THE LEGAL MECHANISM FOR PEOPLE’S PARTICIPATION IN LEGISLATIVE ACTIVITIES IN VIETNAM SUMMA

Microsoft Word TTTA Mai Thi Thanh Tam QD cap HV doc HO CHI MINH NATIONAL ACADEMY OF POLITICS MAI THI THANH TAM THE LEGAL MECHANISM FOR PEOPLE’S PARTICIPATION IN LEGISLATIVE ACTIVITIES IN VIETNAM SUMMA.

HO CHI MINH NATIONAL ACADEMY OF POLITICS

MAI THI THANH TAM

THE LEGAL MECHANISM FOR PEOPLE’S PARTICIPATION IN LEGISLATIVE ACTIVITIES

IN VIETNAM

SUMMARY OF THE DOCTORAL THESIS

MAJOR: THEORY AND HISTORY OF STATE AND LAW

Code: 938 01 06

HANOI - 2022

The thesis is completed at

Ho Chi Minh National Academy of Politics

Supervisors: 1 Assoc Prof., Dr Tao Thi Quyen

2 Dr Hoang Minh Hoi

Reviewer 1:

Reviewer 2:

Reviewer 3:

The thesis will be defended in front of the Thesis Committee

at Academy level, at Ho Chi Minh National Academy of Politics

At time day month year 2022

The thesis can be found at The National Library of Vietnam and Library of Ho Chi Minh National Academy of Politics

INTRODUCTION

1 The rationale of the study

In the process of renewal and development of the country so far, the issue of building and improving the socialist rule-of-law state of the people, by the people, for the people has always been a concern and focus of the Communist Party of Vietnam Since the VII Congress, through each congress, the Party's theoretical thinking on the socialist rule-of-law state of the people, by the people, for the people has been increasingly developed It has oriented the entire process of building a clean and strong state that meets the requirements of the national development In the Platform of national construction during the transitional period towards socialism (amended in 2011), the Party declared: “Our State is a socialist rule-of-law State of the people, by the people and for the people All state powers belong to the people whose foundation is the alliance between the working class, the peasantry, and the intelligentsia, led by the Communist Party of Vietnam”; “The State serves the people, is closely associated with the people, fully exercises the people's democratic rights, respects and listens to the people's opinions, and is subject to the people's supervision” This viewpoint is institutionalized in the 2013 Constitution: “The Socialist Republic of Vietnam is a socialist rule-of-law State of the People, by the People and for the People The people are the masters of the Socialist Republic of Vietnam; all state powers belong to the people whose foundation is the alliance between the working class, the peasantry, and the intelligentsia”

The populist and democratic nature of the State of Vietnam is not only reflected in the State's responsibility to serve the people but also in mobilizing people to participate in State activities Legislative activities are one of the main areas of State activities The legal mechanism for people’s participation in legislative activities plays an important role in promoting the mastery and political activeness of the people The people's participation in legislative activities also helps the authorities obtain helpful and critical information on policy issues in the bills; helps the policy selection in drafting laws become more public, transparent, and in line with the will and aspirations of the people In addition, this legal mechanism helps to improve the relationship between the State and the people The government is more concerned with the people’s needs and interests On the other hand, the people will gain knowledge about the bill to be promulgated while participating in legislative activities, thus increasing trust in the State and having a positive attitude to comply with the law From a legal perspective, the legal mechanism for people’s participation in legislative activities in Vietnam is

reflected in many legal documents such as the Constitution 2013, Law on Organization of the National Assembly 2014 (amended in 2020); Law on Promulgation of Legislative Documents 2015 (amended in 2020); Law on Organization of Government 2015 (amended in 2019); Law on Referendum 2015; Law on Vietnam Fatherland Front 2015; However, the current regulations have not yet created a broad legal framework for people's participation in legislative activities To illustrate, the scope for people's participation in legislative activities has not been specific; there is a lack of active forms of people's participation in legislative activities; the procedures for people’s participation in legislative activities are incomplete; there is no mechanism to bind the responsibility of state agencies in receiving and responding to people's opinions;

It can be seen that the legal mechanism for people’s participation in legislative activities in Vietnam has not operated adequately The main form of participation is the collection of people's opinions about law-making proposals and the bills Up to now, collecting people's opinions about the bills has become a regular activity done by the authorities However, this activity has many limitations: limited entities (mainly state agencies, socio-political organizations, experts, and scientists while rarely consulting the public); the contents raised for people's opinions are broad and lack of focus; the collecting of people's opinions, absorbing and answering people's opinions is just a formality in some cases, thus failing to obtain valuable comments Besides, social criticism on the bills done by the Vietnam Fatherland Front and its member socio-political organizations is weak No referendum has been taken in reality

From the above arguments, it can be seen that the research topic: "The legal mechanism for people’s participation in legislative activities in Vietnam" is

significant both in theory and practice It has been the requirement of building a socialist democracy and a socialist rule-of-law state of the people, by the people, and for the people in Vietnam today

2 Research purpose and tasks

2.1 Research purpose

Based on theoretical analysis and assessment of the current situation of the legal mechanism for people’s participation in legislative activities in Vietnam, the purpose of this research is to propose viewpoints, and solutions to improve the legal mechanism for people’s participation in legislative activities in Vietnam

2.2 Research tasks

With the above purpose, the thesis has the following research tasks:

- Giving an overall assessment of domestic and foreign research related to the topic of the thesis and pointing out issues that need further research

- Clarifying the theoretical basis of the legal mechanism for people’s participation in legislative activities, in which, the thesis focuses on the concept, characteristics, roles, constitutive elements, evaluation criteria, and conditions to guarantee the legal mechanism for people’s participation in legislative activities

- Studying legal mechanisms of people's participation in legislative activities

in some countries and drawing lessons for Vietnam

- Analyzing and evaluating the current situation of the legal mechanism for people’s participation in legislative activities in Vietnam

- Proposing viewpoints and solutions to improve the legal mechanism for people’s participation in legislative activities in Vietnam

3 Object and scope of the research

3.1 Object of the research

Under the perspective of theory and history of state and law, the thesis studies theoretical and practical issues of the legal mechanism for people’s participation in legislative activities in Vietnam Following that, the thesis argues for the scientific basis, viewpoints, and solutions to improve the legal mechanism for people’s participation in legislative activities in Vietnam

3.2 Scope of the research

- Regarding the space: The thesis studies the legal mechanism for people’s

participation in legislative activities in Vietnam The theoretical and practical issues of the legal mechanism for people’s participation in legislative activities are closely related to political, economical, and social characteristics of Vietnam The viewpoints and solutions are also derived from the reality of Vietnam

In addition, when studying legal mechanisms for people’s participation in legislative activities in some countries so as to draw lessons for Vietnam, the author chooses the United States, China, and some European countries to study

- Regarding the time: The thesis studies the legal mechanism for people’s

participation in legislative activities in Vietnam since 2014 when the 2013 Constitution took effect until now and proposes solutions in the coming period

4 Theoretical basis and research methods

4.1 Theoretical basis

The theoretical basis of the research is based on the Marxist-Leninist doctrine, Ho Chi Minh's thought, and the Vietnamese Communist Party's viewpoints on the state and law, the socialist rule-of-law state, the socialist democracy, and the exercise of the people's mastery, including the exercise of the right to participate in legislative activities

4.2 Research methods

The thesis uses the Marxist - Leninist approach of dialectical materialism and historical materialism In addition, the thesis uses the theory of direct democracy and the theory of public participation to clarify theoretical and practical issues of the legal mechanism for people’s participation in legislative activities

Based on the above approach, the thesis uses specific research methods such as the analysis and synthesis method; statistical method; comparative jurisprudence method; logical method; historical - specific method; and case study method

5 New contributions of the thesis

The thesis has the following new contributions:

First, the thesis has built the theoretical basis of the legal mechanism for

people’s participation in legislative activities in Vietnam including the concept, characteristics, roles, constitutive elements, evaluation criteria, and guarantee conditions of the legal mechanism for people’s participation in legislative activities The thesis has also studied legal mechanisms for people’s participation

in legislative activities in some other countries and drawn lessons for Vietnam

Second, the thesis has analyzed the current situation of the legal mechanism

for people’s participation in legislative activities in Vietnam, including achievements as well as limitations, and causes

Third, the thesis has built up a system of viewpoints and proposed possible

solutions to improve the legal mechanism for people’s participation in legislative activities in Vietnam

6 Academic and practical significance of the thesis

- Academic significance: The research results of the thesis have contributed

to completing the theoretical basis of the legal mechanism for people’s participation in legislative activities in Vietnam

- Practical significance: The results of the thesis are references for the Party

and the State in the process of improving the legal mechanism for people’s participation in legislative activities in Vietnam today The thesis is also a valuable reference in studying and teaching relevant issues

7 Structure of the thesis

In addition to the introduction, conclusion, list of references, and appendices, the thesis consists of 04 chapters, with 11 headings

Chapter 1 LITERATURE REVIEW ON THE LEGAL MECHANISM OF PEOPLE’S PARTICIPATION IN LEGISLATIVE ACTIVITIES IN VIETNAM

1.1 DOMESTIC RESEARCH RELATED TO THE THESIS

1.1.1 Research related to the legal mechanism

Research related to the legal mechanism gives the author an overview of the legal mechanism, thereby determining an appropriate approach to the legal mechanism and orientation to build concepts, clarify constitutive elements and criteria for improving the legal mechanism for people’s participation in legislative activities

1.1.2 Research related to the legal mechanism for people’s participation in legislative activities

A literature review on the legal mechanism for people’s participation in legislative activities shows that different aspects of this legal mechanism have been mentioned to some extent However, little research has been done on the legal mechanism for people’s participation in legislative activities in Vietnam in a systematic and comprehensive way

1.2 FOREIGN RESEARCH RELATED TO THE THESIS

Many studies have been done overseas on people’s participation in public policy-making activities/processes (and legislative activities are also one form of public policy-making activity) Some studies mentioned the levels/forms/scales of people's participation in public policy decisions Despites different approaches, all studies refer to various levels of people’s participation Besides, there are studies

on people's participation in the legislative process in some countries Foreign studies have contributed to clarifying some theoretical issues of the legal mechanism for people’s participation in legislative activities and suggesting experiences about legal mechanisms in some countries in the world

1.3 GENERAL ASSESSMENT AND ISSUES FOR FURTHER RESEARCH

1.3.1 General assessment

A literature review on both domestic and foreign studies related to the thesis topic shows that, in general, the mentioned-above studies have contributed to certain aspects of the theory and practice of the legal mechanism for people’s participation in legislative activities This thesis will consult, and selectively inherit those studies There are some helpful contents for the thesis, such as:

- Some studies have provided an approach to the concept of people, the concept of legislative activities and the concept of legal mechanisms in general They provide good suggestions for understanding the concepts, constitutive elements, evaluation criteria, and guarantee conditions of the legal mechanism for people’s participation in legislative activities

- Some studies have analyzed each component of the legal mechanism, such

as regulations on people’s participation in legislative activities (regulations on the people's right to participate in legislative activities, forms of people’s participation

in legislative activities, responsibilities of relevant state agencies); legislative activities of the National Assembly; and the participation in legislative activities of some entities;…

- Some studies have analyzed the situation of exercising the people’s right to participate in legislative activities; or analyzed the practice of exercising specific forms of people’s participation in legislative activities (collecting people’s opinions, organizing referendums, ); or the participation of various entities in the legislative activities (Vietnam Fatherland Front and its member organizations, social organizations, experts, scientists,…) Following from that, the studies have also proposed viewpoints and solutions to improve different aspects of the legal mechanism

However, due to different research purposes and requirements, the mentioned above studies have only considered some specific aspects of the legal mechanism for people’s participation in legislative activities In general, there has not been a comprehensive and systematic study on the legal mechanism for people’s participation in legislative activities in Vietnam so far

1.3.2 Issues for further research in the thesis

Theoretically, the issues that need further research include: building the

concept of the legal mechanism for people’s participation in legislative activities; presenting the characteristics and role of the legal mechanism for people’s participation in legislative activities; analyzing the constitutive factors and criteria for improving the legal mechanism for people’s participation in legislative activities in Vietnam; conditions to guarantee the operation of the legal mechanism for people’s participation in legislative activities; the legal mechanism for people’s participation in legislative activities in some countries in the world and lessons for Vietnam

Practically, issues that need further research include: analyzing and

evaluating the current situation of the legal mechanism for people’s participation

in legislative activities in Vietnam (achieved results, limitations, and causes)

Based on comprehensive and systematic research on the theory and practice

of the legal mechanism for people’s participation in legislative activities, the thesis

needs to build a system of viewpoints and propose solutions to improve the legal mechanism for people’s participation in legislative activities in Vietnam

1.3.3 Hypothesis and research questions

On the basis of the literature review, the thesis poses a hypothesis as the following:

To ensure that state power belongs to the people, the people delegate the power but do not lose their power, it is necessary to have a legal mechanism for the people to participate in the state’s activities, especially the legislative activities Currently, although the legal mechanism for people’s participation in legislative activities in Vietnam has been gradually formed and achieved some results, it has also revealed many shortcomings As a result, some laws (products

of the legislative activities) do not reflect or fully reflect the will, aspirations, and interests of the people Therefore, a comprehensive legal mechanism for people’s participation in legislative activities needs to be in place in Vietnam today

With this research hypothesis, the thesis aims to answer the following questions:

1 What is the legal mechanism for people’s participation in legislative activities? What elements is this mechanism composed of? Which evaluation criteria are used to assess this mechanism? What are the conditions to guarantee this mechanism in practice?

2 How is the legal mechanism for people’s participation in legislative activities operated in practice? What are the achievements and limitations?

3 How to continue to improve the legal mechanism for people’s participation in legislative activities in Vietnam today?

Sub-conclusion of chapter 1

In Chapter 1, the thesis has done a literature review on domestic and foreign research related to the topic “the legal mechanism for people’s participation in legislative activities” It can be seen that there has been much scientific research related to the thesis topic, but research on the legal mechanism for people’s participation in legislative activities under the perspective of theory and history of state and law has still been absent Many theoretical and practical issues on the legal mechanism for people’s participation in legislative activities have been raised; and it is essential to identify viewpoints and solutions to improve the legal mechanism for people’s participation in legislative activities in Vietnam

Chapter 2 THEORETICAL BASIS OF THE LEGAL MECHANISM OF PEOPLE'S

PARTICIPATION IN LEGAL ACTIVITIES

2.1 CONCEPT, CHARACTERISTICS, AND ROLE OF THE LEGAL MECHANISM ON PEOPLE’S PARTICIPATION IN LEGAL ACTIVITIES

2.1.1 Some related concepts

2.1.1.1 The concept of legislative activity

Legislative activity is a form of state activity implemented based on legislative power, including many different stages with the participation of various actors to translate the common will of the people into laws

2.1.1.2 The concept of the people and the people’s participation in legislative activities

The people is a political-legal term that is understood as the entire Vietnamese regardless of social classes, religions, ethnicities, and social status, forming a great national unity bloc, based on the alliance of the working class, the peasantry, and the intelligentsia They jointly participate in the construction and defense of the Socialist Vietnam Fatherland, led by the Communist Party of Vietnam

People's participation in legislative activities is understood as the people’s contribution to legislative activities through different forms to influence the content of policies in bills and to ensure that laws reflect the will and aspirations

of the people, and have good quality

In Vietnam, people can participate in legislative activities in the form of direct democracy or representative democracy through the Vietnam Fatherland Front, socio-political organizations, and other social organizations

2.1.2 The concept of the legal mechanism for people’s participation in legislative activities

The legal mechanism for people’s participation in legislative activities is a combination of legal institutions and organizations which are interrelated and operated based on certain conditions to guarantee that people can actively participate in the legislative activities and that laws fully reflect the will and aspirations of the people and have good quality

2.1.3 Characteristics of the legal mechanism for people’s participation

in legislative activities

First, the legal mechanism for people’s participation in legislative activities

is a unified and interrelated legal body Its synchronous operation helps to ensure the people’s participation in legislative activities effectively

Second, the legal mechanism for people’s participation in legislative

activities operates and develops in associated with the socio-economic conditions, the existing forms of democracy, and the nation’s democratization level

Third, the operation of the legal mechanism of the people’s participation in

legislative activities demonstrates the people's right to participate in legislation as the masters of state power and the responsibility of the State as the subject delegated by the people

Fourth, the purpose of the legal mechanism for people’s participation in

legislative activities is to guarantee that the people can participate actively in the legislative activities and that the promulgated laws reflect the will and aspirations

of the people

2.1.4 The roles of the legal mechanism for people’s participation in legislative activities

First, to guarantee the populist and democratic nature in building the

socialist rule-of-law State in Vietnam

Second, to concretize the people's right to participate in State management

and community affairs

Third, to improve the quality of legislative activities and ensure the

objectivity and democracy of legislative activities

Fourth, to build a high level of social consensus and promote the process of

bringing the law into life

Fifth, to guarantee Vietnam’s commitments to international treaties on

human rights in general and political rights in particular

2.2 CONSTITUTIVE ELEMENTS AND CRITERIA FOR IMPROVING THE LEGAL MECHANISM FOR PEOPLE’S PARTICIPATION IN LEGISLATIVE ACTIVITIES

2.2.1 Constitutive elements of the legal mechanism for people’s participation in legislative activities

2.2.1.1 Legal institutions on the people’s participation in legislative activities

The legal institutions on people's participation in legislative activities are understood as the entire of interrelated and consistent regulations aiming

at regulating social relations arising in the process of people’s participation

in legislative activities, which are stipulated in legal documents promulgated

by relevant state agencies in accordance with certain forms and procedures These include:

First, the regulations on the rights and obligations of the people when

participating in legislative activities

Second, the regulations on the responsibilities of the organizations that

guarantee the people’s participation in legislative activities

Third, the regulations on the issues for people’s participation in legislative

Sixth, the regulations on legal consequences for the actors who violated the

provisions on people’s participation in legislative activities

2.2.1.2 Organizations to guarantee people’s participation in legislative activities

Organizations to guarantee people’s participation in legislative activities are understood as organizations established and operated on the basis of the Constitution and laws to ensure people’s participation in legislative activities, including:

First, state organizations, including organizations entitled to request law

formulation and draft law; organizations entitled to do inspection and comment about the bills; and organizations entitled to review and approve the bills

Second, social organizations, including Vietnam Fatherland Front,

socio-political organizations, and other social organizations

2.2.1.3 The relationship between constitutive elements of the legal mechanism for people’s participation in legislative activities

The constitutive elements of the legal mechanism for people’s participation

in legislative activities are closely interrelated and operate under a common and unified mechanism In this legal mechanism, each element has a different position

and role Legal institutions create the legal framework for the operation of organizations The organizations play a role in realizing legal institutions on people’s participation in legislative activities in practice

2.2.2 Criteria for improving the legal mechanism for people’s participation in legislative activities

Criteria for improving the legal mechanism for people’s participation in legislative activities are understood as benchmarks or standards used to evaluate the legal mechanism for people’s participation in legislative activities

First, the criteria for the legal institutions on people’s participation in

legislative activities include comprehensiveness; synchronicity, consistency; suitability; feasibility, and modern legislative techniques

Second, the criteria for organizations that guarantee people’s participation in

legislative activities include the adequacy of organizations to ensure people’s participation in all stages of law-making; the rationality of structure, functions, tasks, powers as well as relationships between organizations In order to ensure people’s participation in legislative activities, it is also necessary for these organizations to implement their duties in accordance with the law

Third, the criteria for the effectiveness and efficiency of the legal

mechanism for people’s participation in legislative activities

Criteria for the efficiency of the legal mechanism for people’s participation

in legislative activities are determined based on ensuring the role of each component and the relationship between them

Criteria for the effectiveness of the legal mechanism for people’s participation in legislative activities include: (1) The rate and quality of people participating in legislative activities, reflected in the possibility to have influence

on policy decisions in the bills; (2) The level of implementing various forms of people's participation in legislative activities; (3) Responsibilities of relevant state agencies in receiving and answering people’s opinions in legislative activities

2.3 CONDITIONS TO GUARANTEE THE LEGAL MECHANISM FOR PEOPLE’S PARTICIPATION IN LEGAL ACTIVITIES

2.3.1 Political conditions

The political conditions to guarantee the legal mechanism for people’s participation in the legislative activities include ensuring the leadership of the Communist Party of Vietnam, improving the socialist democracy, and developing

a culture of participation