FOREIGN TRADE UNIVERSITY HCMC CAMPUS

DEPARTMENT OF ECONOMICS AND LAW

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FINAL EXAM
INTRODUCTION TO LAW

Student’s Full Name: Vo Thi Anh Thu (No.41)

Student’s ID: 2213585042
Class: K61CLC7 (DC61TTMKC2)
Class code: PLUE111 – ML528
Teacher: Ph.D. Tran Thanh Tam

Grade (in number) Grade (in words)

Examiner 1’s signature Examiner 2’s signature

Invigilator 1’s signature Invigilator 2’s signature

Ho Chi Minh City, 17th February 2023

 TABLE OF CONTENTS
I. INTRODUCTION........................................................................................................3

1. Report context.....................................................................................................................3
2. Aims and Objectives............................................................................................................3
2.1. Aims..............................................................................................................................3
2.2. Objectives.....................................................................................................................3
3. Applicable law.....................................................................................................................4
II. SEPARATION OF POWERS, CONSTITUTIONAL RESTRAINTS, CHECKS
AND BALANCES................................................................................................................4

A. SEPARATION OF POWERS............................................................................................4
1. An overview.....................................................................................................................4
2. Case study........................................................................................................................4
3. The State Apparatus of the Socialist Republic of Vietnam..........................................5
4. Explanation......................................................................................................................7
B. CONSTITUTIONAL RESTRAINTS................................................................................7
1. Definition..........................................................................................................................7
2. Case study........................................................................................................................8
3. Constitutional restraints under Vietnam Constitution.................................................8
C. CHECKS AND BALANCES..............................................................................................9
1. Definition..........................................................................................................................9
2. Case study........................................................................................................................9
3. Checks and balances under the Vietnam Constitution...............................................10
III. CONCLUSIONS AND RECOMMENDATIONS................................................11

1. Conclusions........................................................................................................................11
2. Recommendations.............................................................................................................11
IV. REFERENCES........................................................................................................12

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I. INTRODUCTION
1. Report context
Along with the historical processes from ancient times to the present day, the
structure of state apparatus has undergone significant changes. Nowadays, many of
the characteristics of a state apparatus are applied to Constitutions all around the
world. One of the most prominent features, as Zeus mentioned to me, is the
separation of powers in some countries such as the U.S. or the U.K.
In addition, Zeus wondered whether Vietnam Constitution uses the separation of
powers or not. Therefore, this paper will analyze and provide a detailed explanation
for Zeus with convincing arguments and evidence, and outline two important
principles of the Constitution, namely constitutional restraints as well as checks and
balances.

2. Aims and Objectives

2.1. Aims
This report aims to give detailed explanation for Zeus on whether the Vietnam
Constitution has applied separation of powers, thereby affirming its
improvements thanks to learning from other countries to apply appropriate
features into the Vietnamese state apparatus. Moreover, this paper also aims to
analyze two key characteristics of the Constitution which are constitutional
restraints and checks and balances, thereby making recommendations for the
Vietnamese state apparatus.

2.2. Objectives
Given the importance of the accuracy of the Constitution and the system of state
apparatus, this paper includes the following objectives:
Firstly, defining the concept of separation of powers and its application in some
countries, then analyzing the Vietnamese state apparatus to conclude whether the
separation of powers is appropriate to be applied in the 2013 Vietnam
Constitution.
Secondly, defining the concept of constitutional restraints and its use in other
countries’ constitutions, which is the basis of analyzing the constitutional
restraints under the Vietnam Constitution.

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 Lastly, defining the concept of checks and balances with practical examples in
some nations, then applying them to the Vietnam Constitution.

3. Applicable law
The assignment will mainly discuss three elements (separation of powers,
constitutional restraints, and checks and balances) from the perspective of the 2013
Vietnam Constitution for convincing demonstration. Besides, for a comprehensive
comparison in all aspects, this paper will also use the previous Vietnam
Constitution (1992 and 1980) and the 2007 The Constitution of the United States of
America to compare with the current constitution.

II. SEPARATION OF POWERS, CONSTITUTIONAL RESTRAINTS, CHECKS

AND BALANCES
A. SEPARATION OF POWERS
1. An overview
According to a legal dictionary hosted by Cornell Law School, separation of
powers is “a doctrine of constitutional law under which three branches of
government (executive, legislative, and judicial) are kept separate” (“Separation
of Powers,” n.d.). Charles Montesquieu noted that the distribution of power
compels the government to regulate itself (Montesquieu, 1748).
To specific, the operation of public power agencies is specialized, each one only
works to perform its unique and identifiable functions and responsibilities that are
appropriate to that branch, without affecting the activities of other agencies. In
addition, the power between the power bodies is balanced. The powerful authorities
supervise, restrain, counterbalance, and inhibit each other, in order that no one can
misuse the authority.
In short, the intent of the separation of powers is to prevent the concentration of
powers, which can be seen as the root of tyranny, by dividing powers among
different agencies, so that no individual or organization can fully grasp state power.

2. Case study
One of the countries that apply the doctrine of separation of powers in state
apparatus is the United States. The Constitution of the United States defines that the
powers are afforded to the three co-equal branches, namely executive, legislative,
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 and judiciary. According to Article I of the U.S. Constitution, all legislative powers
herein granted shall be vested in a Congress of the United States, which consists of
a Senate and the House of Representatives. Article II provides that the executive
power shall be vested in a President of the United States of America while the
Supreme Court holds accountable for the judicial power (Article III, Section 1, U.S
Constitution).
A typical case reflecting the intentional separation of powers at a federal level and
the requirement for cooperation between different branches is that when a bill is
agreed to pass by the U.S. House and Senate, the President must sign it in order for
that bill to become a law. In this situation, the legislative branch must collaborate
with the executive one to complete its constitutional responsibility of passing laws.

3. The State Apparatus of the Socialist Republic of Vietnam

Article 2 of the 2013 Constitution of the Socialist Republic of Vietnam states that:
“The Socialist Republic of Vietnam is a socialist rule of law state of the People, by
the People, and for the People.” Building a socialist law-ruled state comes from the
orientation of the road to socialism with the aim of national independence
associated with socialism. Therefore, Vietnam follows the law-governed socialist
state with the goal of building a “rich people, strong country, democracy, justice,
and civilization” social system (10th National Congress of the Communist Party of
Vietnam).
According to Article 2, Clause 3 in the 2013 Constitution, “The state powers are
unified and delegated to state bodies, which shall coordinate with and control one
another in the exercise of the legislative, executive, and judiciary powers.” It
means that in order to effectively and efficiently run the administration, the
Vietnamese apparatus divides the powers and responsibilities into different
branches which are stated by the Constitution mentioned below.
Article 69, the 2013 Constitution states that: “The National Assembly exercises
constitutional and legislative powers, decides significant national affairs and
exercises supreme control over all activities of the State.” It means that the
National Assembly has legislative power which is its main function. Besides, the
National Assembly also exercises the functions of deciding national issues as well
as supervising all activities of the State because “the Nation Assembly is the
highest representative body of the People and the highest body of State power of
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the Socialist Republic of Vietnam” (Article 69, 2013 Constitution). In addition, the
National Assembly Standing Committee is the authorized body of the National
Assembly (Article 73, 2013 Constitution). So that, when the National Assembly is
in recess, the Standing Committee has the authority to promulgate legal documents
in the form of ordinances at the service of the comprehensive renovation of the
country. The reason why the National Assembly has to empower the Standing
Committee is that the meeting only takes place twice a year, so the Standing
Committee has to “organize the implementation of the oversight program of the
National Assembly” and “adjust this program and report it to be the National
Assembly at its next session” (Article 50, Law on organization of the National
Assembly) to make timely adjustments. However, it should be noted that the
legislative authority must be within the framework of the Constitution.
According to Article 94, 2013 Constitution, “the Government is the highest
administrative body of the Socialist Republic of Vietnam, exercises the executive
power and is the executive power of the National Assembly.” In other words, the
Government organizes the implementation of the constitution, laws and resolutions
of the National Assembly (Article 94, 2013 Constitution) by means of punctually
and sufficiently introducing legal documents, directing the work of propagating,
disseminating and educating people on the constitution and legislation (Article 6,
Law on organization of the government).
In accordance with Article 102, 2013 Constitution, “The People’s Courts are the
judicial bodies of the Socialist Republic of Vietnam, exercising the judicial power”.
So that the judicial power is granted to the People’s Court, in order to protect
“justice, human rights, citizen’s rights, socialist regime, interests of the state and
legal rights and interests of organizations and individuals” (Article 102, 2013
Constitution).
Among these three branches of power, there is an assignment and coordination in
the exercise of legislative (National Assembly), executive (Government), and
judicial (People’s Court) powers. This division of powers not only ensures unity
but also ensures mutual control, on the basis of aiming for balance and the
consistency of power.

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4. Explanation
General Secretary of the Communist Party of Vietnam Nguyen Phu Trong affirmed
that: “Our state does not have separation of powers”. His speech also emphasized
that the National Assembly is the highest organ of state power, other state agencies
are established by the National Assembly, must report to the National Assembly,
and are supervised by the National Assembly.
In addition, Article 2, 2013 Constitution provides that “the State powers are
unified and delegated to state bodies” since “all state powers belong to the
people”. In other words, Vietnam organizes State power according to the principle
of unified power, not “separation", but there is “assignment” between State
agencies, in which the National Assembly is the highest state power organ,
assigned the exercise of legislative power, the Government exercises executive
power, judicial power is held accountable by the People’s Courts together with
People’s Procuracies.
The objectives of this “assignment” are to clearly define the functions and
responsibilities of each branch in the State apparatus, avoid duplication, overlap
and conflict between agencies, and ensure the synchronous operation of the entire
apparatus state in the process of exercising unified state power.
For the reasons aforementioned, I would like to answer for Zeus that Vietnam does
not apply the separation of powers. Instead, all state power belongs to the People,
promoting the People’s right to mastery in the Socialist law-ruled of Vietnam.
Under that state apparatus, state power is unified and clearly divided; there is
effective control among state agencies in the exercise of legislative, executive, and
judicial and People’s supervision, under the leadership of the Party. As a result, the
model of a Socialist law-ruled state is “of the People, by the People and for the
People”, with unified powers rather than separation of powers.

B. CONSTITUTIONAL RESTRAINTS
1. Definition
Oxford Dictionary defines “constitutional” as “allowed or limited by the
constitution of a country or an organization” and “restraints” as “a rule, a fact, an
idea, etc. that limits or controls what people can do”. Therefore, “constitutional
restraints” means that a set of rules or laws promulgated by the legislature
branches that limit the powers of agencies in the state apparatus to complete their
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 constitutional responsibilities. The control of state powers is for the purpose of
preventing abuses of power and corruption, as well as ensuring that citizens
exercise their rights and obligations.

2. Case study
According to the Article V of the U.S. Constitution, at the request of the legislative
agencies of two-thirds of the states, Congress shall convene a conference to amend
the constitution. Akhil Reed Amar in his literary “America’s Constitution – A
Biography” explained that the fact that the Congress plans the form of the
Constitutional Convention to submit proposals for constitutional amendments is
meant to prevent the Congress from having self-determination over the
constitutional reforms which is necessary to limit the power of Congress. A
Constitutional Convention convened on the recommendation of two-thirds of the
state legislatures has the power to submit proposals for constitutional amendments,
meaning that constitutional amendments are not entirely up to the discretion of the
legislature federal parliament (Akhil Reed Amar, 2006).

3. Constitutional restraints under Vietnam Constitution

In Vietnam, the control over the exercise of state power through the Constitution is
a legal principle that is constantly supplemented to suit each revolutionary period
and is most clearly expressed in the 2013 Constitution. It means that the 2013
Constitution states that: “All state powers belong to the People…”.
Previously, the National Assembly was defined by the 1980 Constitution as an all-
powerful body in the state apparatus. Besides 15 tasks and powers specified in
Article 83, the 1980 Constitution also provided that: “Congress can intend for his
other powers and duties when it deems necessary”. While Article 84 of the 1992
Constitution stipulated that the National Assembly had only 14 tasks and powers,
but in terms of Article 6 of the 1992 Constitution: “The People make use of State
power through the agency of the National Assembly and the People’s Council,
which represent the will and aspirations of the People, are elected by them and
responsible to them”. Therefore, the National Assembly is still the all-powerful
agency in the 1992 Constitution because the People do not exercise state power by
means of direct democracy but by representative democracy.

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 However, this principle has revealed many limitations with many changes in
society. Therefore, Article 70 of the 2013 Constitution states that the People only
give the National Assembly three groups of powers, namely constitutional and
legislative powers, powers on supreme supervision and powers on deciding
important matters of the country. Thus, the unification of state power is understood
as the whole state power belonging to the People, concentrated in the People, not in
the National Assembly.
In conclusion, controlling and restraining state power is the principle of the rule of
law enshrined by the Constitution for the legislative, executive, and judicial organs
to effectively and efficiently execute their functions, jobs and powers. Moreover, it
can prevent corruption and avoid the abuse of powers, so that the People have a
constitutional basis to monitor state power. Therefore, compared with the 1992
Constitution, the 2013 Constitution showed more clearly the system of
decentralization and restraint of the powers in the organization and operation of the
state apparatus.

C. CHECKS AND BALANCES

1. Definition
According to Cambridge Dictionary, checks, and balances are “rules intended to
prevent one person or group from having too much power within an organization”.
Checks and balances are related to the separation of powers in the state apparatus,
which is ensured through the establishment of three different branches (executive,
legislative, and judicial) (Kenton, 2019).
The system of checks and balances is shown by the fact that each branch has its
own set of powers which is balanced with other agencies (balances), and some of
the capabilities that each branch has made sure that other branches do not abuse its
power (checks). Therefore, this system creates a balance between the three separate
branches of power. Applying the system of checks and balances along with the
separation of powers allows the government to ensure that no branches exceed its
bounds, guard against fraud, or misuse the authority (Longley, 2022).

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2. Case study
The concept of checks and balances is incorporated into the U.S. Constitution to
guarantee that no branch can become more powerful than other branches. For
example, the law passed by the House of Representatives and the Senate
(Congress) can be vetoed by the President of the United States. At the same time,
Congress has the power to decide or veto the president with a two-thirds vote from
both the House and the Senate. Similarly, the Supreme Court (judicial branch) can
nullify laws passed by Congress by ruling them to be unconstitutional (Longley,
2022).

3. Checks and balances under the Vietnam Constitution

Vietnam Constitution has laws regulating the checks and balances between the
powers of three branches in the State apparatus. Firstly, the 2013 Vietnam
Constitution adds the regulations of controlling the state power to the principle of
organizing state power in our country. To be more specific, Article 2 1992
Constitution states that: “The State powers are unified and delegated to state
bodies, which shall coordinate with one another in the exercise of the legislative,
executive, and judiciary powers”. Thus, the 1992 Constitution did not provide for
mutual control between these three branches of agencies. Meanwhile, Article 2 of
the 2013 Constitution has an additional important constitutional content: control
among state agencies in the exercise of legislative, executive and judicial powers. It
can be said that the addition of state power control to the 2013 Constitution is a
vital milestone, creating a constitutional basis for surmounting the weakness and
difficulty in mutual control between the state agencies. Therefore, in order to
ensure that there is no abuse of power in the state apparatus, the 2013 Vietnam
Constitution has laws for mutual control between three branches in the exercise of
legislative, executive, and judicial powers which can be seen as the application of
checks and balances system under Vietnam Constitution.
Secondly, the 2013 Constitution more clearly defines the positions, functions, and
powers of state agencies in the exercise of legislative, executive, and judicial
powers in order to ensure a balance between the authority of the three branches of
the state apparatus. The clear delineation and the balance of power between
agencies is the basic condition for the People to delegate power without misuse of
authority. At the same time, the assigned branches also uphold their responsibilities
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 in the exercise of state power. Accordingly, for the first time, Article 69 of the 2013
Constitution clearly states that the National Assembly exercises constitutional and
legislative powers (while Article 83, 1992 Constitution provided that: “The
National Assembly is the only organ with constitutional and legislative power”);
the Government exercises executive powers (Article 94); the People’s Court
exercises judicial powers (Article 102). The affirmation of different agencies
exercising legislative, executive, and judicial powers is a vital change that clarifies
the positions, roles, duties, and powers of each right. Therefore, each agency
exercises its rights with different specializations and equal powers, ensuring the
smooth and efficient operation of the state apparatus.
In summary, the 2013 Constitution has revised and introduced important laws that
affirm the balance of power along with the responsibilities of each branch in the
state apparatus. Besides, the 2013 Constitution is also improved through the
addition of mutual control of different agencies exercising legislative, executive,
and judicial powers. It is called the application of checks and balances under the
Vietnam Constitution.

III. CONCLUSIONS AND RECOMMENDATIONS

1. Conclusions
Many countries around the world have recognized the principle of “trias politica”
model as one of the principles of organizing state power. However, to the question
of my friend, Zeus, the answer is that Vietnam does not apply separation of powers
to the organization of the state apparatus. Instead, the 2013 Vietnam Constitution
has absorbed the rational elements of that theory to make laws that are reasonable
to the national situation. In addition, the 2013 Vietnam Constitution has made great
strides compared to previous constitutional documents through the appearance of
two key elements, namely constitutional restraints and checks and balances, in
order to effectively and smoothly manage the legal system, as well as prevent the
risk of abuse of power or corruption.

2. Recommendations
The 2013 Vietnam Constitution has been quite completed with many new contents
accurately reflecting the actual situation of the comprehensive reform of the

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 country. To promote the spirit of the Constitution, the state apparatus should
continue to renovate the operation of the National Assembly towards
professionalism and efficiency in legislative activities, supervision, and decision-
making on important national issues; continue to strengthen the Government
organization in the direction of being streamlined, reasonable, effective, and
efficient, that meets the requirements of building a democratic and modern
administration. In addition, the authorities need to define a mechanism to ensure the
independence of judicial activities in the direction of affirming that the Court has
the right and responsibility to only base on the Constitution and the law to make
decisions, not to bear any responsibility or any interference from government
agencies.
Strengthening discipline, in which perfecting policies and strengthening socialist
legislation is an important requirement. At the same time, criticizing and severely
punishing acts that violate the people's mastery rights, and those that take
advantage of democracy to disrupt social security and safety; combating
bureaucratic centralization is the responsibility of the state apparatus.
The 2013 Constitution added the principle of controlling state power among state
agencies in the exercise of legislative, executive, and judicial powers by means of
constitutional restraints and checks and balances. Therefore, in the laws on the
organization of the state apparatus, it is necessary to study the mechanisms for
controlling power in parallel with continuing to maintain the supervision and
inspection mechanisms between the legislative, executive, and judicial powers.

IV. REFERENCES
(1) 1980 Constitution of the Socialist Republic of Vietnam

(2) 1992 Constitution of the Socialist Republic of Vietnam

(3) 2007 The Constitution of the United States of America, As Amended

(4) 2013 Constitution of the Socialist Republic of Vietnam

(5) Akhil Reed Amar. (2006). America’s constitution: a biography. New York: Random
House.
(6) Beers, B. (2019). Checks And Balances. Retrieved from Investopedia website:
https://www.investopedia.com/terms/c/checks-and-balances.asp

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(7) Cambridge Dictionary

(8) CONSTITUTION AND POLITICAL SYSTEM | Embassy of the Socialist Republic of

Vietnam in the United States. (n.d.). Retrieved from vietnamembassy-usa.org website:
https://vietnamembassy-usa.org/vietnam/politics
(9) Kenton, W. (2019). Separation Of Powers. Retrieved from Investopedia website:
https://www.investopedia.com/terms/s/separation-powers.asp
(10) Law on organization of the National Assembly

(11) Longley, R. (2022, May 16). Separation of Powers: A System of Checks and
Balances. Retrieved from ThoughtCo website: https://www.thoughtco.com/separation-of-
powers-3322394
(12) Madison, A. (2017). Federalist Papers . S.L.: Digireads Com.
(13) Oxford Dictionary

(14) Separation of powers. (n.d.). Retrieved from LII / Legal Information Institute website:
https://www.law.cornell.edu/wex/separation_of_powers#:~:text=Overview
(15) Separation of powers” is not the model of choice for the State of Vietnam - National
Defence Journal. (2019). Retrieved from Tapchiqptd.vn website:
http://tapchiqptd.vn/en/research-and-discussion/separation-of-powers-is-not-the-model-of-
choice-for-the-state-of-vietnam/10603.html
(16) Stern, N. (2016). Separation of Powers, Executive Authority, and Suspension of
Disbelief, 54 HOUS. L. REV, 125. Retrieved from
https://ir.law.fsu.edu/cgi/viewcontent.cgi?article=1447&context=articles
(17) Thabo, M. T., & Odeku, K. O. (2021). Separation of powers, checks and balances and
judicial exercise of self-restraint: an analysis of case law. Obiter, 42(3), 547–560.
Retrieved from http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1682-
58532021000300006

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