the development and adoption of legal normativedcuments by state administrative agencies in the people’s democratic republic of laos

The development and adoption of legal normative documents by State administrative agencies have been paid adequate attention to in the People’s Democratic Republic of Laos over the past

MINISTRY OF EDUCATION HO CHI MINH NATIONAL ACADEMY

AND TRAINING POLITICS AND PUBLIC ADMINISTRATION

NATIONAL ACADEMY OF PUBLIC ADMINISTRATION

Somnith SY LI BOUN LIENG THE DEVELOPMENT AND ADOPTION OF LEGAL NORMATIVEDCUMENTS BY STATE ADMINISTRATIVE AGENCIES IN THE PEOPLE’S DEMOCRATIC REPUBLIC OF LAOS Major : Public administration Code : 62 34 82 01 THE THESIS SUMMARY

HA NOI – 2014

The thesis is completed at: NATIONAL ACADEMY OF PUBLIC ADMINISTRATION

Academic supervisors:

Assoc Prof., Dr Luu Kiem Thanh

Assoc Prof., Dr Vu Trong Hach

Opponent 1:

Opponent 2:

Opponent 3:

The thesis will be defended in front of the Examination Board of the National Academy of Public Administration At hour date month 2013

Location: Room No Block A – Hall for PhD Thesis defense, National Academy of Public Administration, 77 Nguyen Chi Thanh Street, Dong Da District, Ha Noi

The thesis can be found at the National Academy of Public

Administration’s library or at the website of the Post-graduate Faculty, the National Academy of Public Administration, Ha Noi branch, Vietnam

INTRODUCTION

1 Reasons for choosing the subject

State administrative agencies are an important part of the State apparatus The most significant character of State administrative agencies in exercising the executive power is to present the State power Within the scope of their authority, State administrative agencies have the right to adopt legal normative documents (statutory power) or documents referring to legal normativity that are compulsorily executed for individuals, organizations, State agencies and relevant State agencies; the right to examine, supervise the enforcement of documents they adopted; the right to take coercive measures if necessary against individuals, organizations and agencies related for having not self-consciously and strictly abided by documents which were promulgated by State agencies and already came into effect

The development and adoption of legal normative documents by State administrative agencies have been paid adequate attention to in the People’s Democratic Republic of Laos over the past years, many scientific works associated with the promulgation of administrative documents, legal normative documents by State administrative agencies have been published; law on the adoption of legal normative documents is continuously completed Legal normative documents are considered as an important tool to ensure the efficiency and effects in the management of State administration, contributing to the stability and development of socio-economic performances The official document of the 9th congress of the Lao People’s Revolutionary Party in 2011 states that: “The most significant factor to bring into full play democracy is the development and completion of legal system and to improve socialist legal system in every activity.”

Under the context of the current enhanced renovation, the Resolution of the 9th National Congress of the Lao People’s Revolutionary Party’s (in 2011)

on continuing the development and completion of the People’s Democratic Republic of Laos, with the focus on the reform of State administration, is considered as one of the fundamental standpoint to build and strengthen the State apparatus clean, strong, efficient and effective That is: “Increased socialist legal system, the development of State of law in the People’s Democratic Republic of Laos, and the State governs society in accordance with law and by law.”

The Constitution of the People’s Democratic Republic of Laos in 2003 also states in Article 10 that: “The State governs society by law, ceaselessly

strengthening socialist legal system” However, the social management and the adjustment of social relations by law in the People’s Democratic Republic of Laos still encounter numerous limitations This requires the Lao State to develop and complete a legal system synchronous, scientific and complete On the other hand, they must ensure the legal system is strictly abided by from the Central to local levels, and ensure the principles of the socialist legal in the spirit of completely respecting for the law

The development and adoption of legal normative documents is an important work of State administrative agencies in the People’s Democratic Republic of Laos Together with the reform of State administration, the development and adoption of legal normative documents in general and by State administrative agencies in particular have made positive progresses, gradually enhancing the capacity of the development and adoption of State management documents and initially establishing a system of management documents meeting the requirements and duties of the State administration Nevertheless, the development and adoption of legal normative documents by State administrative agencies still exposes weaknesses and limitations that need to be addressed, particularly mode, standard progress for the adoption, document forms, adoption authority, and manners to punish, examine and handle illegal documents These weaknesses and limitations have decreased the efficiency and effects of the State administrative management This reality requires further study, renovation and improvement of the quality of legal normative documents

in general and the development and adoption of State administrative agencies in particular

In the People’s Democratic Republic of Laos, legal normative documents

as well as the development and adoption of legal normative documents were not attached much importance to previously, thus, there are very few documents and official studies on this issue Only a few of guiding documents by authorized State administrative agencies partly or generally mention this issue, not presenting theoretical and practical issues necessary for this work of State administrative agencies Only until the Law on the Promulgation of Legal Normative Documents was introduced in 2012, was the theoretical and practical issues of the development and adoption of legal normative documents completed

a step and more systematic However, the existence of the Law on the Promulgation of Legal Normative Documents does not mean that the development and adoption of legal normative documents by State administrative agencies in particular and by State agencies in general is completed This is only initial foundations for the gradual completion of legal normative documents and issues around this type of documents

This can explain the reason why the development and adoption of legal normative documents by State administrative agencies remains, in fact, limited; concept, classification, authority and order to adopt documents are still inconsistent That is one of the basic causes to the fact that State administrative agencies promulgate documents incorrectly in regard to capacity, power, and event content, seriously affecting the efficiency and effectiveness of State management activity Therefore, the basic and systematic research of the development and adoption of legal normative documents by State administrative agencies is an urgent and long-term requirement for the People’s Democratic Republic of Laos

Based on these theoretical and practical issues, the “Development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos” is of overriding importance and needs to

by State administrative agencies in Laos in order to propose solutions to enhance the quality of the development and adoption of legal normative documents by these agencies

- Tasks of the research

To reach the research purpose mentioned above, the thesis performs basic duties

as follows:

+ To research and apply theoretical achievements available to establish theoretical bases for the development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos;

+ To summarise practical performance of the development and adoption

of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos, from which drawing comments, and assessments

to use as the ground for the proposal of directions and solutions to enhance the quality of the development and adoption of legal normative documents by these agencies;

+ To propose directions and solutions to increase the quality of the development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos

3 Research subject and scope:

- Research subject

The thesis concentrates on:

+ Theoretical basis of the development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos;

+ Experience of some countries in the world in the development and adoption of legal normative documents by State administrative;

+ The reality of the development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos;

+ Directions and solutions to increase the quality of development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos

- Research scope

+ Space: The thesis focuses on development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos and Vietnam (the country with political regime similar to Laos)

+ Time: The thesis concentrates on the development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos in the period from 2006 to 2012

4 Methodology and research methods

- Methodology

The thesis is studied on the ground of the Marxism – Leninism, and standpoints of the Lao People’s Revolutionary Party and the State of the People’s Democratic Republic of Laos on State and law, reform to complete State apparatus, State administrative reform, and legal system perfection

The thesis applies the methodology of the Marxism-Leninism philosophy, and studies the topic in accordance with systematic, objective, comprehensive viewpoint, specific historical viewpoint, the relations between the general – the particular, the popular – the specific, cause – effect, and so on

- Research methods

Based on the methodology of the dialectical materialism and historical materialism, the author has selected specific research methods suitable with the each content of the thesis

+ The author employs systematic and analytical methods and gathers documents and published scientific works to assess the study related to the topic

of the thesis

+ The author employs analytic, collective, deductive and inductive methods to study concept, characteristic, content, role, requirement and factors that ensure the development and adoption of legal normative documents by State administrative agencies The analytic, comparative, collective methods are used

to study the development and adoption of legal normative documents by State administrative agencies in some countries and lessons of experience drawn for the case the People’s Democratic Republic of Laos

+ The author uses statistical, comparative, analytic methods to generalize documentation and data in order to evaluate the reality of the development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos, indicating shortcomings and causes of these shortcomings of this practice

+ The author uses the systematic, analytic, collective methods to propose theoretical factual foundations for directions and solutions to increase the quality

of the development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos at present

5 Scientific contribution of the thesis

The thesis results in new findings as follows:

- The thesis builds up theoretical foundations for the development and adoption

of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos, including: characteristic, content, role and factors effective to this practice

- The thesis generalizes the development and adoption of legal normative documents by State administrative agencies in some countries and draws lessons

of experience for Laos

- The thesis analyses, and evaluates the reality of the development and adoption of legal normative documents by State administrative agencies in Laos based on the results, limitations, and causes studied in the 2006-2012 period

- The thesis defines orientations and proposes theoretical factual foundations for solutions to enhance the quality of the development and adoption of legal normative documents by State administrative agencies in Laos

at present

6 Theoretical and practical significance of the research

- the development and adoption of legal normative documents by State administrative agencies targets the legal enforcement and brings law into life, which contributes to better performing functions and duties of the State administrative agencies, focusing on the exercise of authority power

- Theoretically, the research result of the thesis helps clarify some theoretical issues on the development and adoption of legal normative

documents by State administrative agencies, indicating the reality and causes that hinder the quality of the development and adoption of legal normative documents by State administrative agencies in Laos in the 2006-2012 period, based on which proposes solutions to enhance the quality of this practice in Laos

at present

- Practically, the thesis is a material of reference to the study, teaching and learning of the document-compiling subjects in universities of law and administration, and a material of reference for research agencies or practical activities in the People’s Democratic Republic of Laos

7 The research conclusion

Besides the introduction, the general overview of research, conclusion, list

of references, the thesis is composed of four chapters, specifically:

Chapter 1: General overview of the research related to the thesis and issues arising that need further study

Chapter 2: Scientific basis for the development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos

Chapter 3: The reality of the development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos

Chapter 4: Directions and solutions to the development and adoption of legal normative documents by State administrative agencies in the People’s Democratic Republic of Laos currently

Chapter I GENERAL OVERVIEW OF THE RESEARCH RELATED TO THE THESIS AND ISSUES RAISED THAT NEED FURTHER STUDY

1.1 General overview of studies related to topic of the thesis

1.1.1 Studies in the People’s Democratic Republic of Laos

In the People’s Democratic Republic of Laos, theoretical studies on the development and adoption of legal normative documents, documents by State agencies in general, and by State administrative agencies in particular were not attached much importance to for a long period of time, thus, there are very few published studies in this field They include: Kham Phet Vong Đa La ( 2010),

“Reform of legal normative documents on trade and related to ASEAN bloc”, Legal Journal No 4/2010; Chanh Pheeng Si Li Vanh ( 2011), “Completing organization and operation of the National Assembly on the examination of the

adoption of laws and legal normative documents in the time being”; Legal Journal No 1/2011; Phou sa khone Meuang wong ( 2010): “Law on the examination and handling of legal normative documents in Laos and Vietnam, study from a comparative angle”, a PhD thesis in law, Ho Chi Minh City University of Law

1.1.2 Studies related to the thesis in Vietnam

1.1.2.1 Scientific works related to the statutory power of State administrative agencies

The author studied a number of scientific works related to the statutory power in Vietnam, such as: the textbook “State administrative authority” (2011), Scientific and Technical Publishing House, used in the training programme for bachelor of administration; a PhD thesis in law (2011), “Statutory power of the Government”, by Nguyen Dinh Hoa, Law Faculty, Hanoi National University

The scientific works mentioned above discuss a very important and fundamental authority of State administrative agencies, that is the statutory power to enforce law

1.1.2.2 Works related to legal normative documents, administrative documents

There are numerous scientific works published in training institutes in Vietnam on administrative documents, legal normative documents by State administrative agencies, including: book “ Document and document work in State administrative agencies” ( 2013), by Assoc.Prof., Dr Van Tat Thu, the National Political Publishing House; PhD thesis “ Codification of law on the adoption of legal normative documents”, completed by Nguyen Thi Minh Ha at the Institute of State and Law in 2006; the research “ The process of adoption legal normative documents” ( 1998), of the project VIE 94/003; book “ Compiling and handling State administration documents”, by Nguyen Van Tham, the National Political Publishing House 2001; book “ The development and adoption of legal normative documents”, by Luu Kiem Thanh, Statistical Publishing House 2003, revised, amended and reprinted 2005; book “ Instructions for compiling statutory documents”, by Luu Kiem Thanh, Statistical Publishing House in 1998 ( reprinted in 2003); book “ The process of developing, adoption and examining legal normative documents” by Duong Bach Long, the National Political Publishing House 2007; book “ Compiling methods for administrative documents”, by Nguyen Minh Phuong, the National Politics - Truth Publishing House 2011; textbook “ Document development and adoption techniques”, National Academy of Public Administration, by lead author Dr Luu Kiem Thanh, Scientific and Technical Publishing House 2009; textbook “ Document compilation”, by lead author, Prof., Dr Nguyen Dang Dung, Hanoi National University Publishing House, 2007; a PhD thesis in

Public Administration “Completion of the process of the adoption and enforcement of documents by provincial administrations” by Ha Quang Thanh,

2008, National Academy of Public Administration; book “ Common legal terms

in legal normative documents” collected and selected by Nguyen Trung Nam, National Political Publishing House 2005; book “ Process, procedure in the performance of National Assembly” by Legislative Department, Vietnam National Assembly 2005; research “ The development of and investigation into decision adjusting the Law, ordinance development programme – theory and practice” by Vu Trong Hach, 2010; a conference summary record “Enhancing institutional capacity for Government’s Office”, Hanoi Judicial Publishing House, 2011; book “ Organization and operation of Ministries, Ministerial-level agencies, Governmental agencies”, by Van Tat Thu, the National Political Publishing House, 2011; book “ Transparency of administrative decisions”, Institute for Research on Policy, Law and Development, a member of Vietnam Union of Science and Technology Associations, 2012; article “ Viewpoints and criteria to evaluate the adoption of State administration documents”, by Do Duc Hong Quang, Journal of Science, Hanoi National, Legal studies No 25, 2009; article “ The adoption of State administration documents – some causes of shortcomings and remedies” by Pham Tuan Khai, Journal of State Management,

No 24, 2008; article “ The development and adoption of documents by local authorities ensures citizen rights – status and solutions”, by Nguyen Thi Phuong, Journal of E-information, Ho Chi Minh City Institute for Development Studies, etc From many aspects, the scientific works mentioned above discuss content and the process of developing and adopting, examining… administrative documents, legal normative documents by State administrative agencies However, none of them focuses on the development and adoption of legal normative documents by State administrative agencies in Vietnam

1.1.3 Studies related to the thesis in other countries

Book “The adoption of legal normative documents, plan and route of the Federal Republic of Germany”, by translators Nguyen Si Dai and Nguyen Kim Thoa, the National Political Publishing House, Hanoi, 2003 The book mentions information and perspectives on legal documents and their significance, role, compiling process to ensure every legal document be constitutional

1.2 Issues that the thesis needs further study

1.2.1 Theoretically

- To distinguish legal normative documents from other administrative documents issued by State administrative agencies in order to define authorities, adjustment scope, form, and process of adopting legal normative documents by

State administrative agencies To clarify the adoption necessity and requirements for the development and adoption of legal normative documents by State administrative agencies

- To study practical experience in the development and adoption of legal normative documents by State agencies in general, by State administrative agencies in particular in Vietnam and some other countries to draw lessons of experience that can be applied in Laos

1.2.2 Practically

In the People’s Democratic Republic of Laos, the development and adoption of legal normative documents by State administrative agencies were paid little attention to for a long time; law on the adoption of legal normative documents is also slow to be completed Therefore, it is necessary to study the reality of the development and adoption of legal normative documents by State administrative agencies in Laos in order to find out limitations and causes of these limitations and draw lessons of experience

Based on these foundations the thesis proposes scientific and feasible directions and solutions to improve the quality of the development and adoption

of legal normative documents by State administrative agencies in Laos to satisfying actual requirements in the context that Laos is completing the State apparatus, performing administrative reform and building a state of law This further affirms the necessity, theoretical and practical significance of the thesis

Chapter 2 SCIENTIFIC BASIS FOR THE DEVELOPMENT AND ADOPTION OF

LEGAL NORMATIVE DOCUMENTS BY THE STATE

ADMINISTRATIVE AGENCIES OF THE POEOPLE’S DEMOCRATIC

-Concept of legal normative documents

Concept of documents: Document is a means to record information and

to impart information from this subject to others by a certain signal or language

Concept of legal normative documents: Legal normative documents are

documents issued (or jointly issued) by an authority in the State bodies from Central to local level, in accordance with legal forms, orders and procedures, with a common code of conduct and enforceability, and are guaranteed by the State to adjust social relations

- Characteristics of legal normative documents: Legal normative documents are documents issued by the State agencies, and authorities in the State agencies; Legal normative documents contain legal norms – common codes of conduct, and common enforceability; Normative documents are adopted many times in case of legal occurrence; The enforcement of legal normative documents cannot stopping its effects; Form (name), content, order and procedure of preparing legal normative documents are strictly regulated by the law; The enforcement of legal normative documents are guaranteed by the State; Legal normative documents are systematical

- The role of legal normative documents: legal normative documents perform a crucial role in economy, society, political system, and morality

- The functions of legal normative documents: A formal representation of the law; Information; and Management

2.1.1.2 Concept, characteristic, and role of legal normative documents by the State administrative agencies

-Concept: Legal normative documents by the State administrative

agencies are documents issued (or jointly issued) by authorities in the system of State administrative agencies (a collective of State administrative agencies or

authorities in State administrative authorities) in accordance with legal forms, orders and procedures, with a common code of conduct and enforceability (within the management scope) and are guaranteed by the State to concretize, to guide the legal enforcement, to adjust relations which arise within the State administrative agencies or to adjust newly-emerging social relations in the process of State administration (are legally authorized)

-Characteristics: legal normative documents by the State administrative agencies have common characteristics with legal normative documents, and have specific characteristics such as: containing legal norms and bylaws issued

by authorities in the State administrative agencies

-Role: to regulate practical issues that arise in social operation and management;

2.1.2 The authority to prepare and issue legal normative documents of the State administrative agencies

In the People’s Democratic Republic of Laos the following individuals and organizations in the State administrative agencies are authorized to issue legal normative documents: The Government issues resolutions and decrees; Prime Minister issues instructions and decisions; Ministers, and heads of ministerial-level agencies, and heads of Governmental bodies issue instructions and decisions; Mayors of cities and provinces issue instructions and decisions; Heads of districts and communes issue instructions and decisions; Hamlets issue regulations

2.1.3 Scope, content of legal normative documents by State administrative agencies

2.1.3.1 Adjustment scope of legal normative documents by State administrative agencies

Legal normative documents by State administrative agencies are bylaws and mostly issued on legal basis to enforce law, thus, the scope of relations that they adjust is restricted within the administrative competence of each State administrative body in administrative affairs and State management

Regarding the space, the scope of validity of legal normative documents

by State administrative agencies relies on authority of the issuers Documents are held valid nation-wide and in all fields (documents issued by Government and Prime Minister), documents are held valid nation-wide but limited to issues related to State management in industries and areas (documents issued by ministers and heads of ministerial-level and Governmental agencies), documents are valid in all fields but limited within the scope of management (documents issued by People’s Committee of province, district, and commune (in Vietnam), village or hamlet (in Laos)

2.1.3.2 Content of the legal normative documents by State administrative agencies

Legal normative documents issued by State administrative agencies of the People’s Democratic Republic of Laos are in the form of: resolution, decree, instruction, decisions and hamlet’s regulations The specific content of each legal document is defined by the law as follows:

-Decrees issued by Lao Government to: enforce resolutions promulgated

by the National Assembly and National Assembly’s Standing Committee, economic development plans, and strategic plans; to regulate social relations in certain area that satisfy requirements of State management and socio-economic management but have not been constructed into law; to regulate organization and performance of ministries, ministerial-level agencies, Governmental bodies;

socio-to instruct and concretize the enforcement of law socio-to facilitate the organization and implementation

- The Lao Government’s Resolution is a legal normative document and the Government’s decision on a certain issue, which are put forward for discussion at the Government’s sessions

- The Prime Minister of the People’s Democratic Republic of Laos issues instructions to enable individuals or organizations to enforce plans, law, and ordinance in line with the Prime Minister’s rights and responsibility as defined

by the law

- The Prime Minister of the People’s Democratic Republic of Laos enacts decisions to exercise his rights and duties or to concretize and organize and enforce legal normative documents issued by State bodies at higher levels

- Ministers, heads of ministerial-level and Governmental bodies, and heads of cities, provinces, districts and communes issue instructions to enable individuals and organizations to enforce plan, law, ordinance and their duties

- Ministers, heads of ministerial-level and Governmental bodies, and heads of cities, provinces, districts and communes issue decisions to exercise their rights and duties or to concretize and organize and enforce legal normative documents issued by State bodies at higher levels

- Hamlet regulations are legal normative documents issued by the hamlet’s administration to enforce legal normative documents introduced by agencies and organizations at higher levels in order to manage security, order and disciplines within their rights and duties

2.2 The necessity for State administrative agencies to issue legal normative documents (the authority to make regulations)

2.2.1 To exercise the State administrative authority

In order to exercise the administrative authority, States all organize a system of State administrative agencies from the Central to local levels to exercise the authority to make regulations (the authority to issue legal normative documents – bylaws) and administrative authority (to administer – to manage)

The authority to make regulations is one of the important rights of State administrative agencies Through the promulgation of legal normative documents, State administrative agencies introduce general codes of conduct in the field of State management; specific duties and rights of parties involved in State management; and specify authorities and procedures to carry out performance of individuals and organizations they manage, and so on

The adoption of legal normative documents is the most essential legal forms in the performance of State administrative agencies in order to exercise their functions and duties

2.2.2 To ensure the enforcement of State policies and decisions in State administrative activities

In the process of State management, legal normative documents enacted

by State administrative agencies are considered as a major form of the duties to concretize law and State policies The legal corridor is designed for the operation of agencies, organizations, economic units and individuals when their performance is related to social community Legal documents introduced by State administrative agencies are a form of enforcing State regulations and generating legal relations in management activities of State bodies The legal documents are a means to quickly enforce regulations issued by State bodies of higher levels in reality, and to deal with the situation in which many legal documents enacted by legislatures are mostly in principle, too general and difficult to be enforced in reality

2.2.3 To enable citizens to exercise their rights and duties

Legal normative documents formed and issued by State administrative agencies also institutionalize rights to freedom and interests of citizens, ensuring that these rights and interests are protected On the other hand, legal normative documents are the tool and medium to ensure life security, honor, dignity, freedom, equality and justice for all members of the society

2.3 Concept, characteristic, principle, and process of developing and adopting legal normative documents by State administrative agencies

2.3.1 Concept: The development and adoption of legal normative documents is

a performance of authorized State administrative agencies which are carried out with legal procedures in order to enforce State management decisions (a type of legal decisions) under the form of documents that contain legal normativities to