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Completing the legal mechanism for assigning, coordinating, and controlling State power in Vietnam

(PTOJ) - Assigning, coordinating, and controlling among State agencies in the exercise of legislative, executive, and judicial powers is an effective mechanism for organizing and exercising State power in practice. The completion of the legal mechanism for assigning, coordinating, and controlling State power will promote socialist democracy, repel corruption, and improve the effectiveness and efficiency of State management. The article focuses on explaining the inevitability and proposing solutions to perfecting the legal mechanism for assigning, coordinating, and controlling State power in Vietnam today.

 

Source: Communist Review.

1. The inevitability of assigning, coordinating, and controlling State power

State power is public authority, represented by the most powerful class, using the power of the State to force other subjects in society to obey their will(1), this is the central and basic foundation of social and political life with classes. Since the beginning of State in society, philosophers and politicians have been especially interested in searching for a mechanism to organize and operate social life in the most effective way. During the process, they have found the most effective principles, mechanisms, and methods of organizing and exercising State power to well establish the relationship between individuals, the State, and society.

The organizational practice in contemporary history of State power, and modern governance theory prove that to ensure State power to operate effectively, safely for the people and society, State power should be organized and exercised according to the principle of “assigning, coordinating, and controlling” among State agencies in the exercise of legislative, executive, and judicial power. 

In modern State models, State power is composed of three fundamental parts, namely: legislative power; executive power; and judicial power. In particular, the assigning, coordinating, and controlling of State power is an effective mechanism for organizing and exercising it to improve the effectiveness and efficiency of State management, while minimizing authoritarianism, dictatorship, and corruption in State power which would result in overwhelming and negating the power of the people - the subject of State power. According to Ch.L. Montesquieu (1689 - 1755), “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end to everything, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals”(2), therefore: (1) assigning among State agencies in the exercise of legislative, executive, and judicial powers to clearly define functions, tasks, and accountability among them in the exercise of legislative, executive, and judicial functions and tasks of State agencies, thereby implementing the State’s functions and tasks in a professional manner. This is specialization in the implementation of the functions and tasks of each State agency in the exercise of the legislative, executive, and judicial powers, so the assigning does not have to create separation among these agencies, but to ensure that they perform properly and fully within the scopes of their functions and duties and bring into full play the responsibility of each State agency in exercising the statutory powers; (2) coordinating among State agencies in the exercise of legislative, executive, and judicial powers to ensure the linkage, cooperation, and mutual assistance among State agencies in the implementation of the legislative, executive, judicial state functions and duties. Coordination aimed at supplementing and serving the assigning and vice versa to enhance coordination among State agencies in exercising legislative, executive, and judicial powers; (3) controlling among State agencies in the exercise of legislative, executive, and judicial powers to ensure that public bodies or individuals authorized by the State are exercising properly and adequately with responsibility and authority, by then ensuring State power to be used with the right purposes which are for public interests, protecting public rights, and promoting social development. Accordingly, the controlling of State power promotes the assigning and coordinating among State agencies in exercising the legislative, executive, and judicial powers; vice versa, assigning and coordinating ensures strict control of State agencies in the process of exercising legislative, executive, and judicial powers. State power is unified and derived from the people’s power(3) (which means the people authorize the State to manage social development), so parts of State power are not divisible and are always harmonized in what is called “power of the State”.

In terms of the State agencies’ authority in performing their functions and duties, State power is divided into different parts, namely the legislative, the executive, and the judiciary to ensure that State functioning is carried out professionally and clearly in practice, so State power is not the independence of the legislative, executive, or judicial power, but the unification of them. Therefore, State power is a unified body, but in the process of exercising different functions, State power is divided into different powers (understood as different authorities). The assigning of State power is the specialization of the organization and implementation of State power, thereby clearly and transparently defining the subject, object, function, implementation scope, and the relationship between legislative power, executive power, and judicial power in practice. Then, each element of State powers implements and resolves issues within its scope of power, specifically and rationally, compatible with the movement of society. Moreover, the division of State power aims to control and covenant each other, ensuring that no element of power can abuse, exert, encroach on others which can absolutize State power causing “corruption of State power”. The division of State power does not mean dividing and separating its elements, but to increase coordination, supplementation, and assistance to each other to operate the whole State power efficiently.

In Vietnam, State power is organized and exercised according to the principle: The State power is unified and delegated to State agencies which coordinate with and control one another in the exercise of the legislative, executive, and judicial powers” (Article 2, Constitution 2013). This institutionalizes the spirit of controlling power stated in the Platform for National Construction in the Period of Transition to Socialism (amended and developed in 2011). Assigning, coordinating, and controlling power among State agencies in the exercise of legislative, executive, and judicial powers in Vietnam has created an appropriate legal mechanism to organize and exercise State power in accordance with the country’s conditions with a view to improving organizational efficiency and safety of exercising State power, preventing and repelling the “corruption” of State power, thus protecting the power of people.

2. Contents of completing the legal mechanism for assigning, coordinating, and controlling State power in Vietnam today

The legal mechanism to assign, coordinate, and control State power is a unified legal body of basic legal elements, that is: (1) legal institution (legal system) on assigning, coordinating, and controlling State power and (2) institutions (system of functional agencies) that organize the realization of the assigning, coordinating, and controlling State power. Therefore, completing the legal mechanism for assigning, coordinating, and controlling State power in Vietnam today should focus on the following contents:

First, perfecting the legal institutions for assigning, coordinating, and controlling State power in Vietnam today

The law is not only a legal basis for assigning, coordinating, and controlling effective legislative, executive, and judicial power, but also a legal tool for entities to function duties and powers properly and fully within the assigning, coordinating, and controlling over legislative, executive, and judicial powers.

To well perform the tasks of assigning, coordinating, and controlling State power, the State needs to continue improving the legal documents on functions, tasks, powers, and modes of performing assigned tasks, as well as coordinating and controlling the legislative, executive, and judicial powers of the National Assembly, the Government, People’s Courts, People’s Procuracies, local governments, and other specialized agencies (State Inspectorate, State Audit). In addition, it is necessary for the State to clearly define the functions, tasks, content, and post-control measures of entities exercising external power control, such as the Communist Party of Vietnam, the Fatherland Front, mass organizations, news agencies, the press, and people. It is necessary to clarify the obligations of authorities in protecting the interests of the people to participate in controlling and against the corruption of State power.

Moreover, legislation on the election of the National Assembly and People’s Councils at all levels should be improved by clarifying detailed information about candidates; candidates should conduct meetings with voters and have commitment to his or her responsibility to the voter so that the voters know better about each candidate’s qualifications before making a voting decision. At the same time, the responsibility to fulfill the commitments promised to the voters of the selected candidate must be defined and strictly bound by the law.

To well perform the task of assigning, coordinating, and controlling legislative, executive, and judicial powers, the publicity, transparency, and accountability of State agencies must be clearly stipulated in legal documents. Though the current State agencies in our country are open, transparent, and accountable, the implementation of these requirements is still formative. In fact, experts now believe that effective State management must be based on four pillars, namely: “accountability, transparency, predictability, and participation(4). Here, (1) accountability is understood as the reporting and accounting of the implementation of their responsibilities and duties to the competent authorities by agencies, State officials, and public personnel to the people and take responsibility for their own actions; (2) Openness and transparency mean that authorities are obliged to disclose information related to the rights and obligations of citizens, administrative procedures, the performance of the public and allow all subjects in society to access relevant information (which is not classified as confidential) at the lowest cost. These factors must be intricately linked in ensuring modern public governance. Among these factors, accountability is the most important factor to ensure the effectiveness and efficiency of State management. “Accountability actually consists of two factors: being able to answer and taking responsibility for consequences”(5). This is reflected in: first, the ability to answer, it is the requirement that public and civil personnel must be able to periodically answer how they use their authority, which resources are used, and what the results are; second, it is necessary to predict the consequences that may happen; third, besides internal accountability, it is necessary to increase external accountability to ensure external control over the quality of public service. Therefore, the Vietnamese legal system needs to clarify the responsibilities of State agencies in insuring openness, transparency, and accountability, in which: (i) governments at all levels must provide information about facts relating to policies, such as the data used as a basis for policy formulation, its actual effects, consequences, and methods of application in practice, as well as how the information attribution (comprehensiveness, consistency, integrity, quality, and reliability) contribute to controlling activities; (ii) public authorities must have the responsibility to enable the public to exercise their right to access information - directly or indirectly to government records (except secret information according to the law); (iii) publicize meeting sessions of the National Assembly, Government, People’s Councils and People’s Committees at all levels; (iv) Before drafting and implementing any policy, the government should consult with relevant groups systematically, including disseminating information and processing comments received through this reference. Therefore, it is necessary to specify the content, time, and method of publicity, transparency, and accountability of State agencies to the people and competent State agencies.

Second, perfecting the institution for assigning, coordinating, and controlling State power

The institutions for assigning, coordinating, and controlling State power in Vietnam include legislation, law enforcement, judiciary, specialized State agencies, and non-governmental organizations. Currently, to well implement the assigning, coordinating, and controlling State power in Vietnam, it is necessary to focus on perfecting the following institutions:

First, to complete supervision activities of the National Assembly and People’s Councils at all levels

In the forms of supervision of the National Assembly and People’s Councils at all levels (reviewing reports of the subjects under the supervision of the National Assembly and the People’s Councils, checking the actual survey and approving the questions of the National Assembly and the People’s Councils), the National Assembly and the People’s Councils should fully demonstrate the roles of the people’s deputies and State power agencies in discussing and evaluating reports on the work of the Government, the People’s Committee, the People’s Court, and the People’s Procuracy. The interpellation of deputies of the National Assembly and People’s Councils should focus on enhancing its quality. Questions must show a high level of criticism, identify the shortcomings and responsibilities of the agency and the person being interpellated. Interpellation at the National Assembly and People’s Council sessions must demonstrate the spirit of democracy and high responsibility of both the interpellator and the agency and the person to be interpellated.

To this end, the National Assembly and People’s Councils at all levels need to organize regular supervision missions, focusing on thematic supervision of law enforcement, management work, especially in sensitive fields with pressing problems; increase meetings with voters and interpellations; strengthen coordination with mass organizations of people in supervision and coordination with other subjects; strengthen the full-time delegates to supervise and improve the supervision skills of National Assembly and People’s Council deputies in implementing supervision. Agencies of the National Assembly (Standing Committee of the National Assembly, Ethnic Council, Committee of the National Assembly, National Assembly delegation, and National Assembly deputies) should improve the quality of their supervision in a professional manner and focus on the depth of the problem. For the National Assembly to operate regularly, continuously, and professionally, it is critical to increasing the ratio of full-time delegates to 40% - 45% (according to Clause 2, Article 23 of the 2014 Law on Organization of the National Assembly (amended and supplemented in 2020): “Number of full-time deputies is at least forty percent of the total number of National Assembly deputies); at the same time, drastically reduce the number of National Assembly members who currently hold leadership and management positions in the local government, because without a clear division of power will lead to “division” in the role of National Assembly deputies: being National Assembly deputies while working in local law enforcement agencies. This would be difficult to effectively implement the functions of the National Assembly’s organs over local governments.

Second, perfecting the organization and activities of specialized State agencies

It is imperative to improve State inspection, combine specialized inspection with administrative inspection, combine regular periodical inspection with unexpected inspection; focus on complicated areas which may be conducive to corruption, and issues pointed out by the people. To do so, it is necessary to improve professional expertise, skills, manners, professional ethics, political bravery in the direction of professionalism for officers performing inspection work. Develop regulations on coordination between the local inspection agency and mass organizations. To meet this requirement, the Government should consolidate and reorganize the sectoral inspection organization, the state inspection organization at local levels, then improve the legal basis for inspection activities, clearly defining the inspection and examination order and procedures; duties, powers, and legal responsibilities of persons conducting inspection and examination activities. This will do away with arbitrary, unsubstantiated or ungrounded inspection, which is troublesome and costly for the subjects being inspected as seen in some localities. In addition, there should be coordination of inspection activities between government agencies at all levels with specialized inspection agencies, overcoming the situation that the same object is inspected by different agencies at the same time with duplicate content.

In addition, it is necessary to improve the quality of the State Audit to strictly control state budget and expenditure, enhance the function of commenting on the goals of the State’s policies. Furthermore, research to build the National Assembly inspection institution (Ombudsman) to improve the efficiency of State power control, overcome the situation of “being the judge in one’s own case” as the model of the current state inspection. The State Audit is a specialized oversight body directly under the National Assembly, with the main task of helping the National Assembly to conduct investigations that clarify political and legal responsibilities of high-ranking officials at central and national administrative level when they show signs of violating the law or public ethical standards and burning cases in public opinion. To ensure the effectiveness of this agency, it is necessary to equip the State Audit with special powers such as absolute right to access all information of the state, forcing the concerned agencies to cooperate, taking measures to prevent violations or serve inspection and investigation; to apply special measures to performing tasks; has the right to investigate and prosecute administrative and corruption cases. Concerning complaint and denunciation settlement, this agency must guide and help complainants and supervise the settlement of complaints and denunciations by citizens.

Third, perfecting the organization and operation of judicial agencies.

In Vietnam, the principle that the court conducts the trial independently and only obeys the law is recognized by the Constitution. However, the operation of judicial agencies is dominated by various powerful institutions, especially the intervention through the direction of Party committees and local governments. This is one of the biggest difficulties in ensuring the independence of judicial activities, hence, for the court to become an effective means of controlling State power, it is necessary to promote judicial reform towards increasing independence and of the court system and professionalize judicial activities. This is one of the important contents for the court to truly be the agency that protects justice, human rights, the law, and prevents the corruption of State power, especially in the executive branch. To achieve that goal, the judicial reform should proceed in the following direction: (1) Promote the reform of judicial institutions towards perfecting the arrangement of the judiciary, clarify the functions, powers, and the management regime of the judiciary; to ensure that the judiciary and prosecutor’s body to exercise their powers in an independent, open and transparent manner based on law; strengthen judicial supervision, strictly punish acts of corruptions in the judicial sector; (2) Continue to improve the Court’s organization and operation in accordance with the 2013 Constitution and the 2014 Law on Court Organization, in which the party organization in the court is designed vertically and consistently from the Supreme People’s Court to the district people’s court; (3) Establish an agency to protect the Constitution (possibly following the model of the Constitutional Council as in France) to control the legislative and executive powers.

Perfecting the legal mechanism for assigning, coordinating, and controlling among State agencies in the exercise of legislative, executive, and judicial powers is one of the most important tasks in Vietnam today to promote socialist democracy and perfecting the State of the Socialist Republic of Vietnam, thereby repelling corruption, improving the effectiveness and efficiency of State management and ensuring that the State of Vietnam is truly the State of the people, by the people, and for the people.

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Endnotes:

(1) Dr. Nguyen Manh Binh: Completing the legal mechanism for social supervision for the current State power implementation in Vietnam, National Political Publishing House, Hanoi, 2012, p.8.

(2) Montesquieu: The Spirit of Laws (translated by Hoang Thanh Dam), Political Theory Publishing House, Hanoi, 2004, p.106.

(3) Pham Hong Thai: “People power and State power through constitutions”, Journal of Science, Hanoi National University, Jurisprudence 25, 2009, p.4.

(4), (5) S. Chiavo - Campo and P.S.A. Sundaram: Serving and maintaining: Improving public administration in a competitive world, National Political Publishing House, Hanoi, 2003, p.12, 13.

ASSOC. PROF., DR. TRUONG HO HAI

Institute of State and Law, Ho Chi Minh National Academy of Politics

MA. DANG VIET DAT

Academy of Politics Region IVAcademy of Politics Region IV

 

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