereignty, clarifying assignment mechanisms, coordinating controlling powers, and perfecting the socialist law-ruled State apparatus.

This generalized provision helps confirm state activities under the National Assembly’s supreme oversight power. Clause 2, Article 70 of the 2013 Constitution provides a solid foundation so that legal documents issued later on can be built upon a systematic, detailed plan that avoids overlap and contradiction.

2. Some issues

To maintain consistency with political guidelines and to enhance people’s mastery, the 2013 Constitution affirms that the National Assembly is not the only subject with constitutional power and legislative power. Constitutional power extends to the Government, Prime Minister, Ministers, and Heads of ministry-equivalent organs (Article 100, the 2013 Constitution). This provision highlights several limitations of the Vietnamese legal and legislation methods in relation to state apparatus organizations. The Constitution allows the Government to promulgate legal documents (ordinances and decrees) to implement the law. The legal value of these documents is lower than that of laws. They can be changed, abolished or sanctioned by a court for their constitutionality and legality. However, in Vietnam, decrees and circulars are classified in the same category - legal documents that have compulsory effectiveness and cannot receive complaints or be sued in court. Vietnam has not established a constitutional court, which directly examines the constitutionality and legality of legal documents. This court also deals with decrees and circulars that are not consistent with the constitution while current administrative courts have no power to settle. At present, only the Standing Committee of the National Assembly has been granted the authority to “suspend” or “abolish legal documents. Nevertheless, which subject would be responsible for handling in case consequences of application of unconstitutional legal documents are already in place?

According to the Ministry of Justice’s statistics on the online national conference on judicial works in 2014 and tasks in 2015(1), over 9,000 legal documents showed signs of violating constitutionality and legality, including over 1,500 legal documents violating the issuance authority. There was an additional lack of guiding documents, documents with both incorrect form and content, and documents that faced public opposition because of infeasibility issues. Moreover, once these documents are released, citizens and businesses will not have the right to complain or sue for compensation against unconstitutional decrees and circulars. Therefore, it would appear that this modification in the 2013 Constitution is a step forward. However, within the political institution and the organization and operation of the current national power, this provision also diminishes the power of the National Assembly.

Article 70 of the 2013 Constitution stipulates that significant national affairs fall under the power of the National Assembly. In theory, the National Assembly is assigned with a number of important duties, but in reality this power is quite restricted.

The 2013 Constitution states that the Government has the right to submit draft state budget estimates to the National Assembly (Clause 2. Article 96). In these budget drafts, the Government must report and explain any expenditure outside the estimate. However, a number of National Assembly deputies concurrently work within the executive branch, thus the impact of the Government on the National Assembly is relatively strong. Moreover, the National Assembly’s supreme oversight function has not been really effective. As a result, loss, corruption and waste have been complicated. The Government’s expenditures have exceeded the budget continuously in several consecutive years. Budget deficit in 2015 was 6.11% of GDP, exceeding the estimated number of 5.0% GDP(2).

The 2013 Constitution stipulates that the National Assembly determines national financial and monetary policies, but there have been no specific legal documents. Questions have arisen over issues like the adjustment of deposit interest rates; the government issuing a VND 30 billion support package to the real estate market(3), therefore creating a gold bar production monopoly; and the government-guaranteed loan of US$ 750 million given to Vinashin. These actions clearly exceed the Government’s constitutional power and show the slackening power of the National Assembly’s functions and power. Therefore, regulations must be placed on the National Assembly’s implementation of power. These mechanisms must be made straightforward and transparent.

Supreme oversight is one of the National Assembly’s functions that is commensurate with its position as the highest organ of power within the state apparatus. Article 1 of the National Assembly’s 2003 Law on Oversight clearly states,The National Assembly exercises supreme oversight power over all state activities. The National Assembly exercises the supreme oversight power at National Assembly sessions on the basis of oversight activities of the Standing Committee of the National Assembly, the Ethnic Council, Committees of the National Assembly and National Assembly delegates and deputies. However, the current law has not gone beyond the definition of oversight to lay out clear regulations on these functions or oversight activities.

Oversight - particularly oversight of the National Assembly - includes monitoring, reviewing, and evaluation. Article 11 of the Law on Oversight Activities of the National Assembly and People’s Councils 2015 describes 7 activities of the National Assembly’s oversight duties, including 6 “review” activities. However, this document does not thoroughly settle limitations or strengthen the feasibility of the National Assembly’s oversight activities. It is this discrepancy between the supreme oversight of the National Assembly and the oversight of National Assembly agencies that has led to undefined and unregulated oversight.

The National Assembly exercises oversight by reviewing state agency reports; interpellation by deputies conducted during or after sessions; and supervising delegations - usually under the National Assembly’s committees and the Ethnic Council. However, the National Assembly’s interpellation sessions have not been very effective due to a lack of information and compulsory mechanisms. Many inspection delegations only recognize local opinions and work on their own, rather than cooperate with other delegations.

The subjects of oversight activities are not appropriate. Article 4 of the Law on Oversight Activities of the National Assembly and People’s Councils 2015 describes the oversight power of the National Assembly, the Standing Committee, the Ethnic Council, and other Committees of the National Assembly and National Assembly delegations and deputies. The 1959, 1980, 1992 and 2013 constitutions all affirm that the National Assembly exercises supreme oversight power over the performance of the state apparatus. Therefore, oversight subjects are too broad and oversight contents are not clearly specified. There are no focused subjects and no prioritised activities, thus oversight is scattered and ineffective. While the national assemblies of most developed countries focus their supervisory activities within the government and executive bodies, supervisory activities in Vietnam not only cover the performance of the government, but also the President, the Standing Committee of the National Assembly, the People’s Supreme Court, the People’s Supreme Procuracy, the National Election Council, the State Audit Office, and other agencies established by the National Assembly(Law on Organization of the National Assembly 2014). This creates an overload of work for the National Assembly, which is 65% made up of part-time deputies.

3. Some recommendations for effectively implementing the National Assembly’s functions according to the 2013 Constitution:

First, it is necessary to create utmost condition to the National Assembly’s Ethnic Council, Committees, and deputies to submit initiatives and proposed laws; and to strengthen public consultancy during the law building process to increase the feasibility and support among citizens.

Second, it is necessary to establish a mechanism of constitutional jurisdiction. Constitutional protection in the broad sense is understood as a means of preventing constitutional violation; in the narrow sense it also encompasses constitutional jurisdiction. In Vietnam, the guarantee of constitutionality is only raised during the drafting of legal documents. Once proposed laws are adopted by the Assembly, or once decrees and circulars are adopted by the Government and Ministers, they are - by default - consistent with the Constitution. Therefore, it is necessary to establish the constitutional jurisdiction via a Constitutional Protection Council.

Regarding organizational structure, the State President should be assigned Chairman of the Constitutional Council. Other members of the Council would be elected by the National Assembly at the Presidents’ request. The State President is not the current head of the executive branch, while the promulgation of legal documents contravening the Constitution is mainly by executive bodies. Thus, empowering the State President to act as Chairman of the Constitutional Protection Council would maximize the “right of veto”. The Constitutional Protection Council should fulfil the following functions and duties:

Verify the constitutionality of legal documents including those issued by the National Assembly, the President, the Standing Committee of the National Assembly, the Government, the Prime Minister, the People’s Supreme Court and the People’s Supreme Procuracy.

Suspend the implementation of legal documents contravening the Constitution, and submit these to the National Assembly to be abolished during the nearest session. These documents include those issued by the President, the Government, the Prime Minister, the People’s Supreme Court and the People’s Supreme Procuracy.

Abolish legal documents of the State President, the Prime Minister, the People’s Supreme Court and the People’s Supreme Procuracy that are inconsistent with the Constitution and the ordinances and resolutions of the Standing Committee of the National Assembly.

Request authorized People’s courts to consider compensation for damages (if any) inflicted on organizations or individuals due to the implementation of such legal documents.

Verify the constitutionality of international treaties signed on behalf of the State before submitting them to the National Assembly and the President for ratification.

Interpret the Constitution and the law. Currently, the Standing Committee of the National Assembly is assigned with this task, but in reality this body’s performance of interpreting the Constitution and the law is very limited.

Only after it is granted these strong and drastic powers will the Constitutional Protection Council be able to promote its role of constitutional protection. Rule-of-law implementation by state agencies will have a clearer, more transparent and stricter order.

Third, there should be a plan to enhance the National Assembly’s ability and power by gradually decreasing the number of National Assembly part-time deputies working within the executive. At the same time, create a clear coordination and binding mechanism between the Government and the National Assembly and clear regulations on the Government’s power to intervene in important national matters under the National Assembly’s functions. Especially concerning significant national affairs prescribed in Article 70 of the 2013 Constitution, each Government activity must be reviewed and assessed by the National Assembly.

Article 94 of the 2013 Constitution stipulates, “The Government is the highest state administrative body of the Socialist Republic of Vietnam, and shall exercise executive power, acting as the executive body of the National Assembly”. Therefore, the 2013 Constitution does not directly affirm that the Government is the executive body, it only exercises executive power. If the Government was affirmed as the executive body, it would be an equal, counterpoised and decentralized counterpart to legislative and judicial bodies, and its role would be higher than “the executive body of the National Assembly.”

Fourth, define in detail oversightand supreme oversight and strengthen forms of oversight.

Oversight in general, and supreme oversight in particular, do not only involve “reviewing, monitoring, and evaluation”. This should be modified to clearly determine the purposes of oversight and supreme oversight, and the appropriate measures and sanctions to be taken during the oversight implementation. Additionally, forms of oversight should not be restricted to sessions. It is necessary to carry out practical surveys, exchanges, and elections to make oversight effective.

Fifth, the supervision of the National Assembly should be focused and avoid spreading regulations.

As analyzed above, one of the key tasks of the National Assembly’s oversight is supervising the Government’s executive performance, such as managing and monitoring the state budget. The National Assembly is responsible for issuing the Law on State Budget, approving annual state budget accounts, deciding on special revenues and expenditures, considering important national issues, and regularly monitoring the regular state budget. The Government is only assigned to spend state budget in accordance with the law and under the National Assembly’s supervision. Therefore, the National Assembly is responsible for the effective expenditures of the state budget(5). Consequently, the National Assembly must consider the Government’s proposals as a particularly calculated project on the basis of their commitment to spend this amount of money effectively and reasonably. This amount must be shown in concrete numbers instead of through indicators such as a budget deficit of 5.3% of GDP or a debt ceiling limit, etc. Only by doing so can the National Assembly effectively oversight the process of policy issuance and avoid loss and waste of the state budget.

____________________

(1)  http://tuoitre.vn.

(2) http://www.sggp.org.vn. Results published at 46th session of the Standing Committee of the National Assembly opened on March 7, 2016 according to the Report of Ministry of Planning and Investment on results of socio-economic development tasks and State budget in 2015.

(3) http://www.fdvn.vn.

(4) http://www.thesaigontimes.vn.

(5) http://www.baodatviet.vn.

Dr. Luu Ngoc To Tam

 

Academy of Journalism and Communication

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