Saturday, 19/10/2019
Importing the “Separation of powers" doctrine or promoting political instability, and power conflict
16/8/2019 10:10' Send Print
Illustration photo. Image: qdnd.vn

Reality shows that the clear division of the three legislative, executive and judicial powers is an important way to promote the role of the state and at the same time serves as a basis for checking the exercise of state powers. We have learnt progressive elements of the state institution organization in the world, in which "delegation" and "coordination" between three branches of state powers (legislative, executive and judicial) to organize the state apparatus, control state powers, and fight against corruption. All these are clearly reflected in the Vietnamese constitutions, especially the 1946 Constitution, the 1992 Constitution (amended , supplemented in 2001) and the 2013 Constitution.

However, in recent times, there are some individuals taking advantage of the slow concretization of the provisions of the Constitution on the mechanism of delegation, coordination and control of state power at all levels, corruption committed by some officials, and party members and ineffective operation of some institutions in the state apparatus to deny the principle of democratic centralism in the organization as well as the operation of the state apparatus while hailing, exaggerating, idealizing the "separation of powers" doctrine, considering it a "cure-all remedy" for checking state power and preventing corruption. This is a wrong, extreme assumption and political opportunism. This doctrine is applied in state apparatus in the United State, Great Britain, France, Germany and some Western countries. Although it has had some positive aspects that need to be studied and consulted, but it should not be exaggerated, idealized and viewed as a cure-all remedy of "democracy and the rule of law," for the following reasons:

First, in terms of theory, "separation of powers" is a complex, multi-dimensional and controversial theory. K.Marx and F Engels while pointing to the progressive elements of the doctrine emphasized that the division of power, in fact, was not anything but the actual division of labor structure of the state for simplification and easy control. F. Engels wrote: "Separation of powers... is in fact just a mediocre division of labor in industry, applied to the state apparatus for the purpose of simplification and control."(1) Based on the views of K.Marx and F. Engels on the need for power delegation between the state branches in the constitution, many philosophers, and thinkers have shared the same view that separation of powers is the system of legal-state institutions to ensure legal means with relative independence of state agencies. (2) G.V.F. Hegel affirmed that the division of power should only stop at concept; if separation of powers was beyond the limit of concept and became reality, then power would no longer be reunified. The branches of power separate from each other to the point of schism, checks-balances, opposition against each other. By that time, cannons will be used to unify state powers. Political conflict in the Russian Federation after the collapse of the Soviet Union proved that the warning of G.V.F. Hegel was completely scientific. At that time, the application of the Western doctrine of "separation of powers" pushed the Russian Federation into confrontation, uncompromising state between the legislative and executive branches. Consequently, in October 1993, President of the Russian Federation B. Yeltsin ordered tanks to fire on the building of the Supreme Soviet, using violence to dissolve the elected Parliament of Russia, putting an end to confrontation between the two legislative and executive factions. In other words, when powers are divided, balance cannot be restored by political solution, B. Yeltsin used cannons to unify powers. Prompted by experience about losing control of the central government over the local authorities due to extreme "decentralization" under Russian President B. Yeltsin, together with the signing of the edict to establish the State of the Russian Federation with 89 entities divided into 7 Federal regions, on September 1 2000, Russian President V. Putin approved the State Council Regulation, including the President and all those who were heads of entities. Chairman of the State Council is the President; Secretary of the State Council would be appointed by the President. Along with the enactment of the new Constitution, replacing the decentralization mechanism by delegation and coordination of powers, the State Council Regulation is an effective preventive institution for the unlimited, unorganized dispersion of powers in Russia at that time.

Separation of powers is a complex, multi-dimensional doctrine that should be understood very differently. The United States, Great Britain and European countries divide state powers into three types: legislative, executive and judicial powers along with three branches which exercises each of these powers independently according to check-balance mechanisms (mutual check and restriction). Some Latin American lawmakers divide state powers into four types: legislative, executive, judicial (trial) and voting (belonging to the electoral organization, the election council). The 1986 Nigerian Constitution enacted by the opposition Socialist-Christian Party offers up to five categories: legislative, executive, judicial (trial), voting and control powers. The 1976 constitution of Algeria stipulates six kinds of powers, including: legislative, executive, judicial, political, checking and organizational powers.

Separation of powers is understood horizontally (among state branches at the central level: legislative, executive and judicial), also understood vertically (between different political forces, between State agencies at the Central level with local state agencies, between the federal state and the member states and between local state agencies).

Second, in terms of reality, due to the limitations of the theory of "separation of powers," its manifestation and application degree, nature and characteristics in practice differ in each type of state, depending on many factors, such as the level of democracy, national traditions, as well as the political, economic and social situation of each country. The application of this doctrine in the presidential republic system is different from parliamentary system or mixed republican government; in the federal state structure, it is different from that in the single state structure.

In the presidential republic system, typically the United States, the state powers are organized in the principle of “strictly” separating the three legislative, executive and judicial powers. Instead of the mutually responsible mechanism between legislative, executive and judicial branches, it is the mechanism of "checks and balances." Accordingly, there is complete independence of legislative, executive and judicial branches in the exercise of state powers; decentralization between the federal and the local states. In fact, there are limitations and weaknesses in decentralization to the state powers in the United States:

1.The presidential republic system with absolute separation of powers in reality has many similarities with the limited monarchy system, in other words, the two are intermingled in a republic. The difference here is simply the king is replaced by the president.

2. According to the constitution, the US Congress is democratically representative, but in reality, representation is always manifested in the form of privileges. In essence, the Parliament is an institution of privileged people: elected members of Parliament are those of superior class, having high level of education and finance, not as the American Constitution states about the equality of all citizens in election and candidacy.

3- The formidable expansion of the executive branch in both size and quality. Power is moving from economic and political fields to administrative agencies. The executive body is penetrating into all areas of political and social life. The state budget must spend a large amount to maintain and feed the giant executive apparatus; leading to expensive costs for social life, along with the difficulties in housing; healthcare does not meet social requirements.

4. The results (working independently and only obeying the law) of the US judicial system still depend on human factors, lawyers, prosecutors, judges and jury. And the statement "The Court standing independently, balancing with other branches of power is considered the last stronghold of the state fortress to combat all threats to fundamental principles and values of the American society, ” shows that the US judicial process is still a manifestation of the political process.

In the parliamentary system, such as in Great Britain, Germany, or mixed republican government like France, the separation of powers is not rigid, or isolated, but each of the legislative, executive and judicial branches undertake a power and their responsibility intertwined, dependent and subject to mutual checks and coordination. However, it depends on many factors when being applied in different countries. Accordingly, the exercise of these powers is often deformed, making division and coordination nominal and symbolic. In fact, all powers concentrate in one place: either in the executive branch (as in France), or in the legislature branch (as in Great Britain).

Third, about the nature and origin of state powers, state power is unified; all state power belongs to the people, the people are the supreme and only subjects of state power. When the state power is unified and belongs to the people, in principle, state power cannot be divided (shared with other individuals or organizations); State bodies, when exercising legislative, executive and judicial powers, exercise the powers delegated and assigned by the people.

The idea of separation of powers, in essence, opposes the idea of unifying power.

J.J. Rousseau denied political and social power division and held that power should originate from the people. Rather, it is not a separation of powers, but division of functions between unified state power bodies. (3)

Recognizing the historical limitations of the "separation of powers" doctrine and the disadvantages of the "power decentralization mechanism," Russia constituted the organization and operation of the state apparatus according to the "principle of power delegation," whereby the state bodies are independent institutions exercising legislative, executive and judicial powers. State power is unified, not rigidly divided and isolated, but rationally assigned between legislative, executive and judicial branches. The principle of power delegation is built on the principle that the source of power in the Russian Federation shall be its multinational people. (Provision 1, Article 3 of in 1993 Russian Federation Constitution). While powers are separated, power branches must coordinated to exercise unified power. The people shall exercise its power directly, as well as through State government bodies and local self-government bodies (Provisions 1 and 2, Article 3). The division and coordination of authorities and powers (Provision 3, Article 5, Article 10 and Article 80) are to prevent state agencies from independence, isolation, separation and opposition; the state must build a coordination mechanism to check and restrict the three branches of power. Because of the importance of this mechanism, it was basically strictly regulated by the Russian Constitution and approved by the Ordinance No. 549 dated April 13, 1996 by Russian President, "On the coordination procedure of the President of the Russian Federation with the institutions of the Russian Parliament in the legislative process."

The coordination mechanism of the state branches in Russia is effectively implemented through the provisions of the Constitution on the position, roles, duties, powers and functions of the Russian President. The 1993 Russian Federation Constitution states: The President of the Russian Federation shall adopt measures to protect the sovereignty of the Russian Federation, its independence and State integrity, and shall ensure the coordinated functioning and interaction of State government bodies (Provision 2, Article 80). The Russian president, in many ways, has a special position and plays an important role in ensuring the unified coordination between the state power branches. The Russian President’s position can be imagined as a link between legislative, executive and judicial branches, being the highest referee of the State. The coordination of powers of the Russian President is primarily noted in the field of appointing senior personnel of the federal state apparatus (Article 83); in the legislative domain (Article 104 and Article 105); in the field of judiciary (Provision 3, Article 93; Provision 1, Article 111; Provision 4, Article 117).

The coordination of the Russian President's activities is also identified in some other aspects of the President as the Head of State. The President has a high responsibility in both legislative, executive and judicial fields. The President's responsibility is to promote the role of the state branches in social management and administration; determine the basic objectives of the internal and foreign policy of the State. In order to resolve disputes between State government bodies of the Russian Federation and State government bodies of constituent entities of the Russian Federation, the Constitution gives the President the right to use conciliatory procedures. In the event that no agreed decision is reached, the President shall have the right to refer the dispute to the appropriate court (Provision 1, Article 85). The Constitution also gives the President the right to suspend acts of executive government bodies of constituent entities of the Russian Federation in the event that these acts conflict with the Constitution of the Russian Federation and federal laws or with international commitments of the Russian Federation, or violate human and civil rights and freedoms until the issue is resolved by an appropriate court. In addition, the Constitution also stipulates that although the President is the Supreme Commander-in-Chief of the Armed Forces of the Russian Federation, the President's ordinance on the state of war, the special situation is only legally valid when approved by the Council of Federation. At the same time, the Federal Council of Federation also decides on the possibility of using the Armed Forces of the Russian Federation outside the territory of the Russian Federation (Provision 1, Article 87 and items b, c, d, Provision 1, Article 102).

From the above theory and practices, it can be seen that the study and reference of the doctrine “separation of powers" in the construction and organization of the state apparatus in Vietnam must be based on the spirit: not to rigidly apply that doctrine, but select rational elements which suit the Vietnamese conditions. Because each doctrine or a model, even though tested in a country, cannot be considered a truth to be applied to any country.

Unlike the capitalist state, Vietnam organizes state power in the principle of unified power without separation of powers but delegation, coordination and control among state agencies in exercising legislative, executive and judicial powers. The nature of the delegation, coordination and check between state agencies in implementing legislative, executive and judicial powers is: clearly defining the functions and tasks of each state bodies to improve their efficiency and effectiveness, avoid duplication, or overlapping between the three bodies’ activities in exercising legislative, executive and judicial powers, ensure smooth and synchronous operation of the entire state apparatus in the process of enforcing unified state power. The content of the principle of state power is unified, with the delegation, coordination and check among the state agencies in the implementation of the legislative, executive and judicial powers is, in the first place, the state power always belongs to the people; the people are the supreme and only subjects of the state power.

We have learnt rational elements in the way of state organization according to the "separation of powers" doctrine, which are reflected in the Vietnamese constitutions, especially the 1946 Constitution and the 1992 Constitution (amended and supplemented in 2001) and the 2013 Constitution. Specifically:

Under the 1946 Constitution, the People's National Assembly is the highest body of the Democratic Republic of Vietnam, elected by the Vietnamese citizens, which “shall make laws"; the Government is the highest executive body of the country, understood to be the highest executive body including the President, the Vice President and the Cabinet; the judiciary of the Democratic Republic of Vietnam consists of the Supreme Court, appellate courts, secondary and primary courts, which are independent of the People's National Assembly and the Government, and judges shall only obey the laws during trials, other agencies cannot intervene. Compared to the 1946 Constitution, the 1959 Constitution and the 1980 Constitution changed the degree of power delegation, but basically, the National Assembly was still the legislative body and the Government Council (according to The Constitution of 1959) or the Council of Ministers (according to the Constitution of 1980) were still the executive body and the court and the procuracy agency performed the functions of the judicial body.

Concretizing the renovation policy, the 2013 Constitution institutionalizes the principle of organizing the state power in the spirit of maintaining the nature of the socialist state of the people, by the people, for the people, applying rational elements of progressive state power doctrines and setting out basic principles of organization and operation of the State of the Socialist Republic of Vietnam in the new period: the State power is unified, with power delegation, coordination and check between state bodies in exercising the legislative, executive and judicial powers (Article 2 of the 2013 Constitution). Different from the "separation of powers" doctrine, in the Socialist State of Vietnam, the state power is unified, non-divided and belongs to the people.

The State power in Vietnam originates from the people, but is united and concentrate in the National Assembly and is specifically and explicitly assigned, in which the National Assembly is the highest state body, exercising the legislative power; the Government exercises executive power; the People's Courts along with the People's Procuracy exercise judicial authority. Regarding the local state agencies, the People's Councils and People's Committees at all levels are under the direction of superior government agencies, and must obey all decisions of the central government. Within the scope of powers stipulated by the law, local state agencies have the right to take initiatives and measures to enforce laws, decisions and directives of superiors but must not set regulations contrary to legal documents and other documents of higher authorities. That clear, and close delegation can only be achieved in practice if there is mutual check. Check is essential, but is not counterbalance, or opposition. Check is the Government takes responsibility and reports to the National Assembly on its activities; the National Assembly questions and issues resolutions of the Government; the National Assembly can conduct vote of credibility of the Government or individual minister.

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(1) K.Marx and F. Engel: Complete Works, the National Political Publishing House, Hanoi, 1993, vol. 5, p. 242
(2) See: Tran Hau Thanh: Theoretical and practical basis for building the socialist rule-of-law state of the people, by the people and for the people. The Political Theoretical Publishing House, Hanoi, 2005, p. 126
(3) See: Tran Hau Thanh: Ibid, p. 126

This article was published in the Communist Review, No. 921 (July 2019)

Tran Hau Thanh, PhDThe Central Organizing Committee