FOREIGN TRADE UNIVERSITY
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SEPARATION OF POWERS IN THE VIETNAMESE
LEGAL SYSTEM
Full name: Nguyen Hai Duy PLUE111 - Introduction to law
Class: K61CLC2 Instructor: Tran Thanh Tam, LLM, PhD,
Student ID: 2212345017 Candidate
Grade (in number) Grade (in words)
Examiner’s 1 signature Examiner’s 2 signature
Invigilator 1’s signature Invigilator 2’s signature
HCMC, February 2023
TABLE OF CONTENTS
PREAMBLE..........................................................................................1
CONTENT............................................................................................1
I . Overview of decentralization............................................................1
II . Power organization activities in Vietnam........................................2
2. 1. State power is unified, but there is division of duties and
coordination among the three powers...................................................2
2. 2. State power control........................................................................4
CONCLUSION.....................................................................................6
REFERENCES......................................................................................6
Dissertation - Introduction to law Candidate: Nguyen Hai Duy - 2212345017
PREAMBLE
The Separation of Powers is the concept of how the power of the State is divided among
different agencies. The separation of powers (Trias Politica) is a typical model of the Doctrine
of Separation of Power, in which the three powers of the State, Legislative, Executive, and
Judiciary are separated. This is also known as a check and balance system, because each
branch is given certain permissions to check and balance other branches. Each branch has
separate powers. The Legislative Branch exercises the power of the National Assembly, the
Executive Branch exercises executive power (Government) and the Judicial Branch exercises
judicial oversight (Courts).
With the exponentially increasing integration among countries, each country has their own
organizational governance policy which will defines and guides appropriate relationships
between an organization's owners, board of directors, and chief executive. For the benefit of
Vietnam’s political control and stability, this report aims to show 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. Besides,
pointing out factors that are clearly reflected in the Vietnamese constitutions, especially the
1946 Constitution, the 1992 Constitution (amended, supplemented in 2001) and the 2013
Constitution.
CONTENT
I . Overview of decentralization
Since its inception, the theory of decentralization has been identified as the theoretical basis
for the design and construction of state institutional models in capitalist countries. Within the
framework of the theory of decentralization, two basic decentralization models have been
established: hard decentralization and soft decentralization, which are suitable to the
economic, political, social and cultural characteristics of each country. However, regardless of
the model of decentralization, the essence of that decentralization still lies in the unity of state
power.
Hard decentralization model: This is a model that clearly distinguishes between legislative,
executive and judicial powers. The US is a country that is considered an example of
thoroughly implementing the "separation of powers" according to this model. However,
political practice in the US shows that decentralization is only in the text of the Constitution.
Regardless of how the Constitution decentralizes powers, the executive and legislative
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Dissertation - Introduction to law Candidate: Nguyen Hai Duy - 2212345017
branches are still closely linked in the exercise of state power. In particular, even when
applying the "restraint - counterbalance" mechanism from the theory of decentralization in the
division of state power, it will inevitably lead to conflicts between the legislative and the
executive, these two branches will always tend to be consistent. This unity has its origin in the
general development tendency in the capitalist system to serve the interests of the ruling
bourgeoisie first. Therefore, although there are contradictions, these conflicts will gradually
be "reconciled" so that the two branches of the legislature and the executive can join hands in
the exercise of state power.
Soft decentralized model: In this model, there is no clear division of authority between
branches of power. France is a typical example of this model. The polity in France is a
combination of Parliamentary government and the Presidential Republic with the presence of
both the President and the Government in the exercise of executive power. The President acts
as an arbiter to coordinate the operation of the state apparatus as well as the country's politics.
The President heads the executive, the Prime Minister runs the Government and is
accountable to the President and the House of Commons. The President has the power to
dissolve the House of Representatives; conversely, the House of Representatives has the
power not to approve the budget and policies of the President.
Thus, through the practice of dividing power in two different models, it can be seen that the
praise of the "separation of powers" in capitalist countries is not clear about its true nature in
the past as well as at present. In fact, the very method of separation of powers in capitalist
countries is still the unity of power in the hands of the bourgeoisie. When proposing the
theory of decentralization, the forebears did not see and did not anticipate the impact of
political parties on the division of power.
II . Power organization activities in Vietnam
2. 1. State power is unified, but there is division of duties and coordination among the
three powers
Up to now, with the renovation and opening-up, and especially with the construction of the
rule of law, the rational kernels in the theory of decentralization have been recognized in the
provisions of the 1992 Constitution, amended in 2001. Article 2 of this Constitution provides:
“The State of the Socialist Republic of Vietnam is a socialist rule of law state of the people,
by the people, for the people. All state power belongs to the people whose foundation is the
alliance between the working class with the peasantry and the intelligentsia. State power is
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Dissertation - Introduction to law Candidate: Nguyen Hai Duy - 2212345017
unified, with assignment and coordination among state agencies in the exercise of legislative,
executive and judicial powers.
The above provision has not only been reaffirmed, but has also been divided into three clearer
clauses and added a "control" provision between the three legislative, executive and judicial
powers as follows:
1. The State of the Socialist Republic of Vietnam is a socialist rule of law state of the People,
by the People, for the People.
2. The Socialist Republic of Vietnam is owned by the People; All state power belongs to the
people whose foundation is the alliance between the working class and the peasantry and the
intelligentsia.
3. State power is unified, with assignment, coordination and control among state agencies in
the exercise of legislative, executive and judicial powers (Article 2 of the 2013 Constitution).
From total denial to admitting even one of the tiny kernels of the doctrine is a huge shift in
our perception that has come to have to apply relative decentralization. Since then, many
people, including experts in jurisprudence, politics, and politicians in the mass media, have
the view that: Legislature must be taken up by the National Assembly and executive must be
done by the National Assembly. The Government assumes responsibility, in accordance with
the spirit of the wording of the Constitution. Even many people have the opinion that it is
necessary to transfer all activities related to legislation, from drafting to passing a draft law to
the National Assembly, the Government will now only focus on administrative work that is to
run the country according to the provisions of the legislation passed by the National
Assembly.
In recent years, the creation of legislative power from the Government of Vietnam has also
accounted for a similar number. Many people have had many opinions that the Government
has encroached on the work of the National Assembly. And moreover, through the submission
of Law projects, the Government and Ministries have the ability to insert their interests into
the bills. Commenting on this objective fact, and suggestions for avoiding the consequences
of embedding executive interests in bills, in a recent workshop on “Capacity Building Projects
of elected bodies” said Mr. Kevin Deveaux, UNDP's project technical advisor: If the
Committees draft the bill themselves, submit it and verify it - as the two Committees of the
National Assembly did in the XI session. which is also a good thing, because it tests the
possibility of taking a certain percentage of the input of bills. Avoid the absolute monopoly of
the executive party. But the vast majority of bills are submitted to the National Assembly by
the executive branch, which is not a bad thing, because it is an indispensable requirement of
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Dissertation - Introduction to law Candidate: Nguyen Hai Duy - 2212345017
real life. The National Assembly is not an executive agency, so it will be difficult to
memorize what is stuck, what needs to be adjusted to ensure the executive's operating
efficiency as they are. So it seems natural for the executive to submit the bill, and they are
motivated to do so. The National Assembly needs to pay attention and do its important job
well - verifying and approving bills rather than worrying that if too large a proportion of bills
submitted by ministries and branches will obscure its literal role of “law-making”. Instead of
worrying about that, the better thing to do is to assess how the law projects, when applied to
life, will affect the people represented by representatives and must balance the interests of the
stakeholders and object of the rule to choose the most optimal solution. It is from the
verification activities of the Committees that are promoted, the law projects there are through
the process of interaction between delegates, conflicts of interest at local and central levels,
between sectors, gender, ethnic groups, etc. consultation with experts, people... This is also an
important step in deciding the quality of the law project.
The above analyzes are manifestations of the unity of state power, which researchers of the
theory as well as practice of the capitalist state system, despite of all acknowledge the
application of the theory of decentralization. can not be ignored.
2. 2. State power control
Due to different subjective and objective conditions, the principle of controlling state power
has not been regulated until now in the 2013 Constitution. In principle, the Vietnamese legal
system does not belong to the group of civil law systems (Civil law), but due to historical
conditions, it was once a colony of France, and later belonged to the legal system of socialist
countries. Regarding Socialist Republic of Vietnam, so the legal system of Vietnam has many
similarities with the civil legal system, and especially in the period of centralization and
subsidies, so all issues related to the state need to be regulated in a detailed way, there is a
chance for actual implementation.
That said, it does not mean that the problem of controlling state power has never existed in
Vietnam. Not so, the problem of controlling state power is more or less present. Like other
countries, once a written constitution is in place and its supremacy is acknowledged, there is
control over power. There are even many people who believe that, under the feudal system,
the power of the Vietnamese feudal state was also controlled and limited more or less by the
village system.
Therefore, in order to amend these shortcomings, Clause 3, Article 2 of the 2013 Constitution
clearly stipulates that state power is unified, with assignment, division of duties and control
among legislative, executive, and executive powers. and judicial. For the first time in
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Dissertation - Introduction to law Candidate: Nguyen Hai Duy - 2212345017
Vietnam's constitutional history, control over state power is regulated at the level of the
Constitution. The control of state power must first be expressed in decentralization. When
state power is not divided, it is difficult to control. Unlike previous constitutions, the state
power of the 2013 Constitution is clearly divided into three rights. Paragraph 2 of Article 69
of this Constitution clearly stipulates: “The National Assembly exercises constitutional and
legislative rights…” Paragraph 1, Article 94 stipulates: “The Government is the highest state
administrative organ of the Socialist Republic of Vietnam. Socialist Republic of Vietnam,
exercising executive power…” And especially, Clause 1, Article 102 of the Constitution
stipulates: “The People's Court is the adjudicating organ of the Socialist Republic of Vietnam,
exercising the right of private France."
This is one of the great strides in the history of Vietnam, although it is still a centralized
authority, there are still clear provisions for there legislative, executive and judicial powers
with 3 corresponding agencies to implement. That is the most basic basis for the
implementation of the provisions of "control of power" in Article 2, Chapter I - on the
principle of organizing state power, which no Constitution in history has shown.
Following the above principled regulation, the content of state power control must be
reflected focusing on internal control between branches of power, with the focus being on
government-executive control. Although the previous and current Vietnamese state apparatus
still does not claim to follow the representative model, the representations of parliament are
still reflected in its regulations. That is, the National Assembly-legislator is elected by the
people to exercise state power, directly establishes the Government-executive, and this
Government is responsible to the National Assembly (Article 94). The Government is
responsible for making policies and submitting them to the National Assembly (Article 96,
Clause 2). And more specifically, the National Assembly has the right to supervise the
Government in many different ways such as listening to reports, as well as the Government's
explanations, the National Assembly deputies questioning the Prime Minister and members of
the Government. In special cases, the National Assembly has the power to remove the Prime
Minister and members of the Government (Clause 7, Article 70). That is the focus of the
control of state power.
The most obvious point for the implementation of the principle of controlling state power in
Vietnam, which bears the shape of the constitutions of bourgeois democratic countries, is the
reaffirmation of the spirit of the 1992 Constitution (amended and supplemented in the year
1992). 2001) in the provisions of the 2013 Constitution, Clause 1, Article 88, when this
Constitution stipulates the right of the President to request the National Assembly Standing
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Dissertation - Introduction to law Candidate: Nguyen Hai Duy - 2212345017
Committee to review the ordinance within ten days from the date of issue. If an ordinance is
passed and is still voted for by the Standing Committee of the National Assembly, but the
State President still disagrees, the President shall submit it to the National Assembly for
decision at the nearest meeting. This is the relative veto power of the executive over the
legislative documents - one of the important manifestations of the executive's supervisory
power over the legislature. But this right is not extended by the constitution to the legislative
domain of the National Assembly, but only to the ordinances of the Standing Committee of
the National Assembly.
CONCLUSION
Although it is prescribed in a principled interpretation: State power is unified, but there is still
division, coordination and control among the three legislative, executive and judicial powers.
But in general, there is a connection between them. The unity and control of power lies right
in the assignment and decentralization, ie decentralization. Regardless of the decentralized
model of state organization, the executive still intervenes in the legislative field, even
legislation is the need of the executive. It is a law of the organization of state power in modern
times, which we cannot ignore in absorbing the experiences of countries around the world, it
is a manifestation of the unity of power, but there is still a division, which we call a division
of power.
REFERENCES
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4. Samuel Kernell and Gary C. Jacobson, American Political Logic , Publishing House.
National Politics, Hanoi, 2007, p. 123.
5. The Legislative Philosophy of Nguyen Sy Dung, Spark No. 7, 2003.
6. Robert E. Ward and Roy C. Macridis. Modern Political Systems Europe . Prentic, Hall,
Inc. Englewood Cliffs, New Jersey Library of Congress Catalog No 63.11095, p.156.
7. Hanoi Law University, General Theory of State and Law, Publishing House. Justice 2018
8. Hanoi National University, General Theory of State and Law Textbook, Publishing
House. Hanoi National University 2005
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Dissertation - Introduction to law Candidate: Nguyen Hai Duy - 2212345017
9. Hanoi National University, General Theory of State and Law Textbook, Publishing
House. Hanoi National University 1998 and National Academy of Public Administration,
General Theory of State and Law, Publishing House. Hanoi National University 2001
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supplementing the 1992 Constitution and organizing the state apparatus", Publishing House.
Labor, Hanoi, 2013
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12. Bryan A. Garner (ed.), (2009), Black's Law Dictionary, 9th ed. (St. Paul, MN: Thomson
Reuteurs.
13. Communist Review, Politics Issue, Importing the “Separation of powers” doctrine or
promoting political instability, and power conflict, August 16, 2019.
