LIST OF SCIENTIFIC WORKS DISCLOSURE RELATING TO THE DESSERTATION 1.“The position and role of the Parliamentary Ombudsman in the state power control mechanism in the modern rule of law s
Trang 1MINISTRY OF EDUCATION & TRAINING MINISTRY OF JUSTICE
HANOI LAW UNIVERSITY
THAI THI THU TRANG
COMPARATIVE STUDY OF THE PARLIAMENTARY OMBUDSMAN
IN THE WORLD AND THE APPLICABILITY IN VIET NAM
Specialized field: Constitutional Law and Administrative Law
Code: 9.38.01.02
SUMMARY OF DOCTORAL DISSERTATION IN LAW
Hanoi – 2020
Trang 2The dissertation is complete at:
HANOI LAW UNIVERSITY
The dissertation is defended before the University PhD dissertation judgement
Council at Hanoi Law University, dated ………
You might found this dissertation at:
1 National Library
2 Library of Hanoi Law University
Trang 3LIST OF SCIENTIFIC WORKS DISCLOSURE RELATING TO
THE DESSERTATION
1.“The position and role of the Parliamentary Ombudsman in the state power control mechanism in the modern rule of law state”, Grassroots-level Research
project, Hanoi Law University, 2017
2 “The role of inspectors in controlling power for the administrative agencies in some countries in the world”, Inspection magazine ( 3), 2016, p 39 – 42.
3 “Parliamenrtary Ombudsman of Sweden, Finland and reference values for Vietnam”, Legislative Study magazine (16), 2017, p 57 – 64.
4 “Possibility of using the Parliamentary Ombudsman Model in improving the quality of Congress’s supervision of administrative agencies in Vietnam”, Law
and Development magazine, (9+10), 2018, p 67 - 74
5 “The Classic Parliamentary Ombudsman and the distortions of Parliamentary Ombudsman in the modern state”, Law and Development magazine, (11+12),
2018, p 72 - 78.
Trang 4PREFACE
1 The necessity of the research topic
Firstly, studying on Parliamentary Ombudsman is to meet the goal of building a
socialist rule-of-law State, in which, the state apparatus must ensure the transparency, strongness and truly serve as a tool for People's benefit
Secondly, studying on Parliamentary Ombudsman is the requirement to promote
people's ownership under Article 6 of the 2013 Constitution
Thirdly, studying on Parliamentary Ombudsman stems from the goal of building a
National Human Rights agency in Vietnam
Fourthly, studying on Parliamentary Ombudsman comes from the requirement to
improve the performance of the National Assembly of Vietnam, especially the ability of the National Assembly to control the system of public administration
Fifthly, studying on Parliamentary Ombudsman stems from the need to reform the
ombudsman system in Vietnam
Although the Parliamentary Ombudsman is an institution that has never been established in Vietnam, it is already in the state apparatus of many countries Therefore, it is really necessary to compare the Parliamentary Ombudsman models around the world and evaluate the applicability of the Parliamentary Ombudsman institution in Vietnam
From the above reasons, I choose the research topic: "Comparative study of the
Parliamentary Ombudsman institution in the world and the applicability in Vietnam"
2.2 The purpose and tasks of the research
2.2.1 The purpose of the research
Studying the models of Parliamentary Ombudsman institution in the world in order
to describe its position in state's activities as well as clarify the advantages of this institution
in the modern rule of law state This research proposes to apply appropriately the Parliamentary Ombudsman model in Vietnam in order to improve the efficiency of the state apparatus in controlling power over public administrative agencies and promoting human rights and citizens' rights in the current period
2.2.2 The tasks of the research
In order to achieve the above purpose, the thesis needs to perform the following tasks:
Trang 5- Clarify theoretical issues on the basis of forming the Parliamentary Ombudsman, the principles of organizing and operating Parliamentary Ombudsman institution, and its role in controlling state power and exercising people's democratic rights
- Analyzing, evaluating and comparing different types of Parliamentary Ombudsman institution in the world through the in-depth analysis of it in some typical countries in the aspects of position, function, organizational structure, task and power
- Analyzing the current situation of power control in Vietnam for public administrative agencies, clarifying the limitations and difficulties of the current control mechanisms, which indicates the the necessity of establishing a Parliamentary Ombudsman institution in Vietnam
- Analyzing the mechanism to promote and ensure human rights in our country today, showing the suitability of the Parliamentary Ombudsman to be the national human rights agency in Vietnam
- Analyzing factors affecting the organization and operation of the state apparatus when applying the Parliamentary Ombudsman into Vietnam on the basis of learning experience from other countries in the world
3 Research subject and scope
3.1 Research subject
- The thesis studies theoretical and practical issues on the organization and operation
of the Parliamentary Ombudsman in the world on the basis of comparison and comparison between those models
- The thesis studies the needs and applicability of the Parliamentary Ombudsman in Vietnam
4 Theoretical basis, research questions and research hypotheses
Trang 64.1 Theoretical basis
The research is based on theoretical issues about the organization and operation of the state apparatus on power control, independent constitutional bodies; principle of people's sovereignty, ensuring and promoting human rights in the modern rule of law state
4.2 Research question
- What kind of agency is the Parliamentary Ombudsman in the state apparatus, and
what role does it play in exercising state power?
- What are the similarities and differences between the Parliamentary Ombudsman institution in the inception and this period?
- What are the similarities and differences between the Parliamentary Ombudsman
in different regions of the world?
- Why is the Parliamentary Ombudsman institution increasingly being established in the world? Should Vietnam apply the Parliamentary Ombudsman institution? If so, what are the characteristics of the Parliamentary Ombudsman in Vietnam? What is the impact of the Parliamentary Ombudsman on the organization and operation of existing government agencies?
4.3 Research hypotheses
Inspection of the Parliamentary Ombudsman from the perspective of comparing countries in the world is an independent control agency with diverse designs and flexibly applied in many countries In Vietnam, the addition of the Parliamentary Ombudsman in the organization of the state apparatus is feasible and necessary to meet the principle of power control, contributing to the goal of building human rights agency in Vietnam
5 Research method
- Methodology:
The thesis uses methodology based on the theoretical basis of Marxism - Leninism and Ho Chi Minh thought on state and law; Political theories about the state and the laws in the world; The Communist of Party's views and guidelines and the legal system of the State
on renovating the organization and operation of the state apparatus
- Specific research methods:
Comparative methods: The thesis applies comparative methods , especially in chapter II in comparing different models of the Parliamentary Ombudsman institution to point out the highlights, similarities and differences between the models In addition, the comparative method is also used to compare the model of Parliamentary Ombudsman inside
Trang 7and outside the administrative system, comparing Parliamentary Ombudsman with other independent constitutional agency
Besides, the thesis also uses common research methods in the field of legal science such as: analysis, evaluation, and statistical methods
6 New scientific contributions of the thesis
Firstly, the thesis is a large-scale research project on Parliamentary Ombudsman
from a comparative perspective, which makes a difference compared to previous studies The method of comparing laws makes the research on Parliamentary Ombudsman more extensive and comprehensive This is reflected in the following points:
First, the comparison of the Parliamentary Ombudsman model of countries around the world based on time criteria helps to better clarify the origin and the development process of this institution
Second, the comparison of Parliamentary Ombudsman Model according to space criteria with the variety of geographic areas clarifies the correlation between the characteristics of Parliamentary Ombudsman Model and the characteristics of the geographic areas This has important implication for assessing which model of the Parliamentary Ombudsman is appropriate for Vietnam conditions
Third, analyzing and finding similarities among Parliamentary Ombudsman models
in the world clarify its nature Perhaps this institution exists under many different variants but the similarities are the core element of the so-called Parliamentary Ombudsman, which identifies and distinguishes the Parliamentary Ombudsman from other institutions
Fourth, analyzing and finding out the differences between Parliamentary Ombudsman models in the world demonstrate the diversity, flexibility in organization and operation of this type of agency in practice On one hand, it reflects the ability to "adapt" of the Parliamentary Ombudsman institution to various legal politics, meeting the needs of many countries around the world On the other hand, it provides the basis for lawmakers to assess the feasibility of establishing a Parliamentary Ombudsman agency in Vietnam
Secondly, the thesis is the first project that studies in large-scale the ability to apply
the Parliamentary Ombudsman institution in Vietnam This can be seen as an outstanding contribution of the thesis, contributing to improving the state apparatus in terms of enhancing power control over public administrative agencies and protection human rights and citizens' rights, thereby, contributing to the successful construction of a socialist rule of
Trang 8law state in Vietnam according to the 2013 Constitution This is reflected in the following specific points:
First, the thesis analyzes and demonstrates the need to apply Parliamentary Ombudsman in Vietnam by pointing out its advantages in improving the quality of power control for public administrations as well as meeting the goal of building a national human rights agency in Vietnam
Second, the thesis fully points out the political and legal basis as a prerequisite for the reception of Parliamentary Ombudsman institution in Vietnam
Third, based on the comparative studies, the thesis proposes a specific model of Parliamentary Ombudsman which is considered suitable for the legal and political characteristics of Vietnam
Fourth, not only propose specific models, the thesis also assesses the difficulties, challenges and the impacts of the Parliamentary Ombudsman agency in the State apparatus when this agency is established in Vietnam, along with setting out specific solutions to solve those difficulties and challenges This is what previous studies on the application of Parliamentary Ombudsman in Vietnam have been little or not mentioned
Thirdly, in addition to the new contributions above, the thesis also adds theoretical
analyzes and assessments on the mechanism of state power control, the relationship between control of state power and the protection of human rights in the modern rule of law state; point out the characteristics of the organization and operation of the system of public administrative agencies in Vietnam, on that basis, identify specific requirements in the power control mechanism for this type of body On the other hand, the thesis analyzes and points out the limitations of law on the issue of power control for public administrative agencies, giving lawmakers more ground to improve current legal provisions
7 The structure of the thesis
In addition to the Introduction, Conclusion, List of abbreviations, List of references, the content of the thesis is structured in 4 chapters:
Chapter 1 Literature review
Chapter 2 Theory of Parliamentary Ombudsman and the comparasion of different types of Parliamentary Ombudsman in the world
Chapter 3 The demand of applying the Paliamentary Ombudsman to control the power of the public administrative agencies and build the National Human rights agency in Vietnam
Chapter 4 The possibility of establishing the Paliamentary Ombudsman in Vietnam
Trang 9CHAPTER 1 LITERATURE REVIEW 1.1 Overseas researches on Parliamentary Ombudsman
1.1.1 Overseas research works on the Parliamentary Ombudsman as a power control agency
1.1.2 Overseas research works on the Parliamentary Ombudsman as a national human rights agency
1.1.3 Evaluation of overseas research works on the Parliamentary Ombudsman
It can be seen that the research on the Parliamentary Ombudsman has been interested
by many foreign scholars and the research has been conducted in many different aspects, in particular:
Firstly, in terms of content: The researches have analyzed and clarified the position,
functions, competence as well as the organization and operation of the parliamentary ombudsman Accordingly, the parliamentary ombudsman in the world is known for two basic roles Firstly, the parliamentary ombudsman is an independent constitutional institution that controls public administration, contributing to building a good governance Secondly, the parliamentary ombudsman is a type of national human rights agency that is used by many countries for its advantages To specific:
As an independent institution in the mechanism of power control, studies of the Parliamentary Ombudsman helped the thesis determine its position in current power control mechanisms The modern state uses the power control mechanisms diversely and flexibly in organizing and operating the state apparatus The power control under the simple power division theory in the democratic states in the early 20th century revealed the limitations in the face of a rapid socio-economic development, followed by the emphasis on the role of administrative agencies That reliability required a new power control mechanisms to supplement the traditional power control mechanism Accordingly, the parliamentary ombudsman was born, considered as one of the institutions under the "soft control" mechanism With its independent and accessible characters, diverse and flexible forms of control, it has shown many advantages in controlling power, especially for countries where the organizing of activities between the legislative, executive and judicial branches has not been effective
As a national human rights agency, the studies on Parliamentary Ombudsman have helped the thesis assess its development trends From a mere power control institution that
Trang 10helps parliament to control the government (some countries also control the Courts), the parliamentary ombudsman now serves as an agency to protect human rights The expansion
in scope of function to become a national human rights agency makes the parliamentary ombudsman increasingly spread to countries around the world
The overseas research works on the parliamentary ombudsman provide relatively sufficient information and documents, by which, the thesis is able to assess comprehensively the nature as well as explain the formation and development of the parliamentary ombudsman
Secondly, in terms of research method: Most of the research works on parliamentary
ombudsman were conducted in the form of comprehensive research Besides, there are also studies on the parliamentary ombudsman in a specific country The studies use analytical and statistical methods as the primary research method, while only a few studies use the comparative method as the main research method However, most of the studies is limited to
a certain region or a specific group of countries, such as the studies comparing Parliamentary Ombudsman models by the development stage or Parliamentary Ombudsman models in Europe, Asia, and the America rather than a comparative study in a broad scope, The research methods that foreign scholars apply in studying parliamentary ombudsman help the thesis gain more experience in carrying out this topic
1.2 Domestic studies on Parliamentary Ombudsman and its applicability in Vietnam
1.2.1 Domestic studies on Parliamentary Ombudsman
1.2.2 Domestic studies on the applicability of Parliamentary Ombudsman in Vietnam
1.2.3 Evaluation of domestic studies on Parliamentary Ombudsman and its applicability in Vietnam
First of all, regarding the studies on Parliamentary Ombudsman in Vietnam, some
conclusions can be drawn as follows:
Firstly, in terms of research scope: In Vietnam, although there have been studies on
the Parliamentary Ombudsman in forms of both comprehensive and specific country research, the number of studies on is small in number and limited in scope compared to the world The studies only stop at the general level, mainly focusing on the Parliamentary Ombudsman in typical countries (such as Northern European countries) Therefore, the thesis based on the inheritance of domestic researches should continue to study the Parliamentary Ombudsman Agency at a wider and more comprehensive perspective The
Trang 11thesis researches not only countries in the region of Europe where the Parliamentary Ombudsman is very developed, but also countries in other regions of the world such as the Americas, Asia and Africa with the purpose of finding out the characteristics and the diversity of the Parliamentary Ombudsman institutions in countries around the world, thereby, assess the development trend of this model
Secondly, in terms of content: Domestic studies on Parliamentary Ombudsman basically
approach this agency either as a control agency or as a national human rights agency
Thirdly, in terms of research method: Most of the studies use analytical and statistical
methods as the primary method while some carry out comparative research method although the number of countries in those studies is limited to two countries in Asean region
Additionally, in studying the applicability of the Parliamentary Ombudsman in
Vietnam, most scholars have suggestions on the application of this type of agency in Vietnam, yet, the scholars only give some simple suggestions and arguments In particular, Vietnamese scholars have not mentioned and analyzed the effects of the Parliamentary Ombudsman on relevant state agencies when is applied in Vietnam Moreover, they have not made a decision on which model of Parliamentary Ombudsman is appropriate for Vietnam while the Parliamentary Ombudsman mechanism in the world is organized diversely, as well as not anticipating possible difficulties, giving solution to overcome difficulties when applying this model These are the important tasks that I want to continue developing in this thesis
CONCLUSION FOR CHAPTER 1
By analysizing the researches on Parliamentary Ombudsman in Vietnam and in the world, we can see that although this topic has been studied a long time ago, many foreign scholars continue to study and recognize this agency in some new ways associated with the attemption of human rights protection and good governance By contrast, the study of this mechanism in Vietnam is still limited in number and scale, most of studies are conducted within a few countries
Regarding the feasibility assessment in the application of the Parliamentary Ombudsman model in Vietnam, Vietnamese government has advocated learning experiences of applying the Parliamentary Ombudsman model in other countries to evaluate the applicability of this model in Vietnam in the 1990s However, this model has not been applied in Vietnam for various reasons On the other hand, from a research perspective, the application recommendations only stop at supporting the establishment but have not
Trang 12proposed specific models for Vietnam nor assessed the impact of this institution in the operation of the state apparatus
Accordingly, Parliamentary Ombudsman is still a research topic that needs to be further exploited to better understand this mechanism, to have a comprehensive, accurate assessment, and to answer the question of whether the Parliamentary Ombudsman should be applied in Vietnam If so, how to design this agency in the state apparatus
CHAPTER 2 THEORY OF PARLIAMENTARY OMBUDSMAN AND THE COMPARISON OF DIFFERENT TYPES OF PARLIAMENTARY OMBUDSMAN IN THE WORLD 2.1 Theory of Parliamentary Ombudsman
2.1.1 Concept of Parliamentary Ombudsman
2.1.1.1 Concept of inspectorate and state inspectorate
According to the Legal Term Dictionary, “inspectorate” refers to “examining and supervising the implementation of policies, laws, tasks and plans conducted by state agencies and public servants, supervising the settlement of complaints and denunciations of authorities” Inspection can be done by the state or social organizations
The term "state inspectorate " is used to identify the subject conducting the inspectorate activities which is a state agency rather than a social organization State inspectorate
can be defined as activities of competent state agencies using professional methods such as investigating and evaluating the activities of entities using state power or public services in order to detect or prevent violations in time by proposing to handle problems or handle them
by using their respective competence
2.1.1.2 - Parliamentary Ombudsman - a type of state inspectorate being outside the administrative system
Currently, there are two basic models of inspectorate agencies in the world, one is in the administrative system and the other is outside the administrative system
The Parliamentary Ombudsman is a constitutional or established by the legislature body (Parliament) and is headed by an independent senior official responsible before the legislature (Parliamentary) These independent senior officials have the right to receive complaints from citizens against administrative officials and their staff, on that basis, the Parliamentary Ombudsman have the right to investigate, propose measures and issue reports
Trang 13Based on the concept and classification of state mbudsman, it can be asserted that Parliamentary Ombudsman is outside the administrative system This statement is reflected
in terms of not only organizational but also in operational aspect in which the Parliamentary Ombudsman have their own independence
Currently, there are two basic models of inspectorate agencies in the world, one is in the administrative system and the other is outside the administrative system Based on the concept Parliamentary Ombudsman, it can be asserted that Parliamentary Ombudsman is outside the administrative system
2.1.2 The role of the Parliamentary Ombudsman
2.1.2.1 The role of the Parliamentary Ombudsman in controlling state power
a The concept of power control and power control mechanism in the modern rule of law state
Control of state power is essentially the grasp of the organization and operation of entities exercising state power, conducted by government agencies or citizents in order to ensure that state agencies exercise their power properly without the abuse of their authorizations or state power for self-seeking purposes, which againsts the nature of the democratic state
State power control mechanism is the method, process, regulation and institutions related to the control of state power They are closely linked together by which the control
of state power is carried out This mechanism aims to prevent and eliminate the risks of wrongdoings from State agencies and public servants in organizing and exercising state power, ensuring the state power is organized and implemented effectively in accordance with the provisions of the Constitution, laws
b Parliamentary Ombudsman- An independent control agency that links power
control from the state to power control from society
From the concept and the mechanism of power control in the modern rule of law, it is possible to determine the position and role of Parliamentary Ombudsman in the organization and operation of the state apparatus as follows:
First of all, it can be affirmed that the Parliamentary Ombudsman is a type of
independent control agency, meeting the diversity in power control mechanisms in the rule
of law for the following aspects:
Firstly, Parliamentary Ombudsman is born due to the need to expand the function of the state