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Official Gazette

Tuesday, June 15, 2021

Unity of powers: The constitutional structure of government

Updated: 11:16’ - 20/04/2007

Dr. THAI VINH THANG
Associate Professor
Head of the State Administration Department
Hanoi Law University

 

The present state apparatus of the Socialist Republic of Vietnam is structured on the basis of the 1992 Constitution (amended in 2001), the December 25, 2001 Law on Organization of the National Assembly, the December 25, 2001 Law on Organization of the Government, the April 2, 2002 Law on Organization of the People’s Courts, the April 2, 2002 Law on Organization of the People’s Procuracies and the 2003 Law on Organization of the People’s Councils and People’s Committees.

The State apparatus is organized and operates under the following basic principles:

a/ All state powers belong to the people (Article 2 of the 1992 Constitution);

b/ The building of a socialist state ruled by law, of the people, by the people and for the people (Article 2 of the 1992 Constitution);

c/ The state powers are unified with assignment and coordination among state bodies in the exercise of the legislative powers, the executive powers and the judiciary powers (Article 2 of the 1992 Constitution);

d/ The Communist Party of Vietnam is the force leading the State and society. All Party organizations operate within the framework of the Constitution and law (Article 4 of the 1992 Constitution);

e/ Equality, unity and assistance among nationalities (Article 5 of the 1992 Constitution);

f/ The National Assembly, People’s Councils at all levels and state bodies operate under the principle of democratic centralism (Article 6 of the 1992 Constitution).

The National Assembly

Under the 1992 Constitution, the National Assembly is the people’s highest representative body, the top agency of state power and the sole agency having constitutional and legislative powers.

As compared to parliaments of many countries in the world, Vietnam’s National Assembly has its own particularities. It is a legislative body comprised of only one house with 498 deputies elected directly by the people through universal suffrage. It performs three fundamental functions: constitution- and law making; deciding on the most important national policy issues; and performing the supreme oversight of all activities of the State.

The National Assembly also plays an important role in establishing and consolidating the most important agencies within the state apparatus. It elects the State President and Vice Presidents, the National Assembly Chairman and Vice-Chairmen as well as members of the National Assembly Standing Committee, the Prime Minister, the president of the Supreme People’s Court and the chairman of the Supreme People’s Procuracy; ratifies the Prime Minister’s proposals on appointment, relief from office, and dismissal of Deputy Prime Ministers, ministers and other members of the Government; ratifies the State President’s proposal on the list of members of the Defense and Security Council; and holds votes of confidence against persons holding positions elected or approved by the National Assembly.

Unlike parliaments in other countries, Vietnam’s National Assembly is structured with only about one-fourth deputies working full-time while the rest are part-time. For instance, in France, parliamentarians cannot concurrently act as judges, ministers or other members of the executive body. Meanwhile, in Vietnam, many National Assembly deputies can work as ministers,, judges or provincial-level People’s Committee presidents. Vietnamese usually think that legislative activities have their own peculiarities, requiring many people who have practical experience in executive and judiciary activities so that the laws made by congressmen suit practical life. In other countries, laws passed by congresses can be declared by constitutional tribunals (constitutional councils) or supreme courts as unconstitutional and invalid. Yet, in Vietnam no agencies have the powers to declare any law unconstitutional and invalidate it. As the supreme state-power organ, the National Assembly itself examines the constitutionality of laws. Practically, it has never declared any law it has made unconstitutional.

The President

According to Article 101 of the 1992 Constitution, the State President is the Head of the State, representing the Socialist Republic of Vietnam in external and internal affairs. The State President is elected by the National Assembly from among its deputies, being answerable and reporting on his/her activities to the National Assembly. The State President’s term of office is five years being the same as the tenure of the National Assembly. Vietnam’s Constitution does not limit the number of the State President’s term of office like the constitutions of a number of other countries.

The State President has the following tasks and powers:

a/ To promulgate constitutions, laws and ordinances;

b/ To act as the commander-in-chief of the people’s armed forces and chairman of the Defense and Security Council;

c/ To propose the National Assembly to elect, relieve from office or dismiss State Vice Presidents, the Prime Minister, the president of the Supreme People’s Court and the chairman of the Supreme People’s Procuracy;

d/ To appoint, relieve from office or dismiss vice presidents or judges of the Supreme People’s Court and vice chairmen or procurators of the Supreme People’s Procuracy;

e/ To decide on the appointment of high-ranking army officers and ambassadors; decide on the conferment of orders, medals, state awards and other noble titles; decide on the naturalization, relinquishment or deprivation of nationality, on special amnesties, the appointment or summoning of Vietnamese ambassadors overseas; to receive foreign ambassadors in Vietnam; to conduct negotiations and sign international treaties in the name of the Vietnamese state with other heads of the state.

As compared with the Heads of the State of some other countries under the presidential republic institution, the jurisdiction of Vietnam’s State President is not large, similar only to the jurisdiction of kings in a constitutional monarchy.

The Government

Under Article 109 of the 1992 Constitution, the Government is the executive body of the National Assembly and the supreme state administrative agency of the Socialist Republic of Vietnam. Like the Government in other socialist countries, the Vietnamese Government is typically characterized as functioning as the executive agency of the legislative body. The Government is answerable and reports on its activities to the National Assembly, the National Assembly Standing Committee and the State President. The Government is composed of the Prime Minister, Deputy Prime Ministers, ministers, and heads of ministerial-level agencies. The Prime Minister is answerable and reports on the Government’s activities to the National Assembly.

The Government functions to perform the unified management of the performance of political, economic, cultural, social, defense, security and diplomatic duties of the State. It leads the ministries, ministerial-level agencies, government-attached agencies and People’s Committees at different levels in building and consolidating state administrative agencies from the central to local levels. The Government performs the unified management of foreign affairs, negotiates on and concludes international treaties in the name of the Socialist Republic of Vietnam State, excluding treaties concluded by the State President. It submits bills, draft ordinances and other legal documents to the National Assembly and the National Assembly Standing Committee; and decides on adjustment of the boundaries of administrative units lower than the provincial/municipal level. The ministers and other members of the Government are responsible before the Prime Minister and the National Assembly for the domains under their respective charge.

The Prime Minister leads the Government, the Government members and the People’s Committees of all levels; presides over Government meetings; proposes the National Assembly to establish or abolish ministries, ministerial-level agencies; and submits to the National Assembly for ratification the appointment, relief from office or dismissal of Deputy Prime Ministers, ministers, and heads of ministerial-level agencies. He/she appoints, relieves from office or dismiss deputy ministers and persons holding equivalent positions.

At present in Vietnam, a vigorous reform of the state administrative apparatus is being carried out in order to make it more efficient in operation. Prior to “doi moi” (renewal) initiated in 1986 by the Communist Party of Vietnam, the state apparatus was rather cumbersome with the existence of 34 ministries and ministerial level agencies and 39 government-attached bodies. By December 1993, the figures had shrunk to 27 and 28 respectively.

The Resolution of the IXth National Congress of the Communist Party of Vietnam held in April 2001 set the orientations for reform of the state administration: “To build a clean, strong and incrementally modernized state administration. To adjust the functions and improve the operating modes of the Government towards unified macro-management of the performance of political, economic, cultural, social, defense, security and diplomatic tasks nationwide through a comprehensive and synchronous system of laws and policies. To clearly define the functions, tasks and powers of ministries in the direction that a ministry manages various branches and domains nationwide and provides public services. To assign and decentralize responsibilities to local administrations, promoting their dynamism, closely combining branch management with territorial management and strictly observing the principle of democratic centralism; to consolidate the professional agencies of People’s Committees and the administrations of the commune/ward/township level”(2).

In materialization of such undertaking, the Prime Minister issued Decision No. 136/2001/QD/TTg of July 14, 2001, approving the overall program on state administrative reform during 2001-2010 through such measures as substantially reducing the number of government-attached agencies and organizations attached to the Prime Minister. As a result, such number dropped to 14 by August 2002. A number of government-attached agencies were turned into ministries or merged into ministerial-level agencies.

The Vietnamese Government is now structured with 20 ministries, 6 ministerial-level agencies and 14 government-attached agencies.

Local government

Under the 1992 Constitution (amended in 2001) and the 2003 Law on Organization of the People’s Councils and the People’s Committees, the local administrations are organized at three levels: the provincial/municipal level; the rural/urban district/ provincial town level; the commune/ward/ township level.

There are now in Vietnam 64 administrative units of the provincial level (59 provinces and 5 centrally run cities); 604 administrative units of the district level ( 492 rural districts, 33 urban districts, 16 provincial cities and 63 provincial towns); and 1,037 administrative units of the commune level (8,878 communes, 937 wards and 536 townships.

Existing at these three levels are the People’s Councils and the People’s Committees.

Under Article 119 of the 1992 Constitution, the People’s Councils are the local bodies of state power, representing the local people’s will, aspirations and mastery, and are elected by local people and answerable to them as well as to superior state agencies. Meanwhile, the People’s Committees are elected by the People’s Councils, act as the executive bodies of the People’s Councils and the local administrative agencies and have the responsibility to abide by the Constitution, laws and legal documents of superior state bodies and resolutions of the People’s Councils (Article 123).

At present, the local administrations in Vietnam are being strongly reformed towards raising their efficiency and dynamism and increasing their powers. Now, under the 1992 Constitution, the allocation of local budgets is decentralized from the National Assembly to the People’s Councils. The number of professional agencies under a provincial/municipal People’s Committee now stands at between 18 and 20 with little difference between rural areas and cities. Hence, such apparatus needs to be reformed towards creating a marked difference between the countryside and urban centers and more flexible and efficient operation of the local administrations as required by the market economy.

The judiciary

The court system in Vietnam is currently organized under the 1992 Constitution and the April 2, 2002 Law on Organization of Courts.

Under Article 1 of that law, the Supreme People’s Court, the local people’s courts, the military courts and other courts are the adjudicating bodies of the Socialist Republic of Vietnam. The court system is organized according to territorial administrative units from the district level up. Courts are organized at three levels:

a/ The Supreme People’s Court:

The Supreme People’s Court has the following tasks and powers:

- To guide courts of different levels to uniformly apply laws and draw experiences in adjudication;

- To renew the trials by courts of different levels through cassation procedures;

- To submit bills to the National Assembly and draft ordinances to the National Assembly Standing Committee.

- To conduct cassation and re-opening trials of cases where judgments or decisions have taken effect but are protested against according to legal proceedings;

- To conduct appellate trials of first-instance judgments or decisions of lower courts, which have not yet taken effect but are protested or appealed against.

b/ The people’s courts of provinces or centrally run cities:

The provincial-level people’s courts have the following powers:

- To conduct first-instance trials of cases according to procedural law;

- To conduct appellate trial of cases where the first-instance judgments or decisions of subordinate courts have not yet taken effect but are protested against according to procedural law.

c/ The people’s courts of rural districts, urban districts or provincial towns:

The district-level people’s courts conduct first-instance trial of cases according to provisions of law.

Currently, the Supreme People’s Court and the provincial/municipal people’s courts are structured to each have a criminal court, a civil court, an economic court, a labor court and an administrative court. Unlike court organization in many other countries, Vietnam’s administrative courts do not constitute a separate system but lie within the judicial court system. Judges of administrative courts are graduates from law schools or law faculties and from judicial titles’ training schools but not from the State Administration Institutes like in France and some other countries.

Like courts in most countries in the world, the Vietnamese courts conduct trials at two levels: The first-instance trial and the appellate trial.

First-instance judgments or decisions may be protested or appealed according to procedural law. If they are not protested or appealed within the a given time limit set by law (usually 15 days), they will take legal effect; if they are protested or appealed, they will be subject to appellate adjudication.

Judgments or decisions of courts which have already taken legal effect but are found contrary to law or affected by new circumstances will be reviewed according to cassation or re-opening procedures.

Formerly in Vietnam, judges were elected (according to the 1959 Constitution and the 1980 Constitution. Yet, after the promulgation of the 1992 Constitution, such a regime was replaced by the regime of judicial appointment. From 1992 to April 2002, except for the president of the Supreme People’s Court who was elected by the National Assembly, all other judges were appointed by the State President. Yet, since April 2002, according to new Law on Organization of Courts, the chief judges, deputy chief judges and judges of local courts are all appointed by the president of the Supreme People’s Court for a five-year term of office. The vice presidents and judges of the Supreme People’s Court are appointed by the State President for a five-year term of office and the president of the Supreme People’s Court is elected by the National Assembly also for a five-year term.

Vietnam was greatly influenced by China’s legal ideologies during the feudal time, France’s legal ideologies during the period between the second half of the 19th century and the first half of the 20th century, and the Soviet Union’s legal ideologies during the ’50s, 60s, 70s and 80s of the 20th century, all of which failed to attach importance to case law. The feudal dynasties of Vietnam paid attention to statute law but not to the case law. Until now, case-law is not applied in Vietnam even though the Supreme People’s Court, when annually reviewing the adjudicating work, cited a number of typical cases to guide subordinate courts in adjudication. However, the subordinate courts still base themselves on provisions of statute laws, but never on case law to hand down judgments.

The people’s procuracies

The people’s procuracies function to prosecute crimes and supervise judicial activities. They are currently organized and operate under the amended 1992 Constitution and the April 2, 2002 Law on Organization of the People’s Procuracies.

Formerly under the 1992 Law on Organization of the People’s Procuracies, the procuracies functioned not only to exercise the power of prosecution and to supervise judicial activities but also to conduct general oversight of the observance of the Constitution and laws by all ministries, ministerial-level agencies, government-attached bodies, local administrations, economic organizations, social organizations, armed force units and citizens. With such wide-ranging powers which overlapped the functions of state inspectorates and police, they failed to properly perform the functions of prosecution and judiciary supervision.

For this reason, the new law has narrowed the procuracies’ functions with a view to help them better perform the functions of prosecution and judicial supervision.

One of the particularities of the state apparatuses of the socialist countries, Vietnam included, is that the people’s procuracies constitute a separate system independent from the court system. To help them operate independently with more effect and high efficiency, the procuracies are organized and operate under the principle of unified centralism. According to Article 8 of the new Law on Organization of the People’s Procuracies (and Article 6 of the 1992 Law on Organization of the People’s Procuracies), the people’s procuracies are led by their heads. The heads of subordinate people’s procuracies are led by heads of the superior procuracies. The heads of local procuracies of all levels and heads of the military procuracies of all levels submit to the unified leadership of the chairman of the Supreme People’s Procuracy. The chairman of the Supreme People’s Procuracy and the heads of the provincial/municipal People’s Procuracies, the heads of the military procuracies of military zones or equivalent level shall also set up procuracy committees to discuss and decide on important matters.-

Notes:

(1) Documents of the VIth National Congress of the Communist Party of Vietnam, Su That (Truth) Publishing House, Hanoi, 1987, p.118.

(2)Documents of the XIth National Congress of the Communist Party of Vietnam, National Politics Publishing House, 2001, p. 229.

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