Movements toward administrative decentralization and the future of local government in vietnam

” 3 The process o f implementing decentralization has not yet been completed, although, Vietnam has attempted to build up an effective, efficient, and responsive administrative system by

N a g o y a University

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LL M Spécial Program For International Student

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A B S T R A C T

IN T R O D U C T IO N 1

C H A P T E R O N E - C O N C E P T O F D E C E N T R A L IZ A T IO N 4

1 FO RM S OF D E C E N T R A L IZ A T IO N 5

1.1 Déconcentration 9

1.2 Délégation 12

1.3 Dévolution 13

1.4 Transfer o f the public fonctions to the N G O s 15

i i 5 Local Autonomy or self-government 18

2 RATIONAL AD M IN ISTRATIVE DECENTRALIZATIO N 21

3 WHAT IS AD M IN ISTRATIVE DECENTRALIZATION IN V IE T N A M ? 25

C H A P T E R TWO- T H E A D M IN IS T R A T IV E SY S T EM O F V IE T N A M 29

1 AD M IN ISTRA TIVE SYSTEM UNDER THE CENTRAL-PLANNING PERIO D 29

1 I The French and American w ar period (1945-1975) 29

1.2 Central-planning period (1975-1986) 35

2 CONTEMPORARY AD M IN ISTRA TIVE SYSTEM UNDER THE PERIOD OF A MARKET-ECONOMY 39

2.1 Organisation o f administrative system 41

2.2 Duties and powers o f local administrative organs 43

C H A P T E R T IIR E E - P R O B L E M S OF T H E A D M IN IS T R A T IV E SY S T EM IN V IE T N A M 48

1 ISSUES OF THE AD M INISTRATIVE SYSTEM IN V IET N A M 48

1.1 Dépendent local administrative organs 48

1.2 Overlapping o f functions 53

1.3 Grassroots level’s limitations 59

2 REASONS OF IN EFFEC TIVE A D M IN ISTRA TIV E SYSTEM IN V IET N A M 63

C H A P T E R R O U R - P E R S P E C T IV E O F T H E A D M IN IS T R A T IV E S Y S T E M IN V IE T N A M 72

1 C REA TE AN EFFEC TIV E LEG A L M EC H A N ISM 73

2 EM PO W ER M EN T THE LOCAL AD M IN ISTRA TIV E ORGANS ESPEC IA LLY AT THE GRASSROOTS L E V E L 78

3 IMPROV1NG PARTICIPATION OF T IIE NON-GOVERNMENTAL ORGANIZATION 8 1 4 ENI1ANCE DELEGATION OF DUTIES AND PO W ERS IN THE IMPORTANT F IELD S 84

5 REC EN TRA LIZA TIO N 86

C O N C L U S IO N 89

B i B L I O G R A P H Y i

Vietnam has followed a centrally planned regime for over forty years; therefore, the , central governments always played dominant rôle in state management The local governments depended on the central government and they could not take initiatives in carrying ont their functions Though Vietnam introduced decentralization many years ago, the process o f implementing such a policy has not been completed The Administrative system still confronts many problems such as an overlapping o f functions, ineffective local government, red tape, and corruption These problems hold back the economic development o f Vietnam and also preventthe nation from inlegrating into the process of globalization The question remains as to what

I lowever, these represent a very complicated and challenging task, because Vietnam has spécial features that includc a single-party system and a principle of démocratie centralism A

more harmonious combination of centralization with decentralization must be ensured in the process o f improving administrative decentralization.

Implementing decentralization represents the central task o f administrative reforms in Vietnam This paper w ill demonstrate the measures for improving administrative decentralization A strong administrative system will assist in developing and integrating Vietnam into the world body

I

Recently, “ there has been a dramatic flowering of decentralization initiatives among the developing countries” in A sia 1 Understanding the importance o f decentralization, Vietnam has also implemented such reforms This is emphasized when the economic regime changed from central planning to a market economy based on the “DOIM OF (renovation) policy o f the Communist Party, 2 which considers decentralized governance as a necessary condition in developing the country A$ Vasavakul wrote: “ Briefly, I argue that the local administrative state

in Vietnam was highly decentralized, and that the central-planning system, with its vertical economic structure o f allocating and redistributing resources, coexisted with a decentralized local

ad m i n i st rat i ve m ec h a n i s m ” 3

The process o f implementing decentralization has not yet been completed, although, Vietnam has attempted to build up an effective, efficient, and responsive administrative system

by providing légal framework for the organization and opération of the administrative system 4

Despite the fact that there have been many administrative reforms in Vietnam, such as in administrative procédures, in wage systems, in organization of both central and local governments, and in the mechanism o f civil servant employment, the system o f bureaucracy still

’A B D U L AZ1Z and D A V ID D A M O L D editors, D E C E N T R A L IS E D G O V E R N A N C E IN A S IA N C O U N T R IE S , Sage publications India Pvt Ltd, c l 996, page 13.

2 Dang Cong san Viet nam, Van kien dai hoi Dang lan thu 6, 1986 [Party Congress Resolution No 6/1986]

3 M A R K T U R N E R editor, C E N T R A L - L O C A L R E L A T IO N IN A S IA - P A C IF IC - C O N V E R G E N C E O R

D IV E R G E N C E , Published by Palgrave, cl 999.[Thaveepon Vasavakul, Relhinking the philosophy o f Central-local relations in Post- central-planning Vietnam, page 168].

^Quoc hoi, Luat to chuc chinh phu , 2001 [Law on organization of Government], Luat to chuc hoi dong nhan dan va

uy ban nhan dan cac cap nam, [Law on organization ofthe People’s Council and the People's Committee o f ail level, 1994-translated by author].

remains ineffective There are many shortcomings as in overlapping functions, corruption, red- tape, ineffective grassroots level décision making, and an overstaffed personnel lacking proper skills.

In order to overcome these shortcomings, Vietnam needs to improve administrative decentralization B y means of improving administrative decentralization, the local governmental organ may be provided with opportunities to operate and function on their own and thus become less dépendent upon the central authority for support and assistance Following this, the state needs to promulgate a new law in order to clarify the relations between the central and local authorities, to delegate more power to the local organs, and also privatize some of the public administrative services The central government needs to trust and to make bold transfers of

authority to the local administrative organs, as a matter of improving bureaucratie

ldecentralization

Implementing decentralization reflects the central task of these reforms B y transferring certain powers to the local government, Vietnam can create an efficient, effective, and responsive administrative system However, under the one-party p o lic y5 and “lap trung dan chu” (démocratie centralism) principle, 6 Vietnam needs to perform administrative decentralization in hcr own way

Basing on the study of the implémentation of decentralization in countries such as Japan, China, and the Philippines, this paper makes an effort to present the measures for improving administrative decentralization in concrete conditions of Vietnam

5 Quoc hoi, Hien Phap 1992, Dieu 4 [ 1992 Constitution, Article 4]

('Quoc hoi, Hien Phap 1992, Dieu 6, [1992 Constitution, Article 6]

This thesis starts in Chapter One with a discussion on the concept of decentralization in order to analyze the forms o f decentralization, the degree o f decentralization, and the requirements o f local-autonomy or self-govemment Basing on concrete conditions in Vietnam, this thesis w ill point out the forms o f decentralization that can be applied Moreover, understanding clearly the historical development o f that system is necessary for carrying out administrative decentralization in Vietnam Therefore, Chapter Two illustrâtes the development

o f this system in Vietnam in two periods: the period of the centrally-planned and the market economy regime Chapter Three discusses some problems and issues related to the administrative system in Vietnam, such as overlapping functions and ineffective grassroots level decision- making This chapter also analyzes the reasons why this system lias not been effective

From the foregoing discussion on decentralization, and the problems in the administrative

Isystem in Vietnam, Chapter Four demonstrates the perspective of an effective, efficient, and responsive administrative system by pointing out the measures to improve administrative decentralization The central government might transfer duties and power to the local governments and other non-govemmental organizations by déconcentration, délégation, and dévolution Furthermore, the central government also needs to be reorganized Government has to create an effective légal Framework for the re-organization of the administrative system so that the relationship between the central and local authorities can be distinguished by law The central government cannot freely interféré into the works of the local governments The local governments, meanwhile, can take initiatives in implementing their functions that in total ullow the management of Vietnam to become more effective, efficient, and responsive

C H A P T E R 1 CONCEPT OF DECENTRALIZATION

State management, generally, is necessary in developing a country that the mechanism of state management becomes increasingly important during the process o f globalization The development of a country not only depends on the domestic environment but also is influenced

by international factors The State must take careful action to décidé which method to apply in managing the socio-economy The concept of centralization was considered a good way to manage the State and develop the country, but through the practice many limitations have becomc apparent Thus, “ decentralization soon began to bc secn as an alternative system of governance where a “ people-centered” approach to resolving local problems was followed to ensure economic and social justice ” 7 In modem societies, there has been no example of pure centralization Centralization must coexist with decentralization, and many scholars have studied this 8 This paper also seeks to discuss more about decentralization but in the concrete example of Vietnam, where centralized governance has dominated for some time

As the importance of decentralization has been overlooked, the meaning of this concept needs to be in this chapter in order to clarify the forms and degree that can be applied to match with the political and socio-economic conditions in Vietnam

7 S.N J H A and P.C M A T H U R editors, 1999, D E C E N T R A L IZ A T IO N A N D L O C A L P O L IT IC , U S - Sage Publications, Readings in Indian government and politics, page 47.

8 JU R G E N R U L A N D , 1992, U R B A N D E V E L O P M E N T IN SO U T H E A S T A S I A - R EG IO N A L C IT IE S A N D

L O C A L G O V E R N M E N T , Westvievv Press, page 3, Historically, the first decentralization debate took place in the 1950s and early 1960s.

4

Furthermore, Brillantes suggests that two prevailing perceptions of decentralization must

be distinguished The political decentralization sometimes refers to as ‘dévolution’ and administrative decentralization indicates to as ‘déconcentration’ In other words, the général concept o f decentralization covers both political decentralization and administrative decentralization Political decentralization is the dévolution of powcrs to local government un its, the area approach Administrative decentralization is the déconcentration of functions from national line departments to their régional offices, the sectoral approach 1 1

So, decentralization transfers authority from the central to local area in every field such as the politic, législation, administration, jurisdiction, and economy Other scholars have added,

“ Each type o f decentralization—political, administrative, fiscal, and market—has différent characteristics, policy implications and conditions for success Ail these factors need to be

9 S.N JH A and P.C M A T H U R editors, supra noie 7, page 55, [S.S M E E N A K S H 1 S U N D A R A M , Decentral i/rit'01'

in developing countries.]

IOr> •

See la.

" V I C T O R I A A B A U T IS T A editor, R A U L P.D E G U Z M A N et ail, 1993, IN T R O D U C T IO N TO PUlU-IC

A S M IN 1 S T R A T IO N IN T H E P H IL IP P IN E S : A R E A D E R , College o f Public administration University o f lhe Philippines Quezon City, [Decentralization in the Philippines: An Overview, Alex Bello Brillantes, JR pages ^8-

carefully considered before deciding whether projects or programs should support reorganization

o f financial, administrative, or service delivery systems.”

Each field can be implemented separately or not; in général, countries often pursue the implementation o f decentralization in ail fields at the saine tirne based on the concrete socio- economic environment o f each country However, this paper only focuses on the administrative decentralization

As Barlow mentions, with regard to contemporary governmental change, the terni decentralization is used to express two processes: first, it refers to the transfer of responsibi 1 ities within the public sector, usually from a higher-level government to lower- level government; and second, it refers to the transfer of responsibilities from the public to the private sector 13

According to these points, then, decentralization retains a broad meaning as it not only takes

I

place between public sectors but also arises between the public and private sectors Decentralization is the conceptuel Framework that is most frequently applicd to addrcss central- local relations “ There is agreement that the most basic level o f decentralization within the State involves a transfer o f authority to perform some services from an individual or an agency in central government to some other individual or agency that is doser to the public to be served ” 14

What defines administrative decentralization? The book on Decentralization Briefing Notes explains administrative decentralization in the following way: “ lt is the transfer of responsibiIity for planning, financing, and managing certain public functions from central

12 JE N N IE L IV A C K and JE S S IC A S E D D O N editors, 1999 contributors, JU N A 1 S A H M A D et ail,

D E C E N T R A L IZ A T IO N B R IE F IN G N O T ES , World Bank Institute, page 2.

13 R O B E R T J B E N N E T T editor, 1994, L O C A L G O V E R N M E N T A N D M A R K E T D E C E N T R A L IZ A T IO N :

E X P E R IE N C E S IN IN D U S T R IA L IZ E D , D E V E L O P IN G , A N D F O R M E R E A S T E R N B L O C C O U N T R IE S ,, United Nations Univcrsity Press, [Max Barlow, Centralization and decentralization in the governing of cities and metropolitan régions, page 319].

14 M A R K T U N N E R et ail, supra note 3, page 4.

6

government and its agencies to field units of government agencies, subordinate units or levels of government, semi-autonomous public authorities or corporations, or areawide, régional, or functional authorities.”

Similarly, Cohen and Peterson argue that: “ Administrative decentralization is focused on the hierarchical and functional distribution of powers and functions between central and non- central governmental units ” 16 In général, administrative decentralization is the transfer of authorities or responsibilities from the central government to local government and the other agencies “ Administrative decentralization seeks redistribute authority, responsibiIity and Financial resources for providing public services among différent levels of government ” 17

Decentralization can be performed by différent ways, and there are many forms of

transferring authority from the central government to local governments and other agencies

lThere are four types o f decentralization introduced and applied in many countries; for example,

“ decentralization, be it in the form o f déconcentration, dévolution, privatization or community organizational involvement may strengthen local administration and promote local

I Rdevelopment.”

Mark Turner describes the forms of decentralization as follow: 19

15 JF N N IE L1 T V A C K and JE S S 1 C A S E D D O N editors, contributors, JU N A ID A H M A D , et ail., supra note 12, page

2

16 JO H N M C O H EN and S T E P H E N B P E T E R S O N , 1999, A D M IN IS T R A T IV E D E C E N T R A L 1 Z A T IO N -

S T R A T E G 1 E S FO R D E V E L O P IN G C O U N T R U E S , Kumarian Press, page 23.

17 Supra note 12, page 2.

18 P E R F E C T O L P A D IL L A , 1992, S T R E N G T H E N L O C A L G O V E R N M E N T A D M IN IS T R A T IO N A N D

A C C E L E R A T IN G L O C A L G O V E R N M E N T , Loc cal Government Center published, page 167.

M A R K T U N N E R et alI, supra note 3, page 5.

7

démocratie decentral ization

Interests group représentation

Within public

administrative or

parastatal structure

Déconcentration (administrative decentralization, field administration)

Establishment of parastatal

From state sector to

private sector

Privatization o f devolved functions(deregulation, contracting out)

Privatization of national functions

h

The four forms o f decentralization that can be used by central governments to transfer authority for planning and administration are; (a) déconcentration; (b) délégation to semiautonomous or

OQautonomous agencies; (c) dévolution; (d) and transfer to non-governmental institutions."

There are five alternative forms of decentralized services (déconcentration, dévolution, délégation to public enterprises and spécial authorities, and transfer to non-governmental entities) 21 Déconcentration, délégation, dévolution and privatization are used as basic types to implement administrative decentralization in every country but clearly the performance of each form is not the saine in ail countries However, due to the fact that privatization consists of tvvo types, firstly, the transferring o f responsibiIities from public sectors (state enterprises) to private sectors, and secondly, the shifting o f accountabilities from the government to non-governmental

20 G S H A B B IR C H E E M A , DEN N1S A R O N D IN E L L I, 1983, 1 M P L E M E N T IN G D E C E N T R A L IZ A T IO N

P R O G R A M M E S IN A S IA , United Nations Centre for Régional Development, pagel I.

21 R O B E R T J B E N N E T T , supra note 13, [L E D IV IN A C A R IN O , Five alternative forms o f decentralizations o f services, page 333].

8

organizations (N G O s), thus, only the latter form of privatization would be scrutinized in this paper.

Each country depending on its socio-economic conditions has applied these forms of decentralization in various degrees; therefore, this paper seeks to distinguish the forms and degree o f decentralization in order to apply them concretely to the conditions o f Vietnam

1.1 Déconcentration

Some academicians define déconcentration as: “ handing over some amount of administrative authority or responsibility to lower levels within the government ministries or agencies.” 2 2 Other schojars contcnd: “ Déconcentration involves the redistribution of

administrative responsibi 1 ities only within the central government or involves the transfer of

Ifunctions and decision-making authority within the central government hierarchy, through shilling the workload from the central ministries to field officers, the création of field agencies or the shifling of responsibility to centrally controlled local administrative units.” In général, déconcentration is the transfer o f authority and responsibility from ministries to local governments and field management agencies

Under the central-planning mechanism, ministry-field management agencies have a lot of responsibilities and functions, whereas local administrative organs are only subnational organization B y transferring functions and decision-making authority to lower levels, then, the central government only performs such important functions that ensure the growth-equity in ail areas of the country At the local level, field agencies are established to carry out the functions of

" S S N JH A and P.C.MAT1 IU R , supra note 7.

■'1G S H A B B IR C H E E M A D E N N IS A R O N D ID E N IL L I supra note 20, pages 11-12.

9

field management; for example, the department of information and culture is established in every province to manage information and culture locally and under the control o f M inistry of Information and Culture.

Déconcentration creates a vertical relation from the central to local bureaucracies in order

to perform field administration in each locale or région A greater degree of déconcentration can

be achieved through field administration In contrast with merely transferring workloads from the central government offices in the capital city to those in other locations, the création of a system

o f the field administration involves the délégation of some decision-making discrétion to field staff, authorizing thein some latitude to plan, make routine décisions, and adjust the performance

o f central instructions to local conditions in accordance with the guidelines ofthe central ministry

The process of déconcentration also can be shown by the délégation o f functions from the central

Igovernment to the local administration Field administration differs from local authorities bccausc they have bccn implcmented by specialized and executive organs while the latter implements executive functions Local administration represents a form o f déconcentration in which ail subordinate levels of government within a country become agents o f the central authority, which is usually the executive branch Local governments are managed by leaders who are either appointed by or are accountable directly to a central government agency, usually a ministry of local government or ministry o f the interior; therefore, the leaders are alvvays influenced by the central governments Local functions are performed under the technical supervision and control o f central ministries as the resuit the head o f local administrations serves

at the pleasure o f nation’s chief executive

Déconcentration demands the création of one local administrative system that combines législative, executive, and field agencies, while having their own functions and responsibi 1 ities

10

Local systems must also have authority to perfonn efficient functions that are transferred from the central government However, déconcentration does not mean shifting the workload to outside capital or only focusing on development o f some locals As Cheema and Rondinelli mention that “ decentralization in some countries is merely the shifting o f the workload from the central ministry or agency headquarters to its own field staff located in offices outside of the national capital, without transferring to them the authority to make décisions or to exercise discrétion in carrying them ont ” 2 4 Fesler argues that decentralization is not the shifting of the workload completely: “ To move workload out of the capital may be efficient and convenient for the public and may even promote the feeling that government is close to people,” he notes, “ but it may not involve any decentralization of power, that is, it may not provide the opportunity to

exercise substantial local discrétion in décision making.” "

IMoreover, the degrce of déconcentration can be exemplified by the functions of local government since the central government does not transfer ail the functions to the local authorities For example, in the éducation administration, the local governments gencrally manage the primary and secondary schools at the district level and high school at the provincial level The management o f the universities belongs to the compétence of the Ministry o f Education However, in some countries, local governments now can establ ish a university in order to meet the demand of the local socio-economic environment

According to the experience o f implementing decentralization in the Philippines, in the case o f déconcentration, which is the délégation of authority and functions from the central to

field offices, the following measures were adopted: (1) création o f régional offices; (2) création

of régional development councils; (3) création o f régional and sub-regional development authorities; (4) adoption of the Integrated Area Development Program; (5) and establishment of the Integrated Area Management System for Agricultural Services 2 6

In général, to implement déconcentration as one form o f decentralization, central government needs to establish a local government system at that level, combining législative and executive organs with the other field management agencies The central government should transfer responsibiIities and authorities to the local governments

1.2 Délégation

“ Délégation to semi-autonomous or autonomous agencies involves the transfer of functions to parastatal organisations which can often operate outside of some central government régulations, or may act as an agent for the state in performing prescribed functions Ultimate responsibi 1 ity for those functions, however, remains with the central government.” ''

The concept of délégation is also mentioned in others books; for instance, another form of decentralization is the transference o f authority in management and decision-making in specific functions to organs with semi-independent authority to perform their tasks, which are either indirectly under the control of central government ministries or not even locate within the régulai*

"’Sgovernment structure."

26 H A S N A T A B D U L H Y E éditer, D IA N A C O N Y E R S et ail, 1985, D E C E N T R A L IZ A T IO N L (H 'A L

G O V E R N M E N T IN S T IT U T IO N S A N D R E S O U R C E S M O B IL IZ A T IO N , Published by Director Banghulesh Academy for Rural Development kotbari, Comilla, page 147.

:7C S H A B B IR C H E E M A , D E N N IS A R O N D IN E L L I, supra noie 21), page 12.

:s G S H A B B IR C H E E M A , D E N N IS A R O N D IN E L L I edilors, supra note 24 pages 20-21.

12

Délégation of functions frorn the central government to the other organizations such as public corporations, régional planning, multi-purpose and single-purpose functional authorities, and spécial project performance units represents a more extensivc form of decentralization than administrative déconcentration “ Délégation implies the transfer or création o f broad authority to plan and implement décisions concerning specific activities-or a variety o f activities within spécifié spatial boundaries-to an organization that is technically and administratively capable of carrying them out without direct supervision by higher administrative units ” 2 9 In other words,

“ délégation o f powers is a transfer of authority by one branch of government to another branch or

to an administrative agency ” 30

Local governments must have relative independence in order to fulfill their

responsibi 1 ities delegated by the central government It is unreasonable, if local governments do

Inot have authority to perform their functions The central government needs to delegate authority

to the local governments, because without authority, the local governments are only subordinate organs of the central government They only carry out the functions o f the central government and always under its control and interferences When delegating authority to local governments, the central government will play a supervisory rôle; therefore, local governments should perform

their functions more actively

n

1.3 Dévolution

Another form of decentralization seeks to crcate or strengthen independent levels or units

ol government through dévolution o f functions and authority “ Dévolution involves the transfer

of functions or decision-making authority from the central government to local

Supra note 24, pages 20-21.

" B R Y A N A G A R N E R editor in ch ici', 1999, B L A C K ’S L A W D IC T IO N A R Y , West Group, page 438.

governments ” 31 On dévolution, which is the transfer of authority from central to local government units, the following measures were adopted: (1) création o f régional government; (2) création of local development councils; (3) and constitutional mandate on local autonomy and the

32local government code

Through dévolution, the central government relinquishes certain functions or creates newunits o f government that are outside its direct control Dévolution, in its purest forms, has certainfundamental characteristics:

Local units of government are autonomous, independent, and clearly perceived as separate levels of government over which central authorities exercise little or no direct control;

Local governments have clear and légally recognized geographical boundaries within which they exercise authority and perform public functions;

Local governments have corporate status and the power to secure resources to perform their functions;

Dévolution implies the need to “ develop local government as institutions” in thc sense that they are perceived by local citizens as organizations providing services that salisfy their needs and as governmcntal units over which they have some influence; and

Dévolution is an arrangement in which there are reciprocal, mutually bénéficiai, and coordinate relationships between central and local governments, that is, the local government has ability to internet reciprocally with other units in the system of government of which it is

a part 33

As a result of dévolution, the local body is accountable for the functions delegated to it by law Its organs only operate on behalf o f thc local body and are responsible for the central government 34 Therefore, dévolution in principle is the transfer of public governmental functions from the central government or from upper to lower level of subnational government so that they

IM P L E M E N T IN G D E C E N T R A L IZ A T IO N , supra noie 20, pagel2.

H A S N A T A B D U L H Y E editor, D IA N A C O N Y E R S et ail, supra note 26, page 147.

” D E C E N T R A L IZ A T IO N A N D D E V E L O P M E N T , supra note 24, pages 20-21.

''4 K E T L E E N F L O R E S T A L and R O B B C O O P E R , 1997, D E C E N T R A L IZ A T IO N O F E D U C A T IO N - L E G A L

IS S U E S , The World Bank, page 3.

14

become the autonomous functions o f the lower level Central government when transferring public functions to local governments should consider the capacity o f local governments whether they can have ability to perform al! the public functions or not However, if ail the functions are transferred to local governments, they vvill become local autonomy or self-government This matter will be discussed in the latter part o f this chapter.

The requirements o f dévolution are: first, local governments must have their own territories and local governments which are elected by local people (combines législative and executive organs); second, the authorities and functions of local governments must be provided

by law because it is the légal framework for the functioning of local governments

Furthermore, the transfer o f public functions of the central government is not only to the

local governments, but also, some functions can be transferred to private sectors and

non-lgovernmental institutions It has become evident that non-governmental institutions now play a very important rôle in society Thus, encouraging the participation of non-governmental institutions in state management becomes increasingly more important, helping to reduce the workload o f the state

1.4 Transfer of the public functions to the N G O s

A transfer of public functions to the N G O s can reduce the workload oi the government, and also can enhance the participation o f the population in the process o f state management

“ Transfer to non-governmental institutions is the process o f shifting responsibility for functions from the public sector to non-governmental organizations ” 3 5 Public functions can be performed

by business sector (privatization) or by non-profit organizations (NGOs) With privatization, the

’5IM P L E M E N T IN G D E C E N T R A L IZ A T IO N , supr 1 noie 20, page 12.

15

task o f government changes from direct delivery to régulation N ow , the government only set rules to ensure that the public interest is upheld However, privatization also concerns the economic field, and companies perform these public functions for benefit; therefore, this paper only focuses on the transfer o f public function to non-profit organizations-the N G O s The N G O s have been suggested as more efficient alternative channels of delivery because o f their relative lack o f red tape and hierarchy They can also be justified as instruments o f accountability, both

on their own and due to effect on the government

Transferring public functions to the N G O s will create comfortable conditions for a population to participate in the process o f state management Especially, al the grassroots level, participation of résidences becomes increasingly important, for it contributes to the promotion of effectiveness o f State management “ More often, a government transfers responsibilities to or shares them with organizations that represent varions interests in society and that are initiated and exercised by members o f those organizations.” 6 So the transfer of public function to the N G O s has increasingly been applied in every developing country

As above mentions, decentralization has four forms and the implementation of each form depends on the political, socio-economic environments of the country “ The level and content of decentralization depend on the conditions o f space and time, and accordingly they must be determined in harmony with the characteristics and ability of local autonomous bodies This is why big cities, small and medium-sized cities, and rural areas must have différent forms and

^ 7inethod o f local government.”

36D E C E N T R A L IZ A T 1 0 N A N D D E V E L O P M E N T , supra note 2-1, page 25

" R O B E R T J B E N N E T T editor, supra note 13, page 132.

16

In général tour forms of' decentralization can be implemented by transferring authority, duties, responsi bi 1 ities, and fonctions from the central government to a local government These forms o f decentralization can be summarized as follows:

l 'ach developing country has ils own features o f performing decentralization However the degree o f decentralization can be evaluated through the level of the transferring authorities and functions o f central government to local governments The highest degree o f decentralization

is local-autonomy or self-government The study o f local autonomy should be addressed next

1.5 Local Autonom y or self- government

THLTVjENTRLfÔlMG DAI HOC LUÂJ HÀ NÔI

P H 0 N 6 P 0 C ' s f S j ? 7 ‘

17

The administrative and political features o f decentralization have been emphasized in

m am wavs b\ various authors One school o f thought focuses on administrative decentralization concentraiing on transferring the functions o f planning and decision-making to the lovver levels The oiher school o f thought pays attention to the political aspect o f decentralization emphasizing the dévolution and local government feature This is considered as “ local autonomy” that embraces the decentralization o f powers o f the central government to the local governments; for example, taxation/ 8

The concept of local autonomy alvvays relates to the général idea of decentralization; ho\*e\er local autonomy relates more specifically to political decentralization than to administrative decentralization Local autonomy represents the capacity o f the local government for self-government at the régional such as provincial, city, or municipal level The following are ihe major criteria in determining local autonomy or self-government:

- First, there should be a set o f locally electcd officiais in the area at least

at the législative level In other words, the area o f self-government must elect at least a législature that would be représentative of the various géographie divisions, and if possible, sectors, in the area which would

be responsible for promulgating law relevant to the needs of the population;

Second, the area of autonomy or self-government should have clearly defined areas o f responsibi 1 ity For instance, the local unit could be specifically primarily responsible for the delivery of éducation and health services, and local infrastructure;

Third, the relationship between the national and the local levels should

be clearly defined, and area of primary responsibility distinctly delineated For instance, are local décisions considered more or less final, or are they subject to review? A distinction should be made between review and approval by the national g overnm ent over the local level’s décisions Another example would pertain to the subject of budgets: would local budget be effective only upon approval by the

» -C I O R J A A editor, B A U T IS T A et ail, supra noie 11. page 369, [D e c e n tra liz a tio n in the PhiIippjnes; ^

O s r» ieu Alex Bello Brillantes, J R -368- 381].

18

national government, or are certain points subject for review/approval/supervision by the central government? and

Finally, the area of self-government, or local autonomy, should be given some authority to generate local revenues through taxation This would make the power of area of autonomy more significant and meaningful 3 9

According to these criteria, First o f ail, local autonomy needs to have législative functions or decision-making functions in order to control ail the activities o f région (or local); therefore, local government must promulgate normative orders The participation of local people

in local management will be ensured by decision-making Local people can discuss, pétition and submit idea to the process o f decision-making Participation o f local people in the process of decision-making also improves the feasibility and efficiency o f décisions Local governments

w ill take initiative in controlling the socio-economic development when they can make use of the advantages o f the région Decision-making must always consider the political, cultural, and socio-economic environments of the locality If local governments do not have the right to make

a décision, ail the activities w ill come under the control of the central government and then local autonomy w ill dissipate Building up a local system that has the capacity to make effective décisions is very important Such a system will be chosen by local people as only they can comprehend the précisé person who may represent their rights and legitimate interests

Secondly local governments must be financially independent Local governments need to have some income resources from the taxations, services’ fec and the other fees Local governments can effectively utilize Financial resources, because they know which field needs priority for investment in their région Local governments w ill try their best to increase the local budget to have cnough money for development However, a government needs to consider that

R O B L R ] J B E N N E T T editor, supra noie 13 page 370.

I e)

some régions that are poor in natural resources and have low density will have relatively low revenues Thus, to ensure these local governments can operate independently, the central government must allocate a budget to these local governments In this situation, ail expenditures

of local governments depend on the allocation o f State budget, thus, they will be under the control

of the central governments Independent finance is an essential condition for implementing local autonomy If a country wants to build up the plan for implementing decentralization by local autonomy form, it should pay attention to the financial condition at ail régions o f the whole country If not, local autonomy w ill not be enhaneed but actually inhibits socio-economic development

Thirdly, administrative capability of the local governments remains a necessity as centralisl ideology tends to attract talented and capable persons away from the local level Those vvho move to the center do not want to return to the field after they have completed training As a rcsiilt, local governments find either unwilling workers who arc seeking opportunities to leave or those who have tried unsuccessfully to leave This explains why local governments lack ski 1 led personnel while over staff quotas A capable staff for taking functions and duties is very important

Local autonomy is one form o f decentralization, considered to be the highest degrec of decentralization Unforlunately, Vietnam appears incapable of local autonomy Since Vietnam was established in 1945, under the leadership o f a single party - the Communist Party and "tcip trung quyen lue" (concentration of power) principle, local autonomy could not be implemented Furthermore, socio-economic environments do not allow Vietnam to perform local autonomy as

a key for developing the country

20

However, instead of local autonomy, Vietnam can perform administrative decentralization

as an alternative of centralization which lias been carried out in Vietnam for over forty years in order to develop the economy and the process of intégration

2 R ation al adm in istrative decentralization

Due to the fact that centralization could not bring benefits for development, the central government must consider reducing the burden of workload by delegating functions to local governments However, some leaders have thought that transferring the functions and authorities to local governments would reduce the importance of the central government, leading

to lose their powers; therefore, they hesitated to implement decentralization

Many questions such as “ Can decentralization lake the place o f centralization?” or “ Is decentralization an alternative o f centralization?” are discussed by scholars as well as the leaders The answer to both questions is “ yes” because under centralization (central-planning or top-down mechanism), local governments are only subnational organs or subordinate institutions of central government; and the central government plays a dominant rôle in the management of the state management Jun and Wright mention: “ centralized governments, in général, respond slowly not only to domestic but also to international problems ” 4 0 Depending on central government, local governments cannot perform their tasks and duties effectively Décisions and plans of central government are not realizable for implementation at the local And some o f décisions or plans even prevent or hold back the development of the local “ The interests, needs and aspirations of some sections and of people living in backward and interior régions are thus likely to be

JO N G S.JU N and D E IL S W R IG H T editors, 1996, G L O B A L IZ A T IO N A N D D E C E N T R A L IZ A T IO N :

IN S T IT U T IO N A L C O N T E X T S , P O L IC Y IS S U E S , A N D IN T E R G O V E R M E N T A L R E L A T IO N IN Japan And the

U N IT E D S T A T E S , Georgetown University Press, page 4, | globalization and decentralization: An overview.]

overlooked under the centralized decision-making system ” 41 The ‘centralism’ unexpç^^jly creates five politico-administrative conséquences as mentioned follow:

1 'l’he limitation of regional/local responsiveness and lack of empowerment ,»f subnational représentative institutions, which focus instead on reaffirming centvol policy directions and managing their administration^ compliance with centralized budgetary control;

2 The dominance of central officiais over regional/local officiais;

3 The ‘pénétration’ o f regional/local administrative apparatuses by central government officiais;

4 Risk averseness of regional/local administrative and political levels; and

5 Some regional/local-levcl avoidance o f the intent o f the central regulatory and

budgetary Controls 42

Moreover, many reasons for implementing decentralization were discussed by scholars; for example, decentralization can be a means o f improving the effectiveness o f local governments; decentralization can lead to more flexible, innovative, and Creative administration;

and due to decentralization, the red-tape can be reduced and the interference of central governments into works of local governments can be Iiniited 4 3 In addition, “ central planning vvas not only complex and difficult to implement, but may also have been inappropriate lor promoting équitable growth and self sufflciency among low incomc groups and communities within developing socicties ” 4 4 Therefore, many intellectuals believe that decentralization can croate good governance

Local governments have functions al grassroots levels, vvhere many of the rights and leu.it i mate interests of citizens are implemented Local people can participate in the deci’iion- making process so they can décidé the important lasks o f the local, which concern their intérêts Moreover, every locale lias its own political, socio-economic, and cultural environmt'iits;

11 A B D U L A Z IZ and D A V ID D A M O L D editors, supra note / page 14.

,,:M ARk T U R N E R et ail, supra noie 3, page 27.

''G SI IA B B IR C H E E M A , D E N N IS A R O N D IN E L L I editors, supra noie 2-1 pages 14-17.

11 G SI I A B B IR C H E E M A , D E N N IS A R O N D IN E L L I editors, supra noie 24 page I?.

therefore, the central government cannot make décisions that can match with conditions of each région Allowing local governments to take initiative and responsibility in controlling their works

is better than allowing central government to control and interfere with local governments B y delegating the public functions and authorities to local government, the central government can reduce the burden of work-load and only play a rôle in supervision Then, the central government only gives directions for development to each local to ensure the unified development o f the whote country Administrative arguments encompass that decentralization rnay defeat many limitation of centralization, reduce red tape, supplément information concerning local needs, promote administrative capacity o f subnational units, lower top officiais o f routine duties and enhance efficiency 4 5 Decentralization can make administration more flexible, innovative and Creative and let greater pénétration o f central into local, especially more remote région 4 6

Many countries have implemented decentralization as an alternative o f centralization, but clearly the central government still keeps an important rôle in state management and development Decentralization does not change the importance of the central government Implementing administrative decentralization is a harmonious combination between centralization (top-down) and decentralization (bottom-up) in order to strengthen local governments and reduce the burden

o f workload of the central government Furthermore, “ decentralization itself may require a certain degree of centralization to be put in to effect, because the former usually entai Is a redistribution of powers , responsibilities, and resources that is likely to be resisted by those

15 R O B E R T J BEN N F.T T éditer, supra noie 13, page 335.

h Supra note 13, page 335.

23

whose lose in the process." The image o f combination between decentralization and centralization as described can be seen below.

Vietnam has also implemented administrative decentralization under the one party regime and the "lap tn m g dan chu" (démocratie centralism) principle, which w ill be clarified in the next section

3 W hat is a d m in istra tive d ecen tra liza tio n in V ietn a m ?

P H R I'IIC T O L PA D 1 LA editor, supra note /<V, page 146 [R O M IIO B O C A M PO - Decentralization and local

autonomv: a Framework for assessing process].

Is JI-NNll- U T V A C K and J E S S IC A SF.DD O N editors contributors JU N A ID A I I M A I ) et ail supra noie 12 page"

24

Vietnam actually implemented decentralization many years ago, 5 more specifically from

1986 when the Communist Party introduced “D O IM O F (renovation) Article 15 o f the 1992 Constitution states that: “ The State promotes a multi-component commodity economy functioning in accordance with market mechanisms under the management o f the State and following a socialist orientation ” 51 The Vietnamese economy has changed from a “ centralized economy” to a “ market oriented economy” so that the functions o f central government have also changed Vietnam in particular implemented a single party policy5 2 and “tap trung dan chu” (dcmocratic centralism) principle; 5 3 therefore, decentralization in Vietnam must have some différences with that of other countries in Asian région

The démocratie centralism principle means that the State power is central and unified The highest organ of State power is the National Assembly54 There are only assignments o f functions, responsibilities and authorities between the state organs When implementing decentralization, the principle of centralized state power must be guaranteed The power o f state cannot be separated Administrative decentralization is only the assignment of functions, responsibi 1 ities, and authorities from the central government to local administrative organs Local administrative organs depend on central government in organization and opération, which are based on the principle o V s o n g trung truc thuoc” (vertical and horizontal jurisdiction).^

50 Chinh phu, Nghi dinh so 29/CP nam 1969, [Degree No 29/CP].

M Quoc hoi, Hien Phap 1992, Dieu 15 [1992 Constitution, Article 15].

52 Quoc hoi, Hien phap 1992, Dieu 4[ 1992 Constitution, Article 4 provides that: The Communist Party o f Vietnam, the vanguard of the Vietnamese working class, the faithful représentative o f the rights and interests o f the working class, the toiling people, and the whole nation, acting upon the Marxist-Leninist doctrine and Mo Chi M in h ’s thought,

is the force leading the State and society].

5 ' Quoc hoi, Hien Phan 1992, Dieu 6 [1992 Constitution, Article 6 stipulâtes that: Démocratie centralism is the principle governing the organization and activity o f the National Assembly, the People’s Councils and ail other State organs].

5JQuoc hoi, Hien phap 1992, Dieu 83,[ Constitution o f Socialist Republic o f Vietnam, Article 83].

W e can see this dependence in the next chapter.

Moreover, under the leadership o f single party, the administrative system of Vietnam has been influenced by political elements Administrative organs do not merely implement administrative functions, but also political functions “ In a single party system there is a very thin line o f distinction between the state apparatus and the party and thus a regime o f this character having similar characteristics o f authoritarian power may find it convenient to promote popular participation through strengthened local government institutions ” 5 6 Hence, theoretically ail types

o f decentralization are possible under différent systems of governance 3

Implementing decentralization in Vietnam must meet the demands of political, socio- economic environments, because if these conditions are not considered, decentralization vvill conflict with political policy, violate the principle o f démocratie centralism, 5 and even hold back the development o f Vietnam Implémentation o f decentralization first needs to meet some of the following requirements:

Firstly, decentralization will enhance democracy but centralized character and unity must

be ensured In other words, decentralization is performed basing on centralized and unitive character;

Secondly, by decentralization, local administrative organs will have rights to make décisions, so these décisions must follow the policy line o f Communist Party and state In order to ensure that, state must have methods to control and supervise the decision- making o f local administrative organs;

Thirdly, the transfer of authority, responsibiIity and function must be stated by law Otherwise, it leads to the abuse state’s power easily; and

>0 H A S N A T A B D U L H Y E editor, D IA N A C O N Y E R S et ail, supra noie 26, page 5

57 Sup ra note 26, page 5.

>s Quoc Moi, supra note 53.

26

Finally, because under démocratie centralism principle, central government still retains the important rôle in order to protect substantial development; therefore, which functions and authorities should be transferred to local administrative organs and which functions must be implemented by central government need to be paid attention to carefully B y so doing, State can avoid a situation in which the central government carries too many functions that are actually can be implemented by local administration organs or the NGOs.

Although decentralization in Vietnam has spécial features, it is also implemented in the saine forms of decentralization as other countries These forms consist o f déconcentration, délégation, dévolution, and privatization Each of these forms is preformed at a certain degree depending on the socio-cconomic and political conditions o f each différent period

Vietnam has been implementing decentralization; nevertheless, under the démocratie centralism principle, the organization and opération o f local administrative organs dépends on central government, which plays a dominant rôle in the state management In reality, the local administrative organs have not yet functioned independently as local governments

“ Decentralization would create local government, but the leaders realIy intendcd only to establish local administration, which would be guided, controlled, and influenced from the center ” 5 9

Therefore; significantly, thc concept o f 'local government’ will replace the concept of 'local administration’ in order to prove thc independence relatively of thc local organs There are some différences between ‘ local administration’ and ‘ local government’ because local government refers to a more independent organ than local administration

V,G SH A B BIR C H E E M A , D E N N IS S A ROND1NELLI editors, supra note 2-4 page 101.

21

In général, administrative decentralization in Vietnam is the trai>sfer </f authorities, functions, and responsibilities from the central government to the local governments, and the other agencies, which are under direct and indirect control of the central government deconcentrating, delegating, and devolving.

This paper not only examines the concept of decentralization but also goes furllior in discussing hovv to improve administrative decentralization in Vietnam Undcrstanding il,c concept of decentralization clearly w ill help Vietnam to address the problems o f implementing decentralization Furthermore, this paper can point out the measures to improve it Hovvever thi-s paper would be a unilatéral argument, if it did not discuss about Vietnamese administrative system from history to contemporary In order to have one al 1-side picture o f Vietnam, the ncxl chapter w ill introduce historical and contemporary administrative system of Vietnam

CHAPTER 2 THE ADMINISTRATIVE SYSTEM OF VIETNAM

Looking at history o f Administrative system since Vietnam vvas established as an independent country is an essential condition for tracing the lineage of administrative system in Vietnam today In terms o f the state management mechanism, the administrative system in Vietnam can be divided into two major periods labeled the central-planning period and the market economy period

/ A d m in istra tiv e system under th e cen tral-plan n in g p e rio d

1.1 The French and Am erican w a r period (1945-1975)

a) Administrative system under 1946 constitution

On September 2, 1945, Président Ho Chi Minh read the déclaration of independence, afterthe success o f the August Révolution, 6 0 which established the People’s Démocratie Republic olVietnam (D R V ) On March 2, 1946, the first législature of the National Assembly held its firstsession in Hanoi, setting up a government led by Président Ho Ch i Minh The first Constitution

o f the D R V was promulgated by “Nghi Vien Nhan Dan" (Diet) on November 9 1946 Thisconstitution represents the fundamental law for organization and opération ol State bodies Theadministrative system which combines Government, People's Council, and the AvlmmistrativeCommittee together is stipulated in Chapter Four and Five of this Constitution Ho\\9ver' in thisperiod the D R V had to begin the Anti-French résistance (from 1946 to 1954) ^1C slale

M> Auaust 19 1945.

29

encountered a lot of obstacles during the process of implementing its duties Due to war conditions, Vietnam divided into three managing régions as “Bac bo” (the North), “Trung bo” (central), and “Nam ho” (the South).

According to this Constitution, the system o f administrative organs was organized asfollow:

Government is the highest administrative organ of the D R V (Article 43) The government includes: Président, Vice- président and cabinet Cabinet includes: Prime minister; ministers and vice-ministers; and may have Deputy Prime Minister (Article 44) Vietnam has three “Bo” (région): the North, Central, and the South Each région is divided into provinces, province is divided into districts, and relatively district is divided into communes 61 At provincial, town and commune, People’s Council is directly elected

in the principle of universal suffrage Administrative committee is set up by People’s Council At régional and district level, there are only Administrative Committees Régional administrative committee is elected by councils of provinces and cities District administrative committee is elected by councils of communes 6 2 The organization of local administrative system can be described in the table I

In général, the organization of this administrative system under the 1946 Constitution differs from the contemporary system For instance, at the central level, the government under the 1946 Constitution consisted o f the président and the cabinet, while, at the local level, there was the People’s Council, established at the provincial and commune levels, ail of which had only two levels

bl Nghi Vien Nhan Dan, Hien Phap cua nuoc Vietnam dan chu cong hoa nam 1946, Dieu 57 [1946 Constitution of People’s Démocratie Republic o f Vietnam-translated by author], 1

bZS c c ici, article 58 [translated by author].

30

People’s council (Provincial level)

Administrative committee (District level)

People’s council (Commune level)

Elected by local people

Table 1

*

1 lowcver the functions o f the local administrative system have provided that: People s council résolve the problems which belong to its area and such resolutions cannot conflict with orders o f superior organs The administrative committee is responsible for: execution ol the orders o f superior organs; aecomplishment o f the People's Council when they were ratilïcd by

Administrative committee

2Scc itl article 58 [translatée! by autlior].

superior organs; and handling o f the administrative works in its région 6 3 According to this provision, the relation between the central government and the local administrative organ was not provided in this constitution The administrative system of this period was organized under the central planning regime.

Vietnam achieved victory after nine years of résistance against the French However, Vietnam was temporarily divided into two régions with two différent political régimes There was an agreement that unification would occur after two years (1956) as concurred by the 1954 général élection in the two régions; however this agreement could not be actualized and Vietnam remained divided between North and South

The D R V had to change its stratégies, tasks, and duties to match the new circumstances Thus, National Assembly promulgated a new Constitution on December 31, 1959

b) The Administrative system under 1959 constitution.

Northern Vietnam was under the leadership of the Démocratie Republic of Vietnam, while the Southern zone under the governance of the Republic o f Vietnam This period can be called the period o f carrying out an American war of résistance W ar conditions had affected heavily to the organization and opération o f administrative system

According to the 1959 Constitution, the organization of administrative system was adopted differently from the 1946 Constitution First o f ail, the président o f the D R V is not a member o f the government (executive branch) The Président o f the D R V represents the nation

both in domestic and foreign affairs (Article 61 ) The government is cal led now “Hoi dong chinh

the Administrative Committee at ail level are regulated in Chapter Seven o f the 1959 Constitution The organization of the local administrative units is fixed as follow: the country is divided into provinces, autonomous areas, cities directly under central government; a province is divided into districts, cities and towns; and a district is divided into communes (Article 78).

The People’s Council and the Administrative Committee are established at ail administrative levels The People’s Council is the local organ o f state power accountable to the local people who have elected the members (Article 79, 80) The tenure o f the People’s Council

at Provincial level, autonomous areas and cities directly under the central government is three years, and al the district and commune level, tenure is two years (Article 81)

Administrative Committees at ail level are the executive organ o f the People’s Council and administrative organs (Article 87) The Administrative Committee is responsible to and reports to the People’s Council and the administrative committee o f superior level 6 4 The organization of local administrative organs du ring this period is dcmonstrated in the Table 2

According to this Constitution, the duties and functions of local administrative organs are providcd more concretely (Chapter Seven, from Article 78 to Article 96) compared with the 1946 Constitution (Chapter Five, from Article 57 to Article 62) Moreover, these also were provided more in détail in the Law on Organization of the People’s Council and Administrative Committee

o f 1962 Authorities of the Administrative Committee in socio-economic, cultural and financial fields were provided in this law I Iowever, the major functions of the administrative committee* were the implementation of the résolutions of People’s Council and orders o f the superior organs

'"'Qtioc hoi, Luat to chuc hoi (long nhan clan va uy ban hanh chinh nam 1962 Dieu 5 [Law on organization of the

l’eople’s council and administrative committee at ail levels/Article 5-translated by author].

Elected by localp copie

Table 2

In addition, in this period, the existence o f aulonomous areas vvas not the reason why implementation of administrative decentralization occurred but because o f war conditions Administrative system not only performed administrative functions but also embarked on Anti-

Am erican résistance; therefore, administrative system was iniluenccd strongly of war conditions

On April 30, 1975, Vietnam sueceeded in unifying the North and South as ihe United States pulled-out of the war Vietnam then proceeded lo step into a new period o f peace and independence Therefore, building up and developing the country became the purpose and duty of Vietnam al ter the war H ow lias organization o f the administrative system been during ihe period

o f peace? The next section w ill discuss this more deeply

34