Separation of powers in the legal system of vietnam

Law documents used This report primarily relies on the Constitution of the Socialist Republic of Vietnam, enacted in 2013 by the 13th National Assembly of the Socialist Republic of Viet

FOREIGN TRADE UNIVERSITY HCMC CAMPUS

DEPARTMENT OF ECONOMICS AND LAW

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INTRODUCTION TO LAW

ML 271

Final Assignment Academic year: 2023-2024

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: ạm Vũ Quỳnh Như (No.8) – Ph

2311115093

TABLE OF CONTENTS

INTRODUCTION 4

1 Context of the report 4

2 Purpose of the report 4

3 Key hightlights 4

4 Law documents used 5

CHAPTER 1: THEORETICAL FOUNDATION ON SEPARATION OF POWERS 6

1 Montesquieu and “The spirit of the laws” 6

2 The division into three branches of power 6

3 Impacts and weaknesses 7

CHAPTER 2: SEPARATION OF POWERS IN THE LEGAL SYSTEM OF VIETNAM 8

1 The legislative branch in the Vietnamese legal system 9

2 The executive branch in the Vietnamese legal system 10

3 The judicial branch in the Vietnamese legal system 11

4 The interplay and connections among the branches 12

CHAPTER 3: CONSTITUTIONAL RESTRAINTS IN THE LEGAL SYSTEM OF VIETNAM 13

1 Basic restraints 13

2 Protection of basic rights and duties: 14

3 Restriction on the power of legal branches 14

CHAPTER 4: CHECKS AND BALANCES IN THE LEGAL SYSTEM OF VIETNAM 16

1 The necessity for checks and balances in the legal system of Vietnam 16

1.1 Problems facing the legal system of Vietnam 16

1.2 The roles of checks and balances regime in the legal system of Vietnam 16

2 Checks and balances in the exercise of legislative power 17

3 Checks and balances in the exercise of executive power 17

4 Checks and balances in the exercise of judicial power 18

CONCLUSION 20

1 Summary 20

2 Recommendation 21

REFERENCES 22

INTRODUCTION

1 Context of the report

The principle of separation of powers, or trias politica model, is crucial in the political systems of many nations globally Under this theory, the authority of the state is divided into three primary branches: legislative, executive, and judicial Each branch possesses its distinct powers and duties, with the objective of preventing the concentration of power in any particular individual or group The application of the separation of powers theory is

widespread across various nations, in both democratic and non-democratic states

Nevertheless, the degree to which this theory is implemented may vary among different countries Notwithstanding this fact, Vietnam does not incorporate trias politica theory, but

there also separation of authority into three branches: legislative, executive and judicial is

2 Purpose of the report

This report aims to demonstrate the implementation of power division in Vietnam, and explore the operation of the executive, legislative, and judicial branches, their functions, and authorities Hence, it is possible for the report to provide Pete with an in-depth explanation of whether separation of powers exists in the Vietnamese legal system By having a look at the

2013 Constitution, it will also clarify the constitutional constraints as well as the checks and balances regimes, their roles, and application in the legal system

3 Key hightlights

Vietnamese legal system does not follow the trias politica model Instead, Vietnam organizes state power based on the principle of unified power," but with a "division of duties" among state agencies The highest state power is vested in the National Assembly, which is assigned the legislative power The Government exercises executive power, while the People's Courts and the People's Procuracy are assigned judicial power The goal is to clearly delineate the functions and tasks of each type of state agency, avoiding duplication, overlap, and conflicts between agencies This ensures the smooth and coordinated operation of the entire state apparatus in the process of implementing unified state power

Moreover, limitation in controlling state power leads to several negative phenomena such

as corruption and ideological, political, ethical, and lifestyle degradation of state officials

This issue a call for strict supervision and appropriate policies in ensure the transparency, just and equality in the state apparatus

4 Law documents used

This report primarily relies on the Constitution of the Socialist Republic of Vietnam, enacted in 2013 by the 13th National Assembly of the Socialist Republic of Vietnam Besides,

to advocate some vital points, the Constitution of the Socialist Republic of Vietnam 1946,

1959, 1980 and 1992 will be mentioned and written in the References part of this report

CHAPTER 1: THEORETICAL FOUNDATION ON SEPARATION OF

POWERS

The idea of “mixed governments” (Aristotle, n.d.) was first mentioned by ancient Greece philosopher Aristotle in his Politics but the earliest and most explicit arguments on the separation of power were attributed to Montesquieu in his “The Spirit of the Laws.”

1 Montesquieu and “The spirit of the laws”

Montesquieu (1689 1755) was an influential French philosopher and writer of the –Enlightenment era He is renowned for his work “The Spirit of the Laws” which examines

various types of government, advocating decentralization in powers based on precedents in the Constitution of the Roman Republic and the British constitutional system One of the outstanding ideas in the works is the separation of power which had a significant influence on modern constitutionalism and political thought

The separation of powers divides political powers into 3 distinct branches:

legislative, executive, and judicial (Montesquieu, 1748) In the state that most effectively promotes liberty, these three powers must be confided to different individuals or bodies, acting independently Each bran plays a different role in performing government authority chand its power is restricted by the others This “checks and balances” system among the

branches aims to promote accountability and protect individual liberties within the

government structure

2 The division into three branches of power

Montesquieu contends that it is essential to allocate the executive, legislative, and judicial powers of government to separate entities.(Montesquieu, 1748) This division ensures that if one branch attempts to encroach upon political freedom, the other branches can act as a check

to restrain such actions This acts protect against oppressive rule and uphold individual tofreedom

The legislative branch, as Montesquieu argued, is tasked with creating the laws that govern society It is the body that represents the will of the people and embodies the

democratic principle of self-governance The legislative branch's primary function is to

propose, debate, and enact laws These laws establish the framework for individual rights, social order, and economic activity

The executive branch, headed by the chief executive, is responsible for implementing the laws enacted by the legislative branch It carries out the day- -day administration of to

government, enforcing laws, managing public services, and conducting foreign policy The executive branch is also responsible for ensuring the safety and security of the nation

Finally, the judicial branch, composed of courts and judges, is tasked with interpreting the laws passed by the legislative branch and applying them to specific cases It serves as the arbiter of legal disputes, ensuring that the laws are applied fairly and impartially The judicial branch also reviews the actions of the legislative and executive branches to ensure they adhere

to the law

3 Impacts and weaknesses

Separation of power is seen as an important safeguard against the concentration of power and potential abuses in governmental systems The concept of separating powers into distinct branches, with checks and balances between them, has been influential in shaping democratic systems around the world It served as an inspiration for the Declaration of the Rights of Man and of the Citizen (The Declaration of the Rights of Man and of the Citizen, 1789) and the Constitution of the United States (Constitution of the United States, 1788) and embraced by several other countries

However, critics have raised several key concerns about Montesquieu's separation of powers theory They argue that it oversimplifies governance, lacks flexibility, and can lead to gridlock and inefficiency Critics also claim that special interest groups can exert undue influence, accountability becomes challenging, and representation may be inadequate These criticisms highlight the complexities and limitations of the theory in practice James Madison, one of the founding fathers of the United States, expressed concerns that it is difficult to create a government that is both effective and accountable In Federalist No 51, he argued that "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself." (James Madison, 1788)

CHAPTER 2: SEPARATION OF POWERS IN THE LEGAL SYSTEM OF

VIETNAM

The 2013 Constitution of Vietnam stipulates that the organization of state power follows the principle of unified power, which means that there is no strict separation of powers Instead, the power is delegated, coordinated, and controlled among various state agencies to exercise legislative, executive, and judicial functions

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 National Assembly of Socialist Republic of Vietnam, 2013, art 2)

The separation of powers within the Vietnamese legal system serves the purpose of preventing the accumulation of authority, fostering transparency, and safeguarding individual rights Its primary objective is to prevent any one branch from becoming excessively dominant or overpowering the others

While the separation of powers is a fundamental principle of the Vietnamese legal system,

it is important to note that the Communist Party of Vietnam plays a leading role in the country's political system The Communist Party of Vietnam is not a branch of government, but it exerts significant influence over the legislative, executive, and judicial branches

“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 “

(The National Assembly of Socialist Republic of Vietnam, 2013, art 4)

1 The legislative branch in the Vietnamese legal system

The legislative branch of the Vietnamese legal system is represented by the National Assembly of Vietnam, which is regulated according to Article 69 of the Constitution:

(The National Assembly of Socialist Republic of Vietnam, 2013, art 69)

Moreover, the lawmaking power of the National Assembly is demonstrated in Article 70, point 1:

“Article 70

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

(The National Assembly of Socialist Republic of Vietnam, 2013, art 70.1)

Unlike parliaments in other countries, the National Assembly of Vietnam not only has legislative functions but also constitutional functions This means that The National Assembly has the authority to draft, adopt, and amend the Constitution of Vietnam and other legislations such as Codes and Acts However, it is important that The National Assembly, elected by the People, is the highest state agency that exercises the power of the People as “all state powers belong to the people” (The National Assembly of Socialist Republic of Vietnam, 2013, art 2.2) The National Assembly is the embodiment of the will and aspirations of the entire citizens, is entrusted with state power by the people, and acts on behalf of the people in deciding major issues of the country and being accountable to the entire people

2 The executive branch in the Vietnamese legal system

The executive branch in Vietnam holds the responsibility of carrying out the enforcement

of laws and executing policies and tasks established by the legislative body This branch manages the state, ensuring the coherence and efficient functioning of the state administrative apparatus across all levels, ranging from the central government to local authorities Additionally, the executive branch plays a crucial role in safeguarding national security, maintaining public order, and ensuring social safety within the country It takes the necessary measures to protect the nation against internal and external threats, while also preserving the rights and well-being of its citizens

Furthermore, the executive branch is tasked with organizing and ensuring the successful implementation of various external activities It is represented by the government which includes the Prime Minister, the Deputy Prime Ministers, the Ministers, and heads of ministerial-level agencies as mentioned below:

“Article 94

The Government is the executive organ of the National Assembly, exercises 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 number 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 “

2 To initiate and build policies, and to propose them to the National

Assembly, and the National Assembly’s Standing Committee for decision or

to decide on these policies according to its authorities to exercise its duties and authorities as provided by this Article; to propose draft laws, and draft state budget and other projects to the National Assembly; to propose the

draft ordinances to the National Assembly’s Standing Committee

3 To exercise uniform management of the economy, culture, society, education, medicine, science, technology, environment, information, media, international relations, national defence, national security, and social order and security; to exercise the decisions on mobilization and the state

of emergency and carry out all other necessary measures to protect the country and to safeguard the live and the property of the people “

(The National Assembly of Socialist Republic of Vietnam, 2013, art 94,95,96)

3 The judicial branch in the Vietnamese legal system

Judicial power is the authority granted to courts by the people to resolve disputes and administer justice Besides several courts ranging from supreme to district courts, the judicial branch also consists of specialized agencies responsible for initiating prosecution and overseeing judicial activities which are the people’s procuracies