Accountability in administrative activities theory and practicality in vietnam

A O NTAB L TY N ADM N STRAT VE A T V T ES -T EORY AND PRA -T AL -TY N V E-TNAM A/ rof Dr Nguyen HoangAnh1- Nguyen Due huong2 Accou tab l ty: co cept a d class f cat o Accountabilityis a

A O NTAB L TY N ADM N STRAT VE A T V T ES

-T EORY AND PRA -T AL -TY N V E-TNAM

A/ rof Dr Nguyen HoangAnh1- Nguyen Due huong2

Accou tab l ty: co cept a d class f cat o

Accountabilityis a fai lyne te m, appea ing in the context hen the development coope ation activities, the dono s and the People expect commitment f om the gove nment Acco ding to OECD: To be accountable, th ee main pilla s a e needed: i) T anspa ency: citizens have the ight to access info mation elated to commitments made by the gove nment;

ii) Accountability: citizens can equest the gove nment to espond thei activities; iii) Efficiency: citizens can punish if the gove nment violates the commitment standa ds3

Acco ding to the Wo ld Bank G oup: The te m "accountability” implies that the e is accu ate and accessible info mation on hich to udge hethe the ob is being done ell, and it assumes that the e a e mechanisms to e a d good pe fo mance and discou age bad pe fo mance ”4

Acco ding to Schola Robe t s Bake , “The gove nmental accountability - that

is, the duty of public officials to epo t on thei actions to the citizens, and the ight of

chool o fLaw, Vietnam National University, Hanoi

3Sou ce: Hudson and GOVNET (200 ), cited in: ACCOUNTABILIT AND DEMOCRATIC GOVERNANCE:

4 Wo ld Bank, Vietnam Development Repo t 20 0» “Mode n Institutions”, p 04 > see at: http://documents

o ldbank o g/

the citizens to take action against those officials hose conduct the citizens conside unsatisfacto y - is an essential element, pe haps the essential element of Democ acy” Thus, accountability is al ays associated ith the ight to complain, claim, denounce and fight against co uption

In the State’s activities, accountability is unde stood as the esponsibility of gove nment bodies - that have eceived po e s and autho ities f om the People and have set a goal of exe cising po e fo the People and have the duty to espond, explain and take esponsibility fo all thei activities Accountability is the State agency’s p ovision, explanation and cla ification of info mation on the pe fo mance of assigned tasks,

po e s and its esponsibility fo the pe fo mance of such tasks and po e s

Acco ding to the OECD, Accountability consists of t o g oups: ve tical accountability and ho izontal accountability Ho izontal accountability is the - checks anh balances mechanism among the th ee b anches of the legislative, executive and udicial po e s Ve tical accountability is the elationship bet een citizens and gove nment bodies - those ho a e empo e ed to make decisions, but citizens have the ability to ce tainly influence that decision-making p ocess2

In theVietnam DevelopmentRepo t20 0,the Wo ld BankclassifiesAccountability

as follo s:

+ Accountability ensu es compliance (up a d accountability system): Individual

o o ganization that places emphasis on top-do n p inciples, egulations and cont ols, emphasizing compliance ith ules, dictates and inst uction coming f om ithin the hie a chy

+ Accountability fo pe fo mance (do n a d accountability system): The

do n a d accountability system focuses on the esults that the pe son o body is ent usted to delive , and have mechanisms in place to ensu e that individual o

o ganization that does ong things ill suffe f om consequence, and individual and

o ganization that do ell ill be e a ded”3

_ Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce » _

1 Robe t s Bake , “Accountability in Gove nment and Its Limits”, in “Accountability in Gove nment” ƯS Depa tment of State’s Elect onic Jou nal, p 8, see at:

photos state gov/lib a ies/vietnam/86 6/t ansdoc/t ans_Accountability_Gove nment pdf

2Sou ce: Hudson and GOVNET (200 ), cited in: ACCOUNTABILIT AND DEMOCRATIC GOVERNANCE:

3Wo ld Bank, Vietnam Development Repo t 20 0, “Mode n Institutions”, P 05

PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

B uce Stone, p D ivedi, and Joseph G Jabb a divide into eight catego ies

of accountability: mo al accountability: administ ative accountability; political accountability; management accountability; ma keting accountability; udicial accountability; electo al accountability and ca ee accountability

In the a ticle, e sha e the vie s of Assoc P of &D Pham Duy Nghia ith fou types of accountability: “Judging f om the natu e of the channels that establish accountability, to unde stand the sub ect of accountability, its ob ectives, its content, and hat tools to implement, and be possible to lead to hat consequences o sanctions, Accountability can be b oken do n into fou mo e detailed pe spectives, including: (i) political accountability, (ii) administ ative accountability, (iii) ca ee accountability, and (iv) social accountability” 2This classification is mo e gene al, but it seems that the autho only efe s to administ ative accountability hich is only one content of the State accountability, including: administ ative accountability mechanism, Electo al accountability mechanism; udicial accountability mechanism - an impo tant type of accountability in the State appa atus

In othe classification, in some othe studies, Accountability may include t o levels: Accountability in the State agencies system and social accountability 3

In the la of Vietnam, the te m “accountability” has ecently eme ged

Dec ee No 0/20 3/NĐ-CP stipulating the State agencies’ accountability

in pe fo ming thei assigned tasks and po e s and Accountability as “p ovision, explanation and cla ification of info mation on the pe fo mance of thei assigned tasks, po e s and esponsibilities in pe fo ming such tasks and po e s”

Dec ee No 0/NĐ-CP emphasizes the p ovisions on the p ocedu e of implementing accountability ith little p esent of the element “ esponsibility” The State agencies’ sanctions in enfo cing accountability o in implementing gene al commitments - a e ve y little p esence, mainly efe to othe documents on the handling of civil se vants

Jabb a, J G and D ivedi, 0 p (eds )> Public Se vice Accountability: A Compa ative Pe spective, Kuma ian

P ess, Ha tfo d, CT, 8

2Pham Duy Nghia, ‘Accountability: Reaching the standa ds of developed administ ation”, P 2, see at http:// fetp edu vn

3LERES document on Pa ticipation and accountability in la development

Recently, the La on Anti-Co uption 20 8 has ese ved a definition of Accountability in Art cle 3 -Clause5of the La : “Accountability sthata compete t autho ity, o ganization, unit, o individual cla ifies info mation and explains

p omptly and fully about its decisions and behavio s hile pe fo ming its assigned tasks o official duties” To conc etize the La on Anti-Co uption, Dec ee No 5 has dedicated Chapte 2 on egulating Accountability ith ve y specific p ovisions including content ofaccountability; conditions fo eceiving equest fo accountability; ights and obligations of the pe son in cha ge of accountability and the equeste

fo accountability; p ocedu al o de fo accountability, etc Though ve y specific as mentioned above, the Dec ee has ust stopped at the significance: Accountability! is that the agency cla ifies and explains its activities - but less emphasizing the element

“ esponsibility: on the othe hand, it is limited to passive accountability - that is, Accountability a ises hen equested

Although the definition of “Accountability” in the La is quite na o , in

ou opinion, in the enti e legal system of Vietnam, the e a e p ovisions fo almost all types of accountability: accountability in the system (State accountability); social accountability - ith the documents such as the P ess La ; La on Access to Info mation; O dinance on democ atic p actice at commune, a d and to nship levels, etc Not to mention specialized la s that also stipulate accountability of State agencies and officials in each specific field And p ofessional associations also have many p ofessional ethical ules that cont ibute to the ichness ofca ee accountability

2 Accou tab l ty of adm strat ve age c es V et am

An ove vie assessment of the cu ent situation of accountability in Vietnam, the Vietnam Development Repo t 20 0 comments: “Ne accountability systems a e unde development, but a e often slo and not al ays optimal”

Mo e ecently, in the Vietnam 2035 Repo t, the studies have stated that Accountability is one of the eaknesses of the Vietnamese State: the indicato on the People’s voice and accountability of the gove nment in Vietnam emains in the bottom tenth of all count ies, and its elative anking ac oss all count ies has fallen

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

Vietnam Development Repo t 20 0, “Mode n Institutions”, Joint Dono G oup, Repo t to the Vietnam Consultative G oup Meeting, Hanoi, Decembe 3-4, 200 , Summa y, Rxviii, http://documents

o ldbank o g

2 Vietnam 2035 Repo t: To a d p ospe ity, c eativity, equity and Democ acy, Wo ld Bank G oup, Minist y

PROCEEDINGS OF THE INTERNATIONA! WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

FIGURE Worldw de Gover a ce I d cators

Governm ent effectiveness Political! stability

an d a b se n c e of

violence/terrorism

R le o f law Control of corr ption

Reg latory q ality

V o ice and acco ntability!

It is quite unique that hile Vietnam has achieved the best in te ms of political stability and gove nment effectiveness (Figu e ) - in these indicato s (dimensions) Vietnam compa es ell ith uppe -middle-income count ies and does bette than othe lo e -middle-income count ies On gove nment effectiveness, hich measu es

pe ceptions elated to the quality ofpublic se vices and the gove nment’s commitment

to sound policies in that ega d, Vietnam has imp oved its elative pe fo mance in ecent yea s; but on t o dimensions Vietnam does pa ticula ly poo ly Fi st, on voice and accountability, it emains in the bottom tenth of all count ies

Going up f om a cent alized management system and sec etive element, the

o de has been enhanced in a time, clea ly Accountability is still quite st ange fo the ope ation of the State appa atus, but especially the administ ative appa atus in Vietnam Mo e detailed and deepe , this is also ooted in feudal administ ation ith cent alized mindset, long-standing giving “In the past, in ou count y, the manda ins

a e ega ded as the pa ents of the People, the disputes e e info med to a aiting t ial

of Planning and Investment, p 6 https://openkno ledge o ldbank o g/bitst eam/handle/ 0 86/23724/ VN2035Vietnamese pdf

Figu e f om p 6 ofthis document: Vietnam 2035 Repo t: To a d p ospe ity, c eativity, equity and Democ acy,

Wo ld Bank G oup, Minist y of Planning and Investment https://openkno ledge o ldbank o g/bitst eam/ handle/ 0 86/23724/VN2035Vietnamese pdf

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

- a lo and dependent position in the elationship bet een the litigant a id the udge The elationship bet een manda ins and people is f om top to bottom, to the p esent, the e still seems to be a shado of that look thus, Accountability is also not easy to execute ight f om the consciousness

The innovations of mode n socio-economic life have b ought deep bu den on the State in cha ge of Accountability The legal documents have been issued mo e and

mo e to st engthen the State’s accountability mechanisms The p essu e o bu den

f om the society equi es that State agencies cannot keep silent any mo e, public officials a e used to p esenting, and esponding o publishing to hot events such as: Responding about incidents of pollution in the Cent al Vietnam's Sea (Fo mosa); about the pollution of Da ive ate ay

Ho eve , in p actice, the implementation of administ ative accountability is still quite inadequate In this a ticle, I ould like to find some basic causes of these limitations

solut o s

- Firstly>the lack of clea decent alization ill make “blu ” Accountability

Acco ding to the Vietnam 2035 Repo t: “Hie absence of a clea hie a chy and dist ibution of autho ity c eates oom fo individual agencies to esist decisions they see as against thei inte ests (Box 5) The esult is often g idlock o decisions that a e suboptimal f om society’s point ofvie ”2We also dete mine that the clea division of autho ity among the State agencies leads to lo accountability The decision-making

p ocess is st etched by many levels of advise s, many levels of opinion, inte vention

- leading to the fact that decision make s sometimes do not eally unde stand clea ly the p oblem Due to that, accountability and esponsibility also become difficult

The e a e a numbe of legal documents defining the esponsibilities of heads

of the State agencies, o ganizations and units - but so fa the implementation is still difficult: Dec ee No 57 NĐ-CP dated Octobe 27/2007 p esc ibing the egimes and esponsibilities fo heads of the State agencies, o ganizations and units in the

pe fo mance ofofficial tasks and duties; Di ective No 3 CT“TTgofdie P ime Ministe dated June 0, 20 5 on the esponsibility of heads in administ ative efo ms, etc But

Nguyen Due Lam, “Management by la s: Obstacles f om the People” (Manage Magazine, No , May 2004)

2 Vietnam 2035 Repo t: To a d p ospe ity, c eativity, equity and Democ acy, Wo ld Bank G oup, p 02

does it al ays “catch the e o ” made by heads? And even if the e o is disclosed, does

it al ays c eate obedience?

The p actice of “catching e o s” in administ ative cad es - even hen the e

a e quite shocking events - is still difficult Fo example, having a fi e and explosion causes fatal consequences ( 4 people died at Ka aoke sto e in Cau Giay Dist ict) -the esponsibility is not clea ly defined f om -the specialized management level (fi e

p evention and fighting) o the g ass oots level - and at the g ass oots level, it is the esponsibility of a d, dist ict o city The eason is that autho ity is sepa ated, splinte ed too much, the consequence is that hen dete mining clea esponsibility is difficult

The decent alization bet een the Cent al and local gove nment is also undea :

In most cases a ising, the most vulne able is still the g ass oots gove nment - although

in p actice othe levels also have mo e o less elevant autho ity And even in the

g ass oots level, the esponsibilities that belong to the depa tments o secto s a e still quite difficult to delineate This is quite easonable ith a mac o assessment: Most

of the ne mechanisms of do n a d accountability - di ectly esponding to the people’s aspi ations th ough pa ticipation and inc easing t anspa ency - have been implemented at the commune level, hile the ma o ity of autho ity is g anted to the

p ovincial level The challenge, the efo e, is that accountability ith ne mechanisms can be difficult to come togethe 2

Thus inc easing accountability must be associated ith decent alization and assignment of po e s in the State The cu ent decent alization and assignment of

po e s efo m in Vietnam ill be the key to solving this p oblem

- econdly, info mation t anspa ency and est iction of “ est icted a eas”:

In o de to be accountable, it is equi ed f om a lot of elements coming f om the la s, enfo cement institutions, economy, and cultu e Among those elements, info mation secu ity is the co e to accountability The e is no accountability hen the info mation is not t anspa ent If the supe viso s do not kno the info mation of the administ ative agencies’ activities, they cannot equi e the administ ative agencies to espond o publicize thei activities In Vietnam, the La on Access to Info mation

Than Hoang, http://tuoit e vn/tin/chinh-t i-xa-hoi/20 6 02/ai-chiu-t ach-nhiem-vu-chay-quan-ka aoke-3-nguoi-chet/ 2 2346 html, Novembe 02,20 6, visit on Novembe 22,20 6

2See also: Vietnam 2035 Repo t: To a d p ospe ity, c eativity, equity and democ acy

PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce _

is adopted in 20 6 - that is a based milestone ma king the development step in

t anspa ency of the gove nment’s activities This is also a solid p emise fo enfo cing Accountability Ho eve , the ba ie s to access to info mation emain, including: the blu ed o unclea bounda y bet een accessible and inaccessible info mation - hich falls ithin the scope of othe acts due to the efe ence “as pe p ovisions of the la s; the const aints on the ight to equest access to info mation (specify easons and

pu poses of the equest to access info mation; p ovide pe sonal info mation hen equesting access to info mation; fill in the co ect name of documents and eco ds in Request fo m, etc ) Though pe haps the most difficult is still in the “post-inspection” stage - the exe cise of the People’s ight to appeal and denunciate elated to access to info mation is in the hands of the administ ative agencies and administ ative cou ts

A specialized agency is needed to monito th ough hich to p omote o exe t p essu e

on the gove nment’s info mation t anspa ency obligations

The People’s pa ticipation is also an impo tant element of accountability: the People pa ticipate in o de to kno , demand fo accountability and the gove nment can be cont olled Ho eve , the People's pa ticipation is only effective hen based on info mation and monito ing mechanisms Without access to info mation mechanism,

it is difficult fo the People to have a basis fo thei pa ticipation - f om the fi st steps such as: be kno n, then discussed, checked Pe haps the info mation envi onment

fo thei pa ticipation is still eak, thus despite the fact that the e is a O dinance on the Implementation of Democ acy in communes, a ds and to ns ith M l ights:

to be kno n, discussed, done and checked, in eality: though the e is pa ticipation

in the decision-making p ocess, the e has a common fo people to focus only on implementing the matte s that have been decided, such as selecting communes ithin beneficia ies of P og amme 35*

- hirdly, capacity of supe viso y agencies

A ound the administ ative agencies the e a e many supe viso y institutions: elected bodies (the National Assembly, People’s Councils); the supe io administ ative agencies; cou ts, etc The e have been quite a numbe ofpositive efo ms in imp oving the supe viso y effectiveness, but the e still exist difficulties

Attached to accountability a e supe viso y institutions Agencies esponsible Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

Vietnam Development Repo t 20 0, “Modem Institutions”, Joint Dono G oup, Repo t to the Vietnam Consultative G oup Meeting, Hanoi, Decembe 3-4,200 , p , http://documents o ldbank o g

fo detecting and anti-co uption, elected bodies, associations, citizens and the mass media all have diffe ent impo tant oles in the changing accountability system, and each agency has its o n challenges

Ho eve , the status quo is still c itically significant: as obse ved by the evie e s:

“While specialized agencies such as the Gove nment Inspecto ate, the State Audit, and the Minist y of Public Secu ity clea ly play an impo tant ole in the enfo cement, the

La on Anti-Co uption places the main esponsibility in o ganizing inspections fo heads of o ganizations This system is mo e effective at identifying f auds and asting than detecting co uption”2

The main administ ative supe vision mechanism - in the context of an administ ative system that has not been clea ly decent alized and empo e ed -ill lead to a phenomenon of cent alization o failu e to cla ify esponsibilities and useless The situation of officials ith e o s o violations being t ansfe ed o sent

to othe agencies is quite common Although the e a e many encou aging signs

no adays exp essed th ough esponsible p osecution, even hen officials a e eti ed

o dismissed - it is only a single effo t if not put in ma o efo ms in the division of

po e s

The activities of the National Assembly in ecent times have been much mo e active eflected in events such as: The National Assembly has been mo e involved in meaningful discussions hen passing the acts In fact, the e have been p oposals of

la enfo cement agencies that a e not publicly app oved by the National Assembly, such as the case of the No th-South exp ess ail ay Ho eve , the ole ofthe National Assembly in policy making and supe vision of the gove nment activities is still quite limited Although the National Assembly has done its good ob of publishing info mation and soliciting public opinion on policy issues, it is not yet an effective tool

to tu n the people's conce ns and opinions into Accountability

But the eality sho s that the supe vision of the National Assembly is not eally active in the field of accountability fo elected deputies Most of the co uption and negative cases ofhigh-level public officials unde the supe vision scope ofthe National Assembly - do not stem f om the esults of the National Assembly’s questioning

PROCEEDINGS OF THE INTERNATIONAL WORKSHOP Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

Vietnam Development Repo t 20 0, “Modem Institutions”, Joint Dono G oup, Repo t to the Vietnam Consultative G oup Meeting, Hanoi, Decembe 3-4, 200 , Summa y, p xviii, http://documents o ldbank

o g

2Vietnam Development Repo t 20 0

Ope ess, Tra spare cy a d Accou tab l ty State Gover a ce

and investigation, such as the violation cases of the Ministe of Info mation and Communication in the AVG case It can be seen that the limitations of the National Assembly’s supe vision gene ate f om many easons including: the capacity of the National Assembly deputies is limited; The mechanism to suppo t activities of the National Assembly is not adequate; even the eason fo the legislative p ovisions on the

po e s of the National Assembly is quite “simple” to be able to attach esponsibility

to the end The confidence vote mechanism has been applied but only stopped

at confidence level; high confidence and lo confidence, and in fact the National Assembly’s voting to dismiss deputies afte conside ing accountability is almost unenfo ceable

The political supe vision th ough the ole of the Communist Pa ty of Vietnam

in ecent times has p oved quite st ong, many co uption cases have been detected and dealt ith, even at the highest level such as the Politbu o’s membe s, membe s

of the Cent al Executive Committee’s membe , Ministe s Ho eve , the e a e also

o ies about the long-te m o sustainability of this supe vision in case the cu ent effectiveness still depends heavily on leade s

The cou ts system and udicia y validity a e a solid gua antee of accountability Unde the p essu e ofbeing udged on administ ative decisions, illegal administ ative acts, officials and State agencies themselves ill have a bette a a eness ofcompliance ith the la s Ou udicial efo m has had a lot of success in st engthening the esou ces and po e s of the cou ts: f om inc easing the st uctu e and autho ity of dist ict cou ts to empo e ing to make p ecedents and udgments even if the e is no

p ovisions of the la s ( he court must not refuse a request to settle a case or a civil matter because there is no law to apply Article 5 of the 2015 Civil Code) This is not only a highlight of the espect fo human ights and civil ights in the civil field, but also ma ks a specific step in the implementation of Clause 3, A ticle 02 of the

20 3 Constitution: “People's Cou ts have the duty to p otect ustice, human ights, civil ights, the socialist epublic egime, the inte ests of the State, la ful ights and inte ests of o ganizations and individuals

Ho eve , the limitations of the udicial accountability still exist: the autho ity

of administ ative cou ts is limited to the handling of specific documents of the gove nment and only stops f om the minist y level; lack ofa constitutional supe vision mechanism by cou ts; The independence of cou ts in Vietnam is still cont ove sial

so fa : the o ganizational efo ms have not been tho oughly implemented so that