The separation of powers and the protection of liberty & good governance

In ancient time, or most notably, the Middle Age, such legal powers was concentrated and centralized to the governments, which means that both executive and legislative power was unified

FOREIGN TRADE UNIVERSITY HCMC CAMPUS DEPARTMENT OF ECONOMICS AND LAW

INTRODUCTION TO LAW

ML 278

Final Assignment Academic year: 2023-2024

Lecturer: LLM Tran Thanh Tam Student: Ta Duc Tai (No 15) - 2312155178 Class: K62CLC8 (DC62KTDNC7)

HO CHI MINH CITY, NOVEMBER, 2023

TABLE OF CONTENT

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CHAPTER IT: THE SEPARATION OF POWERS IN THE LEGAL SYSTEM OF VIETNAM 7 1 The Legislative branch of the Vietnamese legal system ccc 8 2 The Execuive branch oƒ the Vietnamese legal sVSIEI c Se 9 3 The Judicial branch oƒ the Vietnamese legal SVSÍ€H c+.eẰ 10 CHAPTER III: THE SEPARATION OF POWERS AND THE PROTECTION OF LIBERTY & GOOD GOVERNANCE 11 1 The separation of powers qnd the proteclion 0ƒ HiĐ€Ffj cc.ceciiằ 11 2 The separation oƒ` powers qnd goodÏ gOV€FHQHCÔ à Ăn, 12 l9, Tan nan nh ố ố ốố.ố.ằ.ằ 12

CONCLUSION 14 REFERENCE 15

INTRODUCTION

1 Context of the report

Throughout the evaluation of our society, humans have adopted various methods

to regulate nations, mainly by creating powers that benefit the ruling class In ancient time, or most notably, the Middle Age, such legal powers was concentrated and centralized to the governments, which means that both executive and legislative power was unified, rather than being distributed equally to different branches However, the latter period, especially the Revolution of French, had directly contributed to the expansion of a more democratic system of government by the introduction of a doctrine called “trias politica”, or “separation of powers’ Up until now, this pattern still plays a pivotal role in almost every nations throughout the globe,

as it prevent one branch from having too much power to exercise the functions of others, as well as diversify the liabilities of the government Vietnam, on the other hand, decided to delegate the legal power to its citizens, although in fact, the government of Vietnam comprises of different departments which have their own authority and responsibility All the state agencies work together “harmoniously” to ensure that the state power always belong to the people

2 Purpose of the report

This report will discuss the doctrine of separation of power, therefore giving an insight into the adoption and implementation of such philosophy in the Vietnam legal system, mainly in the 2013 Vietnam Constitution (hereby written as Constitution) It will explore different departments of the states, about the relationship between them,

in order to find out about the nexus between the check and balance system and the liberty & control of a nation In short, its goals are to answer the question whether the government of Vietnam is characterized by separation of powers, and _ the interrelationship between it and the protection of sovereignty and good governance

3 Key highlights

Vietnam use a centralized system of power rather than embraced the doctrine

of separation of powers The state power is unified under the control of the Communist Party, and it belongs to the people of Vietnam However, the government

of Vietnam still needs the delegation of power to state entities in order to guarantee

compliance with constitutional regulations and ensure that the state power always belongs to the people This has lead to some positive changes in exercising democracy and in the govern over the nation People are the supreme subjects of the state power, and by divide the power to different branches, the government will prevent any department from being dominant, therefore they can not possibly threaten the liberty

of the Vietnamese people As for the governance aspect, the diversify of power can promote the liabilities of different state bodies and utilize the functions of each department, which lead to a better control of the state

4, Law documents used

The 2013 Constitution of the Socialist Republic of Vietnam is mainly referred

to throughout the report, promulgated by the 13‘ term of the National Assembly of the Socialist Republic of Vietnam However, to support the whole ideas about the separation of powers and the implementation of such doctrine in Vietnam, the study

of Aristotle and Montesquieu, as well as other sources of information, which will be cited and mentioned in the References section of this report

1 Theoretical foundation

1.1 Aristotle’s “Politics”

Aristotle (384 BC - 322 BC) is one of the greatest figure of the Ancient Greek in the field of philosophy During his life time, he introduced a work on the political

philosophy called “Politics”, with the aim is to find out what makes a good

government, as well as to find out about the factors that contribute to such

government To achieve this, he has documented countless of paperwork and observed the way that different bodies of the state work

Aristotle stated in the book that: “There are three elements in each constitution [ ] The three are, first, the deliberative, which discusses everything of common

importance; second, the official; and third the judicial element’ (Teacher, L., 2013)

We can perceive this as an early sign of the separation of power, with three branches mentioned in his work having different legal authorities But Aristotle never

mentioned about the relationship between the power delegated to the state bodies, and that problem remained unclear until the introduction of another work almost 1500

years later

1.2 Montesquieu’s “The Spirits of the Laws”

Charles Louis de Secondat, Baron de La Bréde et de Montesquieu (18/1/1689 - 10/2/1755), usually referred to as Montesquieu, is a famous French judge and

philosopher - just like Aristotle Living in “the Age of Enlightenment’, he has put

forward his theory about the concept of separation of powers, which lay a foundation for the construct of modern legal system and the constitutional law The theory,

introduced in his work “The Spirits of the Laws”, consists of detailed study about the political systems around the world - mainly the British constitutional system - and even the liberty of a citizen

Montesquieu’s theory classify the political power into three branches: executive, the legislature, and a judiciary (Teacher, L., 2013) This concept can sometimes be called “Montesquieu’s tripartite system” In this system, the power of each branches is limited, and they will have their own field to manage This aims to prevent the

dominant of one department over the rest, and also to protect the citizens’ freedom and rights

2 Three branches of power

Even if we consider the primitive conception of Anstotle, or the foundation

theory of Montesquieu about the separation of power, they both divide the political power into three main branches This is one basis of the doctrine that many nations implement nowadays, although there are some exceptions like China, as their

government classify the power into five branches Nevertheless, in this report, we will analyze the three-branches model, with the Montesquieu’s theory covering most part

of it

Firstly, the legislative branch is responsible for the establishing and

promulgating laws across the country This body of the state usually have its members elected by people of that country

Secondly, the branch responsible for the implementation and enforcing of laws is the executive branch It execute policies, manage the enforcement of laws, and

ultimately, to maintain the justice in the nation It usually includes the Head of the State, such as President

Lastly, the judicial branch have the power to interpret laws to make sure they are constitutional This branch has the liability to settle legal disputes, ensuring that laws are comply with the constitution, and most importantly, to provide a check on other branches about their works, actions and accountability

This system 1s designed to promote accountability in different state bodies,

protect individual rights, and ensure a more stable and well-governance structure

Besides, it will prevent one department or individual from having too much power in their hands Only by diversify the liabilities and political power can a government manage to functions at its best, argue Montesquieu (Teacher, L., 2013)

CHAPTER IT: THE SEPARATION OF POWERS IN THE LEGAL

SYSTEM OF VIETNAM

In this chapter, we will discuss whether Vietnam has adopted any doctrine of separation of powers, or is there any other philosophy that the government implements to govern the nation The most notable point throughout the development

of the Constitution of Vietnam is that the power is unified, but the state still delegated

it to state bodies ““ which coordinate with and control one another in the exercise of the legislative, executive and judicial powers” (Bao, H., C., 2017)

Under the 1946 Constitution, it addressed two main problems: “ First, the Constitution guaranteed the independence of legislative, executive and judiciary powers Second, it affirmed in principle that the Parliament, Government and people’s courts were all the highest bodies vested with the state power, each holding a branch

of state power” (Duong, T., N., 2019) This means that, from the very beginning of the Socialist Republic of Vietnam, the state has shown a clear division of powers among different departments

Moving to the 1992 Constitution, it provided a detailed explanation about the unified and delegated of power, which the previous constitutions failed to do so Under the Article 2 of the 1992 Constitution, it states that “the state power is unified and delegated and coordinated between state agencies in the exercise of legislative, executive and judicial powers.” (Duong, T., N., 2019) And under this constitution, it mentioned the concept of three branches for the first time, which laid a foundation for the construction of the 2013 Vietnam Constitution In the 2013 Constitution, Article 2,

it emphasizes that:

1 The State of the Socialist Republic of Vietnam is a socialist state ruled by law and of the People, by the People and for the People

2 The Socialist Republic of Vietnam is the country where the People are the masters; all the state power belongs to the People and is based on the alliance of the working class, the peasantry and the intelligentsia

3 The state power is unified and delegated to state agencies which coordinate with and control one another in the exercise of the legislative, executive and judicial powers

Vietnam does not implement the doctrine of separation of powers, but rather

centralizes the legal powers under its people However, the state still divides some parts of the legal system to different departments in order to operates harmoniously with each other, and therefore the government can functions effectively

1 The Legislative branch of the Vietnamese legal system

Regulated in the Article 69 of the 2013 Constitution, the National Assembly of the Socialist Republic of Vietnam (hereby written as the National Assembly) is the representative of the Vietnam legal system for the Legislative branch:

The National Assembly is the highest representative body of the People and the highest state power body of the Socialist Republic of Vietnam

The National Assembly shall exercise constitutional and legislative powers,

decide on important issues for the country, and conduct the supreme oversight over the activities of the State

(The National Assembly of Vietnam, 2013, Art 69) This means that the National Assembly has the highest authority among the state bodies, and it also represents the people of Vietnam Its power is defined in the Article

70 of the 2013 Constitution:

The National Assembly has the following tasks and powers:

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

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15 To decide to hold the referenda

(The National Assembly of Vietnam, 2013, Art 70) The National Assembly has the power to enact legal documents Therefore, the National Assembly can be considered a tool to guarantee and promote the people’s right to control the nation, as well as the right to be the mastery of the Socialist Republic of Vietnam This satisfies the key requirement for a democracy and law- tuled state “In a law-ruled state, the constitutional power must belong to the people

who use it to establish the state power, including the legislative power” (Duong, T., N., )

2 The Executive branch of the Vietnamese legal system

The state body responsible for the Executive branch in Vietnam consists of the government, with the Prime Minister is the head of the department, as well as the Ministers and head of the ministerial agencies The executive branch is responsible for the nation on the internal and external affairs, which means it has the power to supervise government agencies, execute and administers policies, oversee foreign affairs In the 2013 Constitution, Article 95, it states that:

1 The Government is composed of the Prime Minister, Deputy Prime Ministers, Ministers, and Heads of ministerial-level agencies

2 The structure and number of members of the Government shall be decided by the National Assembly

3 The Government shall work on a collegial basis and make its decisions by a vote of the majority

4 The Prime Minister is the head of the Government and responsible to the National Assembly for the work of the Government and assigned tasks; and shall report on the work of the Government and the Prime Minister to the National Assembly, the Standing Committee of the National Assembly and the President

5 Deputy Prime Ministers shall assist the Prime Minister in his or her work as assigned by the Prime Minister, and are responsible to the Prime Minister for their assigned tasks In the absence of the Prime Minister, a Deputy Prime Minister delegated by the Prime Minister shall lead the work of the Government on behalf of the Prime Minister

6 Ministers and Heads of ministerial-level agencies are personally responsible

to the Prime Minister, Government and National Assembly for the sectors and fields under their charge and, together with other members of Government, shall assume the collective responsibility for the work of the Government

(The National Assembly of Vietnam, 2013, Art 95)

The Government is considered to be the executive body of the National

Assembly, which means it is closely related to the legislative branch This will help the executive branch to fully functions and operates harmonically with other

departments in governing the country

3 The Judicial branch of the Vietnamese legal system

The Judicial branch in the legal system of Vietnam is responsible for interpreting laws, resolving legal and civil disputes at various level of management, and ensure that the regulated laws and codes are constitutional This particular department has the structure from the district level up to the supreme level, and even the military level In addition, the judicial branch consists of not only the People’s Courts, but also the

People’s Procuracies to functions its judicial actions This is the innovative different between the judicial branch in the legal system of Vietnam and other nations Such mentioned ideas are stated in the Article 102, Point 1 and Article 107, Point 1 of the

2013 Constitution:

Article 102

1 The peoples courts are the judicial organ of the Socialist Republic of Vietnam, exercising the judicial power

(The National Assembly of Vietnam, 2013, Art 102, Point 1) Article 107

1 The People’s Procuracies shall exercise the power to prosecute and supervise judicial activities

(The National Assembly of Vietnam, 2013, Art 107, Point 1) The People’s Courts and the People’s Procuracies work in tandem with each other to supervise the legal documents, maintain justice and ensure the proper

decision-making process of other departments and branches The People’s Courts are responsible for the resolving of civil, criminal, and administrative disputes, while the People's Procuracies are responsible for the investigating and prosecuting crimes