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Official Gazette

Monday, September 26, 2022

Law on Handling of Administrative Violations: A legal tool to guarantee human and civic rights

Updated: 16:52’ - 29/07/2013

Associate Prof. Ha Hung Cuong, Ph.D
Minister of Justice

Handling of administrative violations is an important tool of state management for maintaining administrative order and discipline in the socio-economic life of the country. It is also a matter directly related to the daily life of people as well as production and business activities of enterprises, for which the Party, the State and the entire society show great concern.

With a view to creating a legal basis for this extremely important activity, in 1989, the State Council promulgated the Ordinance on Sanctioning of Administrative Violations, which was later revised four times in 1995, 2002, 2007 and 2008 (the Ordinance). Together with various guiding documents, the Ordinance has better satisfied the requirement of prevention and combat of administrative violations and the requirement of democracy, publicity and transparency in the handling of these violations, thus raising the effectiveness of state administration and ensuring social order and safety.

Nevertheless, after more than 20 years of implementation, the legal system on handling of administrative violations, with the Ordinance as the highest legal document, has revealed limitations and loopholes, thus requiring expeditious study and revision to meet the increasing demands of the socio-economic life of the country in the new period of development.

Though being amended and supplemented time and again, the Ordinance still fails to satisfy the requirements and challenges of state management activities in the context of developing a socialist-oriented market economy and building a law-ruled socialist state of the people, by the people and for the people. Its amendments were just circumstantial solutions, lacking a strategic vision for a new period of development. Furthermore, the Ordinance lacks provisions to guarantee democracy and objectivity in the consideration of and decision on the sanctioning, as well as in the application of other administrative measures. The sanctioning procedures and forms provided in the Ordinance remain limited. All these have reduced the effectiveness and efficacy of this important legal tool, which, together with criminal law, can make great contributions to the maintenance of administrative order and discipline, social security, order and safety, the protection of citizens’ rights and legitimate interests, and the prevention and combat of administrative violations and crimes in the new period.

Moreover, in recent years, many provisions of a number of specialized laws and many decrees on sanctioning of administrative violations have proved to be inconsistent and overlapping, making it difficult to control the sanctioning of administrative violations. The legal system on sanctioning of administrative violations has neither reflected the characteristics and requirements of prevention and combat of administrative violations in the context of international integration, nor created adequate and favorable legal grounds for the fulfillment of international obligations that Vietnam has committed in various treaties. All these prompt the necessity to formulate and promulgate a Law on Handling of Administrative Violations in order to meet the practical requirements of the state administration and social management. This also conforms to the direction of gradually reducing ordinances of the National Assembly Standing Committee and decrees of the Government on matters not yet governed by any law. Those ordinances and decrees, if proving correct after a period of enforcement, should be upgraded to laws as stated in the Resolution of the third plenum of the Party Central Committee of the VIIIth National Party Congress.

With the purpose of improving legal provisions in this field, enhancing the effectiveness and efficiency of law enforcement and institutionalizing the policy reiterated in many Party resolutions on the assurance of human rights and democratic freedoms of citizens, the XIIIth National Assembly passed the Law on Handling of Administrative Violations (the Law) at its third session. The Law takes effect on July 1, 2013, except the provisions related to the application of administrative handling measures considered and decided by people’s courts, which will come into force on January 1, 2014.

With six parts, 12 chapters and 142 articles, defining the sanctioning of administrative violations and administrative handling measures with many new and progressive contents, the Law marks a new step of development in the formulation and completion of Vietnam’s legal system in general and the law on handling of administrative violations in particular, and at the same time affirms a new step of development of the legal mechanism to assure human and civil rights in Vietnam, which is applauded and highly valued by people at home and abroad.

First, the Law meets the requirement of “timely, full and correct institutionalization of the Party’s line, concretization of provisions of the Constitution on building a law-ruled socialist state of the people, by the people and for the people, and assurance of human rights and democratic freedoms of citizens,” as clearly stated in many resolutions on the formulation and improvement of the legal system, administrative reform and judicial reform. This requires the State to promulgate laws to define the democratic freedoms and human rights. Meanwhile, sanctions against administrative violations and administrative handling measures constitute a type of legal liability directly related to the fundamental human rights and civil rights as well as the rights and legitimate interests of individuals and organizations, which, according to the Constitution, must be defined in a law. Hence, the Law is an example of full and clear manifestation of this policy.

Second, the Law institutionalizes the policies of the Party and the State on administrative reform, meeting the requirements of prevention and combat of administrative violations and conforming to the orientations set out in the Resolution of the XIth National Party Congress and Politburo Resolution No. 48-NQ/TW of May 24, 2005, on the Strategy for building and perfecting the Vietnamese legal system through 2010 and orientations toward 2020, in the spirit of grasping the viewpoint on “simplification, publicity and transparency of administrative procedures, especially procedures directly related to the rights and interests of citizens and enterprises.”

Specific provisions of the Law, typically those on sanctioning order and procedures, measures to prevent and ensure the handling of administrative violations, the order and procedures for documentation, considering and deciding on the application of administrative handling measures, are made in the spirit of ensuring not only publicity and transparency but also strictness, clarity and efficiency in order to facilitate the observance of the law by citizens and the performance of public duties by functional forces in reality.

Third, the Law contributes to the materialization of a major policy in Politburo Resolution No. 49-NQ/TW of June 2, 2005, on the Strategy for Judicial Reform through 2020, that is “the formation of a legal mechanism for the Government to exercise the power to request examination and handling through judicial measures of every serious violation detected in the process of management and organization of law enforcement,” “creating favorable conditions for citizens to participate in legal proceedings and ensuring the equality of citizens and public offices before court.”

The Ordinance provides that the competence to decide on measures for handling administrative violations rests with heads of local administrative bodies, and the process defined by this Ordinance for consideration of the application of such measures was not truly public, without the participation of persons subject to these measures as well as of counsels to protect the rights and legitimate interests of these persons. The Law has transferred the competence to consider and decide on the application of these measures (sending to reformatories, medical establishments or educational camps) to judicial bodies. This is truly a major reform of profound significance for assurance of human and civil rights, demonstrating the progressive and democratic trend in the spirit that “judicial bodies must really be the ones which people can rely on in the protection of justice and human rights” as affirmed in Resolution No. 49-NQ/TW. The Law’s provisions on administrative handling measures clearly demonstrate a much more progressive viewpoint as compared to those of the Ordinance.

Fourth, the Law abolishes the provisions on application of the measure to send prostitutes to medical establishments for compulsory medical treatment as, according to lawmakers, the application of this measure aims actually to punish them for their acts of violation. The purpose of this measure is to isolate prostitutes from the community for compulsory medical treatment, labor, education and job learning, but this is considered too severe as in nature it restricts freedom of citizens. Reality shows that prostitution is a social vice, which needs to be settled mainly through socio-economic solutions such as job creation and vocational training. Only by doing so, can actually effective results be obtained. This reflects the true nature of such social phenomenon and also a new attitude toward prostitutes, which is suitable to national socio-economic conditions in the new period of development.

However, attention should be paid to the Law’s provision that, though prostitutes will be no longer sent to medical establishments for compulsory treatment, they still face administrative sanctions. Additionally, in order to limit the negative impacts of not sending prostitutes to medical establishments for compulsory treatment, the Government and local administrations need to step up the national programs on vocational training, loan extension and job creation, assisting them in seeking jobs, earning stable income and integrating into the community, and the programs on prevention and control of HIV/AIDS and sexually transmitted diseases, and to step up law dissemination and education activities.

Fifth, the Law spares a separate part (Part V, with two chapters) to prescribe the policies on handling of minors who commit administrative violations; measures that substitute administrative handling measures (reminding, home-based supervision and community-based reconciliation); conditions, competence and procedures for application of these substitute measures. The provisions on these substitute measures in this Part are completely new.

That the Law devotes a separate part on substitute measures for handling administrative violations committed by minors demonstrates the Party’s and the State’s consistent policy of constant care for minors in general and juvenile delinquents in particular, which demonstrate a step of development in legal institutions to protect human rights in the circumstance of international integration.

Sixth, due to the lack of provisions on monitoring and unified management in the Ordinance, the enforcement of the law on handling of administrative violations in recent years has developed in a complicated manner. This has affected the enforcement of the law, state management, economic development as well as social order and safety, resulting in infringements on the rights and legitimate interests of citizens.

The Law comprehensively and fully prescribes in its Article 17 this issue in the spirit of substantial renewal in order to raise the actual effect and efficiency of the enforcement of the law on handling of administrative violations. This is also an important factor to ensure the strict, uniform and accurate enforcement of the law on handling of administrative violations, fully ensuring the rights and legitimate interests of individuals and organizations as prescribed in the Constitution. Under the Law, the Government uniformly manages the enforcement of the law on handling of administrative violations nationwide. The Ministry of Justice is answerable to the Government for the management of the enforcement of the law, and has the following tasks and powers: proposing, formulating and submitting to competent agencies for promulgation or promulgating according to its competence legal documents on handling of administrative violations; monitoring and reporting on the enforcement of the law on handling of administrative violations; making statistics, establishing and managing a national database on handling of administrative violations; providing professional guidance and training in the enforcement of the law on handling of administrative violations; and inspecting in coordination with related ministries and sectors the enforcement of the law on handling of administrative violations. The Law also provides that the Supreme People’s Court, ministries, sectors and People’s Committees at all levels shall perform or coordinate with the Ministry of Justice in performing tasks and powers specifically defined in the remaining clauses of Article 17.

As the Law has a wide and complicated scope of regulation and contains many provisions of humanitarian nature beneficial to administrative violators, and many transitional provisions, on June 20, 2012, the National Assembly also passed Resolution No. 24/2012/QH13 on the enforcement of the Law. The Resolution provides the application of provisions of the Law, specifically the application of a number of administrative handling measures from the time the Law is promulgated to the time it takes effect, and the application of provisions of the Law to violations committed before the Law takes effect. The Resolution’s provisions are of practical significance for assuring the full and accurate exercise of human rights as well as rights and legitimate interests of individuals and organizations.

For the materialization of the Law and the National Assembly’s Resolution on the enforcement of the Law, the Government on October 5, 2013, issued Decision No. 1473/QD-TTg, promulgating the implementation plan and a list of decrees detailing the implementation of the Law. The plan covers activities of dissemination of the Law; professional training in the handling of administrative violations; formulation of legal documents to detail and guide the implementation of the Law and schemes on the enforcement of the Law.

Recently, the Prime Minister has directed the synchronous and comprehensive implementation of all aforesaid activities, which has yielded initial important results. Ministries and sectors have reviewed legal documents on administrative sanctions in the fields under their management, and joined in the preparation of a list of documents detailing the implementation of the Law. The Minister of Justice has issued decisions to form inter-sector working teams to directly settle problems arising in the course of drafting decrees; set up an advisory council for appraisal of all draft decrees before their submission to the Government for consideration and promulgation; and regularly urged and inspected the implementation of Decision No. 1473/QD-TTg. As a result, the number of decrees and other legal documents prescribing the administrative sanctions has been reduced from nearly 130 to only 56. This will contribute to effectively controlling the promulgation of legal documents, ensuring the consistency, transparency and simplification of the system of legal documents on handling of administrative violations, establishing a stable legal corridor that help avoid overlaps and contradictions in decrees. This will also create conditions for citizens to strictly observe the law, which is a primary objective of the promulgation of the Law.-

VNL_KH1 

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