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67 - Phạm Đình Quốc Khải - 2312155071
67 - Phạm Đình Quốc Khải - 2312155071
INTRODUCTION TO LAW
ML271
Final Assignment
Academic year: 2023-2024
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INTRODUCTION
3. Key highlights
Vietnam has a consolidated and centralized power structure with citizens or the people as
the ultimate authority, rather than adhering to the "separation of powers" doctrine. Nonetheless,
the Constitution gives relevant bodies the three different types of power to guarantee the efficient
execution of legal proceedings. A serious issue with corruption and the decline in the thinking of
leaders surfaces. As a result, in order to supervise, examine, and carry out trials and guarantee
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that all actions comply with the values of truthfulness, sufficiency, and impartiality, stringent
directives from Party documents and State leaders are required.
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CHAPTER I: THEORY OF THE “SEPARATION OF POWERS”
FRAMEWORK
1. Aristotle Theory
Aristotle, an early proponent of the separation of powers, laid the foundation in his
work "Politics." Observing governance during his time, he identified three elements forming
the government: deliberation on public affairs, concern with magistrates and law execution,
and the formation of a judicial entity. While primitive, Aristotle's framework emphasized the
importance of these entities working together for the stability and welfare of the state. Despite
lacking detailed interrelationships, Aristotle's "Politics" remains a foundational text for later
generations.
2. Montesquieu Theory
Montesquieu, an 18th-century French philosopher, expanded on Aristotle's ideas in
"The Spirit of the Laws." He proposed the separation of powers into three branches:
legislative, executive, and judicial. The theory aimed to prevent the abuse of power by
distributing authority evenly and creating checks and balances. The legislative branch
represents the people, the executive enforces laws, and the judicial interprets and enforces
laws independently. Montesquieu's work has had a profound impact on political theory and
constitutional law, becoming a cornerstone of democratic governance.
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CHAPTER II: THE SEPARATION OF POWERS IN THE VIETNAMESE
LEGAL SYSTEM
The issue of whether Vietnam's legal system has adopted any earlier doctrines will be
covered in this chapter. The initial 1946 Vietnamese Constitution (The National Assembly of
Democratic Republic of Vietnam, 1946, arts. 22, 23, 52, 63) established the basic framework for
the separation of legal authority. It should be emphasized, nonetheless, that the Vietnamese legal
system employs a unified power structure instead of separate powers in accordance with the
aforementioned trias politca theory since the 1959 adoption of the Vietnamese Constitution. (The
National Assembly of Democratic Republic of Vietnam, 1959, art. 4)
Furthermore, the union of the three legal branches is on emphasis in the latest Constitution
under Article 2, point 1, 2 and 3 as:
1. The Socialist Republic of Vietnam State is a socialist rule of law State of the people, by
the people, and for the people.
2. The people are the masters of the Socialist Republic of Vietnam State; all state powers
belong to the people whose base is the alliance between the working class, the peasantry,
and the intelligentsia.
3. The State powers are unified and distributed to state bodies, which shall coordinate with
and control one another in the exercise of the legislative, executive and judiciary powers.
(The Constitution of the Socialist Republic of Vietnam, 2013, art. 2)
Although the state is inherently one, there is a purposeful plan to split some parts of the
legal system into the appropriate branches. This is done in order to maintain a harmonious
functioning system because the total concentration of power without these divisions would not be
operationally efficient. This highlights the significance of allocating authority among various
branches while keeping the people's supervision over each branch's operations.
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1. The National Assembly is the highest representative organ of the people and the
highest organ of State power of the Socialist Republic of Vietnam.
2. The National Assembly exercises constitutional and legislative powers, decides
significant national affairs, and exercise supreme control over all activities of the
State.
(The Constitution of the Socialist Republic of Vietnam, 2013, art. 69)
Moreover, the following Article 70, point 1 provides a precise definition of the National
Assembly's powers and obligations:
This indicates that the National Assembly is in charge of creating and enforcing laws,
codes, and the Constitution. Such power is consistent with Montesquieu's hypothesis of how the
legislative branch ought to function. However, it should be remembered that the people of the
public own the entire legislative authority to create and change the Constitution, with the
National Assembly serving as the people's council's supreme representative.
Article 94
The Government is the executive organ of the National Assembly, exercise the executive
power, and is the highest organ of State administration of the Socialist Republic of
Vietnam.
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The Government is accountable to the National Assembly and shall make its reports to the
National Assembly, its Standing Committee, and the State President.
Article 95
1. The Government shall be composed of the Prime Minister, the Deputy Prime Ministers,
the Ministers, and heads of organs of ministerial rank.
The structure and numbers of members of the Government are decided by the National
Assembly.
The Government shall operate as a collegium and take its decisions by a vote of the
majority.
2. Prime Minister is the head of the Government, is accountable before the National
Assembly on the activities of the Government and assigned duties, and shall report to the
National Assembly, the National Assembly’s Standing Committee, and the State President
on the activities of the Government and the Prime Minister.
3. The Deputy Prime Ministers shall assist the Prime Minister in the performance of his
duties, as required by him, and are accountable to the Prime Minister. In the absence of
the Prime Minister, one of his Deputies shall be delegated by him to direct the work of the
Government.
4. The Ministers and Heads of organs of ministerial ranks shall be personally accountable
to the Prime Minister, the Government, and the National Assembly on their respective
fields and branches, and shall be, together with other members of the Government,
collectively accountable for the activities of the Government.
(The Constitution of the Socialist Republic of Vietnam, 2013, arts. 94, 95)
Overall, the executive branch in Vietnam assumes a pivotal and multifaceted role within the
country's legal system, exerting considerable influence on the implementation and enforcement of
laws and policies. The symbiotic relationship between the executive branch and the ruling
Communist Party of Vietnam enhances its efficacy in carrying out its functions. This close
association underscores the alignment of political objectives, facilitating a streamlined and
coordinated approach to governance as a key driver of Vietnam's legal and administrative
apparatus. The synergistic collaboration between the executive branch and the Communist Party
not only ensures a cohesive execution of governmental functions but also reflects the distinctive
political landscape that characterizes Vietnam's governance structure.
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3. The judicial branch of the Vietnamese legal system
The Vietnamese judicial branch, unlike counterparts in other countries, includes not only a
hierarchy of courts from Provincial to the Supreme Court but also unique institutions called
people's procuracies, tasked with controlling and ensuring proper judicial activities.
Article 102
1. The people’s courts are the judicial organ of the Socialist Republic of Vietnam,
exercising the judicial power.
Article 107
1. The people's procuracies shall exercise the power to prosecution and control judicial
activities.
(The Constitution of the Socialist Republic of Vietnam, 2013, art. 102.1, 107.1)
Essentially, the People's courts will exercise their judicial power, and the People's
procuracies will ensure that these courts make the right verdicts for the right people, maintaining
justice throughout the duration of the case.
Heads of State and the Party have established strategies to lessen and uphold the close ties
between the branches. These strategies are stated as follows in the Documents of the 12th
National Party Congress: "[...] must control the power in every level, in every department" ("Đại
hội Đại biểu toàn quốc lần thứ XII của Đảng," 2016; Nguyen, 2018). As previously mentioned,
one of the primary obstacles that our Party and the State must surmount and devise sophisticated
means to guarantee a smooth administrative procedural flow is the challenge of regulating power,
particularly legal power.
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CHAPTER III: CONSTITUTIONAL RESTRAINTS REGARDING THE
VIETNAM CONSTITUTION
1. Basis of restraints:
Articles 4 and 8 of the Vietnamese Constitution describe constitutional restrictions, stating
that laws and the Constitution represent the will of the people and that, as such, actions of entities
must conform to these legal frameworks. These limitations are meant to ensure that the
government respects the law and protects people's rights and liberties.
Article 4
1. The Communist Party of Vietnam, the vanguard of the Vietnamese working class,
simultaneously the vanguard of the toiling people and of the Vietnamese nation, the
faithful representative of the interests of the working class, the toiling people, and the
whole nation, acting upon the Marxist-Leninist doctrine and Ho Chi Minh’s thought
is the leading force of the State and society.
2. The Communist Party of Vietnam maintains intimate contact with the people, serves
the people, submits to people’s supervision, and is accountable to the people in its
decisions.
3. All Party organizations and members of the Communist Party of Vietnam operate
within the framework of the Constitution and the laws.
Article 8
1. The State is organized and operates in concordance with the Constitution and the
laws, governs the society by the Constitution and the laws, and practices the
principle of democratic centralism.
2. All State agencies, cadres, officials and employees must show respect for the people,
devotedly serve the people, maintain close contact with the people, listen to their
opinions and submit to their supervision; resolutely struggle against corruption,
wastefulness and all manifestations of bureaucracy, arrogance, authoritarianism.
(The Constitution of the Socialist Republic of Vietnam, 2013, arts. 4, 8)
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2. Restraints in exercising power and maintaining rights
2.1. Rights of each citizen:
Article 14 also mentions the protection of individual rights and freedoms as constitutional
restraints.
Article 14
1. In the Socialist Republic of Vietnam, political, civic, economic, cultural, and
social human rights and citizen’s rights are recognized, respected, protected, and
guaranteed in concordance with the Constitution and the law.
2. Human rights and citizen’s rights shall only be restricted in imperative
circumstances for the reasons of national defense, national security, social order
and security, social morality, and the health of the community.
(The Constitution of the Socialist Republic of Vietnam, 2013, art. 14)
This fundamental principle laid on the foundation of various articles throughout the
Constitution, providing explicit assurances of rights such as freedom of speech, freedom of
assembly, freedom of religion, and an array of other individual rights. These constitutional
provisions collectively serve as a comprehensive framework, not only affirming the citizens'
entitlement to fundamental freedoms but also reinforcing the commitment to a governance
structure rooted in the principles of democracy, human rights, and the rule of law.
Article 2
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1. The Socialist Republic of Vietnam State is a socialist rule of law State of the people, by
the people, and for the people.
2. The people are the masters of the Socialist Republic of Vietnam State; all state powers
belong to the people whose base is the alliance between the working class, the
peasantry, and the intelligentsia.
(The The Constitution of the Socialist Republic of Vietnam, 2013, art. 2.1, 2.2)
This implies that the public interest, not the interests of any specific interest group, is what
the state agencies are meant to represent.
This implies that the public interest, not the interests of any specific interest group, is what
the state agencies are meant to represent.
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CHAPTER IV: CHECKS AND BALANCES SYSTEM IN THE VIETNAM
CONSTITUTION
This methodology is based on the understanding that any entity that has unbridled power
will eventually corrupt itself and exhibit depreciating behavior (N. Le, 2022). As a result, the
Constitution lays out a number of ways for one branch to keep an eye on and impose limitations
on the other. It is important to remember, nonetheless, that Vietnam's "checks and balances"
system places more emphasis on legal procedures to monitor and examine the operations of the
three departments than it does on Montesquieu's idea of "trias politica".
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2017). Without strong support from the legal framework for the "checks and balances" system,
state authorities run the risk of becoming corrupted and abusing their legal authority, which could
lead to "group benefits" (Thai, 2018). Consequently, in order to avoid any corruption or mental
decline that could have a negative impact on the populace as well as society, the State must
constantly enforce the limitations outlined in the Constitution and create investigative panels.
Article 70
3. To exercise supreme control over conformity to the Constitution, the law and the
resolutions of the National Assembly, to examine the reports of the State President, the
Standing Committee of the National Assembly, the Government, the Supreme People's
Court, the Supreme People's Procuracy, the National Commission of Election, the State
Audit, and other organs created by the National Assembly;
6. To regulate the organization and activity of the National Assembly, the State President,
the Government, the People's Courts, the People's Procuracy, the National Council of
Election., the State Audit, local governments, and other organs created by the National
Assembly.
(The Constitution of the Socialist Republic of Vietnam, 2013, art. 70.3, 70.6)
With the authority to "create and modify laws," the National Assembly possesses the
capability to not only oversee the judicious application of laws by the leaders of the Judicial
branch, including the Supreme People’s Court and the Supreme People's Procuracy, but also to
impose limitations on this branch. Moreover, the National Assembly exercises control over the
alignment of the Government's executive documents with the promulgated laws. Acting as the
supreme representative body chosen by the people through voting, the National Assembly can, in
pressing situations or when necessary, convene a committee to scrutinize and evaluate the actions
of other entities.
Article 78
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In case of need, the National Assembly creates provisional committees to examine and
check a proposal or investigate a certain problem.
This can play a crucial and impactful role in examining and preventing corruption and
bureaucratic manipulation commonly observed among leaders or heads of government, both at
local and national levels. General Secretary Nguyen Phu Trong, during the National Conference
on Party Construction in 2017 (Ba Thang, 2017), pointed out that the weakness in managing
government personnel stems from the absence of effective "checks and balances," directly
confronting this issue (Cong Minh et al., 2018). Therefore, implementing a robust and adequate
system of "checks and balances," endorsed and monitored by the National Assembly, will ensure
the alleviation of the stated problem.
As can be seen from the above, one of the most intriguing components of the Constitution
is the National Assembly's many bodies of monitoring. As stated in Point 2 of Article 103, the
judicial branch acts independently in the exercise of its judicial functions, however.
Article 103
2. The trials of the judges and assessors are independent and shall only obey the law; the
interference into the trials of the judges and assessors by bodies, organizations, and
individuals is strictly prohibited.
(The Constitution of the Socialist Republic of Vietnam, 2013, art. 103.2)
However, neither the Constitution nor the laws mention the judicial branch's oversight or
authority over the executive branch. The National Assembly is the supreme and last
representative of the people, meaning that the system of "checks and balances" belongs to the
citizens and not to any one person or organization.
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CONCLUSION
1. Summary:
Upon examination of the Vietnamese Constitution in 2013, it becomes evident that Vietnam
does not adhere to the doctrine of "separation of powers”. Instead, the complete authority and
ownership of legal capabilities rest with the people and the public, with only the exercise of such
power being delegated among state authority entities. Furthermore, it oversees the activities of
both the executive branch, the Government, and the judicial branch, which includes the people's
courts and people's procuracy. All branches collaborate harmoniously to ensure the optimal
outcome for the progressive development of a law-governed Socialist Republic of Vietnam.
2. Recommendation:
In the Vietnamese legal system, the formal separation of powers outlined in the constitution
coexists with the influence and dominance of the Communist Party. While the branches of
government exist on paper, the practical application of checks and balances is limited. The Party's
central role and its influence on key decisions highlight the complexities and challenges of
achieving a clear separation of powers in the Vietnamese context. Understanding the nuances of
this system requires a careful examination of both constitutional principles and the political
realities that shape the legal landscape. Therefore, a strategy for improving law enforcement
named Ergo can be derived from a study of the doctrine defined by Montesquieu.
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