FOREIGN TRADE UNIVERSITY HCMC CAMPUS

DEPARTMENT OF ECONOMICS AND LAW

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INTRODUCTION TO LAW
ML 278
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: Le Hai Uyen (No. 51) – 2312155219

HO CHI MINH CITY, NOVEMBER, 2023

 Table of Contents
INTRODUCTION.......................................................................................3
1. Context of the report................................................................................................3

2. Purpose of the report................................................................................................3

3. Law documents used................................................................................................3

CHAPTER 1. Research on the appearance of separation of powers in

the Vietnamese legal system...............................................................................4
1.The doctrine of separation of powers.......................................................................4

1.1. The background................................................................................................4

1.2. Three branches of power:.................................................................................4

2.The separation of powers in the Vietnamese legal system.......................................5

2.1. The application of the Separation of powers doctrine in the Vietnamese legal
system.................................................................................................................................5

2.2. The legislative branch of the Vietnamese legal system....................................7

2.3. The executive branch of the Vietnamese legal system.....................................8

2.4. The judiciary branch of the Vietnamese legal system......................................9

CHAPTER 2. The relationship between the doctrine of Separation of

powers and the protection of liberty and good governance...........................11
1.Montesquieu's doctrine...........................................................................................11

1.1. The relationship between the Trias Politica doctrine and the protection of
liberty................................................................................................................................11

1.2. The relationship between the Trias Politica doctrine and good governance 11

2. The relationship between the Vietnamese legal system and the protection of
liberty and good governance...............................................................................................12

CONCLUSION..........................................................................................14

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 INTRODUCTION
1. Context of the report
The state or government is considered the central institution of a formal political structure. In
terms of definition, the state is a special political organization with the authority to maintain
the stability of society and protect the rights and interests of the ruling class. Power is
therefore a necessary instrument for the State to carry out its duties. One pivotal aspect is the
principle of the separation of powers, a cornerstone in democratic governance. Vietnam, on
the other hand, does not adhere to this theory and instead gives its citizens centralized legal
authority.
2. Purpose of the report
First, by looking at constitutional provisions, legislative actions, and judicial practices, the
report aims to define how much the separation of powers is embedded in Vietnam's legal
system. Second, it clarifies the crucial connection between Vietnam's good governance,
individual liberty protection, and the division of powers.
3. Law documents used
The primary legal document used in this report is the 2013 Socialist Republic of Vietnam
Constitution. Additionally, the Democratic Republic of Vietnam's 1946 and 1959
Constitutions are also used to serve as support for the concepts relating to the historical basis
of several important points.

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 CHAPTER 1. Research on the appearance of separation of powers in the Vietnamese
legal system

1. The doctrine of separation of powers

1.1. The background
Examining historical precedents reveals that the concept of the division of powers
within the state has prolonged origins. Its earliest indications can be seen in the structure and
functions of the Greek and Old Roman governments, as well as in the political theories of
Aristotle.
Aristotle (384 - 322 BCE) was an ancient Greek philosopher and scientist, one of the
greatest intellectual figures of Classical antiquity and Western history (A. H. Amadio and
Anthony J.P. Kenny, 2023). The theory of the separation of powers was first mentioned by
him. Aristotle’s Politics (350 B.C.) identified the three functions of government to be the
deliberative (legislative), magisterial (executive) and judicative (courts). However, he made
no mention of exercising these roles independently. Initially, these components are merely
explained in terms of their authority, function, and structure - the discrete parts of the state
power structure - without going into detail about how they work or how they relate to one
another. Despite its deep historical roots, the concept of separation of powers didn't fully
develop into a coherent theory until the Enlightenment.
Charles-Louis de Secondat, baron de La Brède et de Montesquieu, was a prominent
French philosopher and political theorist who lived during the Age of Enlightenment in the
18th century (Shackleton R., 2023). His most well-known work, "The Spirit of the Laws"
(1748), offers a thorough examination of political systems and the underlying ideologies. The
idea of the separation of powers, which has had a significant influence on political theory and
constitutional law, is one of the main concepts presented in this work.
Separation of powers is a model that divides the government into separate branches,
each of which has separate and independent powers (Cornell Law School, n.d.). The main aim
of the distribution of power in this way is to prevent any one branch or person from being
supreme and to introduce ‘checks and balances’ through which one branch may limit another.
Separating these powers is essential to protect individual rights and democracy.
1.2. Three branches of power:
Montesquieu divides power in three ways: the power to make laws, the power to
engage with other countries, and the power to enforce (and interpret) the nation’s laws.
“In every government there are three sorts of power: the legislative; the
executive in respect to things dependent on the law of nations; and the
executive in regard to matters that depend on the civil law.”
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 (Montesquieu, 1748).

According to Montesquieu, the executive branch, which has the authority to enforce
laws, and the judiciary branch, which has the authority to interpret laws in cases involving
individuals, share the third power, which is the application of a country's laws.
“By virtue of the first, the prince or magistrate enacts temporary or perpetual
laws, and amends or abrogates those that have been already enacted. By the
second, he makes peace or war, sends or receives embassies, establishes the
public security, and provides against invasions. By the third, he punishes
criminals, or determines the disputes that arise between individuals. The latter
we shall call the judiciary power, and the other simply the executive power of
the state.”
(Montesquieu, 1748).
In conclusion, typically, this system divides the government into three branches: the
Legislative Branch, the Executive Branch, and the Judicial Branch. Each of these branches
has its own power and is not in conflict with others. Specifically, the Legislation is in charge
of making the laws, the Executive has the power to administer the law, and the Judiciary
power refers to the ability to interpret the law.
2. The separation of powers in the Vietnamese legal system

2.1. The application of the Separation of powers doctrine in the Vietnamese legal
system
In reality, Vietnam's first Constitution in 1946 essentially outlined the distribution of
legal authority. At the time, Vietnam's state apparatus was structured with flexible
decentralization. As a result, it was proposed during the study of the 1946 Constitution that
President Ho Chi Minh "accepted the decentralization of powers" during its development.
Article 22
The National Assembly is the highest body of authority of the Democratic
Republic of Vietnam.
Article 43
The highest administrative body of the nation is the Government of the
Democratic Republic of Vietnam.
Article 63

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 The judicial bodies of the Democratic Republic of Vietnam shall comprise: (i)
the Supreme Court; (ii) the Courts of Appeal; (iii) the courts of second and
first instance.
(The National Assembly of Democratic Republic of Vietnam, 1946, arts. 22, 43, 63).
However, it should be noted that the Vietnamese legal system has employed a unified
power structure instead of dividing powers in accordance with the aforementioned Separation
of powers doctrine since the implementation of the Vietnamese Constitution in 1959.
Article 4
All power in the Democratic Republic of Vietnam belongs to the people. The
people use their power through the National Assembly and People's Councils
at all levels elected by the people and accountable to the people.

The National Assembly, People's Councils at all levels and other State
agencies all practice the principle of democratic centralism.
(The National Assembly of Democratic Republic of Vietnam, 1959, art. 4).
In contrast to the 1946 Constitution, the 1959 and 1980 Constitutions altered the
extent to which power was delegated. But fundamentally, the National Assembly continued to
serve as the legislative body, the Government Council (as defined by the 1959 Constitution),
or the Council of Ministers (according to the 1980 Consitution) as the executive body, and the
court and procuracy agency as the judicial body.
Putting into practice the renovation policy, the 2013 Constitution establishes the basic
principles for the structure and functioning of the State of the Socialist Republic of Vietnam
in the new era: 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). This institutionalizes the idea of organizing the state power in the
spirit of maintaining the socialist state of the people, by the people, for the people. In contrast
to the "Separation of powers" doctrine, the people own the state power in the Socialist State of
Vietnam since it is unified and non-divided.

Article 2 of the 2013 Constitution of the Socialist Republic of Vietnam clearly states:
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.

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 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 aforementioned principle of state power organization and constitutionalized

control of state powers are the most vital legal foundations for ensuring that all state powers
relate to the people. It highlights the fact that all authority rests with the people; the people are
the supreme and only subject of state authority.
Vietnam organizes state power according to the principle of unified power, not
"isolation," but with "delegation" among state agencies, where the National Assembly is the
highest state power agency, delegated to exercise legislative power; the Government exercises
executive power; the People's Court along with the People's Procuracy is delegated to exercise
judicial power. The objective is to clearly define the functions, tasks of each type of state
agency, avoiding duplication, overlap, and conflicts between agencies. Based on the goals of
maintaining balance and ensuring an efficient allocation of power, this division of power
guarantees both unity and coordination as well as mutual control.
2.2. The legislative branch of the Vietnamese legal system
The legislative power refers to the National Assembly of State power of the Socialist
Republic of Vietnam, according to Article 69 of the 2013 Constitution. It emphasizes that the
National Assembly is the supreme body of state authority, other state organs established by
the National Assembly, must report to the National Assembly and be monitored by the
National Assembly.
Article 69
The National Assembly is the highest representative organ of the people and
the highest organ of State power of the Socialist Republic of Vietnam.

The National Assembly exercises constitutional and legislative powers, decides

significant national affairs, and exercises supreme control over all activities of
the State.
(The National Assembly of Socialist Republic of Vietnam, 2013, art. 69).

The duties and powers of this branch are also regulated in Article 70 of the Constitution:

Article 70

The National Assembly has the following duties and powers:

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

2. 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;

(The National Assembly of Socialist Republic of Vietnam, 2013, arts. 70.1,

70.2).

In conclusion, the legislative branch, represented by the National Assembly in

Vietnam, plays a crucial role in the governance structure. It is typically responsible for
enacting laws, approving budgets, and overseeing the actions of the executive branch.

2.3. The executive branch of the Vietnamese legal system

The executive power belongs to the Government with the Prime Minister, the Deputy
Prime Ministers, the Ministers, and heads of organs of ministerial rank, according to Articles
94 and 95 of the 2013 Constitution.

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.
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.

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 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 National Assembly of Socialist Republic of Vietnam, 2013, arts. 94, 95.1).

In conclusion, the executive branch, headed by the government, is typically

responsible for implementing laws, formulating policies, and managing day-to-day state
affairs.
2.4. The judiciary branch of the Vietnamese legal system
Articles 102, 104 and 107 of the 2013 Constitution state that the judicial power
is administered by both the People’s Court and People's Procuracy.

Article 102
1. The people’s courts are the judicial organ of of the Socialist Republic of
Vietnam, exercising the judicial power.
2. The people’s courts comprise the Supreme People's Court and other courts
established by law.
3. The people’s courts are responsible for the protection of justice, human
rights, citizen’s rights, socialist regime, interests of the State, and legal rights
and interests of organizations and individuals.

Article 104
1. The Supreme People's Court is the highest judicial organ of the Socialist
Republic of Vietnam.

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 2. The Supreme People's Court supervises and directs the judicial work of
other courts, except the cases provided by the law.
3. The Supreme People's Court exercises the summarization of the practice of
trials, and ensure the uniform application of law in trials.

Article 107
1. The people's procuracies shall exercise the power to prosecution and
control judicial activities.
2. The people’s procuracies comprise the Supreme People’s Procuracy and
other procuracies provided by the law.
3. The people’s procuracies are responsible for the protection of law, human
rights, citizen’s rights, socialist regime, interests of the State, and legal rights
and interests of organizations and individuals, thus contributing to ensuring
that laws are strictly and uniformly observed.
(The National Assembly of Socialist Republic of Vietnam, 2013, arts. 102, 104, 107).

Since there is no separation of powers in Vietnam, the country's judiciary and judicial
powers are very different from those of many other nations. By examining the evolution of
the notion of judicial power and its current appearance in our nation, the following features of
Vietnamese judicial power can be stated: independence, consistency, coordination, control
over executive power, and political (headed by the Communist Party of Vietnam) aspects.
In conclusion, the judiciary branch in Vietnam, consisting of the People's Court and
the People's Procuracy, is typically responsible for interpreting laws, adjudicating legal
disputes, and safeguarding justice.

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 CHAPTER 2. The relationship between the doctrine of Separation of powers and the
protection of liberty and good governance

1. Montesquieu's doctrine
1.1. The relationship between the Trias Politica doctrine and the protection of
liberty
Individual liberty, according to Montesquieu, is dependent on the separation of powers
and persons.
“When the legislative and executive powers are united in the same person, or
in the same body of magistrates, there can be no liberty . . . . Again, there is no
liberty, if the judiciary power be not separated from the legislative and
executive.”
(Montesquieu, 1748)
The saying signifies the common understanding of the rationale behind the separation
of power. This means that when one person or group holds both the power to make laws and
the power to enforce them, it can threaten liberty. This is because there's a risk that they might
create and enforce tyrannical laws, leading to oppression and a lack of freedom.
Therefore, dividing governmental powers into distinct branches (legislative, executive,
and judicial) is necessary for promoting liberty. By discouraging hasty or arbitrary action and
promoting cooperation and consultation, the establishment of a balanced government through
the separation of powers can ensure stability and protect liberty.
Moreover, the concept of checks and balances, in which each department has a
restricted authority to monitor and regulate the activities of the others, must be combined with
the separation of powers in order to reduce the possibility of oppressive laws, thus
encouraging freedom.
1.2. The relationship between the Trias Politica doctrine and good governance
According to the aforementioned statement of Montesquieu, tyrannical laws could be
enacted and upheld, which could result in oppression. Therefore, the foundation of good
governance should be the concepts of justice, equality, and liberty.
He also maintained the duties of a government are to preserve the rule of law,
safeguard citizens' rights, and make sure that authority is allocated equally. Additionally, it is
believed that there should be checks and balances on the government that may lead to a more
efficient and effective system, as each branch would be able to focus on its own specific tasks.
The state's authority over individuals is constrained; that is, state actions are legally
bound, people have rights under the state or rights against the authorities, and the state cannot

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act arbitrarily. In regard to the legality principle, the government and its agencies must respect
the separation of powers and all actions taken by the state must be justified by enacted laws.
2. The relationship between the Vietnamese legal system and the protection of liberty
and good governance
Vietnam’s Constitution 2013 clearly states a profound commitment to both individual
liberty and principled governance. Every citizen has the right to freedom in compliance with
the Constitution and the law. The legal system is essential for preserving human rights,
outlining the rights and obligations of citizens, and putting accountability frameworks in
place.

Article 3
The State guarantees and promotes the people's mastery; acknowledges,
respects, and protects human rights and citizens’ rights; implements the
objectives of affluent people, powerful state, democracy, justice, civilization,
and that all people enjoy abundant, free, and happy life and are given
conditions for all-sided development.

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.
(The National Assembly of Socialist Republic of Vietnam, 2013, arts. 3, 8.1).

Additionally, the legal system creates opportunities for the general public to engage in
the governance process. Through a variety of channels, such as public scrutiny and requests
for information, citizens can hold elected officials accountable, participate in public
consultations on draft legislation, and voice their opinions to them.

Article 6
The people practice the state power under the forms of direct democracy and
indirect democracy through the National Assembly, the People’s Councils and
other state agencies.
(The National Assembly of Socialist Republic of Vietnam, 2013, art. 6).

Furthermore, a crucial element of the legal system's contribution to effective

governance is the judiciary's independence. The fair resolution of legal disputes is guaranteed

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by an impartial and independent judiciary, free from intervention by other branches of
government. This enhances the judicial system's overall efficacy and legitimacy.

To sum up, the Vietnamese legal system is essential to preserving individual freedoms
and advancing responsible government. Individual rights and the rule of law are firmly
established by the Constitution, and various legal frameworks safeguard liberties and
guarantee accountability in government operations.

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 CONCLUSION

It is obvious and certain that Vietnam does not adhere to Montesquieu's theory of the
separation of powers after studying the Vietnamese Constitution in 2013. Rather, the people
and the public own and possess all of these legal capabilities. Vietnam specifically employs
the principle of unified power to organize state power, with the National Assembly serving as
the highest state power agency and having the authority to exercise legislative power, the
Government exercising executive power, and the People's Court and People's Procuracy
exercising judicial power. In order to guarantee the maximum stability and effectiveness of
the legally governed Socialist Republic of Vietnam, all of its branches collaborate
harmoniously and coherently. Also, there is a clear and connected relationship between the
Vietnamese legal system and the protection of liberty and good governance.

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