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Continue to build and perfect the mechanism of state power control in Viet Nam
24/3/2016 15:12' Send Print

Process of awareness on mechanism of state power control in the period of renovation

Before the renovation period, the term “control of state power” did not exist in official documents of the Party and State of Viet Nam. However, in the Constitutions and laws on the organization of state apparatus, there were regulations stipulating the control of state power. For example, the National Assembly had the authority “to supervise the observance of the Constitution” (Clause 3, Article 50 of the 1959 Constitution), “to exercise supreme oversight of compliance with the Constitution and law” (Clause 3, Article 83 of the 1980 Constitution). The State Council “supervises the work of the Council of Ministers, the People's Supreme Court and the Procurator General of the People's Supreme Procuracy” (Clause 7, Article 100 of the 1980 Constitution), “supervises and guides the operation of the People's Councils at all levels” (Clause 9, Article 100 of the 1980 Constitution). The People's Supreme Procuracy “supervises observance of the law by ministries and other bodies of the Council of Ministers, local authorities, social organizations and the People's Armed Forces” (Article 138 of the 1980 Constitution). Despite stipulations of the Constitutions, the state power was organized in accordance with the principle of socialist concentration of power hence the state power was not assigned in a transparent manner, and therefore, there was no basis for the mechanism of state power control. Thus, the mechanism of state power control has not been formed true to its meaning to ensure the exercise of state power as stipulated by the Constitutions.

During the renovation period, awareness of state power control of the Party and State of Viet Nam has gradually and qualitatively changed. First of all, in the documents of the Party and State, the recognition that the Vietnamese State is the socialist State ruled by law is a breakthrough in awareness to gradually shift from the organization of state power in accordance with the principle of socialist concentration of power to organization of state power in accordance with the principle of division of state power of the rule of law socialist state. Under the principle of socialist concentration of power, though the state power belongs to the people but the people do not accomplish their state power in the form of direct democracy, but through the National Assembly and People's Councils at all levels. So, the people are not recognized as the highest subject of the constitutional power but the National Assembly is prescribed as the sole body with constitutional and legislative-making power. Therefore, the Constitution is not the highest legal means for the people to empower and authorize (state power) to the National Assembly, the Government, the People's Supreme Court and other state agencies. Accordingly, the Constitution is not conceived as the highest legal means to limit state power, and force the State to operate within the Constitution.

The Platform on National Construction in the Transitional Period to Socialism (1991) set out a new principle of organization of state power in building the rule of law socialist state in Viet Nam, “state power is unified in the exercise of and clear assignment of legislative, executive and judicial powers.” Though there was no element on state power control in this principle, it was a fundamental change in thinking about "building Viet Nam’s rule of law state of the people, by the people, for the people" that the 7th Party confirmed. Building the rule of law state has become a major and strategic policy of the Party and State, including the organization and operation of the state apparatus. Accordingly, in 2001, the State of Viet Nam amended some articles of the 1992 Constitution on the state apparatus organization to institutionalize the Party’s stance and lines on building the rule of law socialist state, and affirmed that “our State is the rule of law socialist state of the people, by the people and for the people. State power is unified with assignment and coordination among agencies in the exercise of legislative, executive and judicial powers.” For the first time, the term “the rule of law socialist state” and the principle of “assignment, coordination” are prescribed in the Constitution of the Socialist Republic of Viet Nam. This is the foundation essential for the thinking on state power control at the 10th and 11th Party Congresses. The section “Continuing to build and perfect the rule of law socialist state” of the documents of the 10th Party Congress mentioned the “construction, improvement of the mechanism to supervise and control constitutionality and legality of activities and decisions of bodies of authority,” which elaborated in-depth on the issue of “developing mechanisms for ruling on violations of the Constitution in legislative, executive and judicial activities.” This can be considered as new awareness, and a qualitative change in theoretical thinking. “All state power belongs to the people” which was prescribed by previous Constitutions is now fully aware of and consistent with. Because, if we do not recognize the exercise of constitutional powers as the root power which establishes legislative power, executive power and judicial power, the constitutional power is higher than legislative power, executive power and judicial power, we cannot accept the true meaning of “All state power belongs to the people” and have no basis to form mechanism for the sufficient and correct control of state power.

Building on new awareness on control of state power recorded in documents of the 10th Party Congress, the Platform for National Construction in the Transitional Period to Socialism (supplemented and developed in 2011) included in the principle of organization and operation of the rule of law socialist state of Viet Nam a new element, which is the control of state power. It was the first time when the documents of the Party recognized a basic principle in the organization and operation of the rule of law socialist state, fully containing the new qualitative values as compared to the principle of socialist concentration of power. That is the principle: state power is unified, with the assignment, coordination and control among agencies in the exercise of legislative, executive and judicial powers. Institutionalizing this principle, the 2013 Constitution solemnly declares in Article 2: “The State of the Socialist Republic of Viet Nam is a socialist state ruled by law and of the people, by the people and for the people. 2. The Socialist Republic of Viet Nam is the country where the people are the masters; all the state power belongs to the people and is based on the alliance of the working class, the peasantry and the intelligentsia. 3. The state power is unified and delegated to state agencies which coordinate with and control one another in the exercise of the legislative, executive and judicial powers.”

Thus, it took 20 years to change perception on control of state power from the principle of socialist concentration of power which did not consider control of state power an objective necessity to the acknowledgement of the rule of law state in which control of state power is an integral part of the organization and operation of the state. It is the process of inheritance and development of thinking and struggling with the model of socialist concentration of power, because this model existed for a long time and deep-rooted in the way of thinking of many people that cannot be changed quickly. It is quite a process from the 6th Party Congress (1986) which initiated the renovation of state apparatus to the Platform for National Construction in the Transitional Period to Socialism (1991) which acknowledged that in the Vietnamese State, the three legislative, executive and judicial powers are unified and then to recognition of “Our State... is the socialist state ruled by law, of the people, by the people and for the people,” operating under the basic principles “state power is unified, with the assignment and coordination, control among state agencies in the exercise of legislative, executive and judiciary powers.” In terms of time, though this process is long, but that is the inevitable progress in perception through the Party Congresses.

The mechanism of state power control in the period of renovation

Given developments and changes in theoretical awareness as mentioned above, the mechanism of state power control has been gradually established and put into operation as follows:

First, the supreme oversight of the National Assembly, the National Assembly agencies and deputies have been strengthened. Compared with the 1959 and the 1980 Constitutions, the 1992 Constitution and the 1992 Constitution amended in 2001 provided the National Assembly with the highest number of forms to exercise oversight, from reviewing reports of the State President, the Standing Committee of the National Assembly, the Government, the People's Supreme Court, the People's Supreme Procuracy, reviewing legal documents issued by the State President, the Prime Minister, the People's Supreme Court, the People's Supreme Procuracy against the Constitution, laws and resolutions of the National Assembly, assessing answers to questions of the State President, the Chairman of the National Assembly, the Prime Minister, Ministers and other members of the Government, the Chief of Justice of the People's Supreme Court, the head of the People's Supreme Procuracy, establishing an interim committee to investigate into a particular issue and review reports on results of investigation of the committee (Article 7 of the Law on Oversight of the National Assembly in 2003). The 1992 Constitution amended in 2001 supplemented “vote of confidence” for positions elected and ratified by the National Assembly. The National Assembly oversees not only activities but also legal documents of agencies and individuals established and elected by the National Assembly. Thus, the National Assembly is considered the most important institution in the mechanism of state power control. Reality over the past years shows that the oversight of the National Assembly, the Council of Ethnic Minorities and the Committees of the National Assembly, the National Assembly delegations, especially hearing sessions in the National Assembly have been strengthened, and in general, supported by people.

Second, in the executive apparatus, inspection and supervision have also been enhanced, contributing to the state management and the fight against corruption.

Third, the press and the mass media have made initial contribution to state power control as an integral component of the mechanism of state power control outside the state apparatus.

However, there remain constraints in the mechanism of state power control:

As far as awareness is concerned, traditional practice of the principle of socialist power concentration is maximized, resulting in inertia, hindering the implementation of new thinking and perceptions. Therefore, there have been inconsistency and contradictions in terms of perception on the mechanism of state power control. For example, the 2013 Constitution recognizes the people as the subject of the constitutional power who “build, implement and defend the Constitution” (Preamble), but does not stipulate sanctions against violations of the Constitution in the exercise of legislative, executive and judicial powers, as defined by the Party. Therefore, there was no mechanism to control National Assembly’s legislative power. New issues in line with the Party’s standpoint on building the socialist State ruled by law, namely “assignment, coordination and control in the exercise of legislative, executive and judicial powers,” have not been consistently and deeply institutionalized by laws, particularly laws on organization of state apparatus after the 2013 Constitution came into effect.

In practice, the mechanism of state power control in Viet Nam at present, even after the 2013 Constitution came into effect, has not been perfect. There has not been an independent institution to protect the Constitution though the Resolution of the 10th Party Congress pointed out: “Develop mechanisms for ruling on violations of the Constitution in legislative executive and judicial operation.” Hence, the legislative activities of the National Assembly remain outside the control of state power.

Inspection and control of executive apparatus, the key means to serve state management, is seen as an independent institution to practice control of state power, but in reality, the Government Inspectorate and inspectors of the state management agencies are the institutions dependent on the heads of the management and in service of state management. Therefore, inspection and control of the apparatus of state management are not the subject and means to control of state power in their own right.

The shifting of function to supervise the observance of law by ministries, ministerial-level agencies, local authorities and state corporations of the People's Procuracy to elected bodies and inspection and control agencies in executive body after the 1992 Constitution was amended in 2001 has not strengthened the control of state power; negative phenomena and corruption have been discovered and settled slowly.

Within the Party, the control committees have actually exercised control over state power through control of Party officials and members in the state apparatus. They have been active only when there are complaints or denunciations, hence they lack proactivity and are not representative.

The mass media has an important role in controlling of state power, but has not been promoted sufficiently.

Continuing to build and perfect the mechanism of state power control in the new situation

First, the 2013 Constitution stipulates that the people are the subject of state power control. Article 2 of the 2013 Constitution confirms that the nature of the state is the socialist State of the people, by the people and for the people. People are masters of the State. Therefore, people are the subject who control the state power. This is an essential requirement arising from the legitimate and natural requirement of the masters. Because, if the state power is not controlled, it will be corrupt; the people who are the subject of the power and authorize their power to the State will lose their power or their power will be abused by the State.

Prompted by the above perspective, in relation to the control of state power, new understandings have been reflected in the 2013 Constitution. The 2013 Constitution has identified the people as the subject of constitutional power; The National Assembly is no longer the sole institution with constitutional power as stipulated by the 1992 Constitution. Thus, the 2013 Constitution lays the constitutional groundwork for the introduction of an external mechanism to control state power, meaning from the people. Elaborating on that, Article 6 of the 2013 Constitution stipulates, in addition to exercising state power throught representatives democracy (through the National Assembly and People's Councils and other agencies of the State), the people also exercise state power through direct democracy, such as elections and dismissal (Article 7); Citizens have the right to vote in the state referendum (Article 29); Citizens have the right to participate in managing the state and society, in discussions and make recommendations to government agencies (Article 28); The Vietnam Fatherland Front is the political unit of people's administration which supervise and provide social criticism towards activities of state agencies, elected representatives, officials, public employees and civil servants (Article 9); The Vietnam General Federation of Labor participates in inspection, and supervision and surveillance activities of state bodies (Article 10). Thus, the 2013 Constitution lays the foundation for the formation of a mechanism of state power control by the people in the form of direct democracy. With this foundation of regulations, there is a need to build a legal mechanism for the people to control the state power in the form of direct democracy (external mechanism of state power control).

Second, regarding control of state power, it is important to correctly and coherently assign and delegate the three legislative, executive and judicial powers in the state apparatus as a basis to control state power. As the people are the subject of constitutional power, they are the subject to assign state power, not the National Assembly as before. Given this understanding, the 2013 Constitution makes a new step in the division of state power.

For the first time in the history of constitution development of Viet Nam, the 1992 Constitution prescribed that the state power was made up of three legislative, executive and judicial powers (Article 2). But the 1992 Constitution did not identify explicitly legislative, executive and judicial bodies. The 2013 Constitution overcomes that constraint by identifying that the National Assembly shall perform the legislative power, the Government is the executive body and the People's Court shall perform judicial power. The recognition of the exercise of legislative, executive and judicial powers by different bodies is an important renovation compared to the principle of socialist concentration of powers of the past. It facilitates the definition of the tasks and powers properly and coherently between the offices of the National Assembly, the Government and the People's Court in the exercise of legislative, executive and judicial powers. This is the basis for control of state power and the basis for people to evaluate the effective and efficient exercise of each power to avoid overlapping, reliance, dependence or responsibility ambiguity of each power in the previous model, and build control mechanism of state power inside the state apparatus. However, the mechanism of assignment, coordination and control of state power has not been clearly defined at all levels. In reality, there remain irrational, ineffective and inefficient constraints in the state apparatus and operation of key institutions of the socialist rule of law system, such as the National Assembly, the State President, the Government, and the judicial system. Therefore, it is necessary to continue building and improving the mechanism to control legislative, executive and judicial powers (i.e. mechanism of state power control within the state apparatus), and ensuring that legislative, executive and judicial powers are controlled.

Third, the 2013 Constitution creates the constitutional basis for the establishment of a mechanism for Constitution protection (Article 119), while assigning "the National Assembly, the National Assembly agencies, the President, the Government, People's Court, People's Supreme Procuracy and other state agencies with the responsibility to protect the Constitution." Thus, though the 2013 Constitution has not yet established specialized mechanism to protect the Constitution, Article 119 has created constitutional basis for building a constitutional protection mechanism by law. Accordingly, there is a need to conduct further study to build a mechanism to protect the Constitution by law to be put into effect in the near future.

The fundamental issue of the control of state power is to enable the state apparatus to control society and control itself which is of no less significance. Accordingly, the mechanism of state power control must be comprehensive, including an external non-state mechanism for state power control, an internal mechanism for cross-control of state power by the legislative, executive and judicial bodies and an independent mechanism for state power control prescribed by the Constitution and law.

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This article was published in Communists Review, No 880 (February 2016)

Prof. Tran Ngoc Duong, PhDFormer Vice Chairman of the National Assembly Office