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Official Gazette

Friday, October 7, 2022

Revising complaint and denunciation law in line with BTA and WTO agreements

Updated: 14:40’ - 09/08/2005

Tran Van Son, LLM
Deputy Director, Government Office Department of Complaints and Denunciations Handling

 

The Complaint and Denunciation Law was adopted by the National Assembly, Xth tenure, on December 2, 1998, took effect on January 1, 1999, and was amended in 2004. This Law provides the authority, order and procedures for settlement of complaints in order to ensure the right to complaint of citizens, agencies and organizations and guarantee order in state administrative management. Over nearly seven years of implementation, the Law has been an important legal instrument for protecting the legitimate rights and interests of citizens, agencies and organizations, promoting democracy and raising the effectiveness of state management. It is a legal document indispensable in the process of building a socialist state under the rule of law in Vietnam. Nevertheless, in the current context of continued renewal and international integration, especially when Vietnam is implementing the BTA and accelerating negotiations for accession to the WTO, a number of provisions of the Complaint and Denunciation Law prove to be inappropriate or incompatible with the treaties which have been or are to be concluded or acceded to by Vietnam. According to the National Assembly’s legislative program and the Prime Minister’s Directive No. 08/2005/CT-TTg, dated April 4, 2005, on accelerating and improving the quality of the formulation of laws and ordinances necessary for WTO accession, draft amendments to a number of articles of the Complaint and Denunciation Law will be submitted to the National Assembly in October of this year.

In our opinion, amendments to the Complaint and Denunciation Law should not only reflect Vietnam’s efforts to realize its commitments to integrate into the world economy but also ensure the country’s socio-political stability and guarantee the right to complaint of citizens, agencies and organizations in conformity with the national strategies on administrative reform, judicial reform and building a socialist state under the rule of law in Vietnam. For these purposes, amendments to the Law should focus on transparency, the right to complaint, complaint settlement mechanisms and procedures, damage compensation mechanisms, and rulings of administrative agencies.

1. Transparency of the Complaint and Denunciation Law

Generally speaking, the Complaint and Denunciation Law satisfies the transparency requirements of the BTA and WTO agreements, except for the following issues:

+In the process of formulating the Law, the drafting agency did not have appropriate and effective forms and methods for collecting comments and suggestions of Vietnamese and foreign individuals, agencies and organizations on its contents.

+Some regulatory documents promulgated by ministries, branches and provincial-level People’s Committees relating to complaint settlement procedures were not published, or were published late in the “CONG BAO.” 

+A number of provisions on the authority, order and procedures for settling administrative complaints in the Complaint and Denunciation Law and specialized laws (the Land Law, tax laws, etc.) are contradictory and difficult to apply; and the selection of laws to be applied in these cases has not yet been provided.

+The provisions of the Complaint and Denunciation Law and other specialized laws relating to complaints and complaint settlement have been modified again and again within a short period of time, without stability.

In order to meet transparency requirements, there should be specific mechanisms for individuals and organizations to comment on the formulation of the law and for publishing regulations on legal procedures of general application in a timely manner. Meanwhile, the Complaint and Denunciation Law should be revised in the following manner:

First, the Complaint and Denunciation Law should be divided into two laws: the Law of Complaints and the Law of Denunciations.

This proposal is made on the following grounds:

The right to complaint and the right to denunciation are important democratic freedoms of citizens, enshrined in the Constitution. However, they have different objectives, and the authority, order and procedures for settling complaints and denunciations are also not the same. Though complaints and denunciations are interrelated in a number of cases, these rights constitute different legal institutions. The incorporation of these institutions in a single law is unsystematic. The implementation of various laws on complaints and denunciations (the 1981 and 1991 Ordinances and the 1998 and 2004 Laws on Complaints and Denunciations) has shown that incorporation has not only caused difficulties in application but also confusion to citizens when they exercise these rights. When a petition contains both complaint and denunciation contents, these two contents must, as a matter of law, be separated and settled according to different procedures and by different authorities.

Provisions on complaints and denunciations and their settlement are included not only in the Complaint and Denunciation Law but also in other laws (the Criminal Procedure Code, the Civil Procedure Code, the Land Law, the Ordinance on Enforcement of Civil Judgments, the Corruption Law, tax laws, etc.). However, many of these provisions are inconsistent, causing difficulties in application. Therefore, it is necessary to separate the Complaint and Denunciation Law into two new laws which contain general provisions and principles regulating complaints and denunciations and their settlement. The application of laws to settlement of complaints or denunciations should comply with the principle that, if other laws contain provisions on complaints and denunciations in each specific field, such laws shall be applied. If they contain no or insufficient provisions on this issue, the provisions of the Law of Complaints or the Law of Denunciations shall be applied. Likewise, the principles provided in these two laws should be regarded as grounds and principles for the promulgation of regulations on complaints and denunciations and their settlement in each specific field.

Second, the provisions on citizens’ suggestions, recommendations and petitions and on meetings with citizens should be transferred from the Complaint and Denunciation Law to another law, the Law on People’s Aspirations.

Through meetings with citizens, state agencies will receive and settle complaints and denunciations according to their competence and guide citizens to exercise their rights. These meetings also serve as a channel for citizens to voice their suggestions and petitions to the Party and State, a crucial condition for building a socialist state under the rule of law in Vietnam today. Therefore, this issue should be regulated in a separate law to ensure the transparency of this important legal institution. Moreover, the current provisions on meetings with citizens embodied in the Complaint and Denunciation Law are insufficient, failing to provide necessary legal mechanisms for regulating the reception of citizens by the Party and the State. To fundamentally address this problem, these provisions should be separated from the Complaint and Denunciation Law and incorporated in a Law on People’s Aspirations. The Law of Complaints and the Law of Denunciations should only provide for the reception of citizens’ complaints and denunciations as a stage in the process of resolving complaints and denunciations.

2. On the right to complain about administrative decisions or administrative acts    

The Complaint and Denunciation Law has basically met the requirements of the BTA and WTO agreements on the right of individuals and organizations to complain about administrative decisions or administrative acts. However, regarding the guarantee of this right, this Law still shows the following constraints:

- Administrative decisions, defined in Clause 10, Article 2, of the Complaint and Denunciation Law, mean written decisions issued by state administrative agencies and competent persons in these agencies. However, other state agencies, such as People’s Courts, People’s Procuracies, the National Assembly Office or the President’s Office, in performing their administrative management functions, also issue administrative decisions for execution within their agencies or within the system of agencies, which might infringe upon the legitimate rights and interests of citizens. In order to fully ensure citizens’ rights, these decisions must also be subject to complaint.

- The definition of administrative acts in Clause 11, Article 2, of the Complaint and Denunciation Law is not clear and transparent, especially when acts take the form of non-action (nonfeasance) (administrative agencies fail to perform necessary actions according to their functions and tasks, causing damage to individuals or organizations). Therefore, all administrative acts in the forms of action and non- action should be defined clearly.   

In order to overcome these constraints, we propose the following definitions of administrative decisions and administrative acts:

+Administrative decisions means decisions made in written form by state agencies or competent persons in state agencies to be applied in a one-time-only manner to one or more specific subjects with respect to a specific issue within the scope of state administrative management activities.

+Administrative acts mean actions or non-action taken by state agencies or competent persons in state agencies in performing their functions and tasks of state administrative management.

3. Mechanisms for settling administrative complaints

The Denunciation and Complaint Law and the Ordinance on Procedures for Settlement of Administrative Cases, which was promulgated in 1996 and amended in 1998, provide for complainants’ right to select either superior administrative agencies or courts to further appeal first-time complaint settlement decisions or when their complaints are not settled within the time limit for settlement. When adjudicating administrative cases, people’s courts are independent of administrative agencies or persons whose administrative acts are the object of complaint. As compared to requirements of the BTA and WTO agreements, the existing mechanism for resolving administrative complaints still shows the following limitations:

- Organizations or individuals complaining about administrative decisions or acts have no chance to bring their cases to court for review if they have brought their appeals of   first-time complaint settlement decisions to superior administrative agencies, whether or not final complaint settlement decisions have been made. Besides, according to the Ordinance on Procedures for Settlement of Administrative Cases, courts will receive and handle only nine types of cases, which means that not all complaints and denunciations relating to administrative decisions or acts will be considered and tried by courts. These provisions have restricted the right of organizations and individuals to lodge complaints and are the biggest limitation of the existing mechanism for resolving administrative complaints.

- The review by superior administrative agencies of administrative decisions made or acts taken by subordinate agencies fails to ensure the principle of independence due to the interdependent relationships within the system of administrative agencies. In practice, many administrative decisions were issued or administrative acts were taken under the will and direction of superior administrative agencies. Therefore, when these decisions or acts are appealed, the review of these complaints by superior administrative agencies will not always bring about impartial and independent results.

- The existing mechanism for administrative agencies to review complaints is “heavily administrative” and “closed”, making it difficult to ensure objectivity and impartiality.

- A body with administrative jurisdiction, independent of administrative agencies, has not yet been created to effectively settle administrative complaints. This is also a major limitation of the current mechanism for appealing administrative complaints.

To redress these limitations and meet the requirements of the BTA and WTO agreements, a new mechanism for settling administrative complaints should be established to allow administrative complaints to be settled by administrative agencies in two stages. If complainants still disagree with final decisions, they would still be able to initiate administrative lawsuits in court. 

In the first stage, the complaint would be assigned to agencies or persons about whose administrative decisions or acts complaints are lodged. Rather than a level of complaint settlement, this stage is by nature a stage of conciliation and review of complained decisions or acts. To suit the nature of this stage, there should be legal provisions that complained persons must organize meetings and talks with the complainants in an equal, democratic and objective manner so as to make clear the legal nature of the cases. The complainants must state the contents of their complaints and the reasons for such complaints. The complained persons must explain the legal grounds for issuing the administrative decisions or perform the administrative acts in question. Through face-to-face meetings or talks, if the complained persons find that their administrative decisions or acts were not based on sufficient legal grounds or were not reasonable, causing damage to the legitimate rights and interests of the complainants, they must modify, add or replace such decisions or stop such acts and resolve related issues such as compensation, issuing apologies, etc. If seeing that their decisions or acts were based on sufficient legal grounds and reasonable, they must give explanations and present evidence and documents to show the complainants that their complaints are groundless and request them to comply with such decisions.

In case complaints are lodged about administrative decisions or acts of ministers or heads of ministerial-level agencies or Government agencies, or heads of other state agencies at the central level, and no results are obtained in the first stage, the disagreeing complainants may initiate administrative lawsuits in court.

If the complainants still disagree after the first stage, they can then bring their complaints to the heads of immediate superior agencies of the complained persons for review. At the end of this stage, if the complainants are still not satisfied with the complaint settlement decisions, they may initiate an administrative lawsuit in court.  As this second stage is truly a level of complaint settlement, the complaint settlement procedures in this stage must be stipulated in detail, ensuring an independent and impartial scrutiny of the legality and reasonability of the administrative decisions or acts that are complained about.

These provisions on administrative agencies’ competence to review complaints in two stages have the following strengths:

- In the first stage, there are legal opportunities for complainants and complained persons to negotiate and reconcile their disputes, raising the responsibility of the persons who have issued the administrative decisions or performed the administrative acts in question to settle complaints. The settlement of complaints in this stage will be of great significance in that, if successful, it will put an end to disputes right at the places of their arising, cause no conflicts or tensions between state agencies and citizens, save time and money for all parties, and raise the prestige of state agencies.

- In the second stage, the responsibility of superior agencies is heightened when they have to deal with complaints against their subordinates. Through settling such complaints, superior agencies can also examine activities of their subordinate agencies, disclosing weaknesses and taking remedies to raise the effectiveness of state management. The settlement of complaints by superior agencies will meet to some extent the requirement that settling agencies must be independent of complained agencies. Moreover, the provisions on settlement of complaints by administrative agencies in two stages will reduce the number of cases brought to courts. In reviewing administrative decisions or administrative acts, administrative agencies should consider not only their legality but also their reasonableness as well as the situation and practice of state management so as to come up with flexible solutions suitable to the characteristics of state administrative management. A majority of complaints can be thoroughly settled in these stages.

- When complainants still disagree with the settlement by state administrative agencies, they still have another opportunity to protect their legitimate rights and interests by initiating administrative lawsuits in court. The initiation of lawsuits after two stages of consideration and settlement by state administrative agencies is the last resort to ensure principles of independence and objectivity as well as citizens’ rights to complain in compliance with the BTA and WTO agreements.

Together with the amendments to the Complaint and Denunciation Law as proposed above, it is necessary to revise the Ordinance on Procedures for Settlement of Administrative Cases in order to expand the jurisdiction of courts, empowering them to try all administrative complaints except those relating to security, defense, diplomatic relations, state secrets and the internal direction and management of state agencies. At the same time, the capacity of courts to try administrative complaints should be enhanced and an independent body with administrative jurisdiction should be established to effectively settle administrative complaints.

4. Complaint settlement procedures

The Complaint and Denunciation Law provides complaint settlement procedures in detail and the authority of complaint-settling persons to request involved parties to supply evidence, organize talks, conduct on-the-spot verification, and ask for expert help.

Compared to the requirements of the BTA and WTO agreements, the following provisions are still inappropriate:

+The complaint settlement procedures are still “heavily administrative” and “closed”, giving few opportunities for the involved parties to meet and “argue” with  the complained agencies and complaint-settling agencies on the complained issues, grounds for decisions and ways of settling complaints.

+Provisions authorizing the right to complain (and the participation of lawyers in the complaint process) are contained in a governmental decree, a form of legal document of limited legal effect and transparency.

+There is no mechanism for involved parties to gather evidence from third parties.

To overcome these limitations, the complaint settlement procedures should be improved as follows:

+There should be provisions on open hearings and public meetings held in  a democratic and equal manner, a compulsory step in each stage of settling administrative complaints.

These provisions should cover the following contents: meetings between the involved parties; requirements that meetings are compulsory in all stages or at all levels of settling complaints and that meetings should be held in a procedurally fair and  democratic manner, especially in complicated and prolonged cases involving large numbers of people; provisions on content, order and procedures for conducting such meetings; and use of the meetings’ outcomes as important grounds for competent persons to issue complaint settlement decisions.

4There should be specific provisions on the authorization of the right to complain and the participation of lawyers in the complaint settlement process. Though not mentioned in the Complaint and Denunciation Law, it is stipulated in Article 2 of Government Decree No. 53/2005/ND-CP of April 19, 2005, detailing and guiding the implementation of the Complaint and Denunciation Law, that: “citizens may exercise the right to complain by themselves or through their representatives according to the provisions of law.” This provision is, however, vague and unclear. Therefore, a specific mechanism for authorizing the right to complain and legal guarantees for lawyers to participate in the complaint-settling process should be stipulated in the complaint and denunciation law.

To make the complaint settlement procedures more transparent, it should be stipulated that evidence produced by the parties and evidence collected by agencies competent to settle complaints should be made public for the involved parties and these agencies to debate and argue on its accuracy, objectivity and legality. Apart from challenging evidence, the involved parties should be entitled to know and argue on the contents of the complaints, statements of the complained parties and the way of settling complaints. These provisions will address the “closed and administrative nature” of the settlement process currently applied by state administrative agencies.

5. Mechanism for making compensation for damage caused by acts of violation

The payment of compensation for damage caused by illegal acts to complainants is stipulated in Article 38 and Article 45 of the Complaint and Denunciation Law. These provisions, however, are general and not yet specified in other legal documents to ensure the right of complainants to compensation. To deal with this shortcoming, a law on compensation should be formulated, dealing with the compensation for damage caused by illegal acts of administrative agencies or personnel while performing their public duties.

6. Contents of decisions of administrative agencies

Basically, the provisions of the Complaint and Denunciation Law concerning decisions of administrative agencies comply with the provisions of the BTA and WTO agreements, except for the following constraints:

- There is not yet a mechanism for making public complaint settlement decisions. At present, there are only provisions that “persons who settle complaints in subsequent times shall, when necessary, announce the settlement decisions to the complainants and complained persons concerned” (Clause 2, Article 45 of the Complaint and Denunciation Law).

- Some state agencies have issued official letters or notices instead of complaint settlement decisions.

- The grounds for settling complaints have not yet been stipulated clearly. There is no provision that only evidence known to the involved parties shall be used as a basis for the settlement.

- There is not yet a mechanism for effectively executing complaint settlement decisions of administrative agencies, except for a few general provisions which are difficult to implement. Therefore, in reality, the number of effective complaint settlement decisions which have been executed is very small.

To overcome these limitations, the following provisions on the decisions of administrative agencies should be made:

+The settlement of complaints must be expressed in writing in the form of a complaint settlement decision, and not in other forms (such as official letters, notices or verbally).

+There should be provisions requiring the publication of complaint settlement decisions in a supplement of a specialized journal or a certain central or local publication or on the Internet.

+There should be specific provisions on the grounds for settlement of complaints, including results of verification, examination and conclusions on the contents of complaints and specific regulations and policies. Only evidence known to, shared and argued by the involved parties can be used as grounds for settling complaints. These are major requirements and the most important contents of complaint settlement decisions. Failing to meet these requirements, settlement decisions shall be invalid.

+There should be provisions on the responsibilities, order and procedures for executing complaint settlement decisions.

+To overcome existing problems in the execution of complaint settlement decisions to meet the requirements of the BTA and WTO agreements, the complaint and denunciation law should be perfected in either of the following directions:

- There should be specific provisions on the execution of complaint settlement decisions which have become effective, responsibilities for organizing the execution of such decisions, order and procedures for executing such decisions; and grounds  and competence for suspending the execution of decisions as well as penalties for non-execution or late execution of decisions.

- An ordinance or a government decree governing the execution of complaint settlement decisions and administrative rulings of people’s courts should be promulgated.-
VNL_KH1 

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