NGUYEN THI HOI, LL.D
Head of the Department of State and Law Theory
Faculty of Administrative and State Law
Hanoi Law University
Over twenty years have elapsed since renewal was initiated by the Communist Party of Vietnam in 1986, during which “great achievements of historical significance have been recorded,” (1) including the development of the National Assembly through two stages:
From 1986 to 1992. When our nation embarked on renewal in 1986, the National Assembly was organized and operating under the 1980 Constitution as the highest body of state power and the sole body with the power to make constitution and law. The National Assembly had the power to elect the State Council, Council of Ministers, the President of the Supreme People’s Court and the Chairman of the Supreme People’s Procuracy. The State Council was then the National Assembly’s highest standing body and concurrently acted as the collective president of the state. The permanent function of the National Assembly was therefore integrated with the function of the head of state. This demonstrated the principle of unity of power and the principle of collective power – the fundamental principles of the 1980 Constitution, which increased the inter-dependence and non-distinction between legislative and executive power, ultimately perceived as one of the weaknesses of the 1980 Constitution and the state apparatus.
In this period, the National Assembly mainly functioned to make constitution and laws; to decide on important issues of the nation, such as state plans, budget estimates and allocation, organization of the state apparatus, etc.; and perform the supreme supervision of the observance of the Constitution and law in the State’s activities.
The National Assembly supervised activities of other state agencies by modes of examining working reports of the State Council, the Council of Ministers, the Supreme People’s Court and the Supreme People’s Procuracy; questioning and requesting members of the Council of Ministers to explain or supply documents on necessary issues. Under the 1980 Constitution, the National Assembly might, when necessary, give itself more duties or powers or delegate the State Council and the Council of Ministers more powers or duties not provided in the Constitution. In particular circumstances, the National Assembly might decide to extend its term or take other necessary measures to ensure its operation. The State Council, the Council of Ministers, the President of the Supreme People’s Court and the Chairman of the Supreme People’s Procuracy were answerable and reported on their work to the National Assembly.
The State Council acted on behalf of the Socialist Republic of Vietnam in internal and external affairs and had the power to supervise the work of the Council of Ministers, and suspend enforcement, amend or annul regulations issued by the latter when those were contrary to the Constitution, laws or ordinances. The State Council also had the right to appoint and remove from office vice presidents, judges and people’s jurors of the Supreme People’s Court, vice chairmen and procurators of the Supreme People’s Procuracy; and to supervise the work of the President of the Supreme People’s Court and the Chairman of the Supreme People’s Procuracy.
Generally speaking, the organization of the National Assembly in this period proved unreasonable due to the lack of distinction between the function of the head of state and the permanent function of the legislative body, leading to a situation in which the State Council performed both functions. Moreover, there was no definite division of responsibilities and duties between the legislative body and the executive body as the Council of Ministers acted concurrently as the government and highest state executive of the Socialist Republic of Vietnam as well as the administrative body of the highest legislative body. Such an organizational mode, plus the poor quality of deputies, were the main reason for the ineffectiveness of the National Assembly in this period. As a result, in six years from 1980 to 1986, the National Assembly and the State Council promulgated only 10 laws and 12 ordinances. The National Assembly sessions used to proceed in a “downstream” fashion due to the lack of debate and critical argument among deputies, and the ineffective operation of the National Assembly nearly left the country in a prolonged crisis.
From 1992 to present. In 1992 when the Constitution of the renewal period was enacted, the organization and operation of the state apparatus in general and the National Assembly in particular saw a development toward a more definite and specific division of responsibilities among state bodies. First of all, the institution of an individual state president was re-established, superseding the 1980 Constitution’s provision defining the state president as a part of the legislative body. The assignment of the functions of the former State Council to the National Assembly Standing Committee and the State President and the ordainment of the Government as the executive body of the National Assembly and the highest state administrative body of the Socialist Republic of Vietnam were the most important points reflecting the division of responsibilities and duties between the legislative and executive bodies.
The functions, duties and powers of the National Assembly provided for in the 1992 Constitution were essentially similar to those in the 1980 Constitution but with a wider scope and more specific definition of the National Assembly’s powers and stricter adherence to the rule-of-law principle. Accordingly, the National Assembly no longer had the power to give itself or delegate other bodies duties or powers not provided in the Constitution but was given more rights and duties to decide on law- and ordinance-making programs, national financial and monetary policies, state budget allocation, nationality policies of the State and organization of referenda. With respect to organization of the state apparatus, the National Assembly had the right to elect, relieve from office or discharge the State President and Vice Presidents, the Prime Minister, the President of the Supreme People’s Court and the Chairman of the Supreme People’s Procuracy. It approved the State President’s proposals on establishment of the Defense and Security Council, the Prime Minister’s proposals on appointment, relief from office or dismissal of deputy prime ministers, ministers and other cabinet members. It had the supreme power to supervise all activities of the State and could repeal other central state bodies’ regulations that were contrary to the Constitution, laws or its resolutions. In other nations, the power to declare a legal document unconstitutional is held by a supreme court or a constitution preservation council or a constitutional court. Meanwhile in Vietnam, the power to determine a document unconstitutional and to annul it belongs to the National Assembly.
The annulment of unconstitutional or unlawful documents of a number of central state bodies also falls under the jurisdiction of the National Assembly or the National Assembly Standing Committee. The National Assembly may annul unconstitutional or unlawful documents of other central bodies, while the National Assembly Standing Committees has the power to suspend the enforcement of those documents before submitting them to the National Assembly for decision on cancellation. The National Assembly Standing Committee may cancel documents of the Government, the Prime Minister, the Supreme People’s Court or the Supreme People’s Procuracy if they are contrary to its ordinances or resolutions. The National Assembly ratifies or denounces treaties which Vietnam has signed or acceded to at the request of the State President.
The present relationship between the National Assembly and other state bodies shows both similarity to and difference from that in the pre-renewal period. The similarity lies in that the National Assembly still supervises activities of the executive and judicial bodies through its committees or by examining working reports of and questioning the State President, the Prime Minister, ministers, the President of the Supreme People’s Court and the Chairman of the Supreme People’s Procuracy, who are answerable and liable to report their work to the National Assembly. The difference is that the State President may now request the National Assembly Standing Committee to revise its ordinances (before being amended, the 1992 Constitution allowed the State President to request the National Assembly Standing Committee to revise its ordinances and some of its resolutions). Such a request can be made within 10 days after an ordinance is passed. If the passage of an ordinance is voted for by the National Assembly Standing Committee but disapproved by the State President, the latter may propose the National Assembly to decide on that ordinance at its nearest session. This provision aims to delegate more power to the National Assembly and the State President and to subject the drafting of ordinances of the National Assembly Standing Committee to greater scrutiny.
There is also a totally new power enjoyed by the National Assembly as a greater and more exercisable and decisive one over the state apparatus organization. With this power, the National Assembly may hold votes of confidence on holders of posts it has elected or approved. As a result, those in whom confidence is challenged by the National Assembly would be relieved from office or dismissed. This provision aims at both raising the role and power of the people’s highest representative body and strengthening the sense of personal responsibility of holders of posts elected or approved by the National Assembly. However, no post holder has faced the National Assembly’s vote of non-confidence since this provision took effect in 2002 because some deputies argued that the scope of vote of confidence by the National Assembly was too wide and should be narrowed down “to cover only those elected or approved by the National Assembly and currently working in the executive or judicial domain, such as the State President, the Chairman of the National Assembly, the Prime Minister, the cabinet members, the President of the Supreme People’s Court and the Chairman of the Supreme People’s Procuracy.” (2) At the same time, the procedures for casting votes of confidence are not really appropriate. Under the 2001 Law on Organization of the National Assembly, the National Assembly Standing Committee proposes the National Assembly to hold votes of confidence when so requested by at least 20% of the total number of National Assembly deputies. This requirement is hardly satisfied in reality and should be adjusted by the National Assembly.
The National Assembly may also ratify or denounce international treaties personally signed by the State President or those signed or acceded to upon proposals of the State President.
The National Assembly and the National Assembly Standing Committee at present have more real legislative powers than before. For instance, before the 2002 constitutional amendment, the National Assembly Standing Committee might, when the National Assembly was in recess, decide on declaration of a state of war in the case of foreign invasion and submit and propose such a decision to the National Assembly for approval in the nearest session. After 2002, that power can be exercised by the National Assembly Standing Committee only when the National Assembly cannot meet. Similarly, before 2002 the State President had the power of “qualified veto” to both ordinances and resolutions of the National Assembly Standing Committee. After 2002, that power can be exercised by the State President only against ordinances of the National Assembly Standing Committee.
Panoramically, progress has been made in the National Assembly’s legislative activities since the initiation of the national renewal. The number of laws and ordinances passed by the National Assembly and the National Assembly Standing Committee in the period from 1986 to 2005 was great, with 150 laws and codes and 154 ordinances, governing almost all basic social domains.
Qualitatively, new laws are more commensurate to the nation’s socio-economic development level and better meet the requirements of social life thanks to lawmakers’ improved skills and techniques. National Assembly sessions have become more ebullient as they involve heated debates instead of mere discussions. Basic functions of the National Assembly, law-making and supreme supervision of the State’s activities, have been incrementally institutionalized in laws and specified by the 1996 Law on the Promulgation of Legal Documents (revised in 2002) and the 2003 Law on Supervisory Activities of the National Assembly.
In 2001, the Constitution was amended to include the objective of building a state governed by law, whereby the state power should be reasonably divided to the state bodies and be controlled and remain controllable. Only by doing so could human rights and other rights and freedom of citizens be respected, exercised and protected against state infringement. In Vietnam, the control of state power rests with the National Assembly (with the supreme power of supervision), the People’s Councils, the People’s Procuracy, the State Inspectorate and all the people. Though the National Assembly has recently paid greater attention to the exercise of its supervisory power, reduced merely formalistic supervision and specified the supervision power by law, the formulation of supervision programs, and the objects, contents, methods and legal consequences of supervising activities of the National Assembly, its agencies, deputies and delegations of deputies, the effectiveness of the National Assembly’s supervisory activities remains unsatisfactory. As some deputies put it, “supervision stops short at making petitions and remains formalistic due to the lack of superintendence and inspection of settlement of petitions” and “is still a weak link, probably the weakest.” (3)Therefore, the 2001 Law on Organization of the National Assembly and the 2003 Law on Supervising Activities of the National Assembly were both elaborated in the direction of assigning more responsibilities to all agencies of the National Assembly to supervise state agencies. However, at present, “the National Assembly remains perplexed in performing its supervising function.” (4) The task of renewing the National Assembly in the near future should, therefore, focus on working out an effective mechanism to raise the effectiveness of its supervisory functions.
In the process of national renewal, the organization and operation of the National Assembly have been constantly renewed on the basis of a renewed way of thinking and in the direction of selectively absorbing achievements of mankind’s political and jurisprudential studies, e.g., ideas about the separation of powers, a state governed by law, democracy, etc. Nevertheless, the proper performance of institutional functions by the National Assembly depends largely on further renewal of its organization and operation under the guideline set forth by the Party: “To further renew the organization and operation of the National Assembly. To perfect the election mechanism in order to raise the quality of National Assembly deputies and reasonably increase the number of full-time deputies, thereby bringing into fuller play the role of National Assembly deputies and delegations of National Assembly deputies. To reorganize a number of Committees of the National Assembly and raise the quality of operation of the Nationalities Council and the committees of the National Assembly. To further renew the law-making process and radically reduce the number of to-be-promulgated ordinances. To better perform the task of deciding on important issues of the nation and the supreme supervision.” (5)-
Note:
(1) See “Documents of the Xth National Party Congress,” the National Politics Publishing House, Hanoi 2003, p. 17
(2) See “There will be four more committees,” by Tuan Anh, Law Newspaper, August 22, 2006 issue, p. 3
(3)Legislative studies (issue No. 4, 2002), “the Xth National Assembly: Five years - insiders’ view,” p. 8
(4) See “Documents of the Xth National Party Congress,” the National Politics Publishing House, Hanoi 2003, p. 64
(5) See “Documents of the Xth National Party Congress,” the National Politics Publishing House, Hanoi 2003, p. 126.-