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The role of the People’s Procuracy in building the socialist law-ruled State in Vietnam

(PTOJ) - The People’s Procuracy is a very special institution in the socialist state apparatus. It exercises the power to prosecute and supervise judicial activities according to the Constitution. The People’s Procuracy has a decisive role in building a socialist law-ruled State in Vietnam. The article outlines the significance of the People’s Procuracy and proposes a number of solutions to promote its role in building a socialist law-ruled State in Vietnam today.

 

The Supreme People's Procuracy. Photo: https://vksndtc.gov.vn/

1. Functions of the People’s Procuracy

The People’s Procuracy is a specific agency of the socialist state. It is not only to conduct prosecution like the Procuracy of other countries but also to supervise the law observance of State agencies. V.I.Lenin pointed out that “it is notable that unlike administrative agencies, the People’s Procuracy while doing its supervisory work, does not have any administrative power, it has no voting power in any matters within the administrative scope. The prosecutor has the right and duty to one thing, giving a truly unanimous understanding of the legislation despite of differences in characteristics and influences of localities. The sole right and duty of prosecutors is to bring cases to court”(1).

According to V.I.Lenin, the People’s Procuracy must perform the functions of prosecution and supervision of the observance of the law by State agencies, thereby in order to protect the socialist legislation. To perform the prosecution function, according to V.I.Lenin, “The People’s Procuracy has the right and duty to appeal any decisions of the local government agencies, on the legal aspects of resolutions and decisions, but has no right to suspend the execution of those resolutions and decisions, but only to bring cases to court”(2). The prosecution function of the People’s Procuracy plays a very important role, ensuring the unity of the law and maintaining the legal order in society.

These functions have a close-knit relationship with each other to ensure the good implementation of socialist legal principles in the organization, operation of social management and administrationand state agencies. In particular, the People’s Procuracy performs well the prosecution function and supervises the compliance with the law to ensure that the socialist legislation is fully and consistently implemented nationwide. For the People’s Procuracy, to protect the socialist law well is to protect the legitimate rights and interests of individuals and organizations, to strictly handle legal violations and to make sure that the law is best enforced in reality. Therefore, the People’s Procuracy must perform well both the functions of prosecuting and supervising the law observance of state agencies, protecting the socialist legislation, without any bias over any function.

In Vietnam, followed by the successful August Revolution in 1945 and the birth of the Democratic Republic of Vietnam, the judicial system of the People’s Democratic State was quickly established. While in the 1946 Constitution, the judiciary is considered only the system of courts, in the 1959 Constitution, the judiciary agencies defined in Chapter 8 include the People’s Court and People’s Organ of Control. The Supreme People’s Court and the Supreme People’s Organ of Control (formerly known as the Central Public People’s Prosecutor’s Office) no longer belong to the Government Council but become independent bodies directly under the National Assembly: “The Supreme People’s Organ of Control is responsible to the National Assembly and reports to it or, when the National Assembly is not in session, to its Standing Committee.” (Article 108) The People’s Organ of Control performs two functions: prosecution and supervision of law compliance. “The Supreme People’s Organ of Control of the Democratic Republic of Vietnam controls the observance of the law by all departments of the Council of Ministers, all local organs of State, persons working in organs of State, and all citizens. Local organs of the People’s Organ of Control and military organs of control exercise control authority within the limits prescribed by law (Article 105). The People’s Organ of Control operates on the principle of centralization and unification under the leadership of the Prosecutor General of the Supreme People’s Organ of Control and on the independent principle of not being subject to the horizontal leadership of State agencies at the same level: “The People’s Organs of Control at all levels work only under the leadership of their higher control organs and the unified leadership of the Supreme People’s Organ of Control (Article 107).

With this regulation, People’s Organ of Control in Vietnam’s organization and operation is based on the principle of unified concentration, independent from the local government. The People’s Organs of Control at all levels supervise “the compliance with the law, ensure that the law is strictly and uniformly enforced, the people’s democracy legislation is maintained”(3), thereby “protecting the public democratic regime, social order, public property and legitimate interests of citizens, contributing to ensuring the building of socialism”(4).

The 1980 Constitution and the 1981 Law on Organization of People’s Organ of Control clearly define the functions of the People’s Organ of Control: supervising the compliance with the law and exercising the right of prosecution to ensure that the law is strictly and uniformly observed; more clearly regulate the organization and operation of the People’s Organ of Control according to the principle of centralization, unified leadership, not dependent on any local state agencies; People’s Organ of Control is led by the Chief Prosecutor, the Chief Prosecutor of People’s Organ of Control at lower levels is under the leadership of Chief Prosecutor of People’s Organ of Control at higher levels and under the unified leadership of the Prosecutor General of the Supreme People’s Organ of Control: “The Supreme People’s Control Commission of the Socialist Republic of Vietnam shall control the observance of the law by the ecology and other bodies under the authority of the Council of Ministers, local organs of power, social organizations, State employees, and all citizens; exercise the right of public prosecution; and ensure the strict and uniform observance of the law.

The local People’s Control Commission and the Military Control Commission shall control the observance of the law and exercise the right of public prosecution within their spheres of responsibility” (Article 138).

The 1992 Constitution still maintains the organization of People’s Organ of Control as in the 1980 Constitution.

In general, the supervision function has been basically stable through the 1959, 1980 and 1992 Constitutions, that is: (1) supervising the law observance in state administrative management, including documents and behavioral control; (2) investigating criminal offences and prosecuting criminal offenders in the Court; (3) supervising the law compliance in investigations by police and other investigative agencies; (4) administering legal compliance in the adjudication and in the execution of judgments; (5) administering legal compliance in detention of prisons; (6) prosecuting, or participating in legal proceedings for important civil cases related to the interests of the State and the people(5). In supervising legal compliance in State administrative management, People’s Organ of Control has the right to protest legal documents that violate the law, which is the right to detect violations of legal documents, appeal to the body issued that document by filing a “protest” document, specifying errors or violations such as authority (content authority and formal authority), form, or content; at the same time request amendments, supplements or replacment. However, the People’s Organ of Control does not have the right to directly cancel, amend or suspend the implementation ofsuch legal documents(6). Thus, during this period, the People’s Organ of Control in Vietnam thoroughly applied V.I.Lenin’s view on the functions, organization and activities of People’s Organ of Control.

In order to meet the requirements of judicial reform, there have been changes in the functions of the People’s Organ of Control: the People’s Organ of Control is to do three functions well: general inspection, prosecution and judicial prosecution (the 8th Plenum of the Party Central Committee, 7th Tenure); the operational quality of the People’s Organ of Control with all three functions specified in the Constitution is to be improved but with “a focus on doing well the functions of prosecution and judicial activities supervision” (the 3rd Plenum of the Party Central Committee, 8th tenure), and later that the People’s Organ of Control only performs well two functions: prosecution and supervision (the 9th Party Congress, Resolution No. 08-NQ/TW by the Politburo). According to that guideline, the 1992 Constitution (amended and supplemented in 2001) clearly states: “The Supreme People’s Procuracy shall exercise the right to prosecution and control judiciary activities, thus to ensure that laws are strictly and uniformly observed.

The local People’s Procuracy, the military procuracies shall exercise the right to prosecution and control judiciary activities within the scope of their responsibilities prescribed by law” (Article 137).

Thus, the 1992 Constitution (amended and supplemented in 2001) removed the general supervisory function of the People’s Procuracy over the legal compliance of individuals, agencies and organizations. Therefore, the People’s Procuracy only performs the function of exercising prosecution rights and supervising judicial activities. This shows that the development of legislation on supervision of administrative activities of local state administrative agencies has moved forward, returning the general control, specifically the right to supervise documents, legal normative activities and legal documents promulgation activities to competent state agencies such as the National Assembly and People’s Councils at all levels.

Up to the 2013 Constitution, the People’s Procuracy continues to exercise the functions of prosecution and supervision of judicial activities as in the 1992 Constitution (amended and supplemented in 2001): “The People’s Procuracies shall exercise the power to prosecute and supervise judicial activities.” (Point 1, Article 107). “The People’s Procuracies have the duty to safeguard the law, human rights, citizens’ rights, the socialist regime, the interests of the State, and the lawful rights and interests of organizations and individuals, thus to ensure the strict and unified observance of the law” (Point 3, Article 107)

In order to ensure the independence of the People’s Procuracies, the 2013 Constitution stipulates “The People’s Procuracies shall be led by their Chief Procurators. The Chief Procurator of a People’s Procuracy is subject to the leadership of the Chief Procurator of the People’s Procuracy at a higher level. The Chief Procurators of Procuracies at lower levels are subject to the unified leadership of the Procurator General of the Supreme People’s Procuracy. When exercising the power to prosecute or to supervise judicial activities, a Procurator shall abide by the law and is subject to the direction by the Chief Procurator of the People’s Procuracy” (Article 109).

The People’s Procuracy has made an important contribution to the improvement of the state power control mechanism in Vietnam in recent years via the thorough definitions of its functions and tasks. This is an indispensable need in the process of building and perfecting the socialist state of Vietnam, so through five Constitutions of 1946, 1959, 1980, 1992 (amended and supplemented in 2001) and 2013, the thinking about the organization and implementation of State power in Vietnam has become more and more perfect, in which the State power control mechanism is clearly asserted. The 2013 Constitution stipulates: “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” (Clause 3, Article 2). The current organization and implementation of the State control mechanism in Vietnam has made positive contributions to the promotion of the effectiveness of state management and the democratic rights of the people, creating favorable conditions for the continuous high-speed growth of a socialist-oriented market economy.

2. Some orientations to bring into full play the role of the People’s Procuracy in building the socialist law-ruled state in Vietnam

Firstly, the People’s Procuracy should continue to perform well its function of exercising prosecution rights in order to promptly handle law violations, especially criminal law violations; well control judicial activities, protect justice, law, legitimate rights and interests of legal entities, thereby ensuring uniform law implementation; ensure legal order and enforcement.

In order to perform this function well, the operation of the People’s Procuracy system in Vietnam must strictly adhere to the following basic principles: (1) The principle of centralization and uniformity - the prosecutors obey the direct chief prosecutors of the People’s Procuracy. The chief prosecutors of People’s Procuracies at lower levels submit to the Chief Prosecutors of higher levels and Chief Prosecutors of all levels submit to the Prosecutor General of Supreme People’s Procuracy; (2) Principle of Independence - the system of People’s Procuracies which exercises its authority only submits to the Prosecutor General of the Supreme People’s Procuracy. It is not dependent on any State agencies, organizations, mass media or persons in charge; (3) Principle of judiciary- the system of People’s Procuracy operates on the basis of ensuring the supreme legitimacy and direct effectiveness of the Constitution and laws for sub-laws and other legal documents; (4) Principle of publicity - People’s Procuracy system operates publicly, except for cases where professional secrets must be legally protected; (5) Principles of upholding professional ethics - prosecutors who enter the procuracy must take an oath by law and must uphold the professional ethics of a law protector.

Secondly, V.I.Lenin’s thoughts should be applied to the current research of administrative supervision. The agency to replace the People’s Procuracy to perform the function of supervising the law compliance of State administrative agencies should be clearly identified. This agency shall be able to appeal the resolutions and decisions of the local government which are contrary to the Constitution, law and especially supervise law observance of law enforcing agencies in the direction of focusing only on the fight against corruption in the executive apparatus and supervising judicial activities for criminal proceedings and non-criminal (administrative, labor, civil, economic, marriage and family). The Supreme People’s Procuracy has the power to supervise the law observance of executive agencies with the focus only on anti-corruption activities in the executive apparatus; it also oversees the protection of human and citizens’ rights and freedoms.

Thirdly, the role of the People’s Procuracy in controlling state power should be promoted.

In order to do this, it is necessary to adjust the regulations on the function of supervising law compliance of the People’s Procuracy.

Associated with the assignment of the exercise of state power, it is essential to attach the inspection and supervision of the exercise of state power which is assigned and authorized to legislative, executive, judicial entities. The People’s Procuracy functions as an agency to supervise the compliance with the laws, which are stipulated in the 1959 Constitution and followed by the 1980 Constitution and the 1992 Constitution, but to the 1992 Constitution (amended and supplemented 2001) and Constitution 2013, the People’s Procuracy has only two functions: prosecution and control of judicial activities. Together with the implementation of power assignment, the mechanism to control power is to avoid power abuse and requires an independent agency in the state apparatus system assigned by the National Assembly to perform the function of inspection and supervision - on behalf of the supreme authority. However, because the specific activities of the National Assembly of Vietnam are mainly through meetings and the number of full-time delegates is limited, it is necessary to set up an agency to perform the monitoring function to control State power, to avoid power abuse, ensuring that the law is strictly enforced. Therefore, to improve the quality of State control, it is necessary to consider and supplement the function of law observance control for the People’s Procuracy in addition to the functions of exercising prosecution rights and monitoring judicial activities.

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Endnotes:

(1), (2) V.I.Lenin: Complete Works, vol.45, National Political Publishing House, Hanoi, 2005, pp.232-233, 236.

(3), (4), (5), (6) Nguyen Dang Dzung (Editor): The People’s Procuracy in the Law-ruled State, Justice Publishing House, Hanoi, 2014, p.127, 127-128, 124-134, 134-136.

LE VAN DONG

Thanh Hoa Provincial People’s Procuracy

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