Brief history of local government in Vietnam (1946 – 2000) - a preliminary comparison with china and the united states

In 1954, the Chinese Constitution divided the autonomous nationality regions into 3 levels: autonomous regions (provincial level), autonomous prefectures (prefectur[r]

BRIEF HISTORY OF LOCAL

GOVERNMENT IN VIETNAM (1946 – 2000): A

PRELIMINARY COMPARISON WITH CHINA

AND THE UNITED STATES

Pham Quang Huy

Abstract:

On the basis of presentation and analysis with respect to definition of local government and through researching of local government of the U.S and China, the author provides comments, arguments relating to local government under 2013 Vietnam Constitution Hence, the article would show that it is necessary to research the brief history of Vietnam local government since 1946 until now First of all, the paper gives an overview about Vietnam local government over historical period since 1946 until now Last but not least, with the comparisons between Vietnam, the U.S and China local government, the author points out the differences and the suggestion to the current Local Government Act in Vietnam.

 LLM, Legal Department, Ministry of Finance, Hanoi, Vietnam Email: hansihuy@gmail.com, phamquanghuy@mof.gov.vn

INTRODUCTIONThis article concentrates on the conception of local government inVietnam in comparing with Chinese’s one and the conception in the UnitedStates The author chooses Chinese conception to compare cause of thesame ideology of Vietnam and China With the United States, the authorwants to point why the local government of the United States helps theStates work efficiently

Part I examines about the local government in Vietnam with Vietnamcurrent conception of local government After that, Part II summarizes thebrief history of Vietnam local government from 1946 until now Part IIIexplains how the local government in China works Part IV investigates thechanges of local legislation and the reforming of local government in theUnited States in 1990 until now

Keywords: local government; local government in Vietnam;

comparison local government

I LOCAL GOVERNMENT IN VIETNAM

A Definition “local government”:

According to Black's Law Dictionary Free Online Legal

“Local Government are city, town, county, or state level government The

administrative body for this small geographic jurisdiction Electing officials, enacting taxes, and doing many things a national government can do is within its jurisdiction The local government typically only controls its specific geographical region, unable to legally pass or enforce laws beyond its legal jurisdiction”1

B Conception about “local government” in Vietnam:

Up to the author, the most significant innovations of the Constitution ofVietnam in 1992 amended in 2013 (“Vietnam Constitution 2013”) isChapter IX on “Local Government” includes seven Articles Accordingly,

Vietnam Constitution 2013 defined “local government level include

People's Councils and People's Committees are organized in line with the characteristics of rural and urban areas, islands, special administrative units by law” (Section 2 of Article 111 Vietnam Constitution 2013).

In Vietnam, since 1976 until now, local authorities have beenunderstood to be below central government level which directly providingpublic services to the people Currently, in Vietnam, the local government iscomposed of three levels (1) Provincial government, including the provinces

1 Black's Law Dictionary Free Online Legal Dictionary 2nd Ed Law Dictionary: http://thelawdictionary.org/local-government/#ixzz2pETYYUwE accessed

on 16:45 02/01/2014.

and cities directly under the Central Government; (2) The district authoritiesand (3) The commune authorities In Vietnam, the local government is oftenseen as the system of state agencies in the locality Specifically, in Vietnam,the common conceptions of local authorities are:

(A) Local government is the only concept common to all state agencies(bring state power) play on the localities

(B) The local government consists of two bodies: the first one isadministrative power at the local (People's Council) and the other isparliament agencies at local (People's Committees)

(C) Local government consists of 4 modules corresponding bodies 4modules supreme state bodies at the central (National Assembly/Parliament,the Government, the Supreme People's Court, Supreme People's Procuracy)

is an agency of state power at the local (People's Council), parliamentbodies in local government (People's Committee) and justice agencies(people's courts at all levels) and procuratorial bodies (People'sProcuratorate at all levels)2

Thus, Article 2 of the Vietnam Law on Local GovernmentOrganizations No 77/2015/QH13 in 2015 (which was effective from 1st

January, 2016) provided for the administrative unit of the Republic ofVietnam Socialist (RSV) include:

2 Tổng cục Thống kê, Việt Nam 20 năm đổi mới và phát triển 1986-2005 [Vietnam 20 years

of innovation and development from 1986 to 2005], (Hà Nội: Thống kê, 2006), page 105.

“1 Provinces and centrally-run cities (hereinafter collectively referred

4 The special economic administrative units”.

According to this article, RSV government divided into three tiers localgovernment Thus Vietnam Law on Local Government Organizations No.77/2015/QH13 in 2015 (“Vietnam Law on Local Government 2015”)included 143 Articles, 8 chapters which author comments at Conclusionhere after

II BRIEF HISTORY OF VIETNAM LOCAL GOVERNMENT SINCE 1946

Nguyễn Dynasty Before August Revolution

According to Dinh gia Trinh, in Gia Long Emperor early era, local

governments divided into trấn (included some provinces), phủ (provinces),

huyện (districts), châu (regions in mountainous areas) (included 14 trấn, 47

3 Đinh Gia Trinh, Sơ thảo lịch sử nhà nước và pháp quyền Việt Nam: Tập I Thời đại trước phong kiến và Thời đại phong kiến (Từ nguồn gốc đến thế kỷ thứ XIX) [Draft history of State and Laws of Vietnam: Part I Feudal era and before (From origin to XIX century)], (Hà Nội: Khoa học xã hội, 1968), 252.

included Hué (central), Bắc Thành (Nothern) and Gia Định Thành (Gia Dinh) Bắc Thành included 11 trấn, Gia Định Thành included 5 trấn Thành headed by Tổng trấn who assisted by tào, cục and ty In this time, according

to Lê Kim Ngân, the country included 23 trấn and 4 doanh4

After that time, in 1831 (in northern) and in 1832 (in southern),

Emperor Minh Mạng abolished thành, so that the country devided into tỉnh

(provinces) 5 Tỉnh headed by Tổng đốc (governor) who assissted by tuần phủ (politcal senior officer), bố chính (tax senior officer), án sát (judges), lĩnh binh (armed forces) with their function detailed hereafter:

- Tổng đốc controlled all issues in province included army, human resources, protect border Tổng đốc usually headed big province or some

provinces together

- Tuần phủ: in charge of political and educational issues; maintaing social order and custom In some cases, tuẩn phủ headed a small province.

For an example, In 1930s, before becoming Thượng thư Bộ Lại (same

meaning with Minister of Internal Affairs), Ngo Dinh Diem was Ninh

Thuận ‘s tuần phủ.

- Án sát: taken care of criminal procedure; post;

- Bố chính: was responsible for tax, land, information;

4 Lê Kim Ngân, Sử địa: Việt sử, Thế giới sử, Địa lý Việt Nam lớp 11 [History and Geography: History of Vietnam and world and Vietnmese Geogrhapy for 11 classes], (Sài Gòn: Tân Dân, 1972), 24.

5 Đinh Gia Trinh, “Sơ thảo”, 253.

- Lĩnh binh: controlled amred forces in the area; 6.

The country included 31 provinces which added three provinces such

as Hưng yên, Ninh Bình, Hà Tĩnh and An Giang7 Hence, this systemmaintained during Nguyễn dynasty until French colonial before AugustRevolution8

Under this official systyem were Vietnamese “làng” (villages) which

were “After recognized by the Court, each village had legal entity and was

regarded as a autonomous organization Thus every village had its own name, with its public land and its administrative body set up by the

hương ước (the laws of village) to punish those who violated rights and interests of the individual or village; pointed out the village’s customs

found to be Mộ Trạch’s one dated from 1665 (Hải Dương province) Thislaws of village included 30 clauses, as amended and supplemented 16 times

6 Lê Kim Ngân, “Sử địa”, 23.

7 Lê Kim Ngân, “Sử địa”, 24.

8 Đinh Gia Trinh, “Sơ thảo”, 254.

9 Nguyễn Từ Chi, Góp phần nghiên cứu văn hóa và tộc người [Contributing to cultural and ethnic studies] (Hà Nội: Văn hóa Dân tộc và Tạp chí Văn hóa Nghệ thuật, 2003), 228.

10 Lương Đức Thiệp, Xã hội Việt Nam (Cuốn 1: Việt Nam tiến hóa sử; Cuốn 2: Xã hội Việt Nam) [Society in Vietnam: Book 1 Vietnam evolutionary history; Book 2: Society in Vietnam], (Sài Gòn: Liên Hiệp, 1950),173.

11 Lê Quý Đôn, Tạ Quang Phát translated, Vân đài loại ngữ - Tập 1 (Quyển 1, 2 và 3) [The

word of purfume and flower: Book 1 (Vol 1, 2 and 3], (Sài Gòn: Ủy ban dịch thuật Quốc vụ khanh đặc trách văn hóa, 1972), 175.

After the last amendment in 1797 (after 132 years), it included 82 articles12 Legally, in contractual perspective, laws of village were regarded tocommunity covenant13.

1946 Constitution

After August Revolution, on January 1st 1946, Vietnamese votednationwide for Constitutional Congress which drafted the firstdemocratically constitution for Vietnam

As provided in Article 58 of the Constitution of 1946, due to war

conditions, Vietnam was divided into three regions of management as Bắc

bộ (the North), Trung bộ (The Central), and Nam bộ (the South) Each

region divided into three-tiers as province, district, and commune localauthorities14

In Viet Minh’s area

In the First Indochina War, 1946-1954, in the rural regions which Viet

Minh controlled (Việt Nam Dân Chủ Cộng Hòa - Democracy Republic of Vietnam - DRV), local authorities was divided into zones (khu) and interregional (liên khu)15, under this entities were provinces

12 Bùi Xuân Đính (1985) Lệ làng phép nước (Covenants of village and legislation of the

State) Pháp lý (Legal) Publisher Hanoi Pp 189-195

13 Phạm Quang Huy, “Bình luận Hương ước theo giác độ luật hợp đồng” [Comment on

village covenants from the perspective of contract law], Luật học [Jurisprudence] 4 (April

2016): 42-49.

14 Phan Thi Lan Huong, Reforming local government in Vietnam: Lesson learned from Japan (Doctoral Dissertation), (Nagoya: School of Law Nagoya University, 2012), 48.

15 Nguyễn Như Phát et al, Một số vấn đề lý luận và thực tiễn cơ bản về sửa đổi Hiến pháp ở

Việt Nam hiện nay [Some theoretical issues and practical basics of Vietnam amending the

In State of Vietnam (Quốc gia Việt Nam)

In other side of the First Indochina War, in May 1948, the French andits followers with represents from (1) Chính phủ lâm thời Nam Việt Nam(Contemporary Government of South Vietnam); (2) Hội đồng An Dân BắcViệt Nam (Coucil of North Vietnam); (3)Hội đồng An dân Trung Việt Nam(Coucil of Central Vietnam) and (4) the political factors in three regionsauthorized General Nguyen Van Xuan (President of ContemporaryGovernment of South Vietnam) to establish the National Government16.After Ha Long Accord, Bao Dai returned to lead the State of Vietnam

(“Cựu Hoàng hồi loan” in Vietnamese) as the Head of State His Decision (Dụ) No.1 dated July 1st 1949 which Le Dinh Chan called “Bao DaiConstitution” and regconised the “de facto” Constitution of the State ofVietnam17

The State of Vietnam headed by Bao Dai which controlled the cities,especially Hanoi (the capital of the North), Saigon (the capital of the South)

and Húe (the capital of the Central) So that, according to Article 2 of Quốc

Vietnam (État du Viêt Nam in French) which French armed forces and BaoDai’s government controlled, local authorities were divided into three

current Constitution], (Hà Nội: Khoa học Xã hội, 2012), 203.

16 Lê Đình Chân, Luật Hiến pháp [Vietnam Constitutional Law], (Sài Gòn: Đại học Luật khoa Sài Gòn, 1972), 121

17 Ibid., 123

regions (phần): Nam Viet (Southern Region), Bac Viet (Northern Vietnam/

Northern Region) and Trung Viet (Central Region) Each region has public

legal entity and head of each the region was “Thủ hiến” (Premiers in English and préfet in French) which assigned by Head of the State of Vietnam

(Article 3) Also according to this Decision, Hanoi, Hai Phong, Tourane andSaigon Cholon cities were under mayor or district chief (Article 9)18

The North of Vietnam

In the Second Indochina War, 1954-1975, in North Vietnam (DRV),according to the 1959 DRV’s Constitution and the Law on Organization ofPeople's Councils and Administrative Committees at all levels in 1962, theVietnam administrative divisions include (i) provinces, autonomous regionsand cities directly under the Central Government; (ii) The province isdivided into districts, towns, cities, and (iii) the district is divided intocommunes and towns A municipality of Vietnam is divided intoneighborhoods In each administrative unit above organized by the People'sCouncil and People’s Committee19

18 Trương Tiến Đạt, Hiến pháp chú thích [A Note of 1967 Constitution], (Sài Gòn: Author self published, 1967), 367.

19 Nguyễn Như Phát et al, “Một số”, 202.

Article 78 Chapter VII of 1959 DRV Constitution provided the localgovernment hereafter:

“The administrative unit of DRV provided hearafter:

The country divided into provinces, autonomuos regions, cities under central government;

Provinces divided into districts, cities and towns

The South of Vietnam

According to Geneve Accord dated July 20th 1954 which Le Dinh Chancalled the “honor” withdrawal for French armed forces21, within two years,

it should be hold the general election nationwide in Vietnam

Before the 1956 referendum to dethrone Bao Dai, the local government

of State of Vietnam was provided by Head of State’s Decision whichmentioned in Paragraph A above

In Đệ nhất Cộng hòa (The First Republic) time, from 1956 to 1963

(ended by the coup d’état by the generals and their killings of President Ngo

Dinh Diem and his brother Ngo Dinh Nhu), the local government of Việt

Nam Cộng Hòa (Republic of Vietnam – ROV) was provided by 1956

Constitution

20 Tân Chi, “Nhà nước”, 113.

21 Lê Đình Chân, “Luật Hiến pháp”, 128

In Đệ nhị Cộng hòa (The Second Repulic) time, at the same time with

DRV, in South Vietnam, according to Article 70 to Article 74 of 1966Constitution of Republic of Vietnam, local governments were divided into

four levels which were Đô Thành – the Capital (Saigon), Provinces and

Town and Counties Each levels of local government has public legal entitywhich provided by law22 The Capital headed by the Đô Trưởng (Chief of

Saigon) who was ROV ‘s Armed Force generals

After the Fall of Saigon or the Liberation of Saion (with Nothern sides’understandings), DRV unified the North and the South (the ROV) by theNational Assembly’s Decision

Under the 1980 Constitution and the Law on Organization of People'sCouncil and People's Committee in 1983, amended in 1989, the Vietnamgovernment on three levels consisting of (i) provinces and cities undercentral authority; (ii) the district, city and town in the province; (ii)communes, wards and towns All administrative units, all are consideredbasic administrative units, levels of government are complete, including thePeople's Council and in each administrative unit

22 Trương Tiến Đạt, Hiến pháp chú thích, 368.

To organize the local government under the 1992 Constitution(amended in 2001), the Law on Organization of People's Council in 1994(amended in 2003), basically, there are structural organization similar to thegovernment under the Constitution in 1980 and the Law on Organization ofPeople's Council and People's Committee in 1983 (amended in 1989).However, the 1992 Constitution (as amended in 2001), not specifiedcategories of administrative units equivalent to provinces and cities undercentral government, do not determine the basic administrative unit,organized as the complete authorities under 1980 Constitution23.

III LOCAL GOVERNMENT IN PEOPLE REPUBLIC OF CHINA (PRC)According to Susan V Lawrence and Michael F Martin:

“Provincial leaders are powerful players in the Chinses political system Six

of them, all Party Secretaries, sit on the Party’s Politburo, making them among two dozen most powerful offcials in the Country Provincial leaders also hold two fifth of the seats on the Party’s broadest leadership group, the Central Committee, and share at least the same bureaucratic rank as central government ministers” 24

People Repulic of China (PRC) officially claims 34 provincial – levelgovernment This includes 23 provinces, five geographic entities that China

23 Nguyễn Như Phát et al, “Một số”, 203.

24Susan V Lawrence, Michael F Martin (2012), Understanding China’s Political System,

Congressional Research Service, R41007, pp 4.