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Official Gazette

Friday, August 18, 2017

Drafting a new Law of Laws: Toward a more effective legal system

Updated: 17:37’ - 21/08/2014

The country’s Law on Promulgation of Legal Documents (the Law) was first introduced in 1996, then amended once in 2002 and replaced by a new one in 2008. The Law, also called the Law of Laws, together with the 2004 Law on Promulgation of Legal Documents by People’s Councils and People’s Committees, has formed a legal framework for lawmaking activities of central and local state agencies.

After nearly 20 years of implementation, many provisions of the Law have become outdated and even inconsistent with the Constitution adopted last year. For this reason, a new law is being drafted on the basis of consolidating the 2008 Law and the 2004 Law on Promulgation of Legal Documents by People’s Committees and People’s Councils, aiming to lay a complete and unified foundation for lawmaking activities.

Since the birth of the first Law on Promulgation of Legal Documents in 1996, a total of 240 laws, 109 ordinances and roughly 285,000 sub-law documents have been promulgated. These impressive numbers, on the one hand, show great efforts of state authorities to build and develop the country’s legal system. On the other hand, these figures reflect that Vietnam’s legal system is too complicated and cumbersome, thus difficult to implement and costly to observe.

The complexity of the legal system is attributable to the existence of too many subjects with the competence to make laws and regulations. Under the current Law, 22 subjects are empowered to promulgate legal documents of 11 forms.

These subjects are (1) the National Assembly, that promulgates constitutions, laws and resolutions; (2) the National Assembly Standing Committee, ordinances and resolutions; (3) the President, orders and decisions; (4) the Government, decrees; (5) the Prime Minister, decisions; (6) the Judicial Council of the Supreme People’s Court, resolutions; (7) the Chief Justice of the Supreme People’s Court, circulars; (8) the Procurator General of the Supreme People’s Procuracy, circulars; (9) ministers, circulars; (10) heads of ministerial-level agencies, circulars; (11) the State Auditor General, decisions; (12) provincial-level People’s Councils, resolutions; (13) district-level People’s Councils, resolutions; (14) commune-level People’s Councils, resolutions; (15) provincial-level People’s Committees, decisions and directives; (16) district-level People’s Committees, decisions and directives; (17) commune-level People’s Committees, decisions and directives; (18) the National Assembly Standing Committee and socio-political organizations, joint resolutions; (19) the Government and socio-political organizations, joint resolutions; (20) the Chief Justice of the Supreme People’s Court and the Procurator General of the Supreme People’s Procuracy, joint circular; (21) ministers, heads of ministerial-level agencies, the Chief Justice of the Supreme People’s Court and the General Procurator of the Supreme People’s Procuracy, joint circulars; and (22) ministers and heads of ministerial-level agencies, joint circulars.

Simplifying the legal system

As the country is striving to perfect its institutions and raise the effectiveness of law enforcement, simplification of the legal system has become an urgent and objective requirement in the process of drafting a new Law on Promulgation of Legal Documents.

In order to create a solid legal foundation for the simplification, the new Law should clearly define the concepts of legal norm and legal document, which are also called legal normative documents. The definitions of legal norm and legal document, combined with the provisions on the functions, tasks and powers of subjects in the Constitutions and laws on these subjects’ organization, would constitute a basis for determining the competence to promulgate laws and regulations.

Legal norm can be defined as a general rule of conduct which is compulsory and repeatedly applied to all subjects or a group of subjects nationwide or within a certain administrative unit. Legal norms are established or recognized by competent state agencies prescribed in the Law on Promulgation of Legal Documents and have their enforcement guaranteed by the State.

Legal documents can be defined as documents containing legal norms which are promulgated by state agencies according to law-prescribed competence, forms, order and procedures. The Law should also stipulate that documents promulgated ultra vires, documents containing no legal norms, documents containing legal norms but applied within an agency or a sector only, and administrative documents are not legal documents.

On the basis of the above concepts of legal norm and legal document, the legal system could be simplified by trimming the forms of legal document and subjects competent to promulgate these documents.

Vietnamese legal documents are now presented in one of the following 11 forms: constitution, law, resolution, ordinance, order, decision, decree, circular, directive, joint resolution and joint circular. Concurrently, six subjects are empowered to issue legal documents in two or more forms: the National Assembly, the National Assembly Standing Committee, the President and provincial-, district- and commune-level People’s Committees.

The new Law should allow one subject to promulgate only one form of legal document. The form of resolution of the National Assembly, resolution of the National Assembly Standing Committee, order of the President and directive of People’s Committees could be scrapped. These forms of document, while still being issued according to general procedures and valid for implementation, would contain no legal norms.

Then, the National Assembly Standing Committee would adopt only ordinances while the President and People’s Committees would issue only decisions. The only exception is the National Assembly which would promulgate legal documents in two forms - constitution and law.

Moreover, all forms of joint documents, i.e., joint circular and joint resolution, should also be abolished. The reason is that the 2013 Constitution makes no mention of joint documents between organizations and agencies. The existence of joint documents is also incompatible with the constitutional principle of clear-cut delegation of tasks among state agencies.

Over the past years, due to the incompleteness of the proceeding laws, the Supreme People’s Court, the Supreme People’s Procuracy and relevant ministries have issued a number of joint circulars to guide the implementation of the Criminal Procedure Code, the Civil Procedure Code, etc. However, in order to concretize the constitutional requirements on strictly protecting and guaranteeing human rights and citizens’ rights in proceeding activities “according to procedures prescribed by a law” and “within time limits prescribed by a law” in conformity with the constitutional principles on the exercise of judicial rights, relevant agencies should stop promulgating joint circulars and concentrate on improving proceeding laws. Guidelines for the consistent application of laws in trial activities should be issued in the form of resolution by the Judicial Council of the Supreme People’s Court.

The existence of joint circulars between ministries and ministerial-level agencies is unsuitable because it reduces the state management powers as well as responsibilities of ministers or heads of ministerial-level agencies in their assigned fields. Instead, ministers and heads of ministerial-level agencies should, based on their tasks and powers, promulgate legal documents in the form of circular and inspect their implementation nationwide in line with the spirit of the new Constitution. Any matters concerning management responsibilities of more than one ministry or ministerial-level agency should be governed by decrees issued by the Government.

Neither the new Law should maintain the form of joint resolution between the National Assembly Standing Committee or the Government and central agencies of socio-political organizations. According to the 2013 Constitution, socio-political organizations operate to represent and protect the lawful rights and interests of the people and their members, enhance democracy and conduct social supervision and criticism of state agencies’ performance. In light of this, the new Law should focus on improving the provisions on the Vietnam Fatherland Front and its member organizations’ participation in, and supervision and criticism of, law building and enforcement activities.

Reducing subjects competent to promulgate legal documents

Regarding subjects competent to promulgate legal documents, the new Law should no longer empower the Chief Justice of the Supreme People’s Court, the Procurator General of the Supreme People’s Procuracy and the Auditor General of the State Audit Office to issue legal documents. This is completely consistent with the constitutional principle of delegation of state powers under which People’s Courts, People’s Procuracies and the State Audit Office are all law-applying bodies but not policy makers. These agencies, in performing their tasks and exercising their powers, could issue executive documents containing legal norms for application within their sectors only. By the above-said definition, these documents are not legal documents.

Another problem that the new Law should tackle is the delayed promulgation of guiding documents. It has become common that an adopted law or decree cannot be enforced just because its guiding circulars have not yet come out. According to the Ministry of Justice’s statistics, each page of the Land Law needs an average of 19.5 pages of guiding documents. This ratio is 12 for the Construction Law. These statistics help imagine how difficult it is for people and businesses to access law and how their interests are affected if guiding documents are issued late. However, as the current Law fails to provide the compensation responsibility of subjects in charge of issuing guiding documents, it is too hard to do anything with these subjects.

Regarding the competence to interpret legal documents, the current Law just stipulates that the National Assembly Standing Committee is the only body with the competence to interpret laws and ordinances and says nothing about which agencies are in charge of interpreting other legal documents such as decrees, decisions and circulars. To solve this problem, the new Law should specify subjects in charge of interpreting legal documents of all forms. 

The new Law should also govern in greater detail public consultation on the formulation of legal documents. It should specify the regulatory impact assessment of, and public consultation on, legal documents that directly affect the rights and interests of the public as well as responsibilities of drafting agencies to respond to public feedback (Ministry of Justice-VLLF).-


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