FOREIGN TRADE UNIVERSITY HCMC CAMPUS

DEPARTMENT OF ECONOMICS AND LAW

---------o0o---------

INTRODUCTION TO LAW
ML271
Final Assignment
Academic year: 2023-2024

Grade (in number) Grade (in words)

Examiner 1’s signature Examiner 2’s signature

Invigilator 1’s signature Invigilator 2’s signature

Course code: PLUE111

Lecturer: LLM. Tran Thanh Tam
Student: Phạm Đình Quốc Khải (No.67) - 2312155071

HO CHI MINH CITY, NOVEMBER, 2023

 TABLE OF CONTENTS
INTRODUCTION ......................................................................................................................................... 3
1. Context of the report.............................................................................................................................. 3
2. Purpose of the report ............................................................................................................................. 3
3. Key highlights ....................................................................................................................................... 3
4. Law documents used ............................................................................................................................. 4
CHAPTER I: THEORY OF THE “SEPARATION OF POWERS” FRAMEWORK ................................... 5
1. Aristotle Theory ................................................................................................................................ 5
2. Montesquieu Theory.......................................................................................................................... 5
CHAPTER II: THE SEPARATION OF POWERS IN THE VIETNAMESE LEGAL SYSTEM ................ 6
1. The legislative branch of the Vietnamese legal system ......................................................................... 6
2. The executive branch of the Vietnamese legal system .......................................................................... 7
3. The judicial branch of the Vietnamese legal system ............................................................................. 9
CHAPTER III: CONSTITUTIONAL RESTRAINTS REGARDING THE VIETNAM CONSTITUTION
..................................................................................................................................................................... 10
1. Basis of restraints: ............................................................................................................................... 10
2. Restraints in exercising power and maintaining rights ........................................................................ 11
2.2. The exercising of the legal state bodies ........................................................................................ 11
CHAPTER IV: CHECKS AND BALANCES SYSTEM IN THE VIETNAM CONSTITUTION ............ 13
1. The framework of “checks and balances” ........................................................................................... 13
2. The importance of a “checks and balances” system in Vietnam ......................................................... 13
3. The applications of the “checks and balances” system in Vietnam ..................................................... 14
CONCLUSION ........................................................................................................................................... 16
1. Summary: ............................................................................................................................................ 16
2. Recommendation:................................................................................................................................ 16
REFERENCES ............................................................................................................................................ 17

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 INTRODUCTION

1. Context of the report

One significant contribution to the development of democracy after the Age of
Enlightenment in the 17th and 18th centuries was the French Revolution, which saw the first
application of the division of powers. The concept of "separation of powers," or trias politica, was
thereafter enthusiastically embraced by many leaders of state and administration throughout the
world with the goal of distributing proper powers to the appropriate authorities while preventing
the consolidation of power. Vietnam, on the other hand, centralizes legal authority among its
people rather than adhering to this doctrine. In spite of this divergence, the Vietnamese
government is composed of various bodies that have legislative, executive, and judicial authority.
These bodies cooperate to highlight the crucial function that "citizens" or "people" play in the
Vietnamese political system.

2. Purpose of the report

This report will examine the implementation and adaptation of the division of powers
within Vietnam's legal system, predominantly consolidated under the control of the people. It will
explore how various state entities collaborate to achieve unity and harmony under the leadership
of the Vietnamese Communist Party. Additionally, the report will delve into the 2013 Vietnam
Constitution (referred to as the Constitution) to illuminate its constitutional constraints and the
presence of "checks and balances" inherent within it. Consequently, the report aims to address the
inquiry of whether the Vietnamese legal system exhibits a separation of powers, how this theory
has been modified to align with the Vietnamese governing structure, and the existence of control
measures in place.

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.

4. Law documents used

The primary source used in this research is the 2013 Socialist Republic of Vietnam
Constitution, which was enacted at the National Assembly's 13th term. However, the Democratic
Republic of Vietnam's 1946 and 1959 constitutions, which will be referenced and stated in the
References section at the end of the report, serve as support for the concepts relating to the
historical basis of various important topics.

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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.

1. The legislative branch of the Vietnamese legal system

The National Assembly of the Socialist Republic of Vietnam, also referred to as the
National Assembly, is the legislative branch of the Vietnamese legal system and is governed by
Article 69 of the Constitution.

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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:

The National Assembly has the following duties and powers:

1. To make and amend the Constitution; to make and amend laws.

(The Constitution of the Socialist Republic of Vietnam, 2013, art. 70.1)

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.

2. The executive branch of the Vietnamese legal system

In the Vietnamese legal system, the executive branch is crucial to carrying out the laws and
directives made by the legislative branch. Its duties cover a wide range of areas, such as social
welfare programs, foreign policy, economic development, national security, and defense. In
addition, the executive branch is in charge of managing different government operations,
assigning individuals to positions within the government, and implementing the laws and rules
made by the legislative branch. The government, comprising the Prime Minister, Ministers, and
heads of ministerial agencies, is in charge of the executive branch.

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.

2.2. The exercising of the legal state bodies

By requiring legislation to be passed in accordance with recognized legal standards, the
Constitution places further limitations on the use of power. The The Constitution of the Socialist
Republic of Vietnam, 2013, art. 70 states, for instance, that "The National Assembly has the
power to make and amend the Constitution and laws; to decide on national policies, strategies,
and plans; and to exercise supreme supervision over all activities of the State." This suggests that
laws must be approved by the National Assembly and that the legislative process must be
transparent, open, and accessible to the general public.

As mentioned in Article 2, point 1 and 2, the Vietnamese Constitution also imposes

restrictions on the use of government authority by mandating that the government function in a
way that upholds the public interest and socialist principles.

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

1. The framework of “checks and balances”

The legal system of Vietnam is designed with a built-in "checks and balances" mechanism
that strictly limits the authority of the three organs of government. Since the Constitution's
adoption in 1946, this system has been a fundamental component, with multiple sections enacting
limitations and granting veto privileges to different bodies (The National Assembly of
Democratic Republic of Vietnam, 1946). The need to "lock power to the cages of law and legal
mechanisms" is emphasized by Nguyen Phu Trong, the general secretary of the Communist Party
of Vietnam (Vu Duy, 2016). The articles and regulations included in the Party's Resolution and
the Constitution are symbolized by these cages.

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".

2. The importance of a “checks and balances” system in Vietnam

In Vietnam, the Party, the State, and the people are in charge of monitoring the "checks and
balances" system. The 6th National Party Congress documents comprise directives that
underscore the need for Vietnam's "checks and balances" system to conform to the maxim "The
Party leads, the State oversees and manages, and the People are in control of everything"
(Documents of the 6th National Party Congress, 1986). This means that even if state authorities
exercise their legal authority in the legislative, executive, or judicial branches, the people's power
always comes first. As a result, all arms of government are required to follow the directives found
in these texts, highlighting the critical role that "checks and balances" had in creating the Etat de
droit (or the law-governed state) of the Socialist Republic of Vietnam, which is deemed "crucial
and significant in portraying the conformity of the essence of power in the State" (T. L. Le,

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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.

3. The applications of the “checks and balances” system in Vietnam

The most recent Constitution makes it quite explicit that the National Assembly will have
certain powers and responsibilities in relation to other state organizations that are enacted.

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.

(The Constitution of the Socialist Republic of Vietnam, 2013, art. 78)

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.

Furthermore, the Constitution outlines a range of constitutional restraints, particularly

pertaining to the limitations on authority, the degree of supervision, and the extent of the
constitution itself. Notably, it highlights that no specific interest group can infringe upon
fundamental rights and freedoms and that all authority, including legal authority, is vested
completely in the people. As a result, the "checks and balances" system complements the
Vietnamese political system by giving the populace the ability to monitor, control, and examine
the actions of all three arms of government. In addition, it maintains the independence of the
judicial branch to guarantee the fair administration of justice.

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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