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The 2013 Constitution and 12th Party’s Congress Documents on the control of state power

(LLCT) - Article 2 of the 2013 Constitution confirms, “The Socialist Republic of Vietnam is the socialist law-ruled State and of the people, by the people and for the people”; “is the country where the people are the masters; all the State power belongs to the people”. People authorize State bodies, officials and civil servants to exercise state power in legislative, executive and judicial terms. Therefore, controlling state power, preserving the nature and mission of the socialist law-ruled State, and serving people’s interests are objective and urgent demands. At the Party’s 11th Congress, the issue of controlling state power was given due attention, and it was institutionalized in the 2013 Constitution and emphasized at the Party’s 12th Congress.

Some fundamental theoretical issues related to the control of state power

Controlling state power is an activity of entities in society. It is aimed at establishing or abolishing state power; examining, supervising, commenting on, and evaluating the exercise of state power in legislative, executive and judicial terms in accordance with requirements of a socialist law-ruled State; and ensuring that the exercise of legislative, executive and judicial rights conform to the constitution and law, protect human rights and citizens’ rights, the state’s interests and the legitimate interests of state bodies, organizations and individuals and serve people and the country’s development.

Accordingly, the control of state power has the following characteristics:

Firstly, entities which control state power are very varied, including all entities in society (the ruling Party, State, Fatherland Front, mass organizations, social organizations, economic organizations, and ordinary people).

Secondly, there are two modes of controlling state power.

State power is controlled internally, i.e. by the state apparatus (supervision by the national assembly and people’s councils; inspection by state inspection, examination by higher ranking organizations and by bosses over staff and employees; and auditing).

State power is controlled externally (examination by the Party over Party organizations and members in state bodies; supervision by the Fatherland Front, social and mass organizations, the mass media and ordinary people over state bodies and their staff and employees).

Thirdly, the forms of controlling state power are diverse and are linked to the legal statuses of entities which control state power. As far as the internal control mode is concerned, these forms include establishment, abolishment and consideration of the exercise of state power (election, dismissal; approval of appointment and dismissal requests; evaluation of performance reports);supreme supervision by the National Assembly over the government, supreme procuracy and supreme court (on-the-spot evaluation of performance reports, questioning during and outside of meeting sessions); supervision by people’s councils over local State bodies (reports, on-the-spot examination, questioning); examination by higher ranking state bodies over lower ranking ones; inspection by state inspection; and auditing by state auditing. Regarding the external control mode, these forms include examination by the Party over its organizations and members in state bodies; requests, proposals and recommendations by the Fatherland Front and its members to the State, and their supervision of, and challenge to, the State; mass media investigations, reports and communication to the public; feedback at conferences and symposiums; people’s complaints, denunciations, letters of wishes, and meetings at public reception offices concerning the operation of State bodies and their staff and employees.

The control of state power covers a wide range of activities and is related to the exercise of state power by state bodies and their staff and employees, from central to local levels, in legislative, executive and judicial fields. Thus, entities which control state power can control the development of policy and legal documents and management decisions; activities which perform the functions, tasks and responsibilities of state bodies and their staff and employees; as well as the abilities, qualities and work ethics of state employees and civil servants.

The legal effectiveness of the control of state power lies in the adjustment, revision, supplementation, or revocation of policies, managerial decisions, and legal responsibilities. Entities which control state power such as state bodies, state employees and civil servants are required to adjust their activities. This effectiveness takes various forms, extents and qualities. It can be adjustment, revision, supplementation, revocation, or promulgation of state bodies’ documents, policies, and decisions. It can be dismissal or transference of state employees or civil servants with mistakes or determining their criminal or civil or administrative responsibilities or disciplining them.

Stipulations of the control of state power in the 2013 Constitution

The 2013 Constitution has a number of new stipulations concerning people’s rights, human rights and organization of state power. Many of these stipulations are related to the control of state power.

Controlling state power within the state apparatus

Clause 3 of Article 2 of the 2013 Constitution states, “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”.

Accordingly, state bodies which have control of state power include:

The National Assembly

The National Assembly shall exercise constitutional and legislative powers, decide on important issues for the country, and conduct the supreme oversight over the activities of the State” (Article 69); “To exercise the power of supreme oversight over the observance of the Constitution, laws and resolutions of the National Assembly…” (Clause 2 of Article 70).

To elect, relieve from duty or remove from office the President, Vice Presidents, Chairperson and Vice Chairpersons of the National Assembly, members of the Standing Committee of the National Assembly, Chairperson of the Ethnic Council, Chairpersons of the Committees of the National Assembly, Prime Minister, Chief Justice of the Supreme People’s Court, Procurator General of the Supreme People’s Procuracy, Chairperson of the National Election Council, State Auditor General, and heads of other agencies established by the National Assembly…” (Clause 7 of Article 70); “To conduct votes of confidence on persons holding positions elected or approved by the National Assembly (Clause 8 of Article 70); revoke documents by the President of State, Standing Committee of the National Assembly, government, Prime Minister, People’s Supreme Court, and People’s Supreme Procuracy, which are against the Constitution, laws and the National Assembly’s resolutions.

The Standing Committee of the National Assembly “To oversee the implementation of the Constitution, laws and resolutions of the National Assembly and ordinances and resolutions of the Standing Committee of the National Assembly; to oversee the activities of the Government, Supreme People’s Court, Supreme People’s Procuracy, State Audit Office, and other agencies established by the National Assembly” (Clause 3 of Article 74).   

“To suspend the implementation of documents of the Government, Prime Minister, Supreme People’s Court or Supreme People’s Procuracy that contravene the Constitution, or laws or resolutions of the National Assembly, and refer those documents to the National Assembly to decide on their annulment at the next session…” (Clause 4 of Article 74).   

“To propose the National Assembly to elect, relieve from duty or remove from office the President, Chairperson or Vice Chairpersons of the National Assembly, Members of the Standing Committee of the National Assembly, Chairperson of the Ethnic Council, Chairpersons of the Committees of the National Assembly, Chairperson of the National Election Council, or State Auditor General” (Clause 6 of Article 74).

“To supervise and guide the work of the People’s Councils; to annul resolutions of the People’s Councils of provinces or centrally run cities that contravene the Constitution, laws or documents of state agencies at higher levels”. (Clause 7 of Article 74); “To organize referenda in pursuance to decisions of the National Assembly” (Clause 13 of Article 74).

“The Committees of the National Assembly shall verify draft laws, proposals on laws, other drafts, and reports as assigned by the National Assembly or the Standing Committee of the National Assembly; exercise the oversight power within the scope of their powers and tasks prescribed by a law; and make proposals on issues that fall within the scope of their activities” (Clause 2 of Article 76).

“The Ethnic Council or the Committees of the National Assembly may request members of the Government, Chief Justice of the Supreme People’s Court, Procurator General of the Supreme People’s Procuracy, State Auditor General or concerned individuals to make reports, give explanations or provide documents on necessary matters. The persons who receive requests shall respond” (Article 77).

“The National Assembly may, as necessary, establish an ad-hoc Committee to study and verify a certain project or investigate a certain issue” (Article 78). 

“National Assembly deputies have the right to raise questions to the President, Chairperson of the National Assembly, Prime Minister, Ministers and other members of the Government, Chief Justice of the Supreme People’s Court, Procurator General of the Supreme People’s Procuracy or State Auditor General” (Clause 1 of Article 80); “National Assembly deputies have the right to request agencies, organizations or individuals to provide information and documents related to the latter’s tasks. The heads of agencies or organizations, or individuals shall answer questions raised by deputies within the time limit prescribed by a law” (Clause 3 of Article 80).

“To propose to the National Assembly to elect, relieve from duty or remove from office the Vice President or Prime Minister; and, based on resolutions of the National Assembly, to appoint, relieve from duty or dismiss Deputy Prime Ministers, Ministers or other members of the Government” (Clause 2 of Article 88); “To propose the National Assembly to elect, relieve from duty or remove from office the Chief Justice of the Supreme People’s Court or Procurator General of the Supreme People’s Procuracy; and, based on resolutions of the National Assembly, to appoint, relieve from duty or dismiss Judges of the Supreme People’s Court...”, (Clause 3 of Article 88).

The Government “is responsible to the National Assembly and shall report on its work to the National Assembly, the Standing Committee of the National Assembly and the President”. (Article 94) The Prime Minister “is responsible to the National Assembly for the work of the Government and assigned tasks; and shall report on the work of the Government and the Prime Minister to the National Assembly, the Standing Committee of the National Assembly and the President”. (Clause 2 of Article 95); the Government is “to perform the unified management of the national administration system; to manage cadres, civil servants, public employees, and the public service in state agencies” (Clause 5 of Article 96).

The Prime Minister is to “lead and take responsibility for the work of the State administration system from the central to the local level...”, (Clause 2 of Article 98); “submit to the National Assembly for approval proposals on the appointment, relief from duty or dismissal of Deputy Prime Ministers, Ministers or other members of the Government; to appoint, relieve from duty or dismiss Deputy Ministers or officials of equal rank of ministries or ministerial-level agencies; to approve the election and relief from duty, and to decide on the transfer or dismissal of Chairpersons and Vice Chairpersons of the People’s Committees of provinces or centrally run cities” (Clause 3 of Article 98); “To suspend the implementation of, or annul the documents, of Ministers, Heads of ministerial-level agencies, People’s Committees, Chairpersons of the People’s Committees of provinces or centrally run cities that contravene the Constitution, laws or documents of State agencies at higher levels; to suspend the implementation of resolutions of the People’s Councils of provinces or centrally run cities that contravene the Constitution, laws or documents of State agencies at higher levels and, at the same time, to propose the Standing Committee of the National Assembly to annul them” (Clause 4 of Article 98).

Local authorities are accountable to local people and higher ranking State bodies (Articles 112 and 113).

The State Audit Office shall “audit the management and use of public finance and assets” (Clause 1 of Article 118).

External control of state power over the state apparatus

External control of State power over the State apparatus is stipulated by the 2013 Constitution as follows.

Regarding the Party’s control, Article 4 of the 2013 Constitution confirms that the Communist Party of Vietnam “is the force leading the State and society”. The Party leads the State and controls the exercise of State power through leading and examining Party organizations and members in the state apparatus. This is the highest level, most embracing, most effective control activity.

The Fatherland Front of Vietnam and its member organizations “represent and protect the lawful and legitimate rights and interests of the People... conduct social supervision and criticism; participate in the building of the Party and the State”. (Clause 1 of Article 9).

“The Trade Union of Vietnam, the VietnamPeasants’ Association, the HoChiMinh Communist Youth Union, the VietnamWomen’s Union and the VietnamWar Veterans’ Association are socio-political organizations established on a voluntary basis to represent and protect the lawful and legitimate rights and interests of their members”. (Clause 2 of Article 9). “The Trade Union of Vietnam... represent laborers, care for and protect the lawful and legitimate rights and interests of laborers; participate in the state management... participate in the examination, inspection and supervision of the operations of state agencies, organizations, units and enterprises regarding issues related to the rights and obligations of laborers” (Article 10).

As far as people are concerned, their control of state power is stipulated from different perspectives, and such control is either indirect or direct. “A National Assembly deputy or a People’s Council deputy may be removed from office by the voters or the National Assembly or the People’s Council, when he or she is no longer worthy of the confidence of the People” (Clause 2 of Article 7). “All state agencies, cadres, civil servants and public employees shall show respect for the People, conscientiously serve the People, maintain close contact with the People, listen to their opinions and submit to their supervision; resolutely combat corruption, waste, and all manifestations of bureaucracy, arrogance and authoritarianism” (Clause 2 of Article 8). “Citizens have the right to participate in the management of the State and management of society, and to discuss and propose to state agencies issues about their base units, localities and the whole country” (Clause 1 of Article 28). “The State shall create conditions for citizens to participate in the management of the State and society; and shall publicly and transparently receive and respond to opinions and petitions of citizens” (Clause 2 of Article 28). “Citizens who reach the age of eighteen have the right to vote in referenda organized by the State” (Article 29). “Everyone has the right to lodge complaints or denunciations about illegal acts of agencies, organizations or individuals with competent agencies, organizations or persons” (Clause 1 of Article 30). Delegates of the National Assembly must stay in close touch with voters and be supervised by them. They must meet voters and report to them about their own activities and the National Assembly’s. “A People’s Council deputy shall represent the will and aspirations of local People; shall maintain close ties with voters and be subject to their supervision, meet and report to voters on his or her own activities and activities of the People’s Council, respond to their requests and petitions; and consider and press for the settlement of complaints and denunciations” (Clause 1 of Article 115).

The discussion of the control of state power in the 12th Party Congress documents  

Controlling state power within the state apparatus

For effective control of state power, first of all, it is imperative to perfect state power controlling institutions. “[We must] ensure that the law acts as both a tool for the State to manage society and a tool for people to exercise, examine and supervise state power”(1). “There must be mechanisms for delegating and coordinating state power, especially ones for controlling power among state bodies in the exercise of legislative, executive and judicial rights on the basis that state power is unified”(2). “There must be clearer mechanisms for coordinating the exercise and control of rights between authorities at different levels”(3).

As far as the National Assembly is concerned, “[We must] continue to innovate the organization and operation of the National Assembly and ensure it is really the highest level representative body of people and the highest level State authority. The National Assembly is to perform well its legislative function, decide on the country’s important issues and carry out supreme supervision, especially over the management and use of the country’s resources”(4). [We must] perfect “the mechanism for supervising and evaluating people holding positionselected or approved by the National Assembly or People’s Councils”(5).

Regarding the Government, to control state power in executive terms, the 12th Congress called for “improvement of the organizational structure of the Government; clear identification of the functions, tasks and authorities of the government as the highest level State administrative body, law enforcer and the National Assembly’s executive body”(6). “[We must] accelerate the Program for State Administrative Reform so as to establish a democratic, modern, professional, dynamic administration which serves people; improve democratic and law-ruled institutions; and assign responsibility and accountability for state bodies”(7). “[We must] emphasize work ethics and social responsibility; tighten discipline and order in the guidance and implementation of tasks of government officials and civil servants; and speed up the application of e-government”(8). These are comprehensive solutions for controlling the exercise of state power and preventing arbitrariness or abuse of power among state bodies, officials and civil servants.

As for judicial bodies, the 12th Congress required them to “clearly distinguish administrative management authority from judicial responsibility and authority in their organization and operation; fully concretize constitutional principles concerning the functions and tasks of people’s courts and their trial”(9). “[We must] organize courts according to their trial authority; ensure the principles of independence and litigation during trials; and ensure defendants’ or the accused’s right to defend”(10). “People’s Procuracies exercise prosecution rights and controls judicial activities; increase prosecutors’ responsibility during investigatory activities”. “[We must] strengthen investigatory bodies and improve the efficiency of lawyers and legal assistants”(11).

[We must] implement the above-mentioned guidelines and ensure judicial activities are controlled and performed according to the law; prevent arbitrariness and irresponsibility which may result in unfair or wrong rulings during the exercise of judicial rights.

As for government officials and civil servants, the 12th Congress Stated, “The Party focuses on issuing guidelines and developing criteria, standards, mechanisms and policies on government officials and civil servants; foster the democratization of personnel work; clearly define the responsibility and authority of each organization and administration during the training of their personnel who are to be politically steadfast, morally clean, professionally qualified and able to meet requirements of the new period; perfect evaluation criteria and mechanisms for the examination, supervision and control of the performance of public affairs; clearly identify the authority and responsibility of heads of administrative bodies”(12).

External control of the state apparatus

All state power belongs to people, so the delegation, coordination and control of state power is always connected to the promotion of socialist democracy and ensuring of people’s right to mastership. The 12th Congress stated, “Democracy must be fully and seriously implemented in all areas of society. People must be allowed to participate in all stages of the making of decisions which are related to their interests and lives, from suggesting ideas, taking part in discussions and debates to supervising the realization of such decisions. Efforts must be focused on the formulation of legal documents which are directly relevant to people’s right to mastership”(13). “[We must] foster the democratization of society in order to exercise people’s right to mastership and encourage the proactivity and creativity of the Fatherland Front and mass organizations; and implement regulations concerning the supervision and challenge by the Fatherland Front and socio-political organizations as well as those concerning the Fatherland Front, socio-political organizations and ordinary people making comments on the building of the Party and Government”(14).

Thus, state power is controlled externally through people’s participation in all stages of the making of decisions and their supervision of the implementation of such decisions. The Fatherland Front and socio-political organizations act as supervisors and challengers during this process. Together with ordinary people, they contribute ideas to the building of the Party and Government. Realities show that this is the most effective and most efficient way of controlling state power. Therefore, it is imperative to ensure state power is controlled with both internal and external control, but more attention should be paid to external control, especially one by the Fatherland Front and its affiliates, the mass media, and the entire population.

____________________

(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14) CPV: Documents of the 12th National Congress, Office of the Party Central Committee, Hanoi, 2016, pp.176, 176, 176, 177, 177, 178, 178, 197, 179, 179, 179, 180- 181,169, 170.

Assoc. Prof., Dr Nguyen Van Manh

Ho Chi Minh National Academy of Politics

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