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Official Gazette

Monday, September 16, 2019

Institutionalizing the party’s lines

Updated: 11:23’ - 09/03/2005

Dr. Tran Thai Duong 
Hanoi Law University

 

The relationship between the ruling Party’s lines and the State’s law epitomizes the relationship between politics and law. In Vietnam, the lines of the Communist Party of Vietnam (CPV) are of important significance for the cause of national construction and development. Under the country’s Constitution, the Party constitutes a force leading the State and the society. The State’s law and the Party’s lines are closely interrelated, as manifest in the following points:

1. The Party’s lines constitute guidelines for the elaboration of legal documents.

The Party’s viewpoint on developing a socialist-oriented market economy where different economic sectors are free and equal to compete has pinpointed a political base for formulation of the 1992 Constitution as well as important laws in the economic domain such as the Law on Foreign Investment in Vietnam, the Enterprise Law,...when the country shifted from the centrally planned economy to the market economy.

When political issues are turned into the Party’s lines, they are of great value in the social life, exerting strong impacts on the legal system of Vietnam. The law, therefore, not only constitutes a professional matter but also has to be imbued with the Party’s viewpoints and political lines under the guiding principle that politics is the “soul of law” as stated by V.I. Lenin.

2. The Party’s lines do not substitute the role of law, particularly in the present cause of building a Vietnamese law-governed socialist state of the people, by the people and for the people. The Party’s lines constitute the political viewpoints of a party organization in the society. The Communist Party of Vietnam is the sole force holding the power and leading the State and the society. Its lines have been institutionalized into legal provisions, legalized and embodied into legal relations involving the subjects and objects, their rights, obligations and legal liabilities... with a view to regulating social relations and protecting the legitimate rights and interests of the people.

The Party’s lines and the State’s law are relatively independent due to the clearly defined positions and functions of the Party and the State in both theoretical and practical aspects. Institutionalization does not mean the exact copying of the contents of the Party’s lines into law. In other aspects, the Party’s lines bear separate significance and contents while the State’s law has its own requirements. Law should not passively reflect the contents of the Party’s lines. Law-making, enforcement and protection are the State’s activities of creative nature. The Party cannot replace the State in carrying out such activities.

3. The building and perfection of the legal system is inevitably associated closely to the process of institutionalizing the Party’s lines into practical activities of the State apparatus. In other words, the legal system in Vietnam is the outcome of the process of institutionalizing the Party’s lines in various aspects of social life; thereby the concept of institutionalization can be perceived as follows:

Institutionalization means legislative activities of the State, based on the ideological orientations and basic contents of the Party’s lines on regulating key social relations in a given period of national development.

- Developing the multi-sector commodity economy under the market mechanism with the State management along the socialist orientation is the Party’s great line charted in the Resolution of the VIth National Party Congress in 1986. A series of legal documents were promulgated afterward, including the Law on Companies, the Law on Foreign Direct Investment in Vietnam, the Law on Private Enterprises, the Law on Enterprise Bankruptcy..., thus contributing to the institutionalization of the Party’s lines on economic reform.

- The viewpoint on building the Socialist Republic of Vietnam state into a socialist law-governed state of the people, for the people and by the people is a strategic undertaking of the Party in the current period. The 1992 Constitution (with a number of articles amended and supplemented in 2001) and a series of laws on organization of the State apparatus as well as other laws have institutionalized the contents of the Party’s viewpoint on the Vietnamese socialist law-governed state and this has been expressed in various specific legal matters such as the nature of the State, the functions and tasks of the State in the new economic mechanism; the principle of unified state powers with responsibility division and coordination among state bodies in the exercise of the legislative, executive and judicial powers; the question of basic rights and obligations of citizens, the relationship between individuals and the State in the socialist regime.

In Vietnam, the Party holds the comprehensive and absolute leading powers. This has provided the institutionalization as a basic principle of Vietnamese politics.

4. Some common characteristics of the institutionalization of the Party’s lines:

- The Party’s lines are mapped out first. This characteristic demonstrates the vanguard nature of the Party and its heavy responsibility to the country and the people. Leading the country and the society by its lines constitutes the major leading mode of the Party. The institutionalization of the Party’s comprehensive leadership over the State and the legal system must fully reflect the Party’s lines.

- Institutionalization in activities of building the legal system. The outcome of institutionalization is not the concretization and detailing of the Party’s lines but the outcome of legislative activities.

Institutionalization is an activity of the State which is also placed under the Party’s leadership. The Party’s inspection and supervision of legislative activities in general and institutionalization in particular should not follow the mechanism of pre-activity inspection but the mechanism of post-activity inspection and examination expcept for fundamental issues of our political system.

- Institutionalization is an activity demonstrating the process of political perception and legal perception of the Party and the State.

5. Results and limitations

a/ Results

- The law has truthfully and timely reflected the Party’s important viewpoints and undertakings in the process of socio-economic development and defense of the socialist fatherland;

- The institutionalization has been stipulated into legal principles. The Constitution and laws of the State have also prescribed the process of institutionalizing the Party’s lines into laws. This process covers steps of putting forth legislative initiatives, deciding on annual and long-term law- and ordinance-making programs, including drafting, verification, reporting, discussion for adoption of bills, promulgation and organization of implementation;

- The mechanisms of direction, administration and coordination among state bodies amd between the State and Party agencies have been consolidated and operating effectively;

- The provisions on comments of the Party’s agencies on bills, draft ordinances are being completed;

- The institutionalization has resulted in a fairly synchronous legal system ensuring its publicity and transparency, laying solid legal foundations for the state management and liberal and safe operation of socio-economic relations under the conditions of a developing socialist-oriented market economy and international integration.

b/ Limitations

- The capability to institutionalize the Party’s lines into laws has failed to match the tasks, requirements and nature of this activity;

- The institutionalization has sometimes been slow and asynchronous; the legislative programs have been not highly feasible;

- The contents of some laws remain too general being only as framework, thus requiring sub-law documents guiding the implementation;

- The codification has been more or less affected by the rigid application of various jurisprudent categories and concepts, thus making legislators fail to pay attention to the interrelation and synchronism of legal documents in the same legal system.

- Talented and experienced experts have not yet been effectively mobilized for the drafting of bills and ordinances; the legal mechanism for the participation of social organizations, professional associations in the elaboration and debate of bills, draf ordinances and draft regulatory documents has not yet been improved;

- The process of institutionalizing the Party’s line into the State’s laws has not yet been fully and specifically legalized.

c/ Causes

- The cause of national renewal has not yet seen any practical model for reference and study; the world situation in general and the process of globalization and international economic integration in particular have witnessed many complicated and unpredictable developments. Meanwhile, the Party’s lines must ensure compatibility, promptly affecting the quality and effectiveness of the institutionalization being the legal system;

- The institutionalizing capability remains weak; the personnel and material conditions fail to match the legislative requirements in the new situation, thereby directly affecting the quality of Vietnam’s legal system.

6. Measures to build the legal system which reflects the spirit and contents of the Party’s viewpoints and lines and suits the objective demands of the socio-economic development:

- To renew the Party’s leadership over the State in general and the work of institutionalization in particular;

- To renew the organization and operation of the legislative body and the law-making mechanism in Vietnam in order to raise the efficiency and quality of the institutionalization;

- To raise the effectiveness and efficiency of the state management in order to well organize the enforcement of laws;

- To promote democracy, ensuring publicity and transparency in activities of institutionalization;

- To ensure the legislative initiatives of National Assembly deputies, socio-political organizations and socio-professional organizations, thus creating abundant sources of legislative initiatives for selection so as to raise the efficiency of the institutionalization;

- To step up the elaboration of laws, to limit the promulgation of ordinances or independent decrees as well as sub-law documents guiding the implementation of laws;

- To promote the role of experts, scientists in the formulation of bills;

- To expand the gathering of public comments on bills;

- To heighten the responsibility of officials, Party members in the institutionalization of the Party’s lines.

The State must mobilize political, economic, social and legal experts to analyze the Party’s viewpoints and lines, determine the requirement of regulating by means of law various aspects of social life, determining the contents and political viewpoints which need to be institutionalized into laws.

The Party needs to have talented political and legal experts to analyze and evaluate the results of the institutionalizing activities of the State. With its role of leading the State, the Party shall train and recommend its cadres to state agencies, thereby ensuring the Party’s leadership over all activities of the State.-
VNL_KH1 

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