Da rt Tua 2 Public pa ticipation in gove nance is one of the equi ements of good gove nance and it plays an impo tant ole in p eventing and combating policy co uption This pape cla ifies
Trang 1PUBL C PART C PAT ON N T E F G T AGA NST POL C
CORRUPT ON: FROM T E PERSPECT VE OF OPENNESS,
TRANSPARENC AND ACCOUNTAB L T
Dr P am T e Luc1- A/Prof Dr Da rt Tua 2
Public pa ticipation in gove nance is one of the equi ements of good gove nance and it plays an impo tant ole in p eventing and combating policy
co uption This pape cla ifies the issue of policy co uption and the ole of public
pa ticipation in anti-co uption f om the pe spective of disclosu e, t anspa ency and accountability Public pa ticipation in policy-making is ecognized and specified in the Constitution and la s In p actice, the people also play an inc easingly active ole in combating policy co uption Ho eve , the e a e still many sho tcomings of this activity By studying the theo ies and situation of policy
co uption based on the fo mula of policy co uption “Corruption = Monopoly + ecrecy - Accountability” the pape p oposes some solutions to inc ease public*
pa ticipation in anti-co uption
Pol cy corrupt o a d t e role of publ c part c pat o t e f g t aga st
policy corruption
Co uption is an act of abusing po e , especially state po e , fo pe sonal
pu poses Acco ding to such definition, co uption has existed fo a long time in the political life Co uption has still been popula all ove the o ld, becoming one of the main ba ie s to the development of any count y, th eatening the social stability, uining the mo al and democ atic values of society, inte cepting the development and imp ovement of the economy and damaging the people's t ust in the State and la
Ho Chi Minh olitical Academy
2 chool o f Law, Vietnam National University, Hanoi
487
Trang 2Among all types of co uption, policy co uption is ecognized as being sophisticated- haza dous, and difficult to identify and esolve It is defined as an act
of using po e illegally du ing the policy-making p ocess in o de to take advantages
of the policy In fact, policy co uption has been conducted th ough va ious types of act, such as policy “t ading” “bending” and “navigating” to maximize the advantages
of pa ticula individuals o g oups instead of gene al inte ests of the community o society In detail, it is the situation in hich seve al inte est g oups in society, especially
g oups ith economic inte ests, satisfy thei inte ests th ough the acts of app oaching,
pe suading, affecting, colluding ith the policy make s fo the issuance ofstate policies benefiting such g oups’inte ests, ithout the conside ation of the gene al inte ests Policy co uption causes se ious consequences to both the State and society First, it defo ms the policies, c eates an unfai competition envi onment, p otects
g oups’ inte ests, cause astes o uses ineffectively impo tant national esou ces, and i eve sibly lo e s the count y’s economy development econdy it damages the people’s la ful ights and inte ests, dest oys values of gove nance such as integ ity, democ acy, ustice, co upts the public se vants’ mo ality, dec eases the effectiveness
of public gove nance and uins the people’s t ust in the State As commented by a
fo me membe of the National Assembly, “a defo med policy, in the case of being adopted, might inc edibly benefit a ce tain numbe ofindividuals, but at the same time might lead to the exhaustion of the national esou ces An illegitimate po e being inse ted in the la s might legalize the unlimited ha assment of some people, but also aise the big difficulties in the business ope ation and people's life”
The cause of policy co uption might be app oached f om seve al pe spectives
F om the vie of public pa ticipation in the policy-making p ocess, this pape conside s the natu e and cause of policy co uption based on the fo mula: Corruption
- Monopoly + ecrecy - Accountability2
Nguyen Sy Dung, ‘Anti-Co uption of Policy’ (20 8) <https:// nhandan com vn/cuoituan/phong-su/ phong-su-anh/item/37004502-phong-chong-tham-nhung-chinh-sach html>accessed 2 Novembe 20
2This fo mula is based on the p oposal of a g oup of th ee autho s Robe t Klitgaa đ, Ronaỉđ Maclean-Aba oa and H Lindsey Pa is: Co uption = Monopoly + Disc etion - Accountability Ou fo mula as “Co uption = Monopoly + Sec ecy - Accountability” is developed in o de to suit the a ea of policy co uption Acco ding to this fo mula, “sec ecy” is one ofthe basic causes ofpolicy co uption The disc etion is conside ed as a component
of monopoly in policymaking See mo e: Klitgaa d, Robe t, Ronald MacLean-Aba oa and H Lindsey Pa is, ‘A
P actical App oach to Dealing ith Municipal Malfeasance U ban Management P og amme’ ( 6), No 7,
U ban Management P og amme Wo king Pape Se ies, Nai obi, Kenya, 0- 3
Trang 3Unde such fo mula, the cause of co uption might be analyzed in a detailed ay as: any he e ( ) the offcials have a monopoly in making policies; (2) the disclosu e and
t anspa ency in policy-making p ocess a e not espected, secu ed and implemented; (3) lack of accountability amongst public office s ega ding policy planning, the level
of policy co uption at that place is up aising and becoming mo e se ious The efo e, some solutions as belo should be taken to tackle policy co uption:
- Stop the monopoly of the State in the policy-making p ocess by expanding and imp oving the public pa ticipation in the policy-making, in o de to ensu e that the
pol c es s all represe t fully t e terests of t e people a d soc ety fully
- Stop the unseasonable fo ms of sec ecy by imp oving access to info mation, the disclosu e and t anspa ency of info mation elated to policy-making Disclosu e and t anspa ency a e the keys to ensu ing that the policy make s may not favo any individuals o inte est g oups in society fo ha mful pu poses
- Imp ove the accountability of public office s in the policy-planning p ocess, hich means that the office s shall take the esponsibility in explaining thei activities and ans e ing equests and demands ofthe people and society in elation to the content and decision of the policies In case of a failu e damaging the legitimate inte ests of the people, the policy-make s shall also be held accountable The civic engagement in the policy-making p ocess allo s people to equest the public autho ities to be accountable
in thei decisions and ope ations
Ihe ne app oaches of ne gove nance, good gove nance and democ atic gove nance all emphasize public pa ticipation, openness and t anspa ency ith the aim of p eventing co uption and imp oving the abeyance of the la s in policy-making Good gove nance is based on seve al p inciples Among those, the equests
of civic engagement, disclosu e and t anspa ency a e emphasized Democ atic gove nance is the ne method ofgove nance, hich aims to se ve the legitimate ights and inte ests of people th ough the imp ovement of an open gove nment that assu es civic pa ticipation, openness and accountability The public pa ticipation cont ibutes
to the building of good gove nance and takes the ole of cont olling co uption The emphasis in the public pa ticipation in policy-making fo cont olling co uption is the bottom-up app oach in anti-co uption besides the t aditional top do n app oach focusing on initiatives and efo ms of the State in anti-co uption he inte national community and a numbe of count ies conside that engaging the citizens to counte
Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce
48
Trang 4co uption cont ibutes to ensu ing bette se vice delive y and achievement of the Millennium Development Goals
In Vietnam, the p oblem of inte est g oups and policy co uption has becoming the highest conce n that the Communist Pa ty of Vietnam (CPV) and the State shall conf ont in the p ocess of economic and political efo mation It is also the biggest conce n ofthe public In a ecent public su vey about identifying co uption in Vietnam, the ma o ity ofthe people conside the situation that the inte est g oups lobbying policies
fo illegitimate aims is mo e and mo e popula , and the ta gets ofthe lobbying a e leade s ofthe CPV and the State, specifically of the executive b anch 2A eas and sections he e policy co uption that has caused se ious consequences and negativelyaffected the public
a e land, finance, state-o ned ente p ise p ivatization, and public investment
F om the natu e, cause and esults of policy co uption, it is time fo Vietnam
to change the thinking of gove nance and policy ole The adoption of a policy shall evaluate its effects and shall not pave the ay fo inte est g oups to negatively affect and exploint such policy In addition, public pa ticipation, openness and, t anspa ency
in the policy-making shall be encou aged
2 T e legal framework ofpubl c part c pat o t e f g t ofpol cy corrupt o
ll V et am
In Vietnam, the public pa ticipation in policy-making is ecognized in the policies of the CPV, the la s ofthe State since the pe iod of “Doi moi” (Renovation) In addition to the development of the political st uctu e, the legal f ame o k fo public
pa ticipation is imp oved in o de to meet the equi ements of the development of the count y
The 20 3 Constitution clea ly affi ms the ight ofthe citizen “to pa ticipate in the administ ation ofthe state and management of society and to pa ticipate in discussion and ecommendation to the state agencies on the issues of the community, the egions and the hole count y”, and the State's esponsibility to “c eate conditions fo the citizen to pa ticipate in the administ ation ofthe State and management of society and the eceipt and esponse to citizens’ opinions and ecommendations” (A ticle 28)
Wo kshop epo t on Engaging Citizens To Coute Co uption fo Bette Public Se vice Delive y and Achievement of the Millennium Development Goals, Ma akesh, Mo occo, 26-27 Octobe 20 <http://unpanl
un o g/int adoc/g oups/public/documents/un-dpadm/unpan048 4 pdf> accessed 2 Novembe 20
2Wo ld Bank, Gove nment Inspecto ate (20 2), Corruption in Vietnamfrom the erspective ofCitizens, Businesses and Officials, National Political Publishing House, 20 2» 56-5
Trang 5Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce
Not only exe cising the ights di ectly, but the citizens aỉso may oin in the p ocess ofpolicy-making th ough the political-social o ganizations, hich idely ep esent the peoples ights and inte ests Among these o ganizations, the Vietnamese Fathe land
F ont (VFF) is a political alliance and a volunta y union of political o ganizations, socio-political o ganizations, social o ganizations and individuals ep esenting thei social classes and st ata, ethnicities, eligions, and ove seas Vietnamese The VFF constitutes the political base of the people’s gove nment; ep esents and p otects legal and legitimate ights and inte ests of the People; gathe s and p omotes the po e of
g eat national solida ity, p actices democ acy and enhances social consensus; p actices social supe vision and c iticism; pa ticipates in the building of the CPV, the State and people’s activities of fo eign elations, cont ibuting to building and defending the Fathe land (A ticle the Constitution) Social supe vision and c iticism a e t o of the most impo tant functions of the VFF The VFF evie s, analyzes public ideas and petitions on policies, la and p og ams and epo ts them to the CPV and the State Besides, social o ganization and non-gove nment o ganizations a e also ecognized as having an inc easing ole in being a channel fo public advocacy
The 20 5 La on P omulgation of Legal Documents is the basic la on the
p ocedu es of making policies, hich conc etizes the p ovisions of the Constitution
on public pa ticipation into the policy-making p ocess In the spi it of this la , the
p omulgated policies must ensu e the disclosu e and democ acy in eceiving and esponding to opinions and ecommendations of individuals, agencies, o ganizations
du ing the p ocess of negotiating, and p omulgating legal documents (A ticle 5 6) In
o de to facilitate the pa ticipation of the people in the policy-making p ocess, this la egulates that socio-political o ganizations, social o ganizations, and all citizens a e entitled and encou aged to comment on national policies In the p ocess of making policies, agencies and o ganizations in cha ge of d afting the documents and elevant agencies have the esponsibilities of making all the policy- elated-info mation public and t anspa ent hich can help agencies, o ganizations and individuals to comment
on the p oposals and the d afting; in addition, they must also collect opinions f om the ones ho a e di ectly affected by the policies Opinions on the la and policy
p omulgation p oposals must be collected, studied, explained and adopted in the
p ocess of evising the d afted policies (A ticle 6, A ticle 34)
In sho t, collecting public opinions is the esponsibility of d afting agencies and
is a mandato y p ocedu e in the policy-making p ocess Fo ms of collecting public opinions p esc ibed by la include:
4
Trang 6- Post policy p o ects, p oposals, epo ts, evised documents on the ebsites of agencies, o ganizations in cha ge of d afting policies in o de fo all citizens to be able
to give thei opinions
- Collect itten opinions of elated pa ties: this p ocedu e may be ca ied out in the fo m ofdi ect consultation, sending the d afted p oposal to elated pa ties fo thei opinions, o ganizing confe ences, semina s, o opinions published on t usted media
- O ganize di ect dialogue ith the ones ho a e di ected affected by the policies
In addition, in o de to c eate conditions favo able fo the pa ticipation of the people into the policy-making p ocess in gene al, and into the la of p eventing and fighting co uption in pa ticula , the 20 6 La on the Access to Info mation, the 20 6
P ess La , the 20 8 La on Anti-co uption, the 20 8 La on Denunciation and othe la s also have detailed and specific p ovisions on the public pa ticipation, the esponsibility of public autho ities and officials to p ovide openness, t anspa ency and accountability; it is one of the co e measu es to p event co uption
Ove all, the legal f ame o k fo public pa ticipation in the policy-making
p ocess in Vietnam is basic; it emphasizes the p inciples of t anspa ency, democ acy, openness, and esponsibilities in fo mulating policies Ho eve , this legal f ame o k still needs to be imp oved to c eate a st onge foundation fo building a mode n model
of democ atic gove nance
3 Curre t s tuat o of t e publ c part c pat o t e pol cy-mak g process
a d t e a t -corrupt o pol c es V et am
It can be seen that, in Vietnam, te ms such as “advice” “consultation” especially
“social criticism” - as the cont ibution of individuals, socio-political o ganizations, social o ganizations on ce tain policy and la ofthe gove nment - have appea ed mo e and mo e in legal documents, speeches of the CPV and State leade s as ell as in national media In fact, fo ms of public consultations and social c iticism of the state’s policies and la s have occu ed egula ly as a mandato y p ocedu e equi ed in the policy-making p ocess This someho eflects the fact that the people’s pa ticipation in the social gove nance is a legitimate need, a component ofthe democ atization ofsocial life, hich also eflects the democ atic level ofboth the people and the gove nment
In an effo t to p omote the memo izations of social life to a ds building a gove nance model, the pa ticipation of the people in the policy-making p ocess in Vietnam has initially b ought the follo ing esults:
Trang 7- Cont ibut to the imp oving the positive pa ticipation ofthe people into politics, developing a sense ofa citizen’s ights and obligations, esponsibilities ofthe community
fo the development of the count y and the people In fact, hen pa ticipating in the policy-making p ocess, the public finds itself eally a membe ofthe p ocess, so it takes
an active and esponsible ole in commenting on the policies Ihis makes the policies close to the citizens, limiting the oppo tunities of policy co uption and effectively
p omoting the policy implementation p ocess
- Take advantages of social esou ces into policy-making p ocess, especially the expe iences and kno ledge f om individuals, expe ts, social o ganizations, ente p ises and p ofessional o ganizations ho have a high eputation nationally and globally in p oviding scientific foundations fo the policy-making p ocess; the eby cont ibuting to saving, educing the cost of esou ces in planning and building of State policies In ecent yea s, public consultation on policy fo mulation has been advanced Many comments and suggestions have been eceived and ad usted by
la make s to adapt to the ob ective eality, the eby c eating a high consensus in the society As a esult, many policies a e eally p actical, c eating a st ong motivation and cont ibuting to the socio-economic development of the count y in mo e than
30 yea s of enovation
- Reduce conflicts ofInte est among social g oups, the eby c eating sociaỉ consensus
in the policy-making p ocess Indeed, th ough the fo ms of consultation, dialogue and
c iticism of the public policy, the disag eements in the policy have been mo e and mo e
na o ed All pa ties find a common voice in the ay of esolving the p oblem; the efo e,
p oblems f om the limitations and inadequacies of the policy e e ove come The quality, effectiveness and efficiency ofthe policy have been significantly imp oved, hich effectivelyp omotesthe use ofpoliciesin nationalmanagementandgove nance Mo eove , engaging the public in the policy-making p ocess not only enhances the effectiveness of policy communication but also enhances the capacity to eceive, evaluate and espond to policies This p ocess has cont ibuted to ensu ing die ights ofinfo mation of the people and inc eased the accountability of policy-making agencies
Although social c iticism has been ca ied out befo e 20 3, it has only been done substantially, extensively and effectively since the issue of the Decision 2 7-QD/TW of the Pa ty and the Constitution of 20 3 In the past
5 yea s, the VFF and socio-political o ganizations at ail levels have o ganized 5 745 social c iticisms; 32 064 affai s and activities elated to the policy ecommendations fo the Pa ty and gove nment See: Ngo Sach Hiuc,
‘Situation, cu ent issues in social the c iticism activities of Vietnam Fathe land F ont* (20 ) <http://tuyengiao vn/nghien-cuu/!y-luan/thuc-t ang-nhung-van-de-dat- a-hien-nay-t ong-hoat-dong-phan-bien-xa-hoi-cua-mttq-viet-nam-lỉ 8> accessed 2 Novembe 20
Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce
4 3
Trang 8- The st ong development of info mation technology and social net o ks has changed the ay of inte action bet een people, expe ts, inte est g oups, social
o ganizations and autho ities in policy-making p ocess It can be seen as the g eatest time hen state policy can be delive ed so quickly to the public and also captu ed high attention Th ough social net o ks, many acto s have c eated a ide ange of links to access and sha e info mation, exp ess opinions, comment, discuss in diffe ent
pe spectives and sp ead out a guments conce ning public policy- elated issues This helps to cont ibute to c eating public p essu es, hich fo ce the gove nment agencies
to listen to public opinion, eceive those opinions, make explanations, o even amend and suspend a numbe of ongful policies The hole p ocess has step by step imp oved the efficiency of state gove nance and met the expectations of stakeholde s
to a ds development goals
Aside f om the successful esults, public pa ticipation in the policy-making
p ocess also evealed some sho tcomings and limitations including:
First, the adve se cha acte istics of localism in the policy-making p ocess a e still common With the cu ent policy-making p ocess, most of the policy initiatives have come f om state agencies assigned to state management (mostly implemented
by minist ies, depa tments and People’s Committees in p ovinces and cities in the count ies) Ve y fe public policies have been issued based on the ideas of those affected by the policies, and measu es to implement the policies have come f om public agencies to meet thei needs of bette management fo thei secto s and egions ega dless of the ove all national management Acco ding to the 20 5 Repo ts of the Minist y of Justice conce ning the cu ent situation of the la -making p ocess in Vietnam, the Minist ies initiated and sponso ed a g eat numbe of impo tant ideas,
p oposals2 This makes the minist ies and othe b anches become inte est g oups in the national systems; the efo e, they plan mo e policies that a e beneficial to them athe than emoving difficulties and p oblems fo people and businesses Acco ding
to P ofesso Kenichi Ohno, the policy-making p ocess in Vietnam is unique because most policies a e built ith limited involvement of ente p ises Ente p ises a e only
Huynh Ngoc Chuong, ‘People’s pa ticipation in public policy unde the influence of social net o ks in Vietnam: Case studies, Jou nal of Science and Technology Development’ (20 6), Vol » issue Q4, Science and Technology Development Jou nal, 3
2 Institute of Legal Science unde Minist y of Justice, Cu ent Situation of Policy Analysis Cctivities in the
La -Maidng P ocess in Vietnam Today (20 5), National Legislative Development P o ect, 3
Trang 9allo ed to have comments afte o hen p oblems a ise In the p ocess of the public policy-making p ocess, it is not possible to c eate the best info mation channel to eceive input f om those affected by the policy This is one of the fundamental easons
hy some policies a e not feasible, o not ell implemented as much as the make s anted
econdy public pa ticipation in the p ocess of policy and la fo mulation is limited; the accountability of the d afting agency is not as g eat
When looking at the cu ent p ovisions of the 20 5 La on the P omulgation
of Legal Documents and its implementing documents, it seems that la make s have made g eat effo ts in democ atizing, publicizing and being t anspa ent du ing the
p ocess of fo mulating policies and la s to mobilize and ensu e the pa ticipation of individuals and o ganizations Ho eve , the e is a big gap bet een la and eality
In fact, public comment on policies is not eally popula and dive se The
o ganization fo di ect consultations ith those ho a e affected by the policy ( hich should have been implemented) could not be o ganized, and the events e e too fo mal, un ealistic, and financially ineffective It is impo tant to emphasize that, although the d afting agencies have conducted policy consultations, they have not yet comp ehensively taken comments and ecommendations f om citizens on se iously-amending and supplementing policies; in addition, the e is no sepa ate epo t in the submission of policy and la p o ect eflecting the opinions of those g oups The
p oposals also did not mention ho the opinions e e collected and esponded to
On the othe hand, the d afting agencies and committees did not clea ly explain the p ocess of eceiving the opinions of the people ho a e affected by the policies, and the opinions of expe ts and scientists The e a e opinions stating that “lack of feedback mechanism f om d afting agencies o f om d afting boa ds ould make expe ts, scientists o people less enthusiastic about cont ibuting to the la ”2 This educes the confidence of citizens in public autho ities, and it c eates an envi onment
fo clandestine p o ects bet een inte est g oups and policy make s to take advantage
of the policy
Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce
1Kenichi Ohno, Innovating Vietnam’s policy-making p ocess, Speech at the Economic Development Fo um’ (20 2) <http:// pvnam-chienluoc com/pictu es/file/doimoicachlamchinhsach-0 _ 3 7 406650 pdf> accessed 2 Novembe 20
2Institute of Legal Science unde Minist y of Justice, Cu ent Situation of Policy Analysis Cctivities in the La -Making P ocess in Vietnam Today (20 5), National Legislative Development P o ect, 45-46
4 5
Trang 10hird , access to policy info mation is still limited to the public at la ge
Unde the 20 5 La on P omulgation of Lesaỉ Documents, the agencies in cha ge of the policy must make open all info mation elated to the policy fo the citizens to study and have an opinion on it Catego ies of info mation that must be made open consist of the bills on the policies, the egulato y impact assessments, the accountabilities on esponses to the policy and the amendments to policy (if any) In
p actice, ho eve , hat is accessible to the public is mainly est icted to the bills on the policy athe than the egulato y impact assessments as ell as the accountabilities
on esponses to the policy In case the citizens ant to gathe mo e info mation on the policy, they almost have to make thei o n effo t ithout being able to equest suppo t
f om the agencies in cha ge This is a eal ba ie that needs emoving to ensu e the effectiveness of citizen pa ticipation
Fourth, the social counte -a gument ole of the VFF and thei membe
o ganizations is still vague and not effective “The voice of the VFF afte the counte
-a gument events is not st ong enough to p im-a ily ch-ange' the contents of the bills
on the policy that a e unde c iticism”3 Fo effective counte -a guments, mo eove ,
it is equi ed that the e be p ofessional staff ith consulting expe ience and a think tank in the p ocess of conducting counte -a guments These a e the equi ements that most ofVFF’s office s lack The techno-science o ganizations4(affiliated ith the VFF)
a e among those that play an impo tant ole in policy esea ch and social counte
-a guments, but the e still h-as not been -an offici-al mech-anism to suppo t them in
pe fo ming thei oles Fo instance, the cu ent legal documents still iack an a ay of clea and detailed egulations about issues such as p oviding adequate and up-to-date info mation and publicizing info mation so that the VFF and its membe s can make counte -a guments, a mechanism fo eceiving counte -a guments, esponsibilities
fo ans e ing the counte a guments and sanctions fo failing to eceive counte
-a guments The cu ent egul-ations -a e limited to emph-asizing methods -and contents
of counte -a guments equested by the c iticized ta gets, so it has not been able to
c eate a legal f ame o k that invites independent and active counte -a guments f om legal entities and pe sons, o ganizations and individuals, hich accounts fo limited esults in p actice
3Ngo Sach Thuc, ‘Situation, cu ent issues in social the c iticism activities of Vietnam Fathe land F ont’ (20 )
<http://tuyengiao vn/nghien-cuu/ly-luan/thuc-t ang-nhung-van-de-dat- a-hien-nay-t ong-hoat-dong-phan-bien-xa-hoi-cua-mttq-viet-nam- 8> accessed 2 Novembe 20
4They belonging to the Vietnam Association of Science and Technology