Deconcentration and delegation of authority in Vietnam after the 2013 constitution

The limitations in the delegation of authorities may be assessed through (i) the number of normative legal documents at all levels; (ii) a number of areas of deconcentration showing sho[r]

A/Prof Nguyen Hoang Anh,

School of Law, Vietnam National University, Hanoi

Abstract

Centralization, deconcentration, and decentralization are basic concepts in administrative organization In the Vietnamese administrative tradition, centralization appeared to be an effective means of administration through fulfilling both objectives of administrative activities: to be uniform and to be effective However, in the context of the market economy, centralization proves to be

a significant hindrance to economic development and sometimes a restriction to local initiatives The tendency of giving more autonomy to the localities has gradually appeared.

Key words: Centralization, delegation, decentralization, Vietnam

Introduction

In Vietnam, deconcentration and decentralization have been set in both theory and practice since many years ago and manifested through continuous reforms to increase the power of the local authorities It was only with the 2013 Constitution that decentralization was given a constitutional basis After 5 years of implementation, the spirit of decentralization has been both codified in legislation and implemented in practice However, the criteria for the delegation of authority between the central and local governments are not yet defined; deconcentration and decentralization in many fields are still limited; sometimes they are done by executive regulation Decentralization has not been accompanied by corresponding means and resources In the future, decentralization shall be further advanced, but this must be accompanied by proper implementation tools and more appropriate monitoring mechanisms

1 The 2013 Constitution - A New Foundation for Deconcentration and Delegation

The 2013 Constitution provides the groundwork for deconcentration and delegation of authority This spirit is clearly embodied in the provisions of the Constitution under Chapter IX (Local Authorities) and detailed through various laws, the foremost being the 2015 Law on the Organization

of Local Authorities In addition to the new terminology for local governments, there are other new elements regarding decentralization in the 2013 Constitution:

The Constitution acknowledges the possibility of establishing diverse and non-uniform

models for local governments Paragraph 2, Article 11 of the Constitution stipulates that “The local

government level consists of the People’s Council and People’s Committee, which are organized in

a manner suitable to its characteristics as rural, urban, island, or special administrative- economic areas defined by the law” This rule, though not quite pronounced, opens up the possibility for specific

localities to enjoy the specific organization of local governments

The 2013 Constitution also provides an official acknowledgment of deconcentration and

delegation of authority: “The mandates and authorities of the local governments are established on the basis of demarcating the authorities of central and local state organs, and that within each level of local government” Through this rule, the Constitution recognizes the possibility of decentralization

and delegation of authority to each locality The demarcation of authority is a generalized terminology and requires clarification through concrete mechanisms, such as deconcentration, delegation, and authorization, among others

The Constitution acknowledges the existence of local authority, being “the authority to make

a decision on local affairs” This is a separate authority - independent of the authorities exercised by

superior state organs And by acknowledging these authorities, the makers of the constitutions had, more

or less, touched upon more down-to-earth terminologies: deconcentration, delegation of authority, and local autonomy

However, these rules are only a general principle As such, accelerating deconcentration and delegation of authority is perhaps a long-term task that falls upon the Law on the Organization of Local Governments and specific sectoral laws However, here we can see a step backward in the former, compared to the more progressive rule under the Constitution

2 Decentralization and Delegation of Authority under Specific Acts of Law

a Law on the Organization of Local Authorities

In spite of the constitutional groundwork, the Law on the Organization of Local Governments adopted on 19 June 2015 at the 9th Session of the 13th Legislature of the National Assembly has yet to clarify the concept of delegation of power in the 2013 Constitution

Firstly, in terms of organization, the Law on the Organization of Local Governments provided two additional administrative units, being (i) cities under Central-level municipalities, and (ii) special administrative-economic units This provides a distinction between rural and urban local governments However, these rules are insufficient for establishing separate models for local governments (major cities, for instance) or special administrative and economic units Even the contemporary Draft Law

on Special Administrative-Economic Units has yet been adopted

Regarding the local apparatus’s organization, this law as of today only provides a one-size-fits-all model without considering the possibility given in the 2013 Constitution: the localities may organize

a model of local government particular to their characteristics - as provided for by the aforementioned Paragraph 2 Article 111 On the contrary, this law “fixed” a sole solution on the organization of the

central government: “The local government consists of the People’s Council and People’s Committee, organized at the administrative units of the Socialist Republic of Vietnam” (Paragraph 1, Article 4, Law

on the Organization of Local Governments) The pilot project for the abolition of the People’s Council at the district and ward level is now defunct As such, so far there has been only one model applied to every administrative unit all over the country: a representative body (the People’s Council) and an administrative

body (People’s Committee) According to Dr Hoang Thi Ngan, as of today, at the legislative level, we

have yet to arrive at a clear-cut position on the organization of the local governments1

Secondly, the demarcation of authority, while already touched upon, is only provided at the most fundamental level The Law on the Organization of Local Governments put forward general

rules on deconcentration (Article 12), delegation (Article 12), and authorization (Article 14) There

remain unaddressed issues regarding the condition and method for the demarcation of authority, particularly the supervision of local governments to those whose authority had been deconcentrated

and decentralized - this shall be discussed below Beyond these general rules, within the specific

regulations on the authorities of each level of local government, it can be observed that most of these

authorities exist in the form of “shared authorities” between multiple levels of local governments, or

between the provincial authorities and the central government

These regulations do not allow the distinction in one area of management - being that between the

local levels Under the Law on the Organization of Local Authorities, there is virtually no distinction

between the authority of the ward and communal level Even the regulations on the authority of the

People’s Council and the People’s Committee show no real difference between them For instance,

Article 21, Paragraph 6 of the Law on the Organization of Local Governments stipulates that the

authorities of the provincial People’s Committee are:

6 To perform tasks pertaining to the organization for and the exercise of the Constitution and

the law, the building of local governments and administrative territories, and works related to

education, training, science, technology, culture, information, sports, healthcare, labour, social,

ethnic and religious policies, national defense, public security, order and safety, administration

and judiciary, legal assistance, and other missions and authorities as prescribed by the law

Article 28, paragraph 4 of the Law on the Organization of Local Governments stipulates that the

authorities of the district People’s Committee are:

4 To perform tasks pertaining to the organization for and the exercise of the Constitution and the

law, the building of local governments and administrative territories, and works related to education,

training, science, technology, culture, information, sports, healthcare, labour, social, ethnic and religious policies, national defense, public security, order and safety, administration and judiciary,

legal assistance, and other missions and authorities as prescribed by the law

It is worth noting that the Law on the Organization of Local Governments has no provisions for

local authorities that corresponds to the Constitutional stipulation of “local affairs”

Thirdly, the principle of respecting the local authorities - or at a higher level, its local autonomy -

has not been clarified in the Law on the Organization of Local Governments An interesting example

from the Law on the Organization of Local Governments: “Issues pertaining to two or more

communal-level administrative units shall be under the jurisdiction of the district-communal-level local authority; issues

pertaining to two or more district-level administrative units shall be under the jurisdiction of the

provincial-level local authority; issues pertaining to two or more provincial-level administrative units shall be under the jurisdiction of the central state authority unless otherwise stipulated by the

1 Addressed by Dr Hoang Thi Ngan, Director-General for Administrative Reform, Office of the Government, at the

Workshop “Organizing the Local Government”, 27 September 2017, Ho Chi Minh National Political Academy.

law, resolutions of the National Assembly, ordinance or resolution of the Standing Committee of the National Assembly, or Decrees of the Government.” (sub-para c, Paragraph 2, Article 11, Law on the

Organization of Local Governments)

This provision seems ideal to address cases where authorities would otherwise be difficult

to clearly define Yet theoretically, this provision might contradict the principle of delegation of authority: what if the affair (or issue) related to two or more local authorities is also the affair (or issue) the authority for which had already been delegated to these authorities themselves? In such a case, the settlement of this affair or issue by superior administrative authorities or the central state would severely jeopardize the authority delegated to the localities The delegation of authorities must

be performed pursuant to the law, and only the law may recall or alter the authority already delegated After such a delegation of authorities, no level of government may perform the authorities of another Fourthly, the mechanism for control of power between the central and local levels has not been designed compatibly with the concept of delegation of authority While delegation, decentralization, and authorization are made possible by the Constitution, the Law on the Organization of Local Governments requires the local governments to be subject to the supervision and oversight of “superior state bodies”

in delegated works The terminology of “superior state bodies” may well include administrative bodies,

so to maintain administrative control is to run counter to the principle of administrative decentralization exercised widely over the world1 The fundamental principle of delegation of power is the local autonomy, and once delegated to the localities these should exercise full initiative over decision-making and be accountable only to the law - the ultimate ruling for which is to be made by the court2

Where did the difference between the Constitution and the 2015 Law come from? We hold that this lack of consistency stemmed from the drafting process Amending the 2013 Constitution was a nationwide political and social engagement, attracting the attention of the entire public, particularly the scientific community When the process began, the President of the National Assembly Nguyen Sinh

Hung proclaimed that “The people play an instrumental role in the development of the Constitution and its amendment Receiving the feedback from the public is a democratic method and an expression

of the people’s rights and role of ownership as to matters of importance to the nation 3” In fact, the amendment of the Constitution had drawn interest of the public and academia Many large-scale conferences had been held at leading legal think-tanks, bringing about a wide range of very radical contributions A summary of the Steering Committee on the Implementation of the 1992 Constitution shows that the ministries, services, and localities all over the country had organized approximately 28,014 workshops and conferences, and received about 15 million counts of feedback to contribute

to various bodies, organizations, and individuals for the Draft Amendment of the 1992 Constitution4

1 Jean – Luc Boeuf et Manuela Magnan (2007), Les collectivites territoriales et la decentralisation, 3e edition, La

documentation Francaise, Paris; Jacqueline MORAND-DEVILLER, (2009), “Droit administratif” Cours, 11e edition, Montchretien, 37-52

2 Martine Lombard, Gilles Dumont, “Administrative Law of the French Republic”, Translated from French, Viet Nam

– France Legal House – Organisation Internationale de la Francophone, Justice Publishing House, 2007, pp.154-161.

3 Thàng Văn, “Listening to Public Feedback in the Amendment of the Constitution”, http://duthaoonline.quochoi.vn/ DuThao/Lists/TT_TINLAPPHAP/View_Detail.aspx?ItemID=1025

4 Lê Sơn, “More than 15 million Counts of Feedback for the Draft Amendment of the 1992 Constitution” Government

Online (Hanoi, 25 March 2013)

<http://baochinhphu.vn/Tieu-diem/Hon-15-trieu-luot-gop-y-kien-cho-Du-thao-sua-doi-Hien-phap-1992/164889.vgp> accessed 12 December 2019

Decentralization experienced a breath of fresh air - from the radical thoughts among the academia

to the real needs of a number of localities accordingly recognized in the Constitution However, the

drafting of the Law on the Organization of Local Governments did not receive the same attention

A number of parliamentary debates on the draft of this Law showcased that its adoption had been

made in haste: “Various members of the National Assembly remained concerned, particularly as there has yet been a comprehensive review and assessment of the studies into the building of urban

authorities, and the mechanisms for deconcentrating authority between the Central and the local

levels remain hard to be conceptualized 1 ” Parliamentary discussions show a remarkable consensus

that deconcentration or non-uniform local government models are both “ideas, not extant in practice,

and untested and unappraised As such, there must be due consideration when committing them into

law; this should not be done hastily2.” As a result, the conservative voice won out: under the Law on

the Organization of Local Governments, local governments are still organized under a uniform model

without separate provisions for deconcentration towards the localities The Law on the Organization

of Local Governments seems to be a situational and temporary solution for decentralization

Could it be that the lack of clarity in deconcentration of authority under the Law on the Organization of Local Governments would set the stage for specific sectoral laws? This possibility is

unlikely, as the specific sectoral laws are drafted by the central ministries and services, and therefore

tend towards centralization of authorities However, pressures emerging from practice have also given

rise to a specific delegation of authority to the localities within sectoral laws

b Sectoral Laws

Following the adoption of the 2013 Constitution, a considerable number of services had been

delegated to the locality under specific sectoral laws However, issues remain within the mechanism

for delegation: (i) the delegation of authorities is still performed through executive tools; and (ii)

such deconcentration and delegation have only been vigorously exercised between the central and

provincial level authorities, while the process between the different levels of locality remains vague

As of today deconcentration and delegation are performed virtually solely via sectoral laws As

mentioned above, the Law on the Organization of Local Governments has yet to set a concrete distinction

in the authority of each territorial administrative government unit, leaving this deconcentration in the

hands of the sectoral laws There is a missing law that provides for the specific authority for any specific

administrative unit, even special administrative-economic units Meanwhile, the sectoral laws have showcased a much stronger conception of deconcentration, such as the Law on Fees and Charges, Law

on the Handling of Administrative Violation, Law on Legal Assistance, to name a few Within these

laws, the activities to be exercised are largely vested into the provincial government, while the central

government’s role is limited to guidance and supervision (as will be presented later)

Yet the deconcentration and delegation of authority are still performed through executive tools A

prime example is the establishment of economic, high-tech, and industrial zones Within this process, the

Government may make use of its executive tools to establish key economic zones associated with specific

1 Hà Phong, “On the Draft Law on the Organization of Local Governments: haste is ill-advised”, Tuesday, 25 November

2014,

http://www.hanoimoi.com.vn/tin-tuc/Chinh-tri/725888/ve-du-thao-luat-to-chuc-chinh-quyen-dia-phuong-khong-nen-nong-voi, accessed 27 December 2019

2 Hà Phong, ibid.

incentives The most recent example of this is Decree 04/2018/ND-CP governing incentive policies for the Da Nang high-tech zone The policy for the high-tech zone provided for a variety of incentives: land rent waiver, tax concessions, and improved policies for the entry and exit of foreign workers, to name a few

Legal documents are a tool for a quick and smooth delegation of power On the other hand, the delegation of authority via executive tools also showcases the irregularity in the deconcentration and process, and this does not live up to the definition of “delegation.” Doing so via executive tools means that the new authorities granted to the localities would only be momentary or experimental

The delegation of authority seems to stop at the provincial level This is obvious across the specific sectoral laws: The Law on Fees and Charges only provides for the jurisdiction of the provincial People’s Council, in legal assistance - the Central level only holds jurisdiction over general direction and administration - most particular legal assistance operations are now delegated to the provincial People’s Committee (the provincial Department of Justice) This applies similarly to various services such as bailiffship - the pilot delegation project for which was given to the People’s Committee of Ho Chi Minh City (in 2009) and later on (in 2013) was extended to other provinces and central-level municipalities The district and communal levels are given virtually no concrete authority in these services

3 Shortcomings in the Delegation of Authorities in Practice

The limitations in the delegation of authorities may be assessed through (i) the number of normative legal documents at all levels; (ii) a number of areas of deconcentration showing shortcomings in their practice at the localities; (iii) deconcentration not yet being accompanied by implementation tools; and (iv) the fact that while the organization of administrative apparatus sees the local governments making somewhat vigorous changes, they are based not on a single standard of decentralization and delegation of power, on political rationale rather than legal considerations

a The Number of Normative Legal Documents

Official figures of various state bodies provide an initial assessment for the implementation in practice While these reports are not quite numerous, there are some implications from these reports

as follows:

First, the reality of delegation of authority is directly showcased through the issuance of normative legal documents, as they are a direct manifestation of state power, and “the most important factor of the authority of state administrative bodies and state organs as a whole1” The Government’s report reviewing the implementation of the 2013 Constitution held that “the number of issued normative legal documents is increasing at the central level and dramatically decreasing at the local level, particularly the district and communal levels This is in line with the spirit of deconcentration and delegation between the central and local government codified in the 2013 Constitution as well as the new provisions of the Law on the Issuance of Normative Legal Documents Over the first six months, the ministries and services drafted, submitted for issuance, or issued as per their authority a total of

1 Law Faculty, Hanoi National University, Nguyễn Cửu Việt, Vietnamese Administrative Law Textbook, (11th Ed.), Hanoi National University Press, 2013, p.397; Law Faculty, Hanoi National University, Phạm Hồng Thái, Nguyễn

Thị Minh Hà (Co-editor), Vietnamese Administrative Law Textbook, (11th Ed.), Hanoi National University Press, 2017, pp.342-343.

523 normative legal documents (an increase of 93 documents compared to 2016), while the localities

issued 1,520 provincial-level (a decrease of 28 compared to 2016), 1,846 district-level (year-on decrease of 36.8%), and 14,114 communal-level (year-on decrease of nearly 50%) normative legal

documents1”

However, we believe that the drop in the number of normative legal documents at the local level,

particularly the communal and district levels, reflects another reality of delegation of authorities: the

local government in general, and particularly communal and district-level authorities, are benefiting

very little from the delegation of authorities in practice Common logic dictates that the greater the

authority a locality enjoys, the more useful it would make executive tools to adjust the law governing

these areas over which it has jurisdiction The considerable fall in the number of normative legal

documents at the local level and the grassroots level in particular reflects the very limited scope of

the specific authorities vested in the local government The delegation of power has essentially not

reached the grassroots authorities

A review of practical implementations of the Constitution and the Law on the Organization of Local

Governments indicates that the recommendations regarding the local governments seem to be limited

to the organization of their apparatus and personnel, and rarely raise the issue of decentralization For

instance, in the Draft Review of the Implementation of the Law on the Organization of Local Governments

- performed by the Ministry of Internal Affairs - most of the recommendations (taken from the reports

of the localities) focus on personnel and organization matters (such as increasing the number of Deputy

Chairs of district and commune People’s Committees, particularly for Category 2 and 3 communities,

decreasing the number of Deputy Chairs of People’s Councils at all levels, that the Deputy Chairs of

district and community, People’s Councils would concurrently assume chairmanship of committees under the corresponding People’s Councils, and that it is necessary to create more specialized units under the office of provincial People’s Councils2) Rarely are there recommendations as to authority A

specific recommendation was notably on the need to further clarify the authority and responsibility of the

communal-level governments to avoid the shirking of their responsibility down to the hamlets and wards3

The reality, however, requires more than that - perhaps going beyond organizational matters and

having more to do with the vesting of authority

b) The Issue of Deconcentration

First, in the state budget, the authority to collect revenue is concentrated at the provincial level

without provisions for delegation to the district and communal levels This means financial resources

in practice belongs to provincial governments This creates a variety of difficulties for the district and

communities in their own work due to a lack of autonomy in financial revenue

1 Government of the Socialist Republic of Viet Nam, Report No 370/BC-CP dated 01 September 2017 on the Results

of the Performance of the Government’s Mandate in Implementing the Constitution in 2017, p.06, http://moj.gov.vn/

qt/tintuc/Pages/chi-dao-dieu-hanh.aspx?ItemID=2118

2 Ministry of Internal Affairs, Draft Report concluding 3 Years of Implementing the Law on the Organization of Local

Government, pp.17, 18, https://moha.gov.vn/DATA/DOCUMENT/2018/06/Du%20thao%20BC%20Tong%20ket%20

3%20nam%20Luat%20TC%20CQDP.pdf

3 Ministry of Internal Affairs, Draft Report concluding 3 Years of Implementing the Law on the Organization of Local

Government, pp.17, 18, https://moha.gov.vn/DATA/DOCUMENT/2018/06/Du%20thao%20BC%20Tong%20ket%20

3%20nam%20Luat%20TC%20CQDP.pdf

Concerning central state budget and government bond, the adjustment of annual capital budget within individual programs, area of investment or source of capital, or permission for an extension

of disbursement period requires the reporting and waiting for competent authorities’ instructions (mainly the Ministry of Planning of Investment) This takes a lot of time, leading to tardiness in the disbursement of funds and implementation of the annual capital investment plans, leading to a less local initiative in the effective management and use of planned investment capital1

Second, in terms of personnel management, according to current laws, the number, mandate, authority, and organization of specialized agencies under the People’s Committee at all levels are decided by the Government Therefore, the provincial People’s Committees are not authorized to decide their own number of employees in public service providing agencies, and may only implement the stated number after it had been approved by the Ministry of Internal Affairs This would restrict the initiative and swiftness in local management

In the same way, with regards to the approval of public officials and public servant positions, promotions to the senior official positions are still under the jurisdiction of the Ministry of Public Security Decentralization is only halfway done in this matter, and so causing further difficulties2 Third, in land management, the present regulations of the Land Law does not allow the provincial People’s Committee to delegate authority to the district People’s Committees in the matter of land appraisal profile for recompensation Because of this, recompensation for site clearance would usually require a lot

of time, especially as the administrative workload at the provincial level is regularly overloaded3

Fourth, in the household register, the delegation of authority to the district and community-level People’s Committees is based on the age-group and type of public service to be rendered However, these criteria create difficulties For instance, those citizens having to deal with different administrative procedures at the same time would need to perform them at different levels of government, making the process highly costly and time-consuming For example, the district-level People’s Committee

is in charge of re-identifying the ethnicity of a child under 14 while the communal-level People’s Committee is responsible for his date of birth correction

c) The issue of Delegation of Authority not accompanied by the provision of the respective tools

The delegation of authority must be performed concurrently with the transfer of the corresponding resources and tools There yet exists a “gap” between the delegation of authority and the transfer

of tools for its implementation In health safety administration, in spite of the provision by legal documents for the delegation of authority to the commune level (Circular 51/2014/TT-BNNPTNT dated 27 December 2014, issued by the Ministry of Agriculture and Rural Development), in practice, the communities remain unable to perform this mandate in its entirety “Deconcentration from the municipal level to the commune and townships in food safety administration is currently rather clear-cut and well-defined, yet in practice, this service remains weak and yet to fulfill the needs This is

1 Nguyễn Viết Trọng, Director, Department of Internal Affair, Hoa Binh Province, “The reality of demarcation of authority between the levels of local government in Hoa Binh province”, Workshop on “Current Demarcation of authority between the levels of local government in Viet Nam”, Ministry of Internal Affairs, Science Academy of State Organization, Konrad Adenauer Stiftung Academy, p.102

2 Nguyễn Viết Trọng, ibid, p 102.

3 Nguyễn Văn Toản, ibid, p 85.

mainly because the food safety administration apparatus at the communal level remains un-uniform,

personnel and professional skills are insufficient, testing equipment is lacking and primitive, and

budget allocated for maintaining food safety at the grassroots level is limited These cause major

difficulties for basic operation, such as sampling or fundamental expenditure1

As such, the delegation of power must be accompanied by the provision of financial and personnel

tools to the locality, which means the deconcentration of budget, handing over more revenue sources from

fees and taxes to the localities In addition, the local government ought to be granted self-determination

in organizing its own apparatus, recruiting, and managing its own personnel The mechanism for accountability before superior administrative bodies should be gradually replaced by accountability before the electoral council and the local public Doing so would require the amendment to not only the

Law on the Organization of Local Governments but also the election laws, so that the election of local

representative offices would be meaningful, being participated and represented by local interest groups

Research on local affairs indicates that one of the difficulties facing the grassroots authority lies

in the professional capacity of their officials and civil servants If the localities are to assume new

missions, their staff must be adequately skilled Delegation of power would also bring about a change

in a self-awareness of the localities Most local officials would still rather look to their superiors for

instruction; adapting to autonomy and adjusting their mindsets accordingly would take time

4 Opposing Trends

Without a clear delegation of authority enshrined in law, confusion may occur in practice Either

the central authority may create regulations to further limit the autonomy of the locality, or the localities may themselves create regulations contrary to the law of the central level

i A vague legal framework may lead to restrictiveness on local authorities

Reality has shown that the central level on occasions would issue regulations to the effect of

restricting the authorities of the locality For example, Decree 08/2016/ND-CP stipulates that the local government must report to the competent authorities before holding elections for the positions

of Chair and Deputy Chair of the district and communal-level People’s Committees, while other documents issued by central authorities on the matter of deconcentration of personnel management

do not oblige this2

There have also emerged interpretations that are not conducive to the authority of the localities

The case of “fees versus charges” from BOT projects in 2018 is an example The 2015 Law on Fees

and Charges stipulates that decisions to alter toll fees are under the jurisdiction of the Ministry of

Finance for roads under Central-level management, and of the provincial People’s Council for roads

under local management For cases falling under the jurisdiction of the provincial People’s Council,

the setting of toll fees might be a complicated and time-consuming process, as the locality and the

sectoral authority may not see the matter As such, interpreting toll fees as a “service charge,” in so

1 Ngọc Quỳnh,

http://www.hanoimoi.com.vn/Tin-tuc/Xa-hoi/877520/bat-cap-trong-thuc-hien-phan-cap-quan-ly-an-toan-thuc-pham-nhan-luc-yeu-kinh-phi-thieu New Hanoi (Hanoi, 17 September 2017) accessed 01 October 2018

2 Ministry of Internal Affairs, Draft Report concluding 3 Years of Implementing the Law on the Organization of Local

Government, pp.17, 18, https://moha.gov.vn/DATA/DOCUMENT/2018/06/Du%20thao%20BC%20Tong%20ket%20

3%20nam%20Luat%20TC%20CQDP.pdf

doing bypassing the authority of the locality, might help to shorten the administrative process The Minister of Transport made the following explanation on the matter:

“Previously each adjustment of fees was a big hassle, as fees adjustment is under the authority

of the local People’s Council, and they cannot exercise flexibility in this matter If we make it into charges, in nature the investor would be entitled to the same share, but we would be able to make rapid adjustments according to the particularity of each toll charge station in each location and each area We can heavily reduce the charge where the condition allows If we leave that in the hands of the People’s Council, an adjustment would be very difficult indeed”.

What happened here is that the change in name is to reflect the goodwill of the Ministry of Transport to expedite the settlement of the issue1.

We hold that the streamlining of administrative procedures must be considered in the context

of delegation of authorities Interpretations along the line of “skipping” the authority of the locality over the BOT toll booths in its own jurisdiction is not merely an administrative process Rather, it touches upon the core nature of the organization of state power - the delegation of authority between the central and local level, and if this is to proceed, it must be done through the legislative channel

As of this writing, the toll booths have been restored to their original name

ii When faced with a restrictive legal framework, the localities have taken their own initiative

This is the possibility of the locality to set more open rules than the general law Faced with restrictions in the decentralization and delegation of authority, several localities have taken the initiative to delegate more authorities to the grassroots level For instance, with regards to information and the media, the People’s Committee of Vinh Phuc Province delegated the district-level People’s Committee with the authority to issue, amend, supplement, renew, and reissue business permit for public internet access points, business registration for public video game services, and business license for public game providers, to organizations and individuals within the district2 Another example is the issuance by the People’s Committee of Vinh Phuc of the Decision No 22/2018/QD-UBND dated 22 October 2018 on the authorization for the district-level People’s Committee to make decisions on land reacquisition As a strong pioneer in the delegation of authority, the province of Quang Ninh delegated to the district-level People’s Committee the authority to make decisions on land reacquisition and approve measures for restitution and resettlement for projects involving both individuals and organizations, in the Decision No 3000/2017/QD-UBND dated 2 August 2017 of the provincial People’s Committee3

But there also exist cases where the initiative of the local governments exceeds the existing legal framework An example is the signing of international cooperation documents at the local level As Ordinance No 33 only provides for the provincial People’s Committee to sign international

1 Huỳnh Thế Du, “Toll Charge Booths and the Dilemma of Minister Thể”, 29 May 2018 <https://news.zing.vn/tram-thu-gia-va-the-tien-thoai-luong-nan-cua-bo-truong-the-post846358.html> accessed 03 October 2018.

2 Nguyễn Văn Toản, Head of Administration Building and Youth Affairs, Department of Internal Affairs, Vinh Phuc Province, Workshop on “Current Demarcation of authority between the levels of local government in Viet Nam”, Ministry of Internal Affairs, Science Academy of State Organization, Konrad Adenauer Stiftung Academy, p.83

3 Nguyễn Thị Thơm, Deputy Director, Department of Internal Affairs, Quang Ninh Province, “Reality of demarcation

of authority between the levels of localities in Quang Ninh and recommendations”, p 87.