Public participation in legislative making in vietnam

Public Participation in Legislative Formulation in Vietnam: Continuity and Changes By: Bui Thi Bich Lien Presented at Symposium on “Mapping Vietnam’s Legal Culture: Where is Vietnam Going To?” Center for Asia Pacific Initiatives, University of Victoria, Canada 28-29 March 2003 Abstract In Vietnam, the role for public participation in legislative drafting is defined by the operational parameters of 'socialist democracy' that govern public life in Vietnam The ideology determines the basic institutional and process arrangements for lawmaking which has constrained significant public participation in legislative formulation However, the winds of change brought by Doi Moi and economic development have introduced changes to law policy development, drafting and the legislative process that together have altered for the better the involvement of interests outside the government proper in the development of Vietnam’s legal framework Though fragmented, public participation has produced some improvement to the process of lawmaking The public's habit of getting involved in commenting on draft laws and regulations has yielded some interesting results in certain cases, including a surprising access to helping to influence the force of secondary legislation where the relatively strict control over the review of primary laws in the National Assembly is less in evidence The net result is that public consultation by lawmakers, law drafters and regulation officials is becoming more common in today’s Vietnam We may expect such practices to grow, albeit gradually, as the working definition of ‘socialist democracy’ continues to perfect the framework of the ‘law-based’ society emphasized in the recent constitutional amendments Introduction Public participation in the lawmaking process is a relatively new concept in Vietnam It is arguably fair to say that the public neither has a habit of nor demands getting involved in legislative drafting Centuries under the feudal regime, it was the kings who wrote the formal laws for the nation French colonial time also did not offer many chances for public involvement in forming the laws There has been a fear among authorities that getting public comments will make the decision making process more difficult because of ‘lam thay nhieu ma’(too many cooks spoil the broth) (Pham Tuan Khai, 2002) It is not until very recently that seeking public opinions to formulations of law has become a matter of attention to policy makers as part of the governance reform efforts Based on the ideologies of collective mastery and socialist democracy, a formal system was first created in 1988 to collect public opinions before laws and ordinances are issued However, this system has been characterized by low effectiveness Meanwhile, economic development associated with foreign investment and a fast growing private sector have led to increasing demands for a more efficient legal system (Pham Tuan Khai, 2002) In addition, economic integration has also resulted in a burden of Vietnam's commitments on transparency and opportunities for foreign business communities to comment on drafting laws and regulations.1 As a consequence, the public has become more vocal in the legal drafting process Though often fragmented, public involvement has contributed positively to the introduction of new laws and specifically of secondary legislation This paper examines the continuity and changes of public participation in the legislative drafting process in Vietnam It starts with a discussion on the theoretical background for getting public comments on draft laws and regulations, following by a brief outline of the regulatory framework for this process Then, the author examines the day-to-day practice of public involvement in lawmaking and attempts to predict its future prospects The exploration of the meaning of 'public participation' will be based on the letter of the law and real-life practice For the purpose of this paper, analysis is limited to the formulations of legal documents issued by central government and public participation therein In addition, the author focuses more on economic legislation as significant changes tend to occur in this area Socialist Democracy and Public Participation Imported from the former Soviet Union, the ideology of socialist democracy has always been well documented in Vietnam The 1992 Constitution and Party Congress IX confirm that Vietnam is a state 'of the people, for the people and by the people' (cua dan, dan, vi dan) in which 'people must know, discuss, execute and examine' (dan biet, dan ban, dan lam, dan kiem tra).2 Open-door policy and the need for economic development has been a major cause for democratization in Vietnam Party leaders continue to urge for more and more democracy It is notable, however, that such democratization process is likely to remain firmly in the orbit of the Party's control A distinguished journalist, while aggressively calling for greater democracy and elimination of authoritarianism, stresses the leading role of the Party and argues that it is Vietnam-style democracy (Tran Bach Dang, 1988: 288 and 1989: 291-320) This view has been shared by many other scholars who regard direct democracy as an instrument to consolidate the intimately close 'flesh and blood' relationship (quan he mau thit) between the Party, the state and the people (Nguyen Van Manh, 1998: 32) Socialist democracy can be in the form of representative or direct democracy When the latter takes place, people are entitled to express their opinions and participate in the formulations of laws (Nguyen Van Manh, 1998: 33).3 Lawmakers have widely claimed that this is a fundamental principle to get the public involved in the lawmaking process (Le Minh Tam, 2001: 409).4 Nonetheless, the theory of socialist democracy is more an ideology than a statement of the institutional principles on which the system works (Kase, F.J, 1968: 7) This reality has come to awareness and recognition among a number of radical Vietnamese scholars They have found that the so-called 'people power' and 'socialist democracy' appear to be vague political directions that lack sufficient institutional support (Le Minh Thong, 2002: 19).5 In an attempt to justify the needs of reform and getting the public more involved in the lawmaking process, strategists have struggled to reconcile the traditional Soviet theories with real-life practice Not surprisingly the long surviving ideologies of law as an instrument of ruling class, socialist democracy and socialist legality are still affirmed On the other hand, they argue that greater public participation would make law become more efficient (i.e 'dua phap luat vao cuoc song' or bring the law into real life) and thus shorten the way to reach Doi Moi's ambitious targets To make the arguments look more appealing, some new creative thoughts, such as 'people's sovereignty' (chu quyen nhan dan)6 or 'laws reflect the common will of the society' (phap luat la y chi chung cua xa hoi)7 coupled with Western concepts of law and philosophy are added (Nguyen Quang Minh, 2002: 1-6) Although the policy makers' deliberation to become more pragmatic is understandable, the above reasoning shows a mixed, contradictory picture and thus looks confusing As a consequence of the 'socialist democracy' approach, public participation in lawmaking activities has been highly politicized (Nguyen Quang Minh, 2002: 14) In parallel with the democratic principle, legal scholars insists that the lawmaking process should be subject to the Party's leadership (Le Minh Tam, 2001) Gathering public opinions on draft laws has often been regarded as a mass propaganda (tuyen truyen) by which the people can 'take part in political discussion' (tham du sinh hoat chinh tri) (Office of National Assembly, 2002b: 1-2).8 In addition, these actions tend to focus more on educating the public rather than to seek their comments They aim at increasing the so-called ‘legal consciousness’ (y thuc phap luat) of the people (Hoang Van Tu, 2002) or redirecting 'false' opinions and ideologies (Office of National Assembly, 2002b: 14) There is also debate about an Asian-style democracy9 whereby state authorities grant the public a favor (ban on, chieu co) to get involved in lawmaking activities (Nguyen Quang Minh, 2002: 14) The Legal Framework Although policy makers have always referred to a constitutional basis for public comments on draft laws since early days of the Democratic Republic of Vietnam (Office of National Assembly, 2002a), the first piece of legislation that provided formal procedures for engaging the public in lawmaking process was shortly introduced after Doi Moi as a part of the campaign to promote democracy and legal reform.10 What is worth noting from this document is that it reserved a small space for public access to legislative drafting, with only draft laws and ordinances available for public comments In addition, the mechanism introduced by the law was far from efficient Only the State Council has authority to decide which draft bill needs public opinion These regulations, however, had offered more chances for public involvement in the formerly closed lawmaking circle Following the introduction of the regulations, a number of draft laws were subjected to public debate, including the 1992 Constitution and the Civil Code The Idea of People's Participation In 1996, the Law on Promulgation of Legislative Documents (the 'Law') was issued to further formalize the lawmaking process Yet, it is difficult to change the well established concept of ‘socialist democracy’ according to which the public can get involved in the drafting (Bergling, 1999: 179) Here, the socialist idea of ‘people's authority’ is well injected into the text of the law which leads to opaqueness and inconsistency Article 39 authorizes the National Assembly or the Standing Committee to selectively solicit 'people's opinions' (lay y kien nhan dan) on draft laws and ordinances This ambiguous term of 'people' (nhan dan) has become a source of confusion and thus is subject to a hot debate among lawyers and lawmakers There have been controversial views about who are 'the people', who should have access to draft laws, and whether collective individual comments coming under the umbrella of institutions qualify as people's opinions (Nguyen Quang Minh, 2002: 9-13) Similar to the 1988 regulations, the 1996 Law only allows the public to share their opinions on a limited number of legal documents issued by the legislative body including the Constitution, laws, and ordinances In addition, the right to decide which document can be subject to public comments is at the sole discretion of the National Assembly and its Standing Committee.11 The Law does not provide any criteria on which the National Assembly can reach such decisions On the other hand, it obliges drafting authorities to consult the Fatherland Front and its members (which basically can be anyone) about draft laws and regulations that relate to citizens' fundamental rights and duties.12 Under the Constitution, such rights and duties involve a wide range of issues from freedom of speech to labor, business and family matters The Law on the Fatherland Front also authorizes the Fatherland Front to participate in legislative drafting and comment on all sources of draft laws and regulations.13 The Law also authorizes local authorities to issue legal documents,14 but it does not explicitly subject such documents to public comments before enactment Therefore, legislative formulations at local level remains largely closed to public access and comments (Office of National Assembly, 2002a: 5) A significant portion of local regulations is produced not in line with the Law and local authorities still insist that it is not necessary to obtain public comments on a large scale (Phuc An, 2002: 4).15 As for the institutional support for public participation, the Law obliges all state and quasi-state institutions to facilitate public comments to draft bills.16 Critics have been skeptical about the effectiveness of this model due to its ambiguity (Vo Tri Hao, 2002: 42-43) For instance, the Vietnam Fatherland Front is responsible for ensuring that citizens have opportunities to express their opinions on draft laws It is likely that this provision has worked as a 'two-edged sword' since the Fatherland Front tends to take the view that public comments, if they not go through Fatherland Front, are not of value.17 Despite the above shortcomings, public involvement in lawmaking has been expanded after the Law was issued Although it is common that final outcome of draft bills remains in control of the drafting committees, public debate has gradually established its role to certain extents The amendment of the 1992 Constitutions is an example where a nationwide debate on constitutional legitimacy was stirred.18 Further Reform Under the pressure of further reform, the Law was revised in 2002 as a continued effort to ensure the efficiency of state laws and eventually the state's legitimacy.19 As a part of Vietnam's lawmaking tradition, policy makers often opt not to revise a law on a comprehensive or fundamental basis Instead, amendments are channeled into limited areas of ‘significant importance’ according to certain ‘directing principles’ (nguyen tac chi dao).20 Although there was much concern about the incomplete nature of the Law's amendments, the leaders still decided to give it a go (Tuoi Tre, 2003: and 14).21 Among the key issues that were subject to revisions, getting public opinions on draft bills was subject to much debate An elite group insisted that legislative drafters must consult those who are directly affected by a proposed law before it is enacted (Nguyen Quang Minh, 2002: 11).22 This is probably an attempt to reestablish an earlier effort of the Government to mandate state authorities to consult the business community before issuance of their documents.23 Furthermore, radical thinkers tried to push for the removal of the limitation on public accessibility to draft laws There was a call to make all draft legal documents available to public (Nguyen Quang Minh, 2002: 10) but this idea was rejected due to concern about losing of control The amendments were eventually adopted to include the consultation obligation of drafting authorities, but it was limited to ‘an appropriate extent and in an appropriate manner’.24 The key continuity is that the discretion of National Assembly and its Standing Committees remains unchanged Promoting greater public participation in lawmaking due to pressure of economic integration is another noteworthy issue The landmark bilateral trade agreement between Vietnam and the United States requires Vietnam to provide opportunity to US nationals and companies to comment on the formulation of laws, regulations and administrative procedures that may affect their business.25 To validate these commitments in the local context, government leaders wished to incorporate in the amended Law two new provisions stating the prevailing of international conventions over domestic laws However, this approach was opposed by many National Assembly delegates because of their concerns over national security Despite the Ministry of Justice professional justification, the proposal was eventually rejected The passage of the amended Law presented one of the rare cases where debate is controversial and bills are adopted with low voting rates (Viet Hung, 2002: 4).26 The Media Involvement The press and media are employed to facilitate the people’s participation to legislative drafting under the current system However, it is likely that this facilitation does not play a significant role, as it is only used in a limited occasions when the Standing Committee decides to gather public views on a national wide scale Draft laws are first published in newspapers or broadcasted by radios and televisions Citizens can then voice their opinions in the media or directly write to the Office of the National Assembly There have been concerns about the effectiveness of this method due to the shortage of time and staff handling the collection of the comments (Office of National Assembly, 2002c) Apart from organized meetings where the public can meet and deliver their opinions under instructions of government officials, the volume of direct feedback via newspapers and broadcasting agents remains modest.27 Before the amended Law was issued, there was a proposal from a research group within the Office of the National Assembly according to which public can have unlimited access to draft legislation In addition to the current publishing procedures, the proposal called for a 'open channel' whereby any draft laws, regulations can be made public via a series of means including newspapers, Internet, and public notices (Office of National Assembly, 2002d) However, this model was eventually not accepted in the amended law Among the concerns of its opponents, there was a doubt that Internet access would be viable for the eighty million population Inter-bureaucratic Participation In association with 'people's opinions', the Law and its implementing regulations introduce the idea of consulting 'relevant agencies, organizations, and individuals' (co quan, to chuc, ca nhan huu quan) In particular, drafting agencies are required to seek comments from 'relevant agencies, organizations, and individuals' on draft laws, ordinances, Government documents before they are enacted.28 However, the laws not contain any instructions according to which an institute or an individual becomes 'relevant' for consulting purposes This has triggered tireless attempts of some policy makers to make a clear-cut distinction between the 'opinions of the people' and the 'opinions of relevant agencies, organizations, and individuals' on draft laws According to their arguments, comments from state, political institutions or government officials should not be regarded as public opinions because these organizations and their members are exercising state power when doing so (Nguyen Quang Minh, 2002: 12) In practice, the 'relevant authorities and individuals' are often limited to functional ministries and their subordinated institutions This intra-bureaucratic involvement represents a distinct feature of the legislative drafting process Within a system of 'polycentric power sharing' (Gillespie, J, 2002), a functional ministry, often known as a 'leading agency', is principally in charge of formulations of a law and it must consult other state agencies on the draft A survey has shown that all documents issued by the Government are subject to intra-governmental comments (Pham Tuan Khai, 2002: 7-8) Yet, it is common that the leading agency can manage to take control of the entire process by applying the 'self-sufficiency principle' which is embedded in the system (Martin, P, 2003: 17) Although the Government has been long aware of this 'partialism ideology' (tu tuong cuc bo), little seems to be done to correct it (Pham Tuan Khai, 2002: 14).29 Commentators generally share the view that the drafting authorities hardly consider their opinions (Nguyen Tien Lap, 2002).30 For example, the Decree Providing Guidance for the Ordinance on Advertisement makes one of the records on the number of state agencies involving in the draft It was initially drafted by the Ministry of Culture and Information and then forwarded to fifteen ministries31 and a large number of other state agencies for comments.32 Some of them seem to be barely 'relevant' to the advertising business, such as the National Committee on Population and Family Planning or the National Committee on Child Health Care and Protection.33 Formal Lobbying and Interest Groups This section discusses the formal lobbying efforts to the legislative drafting process The analysis will focus on business communities and their input into law formulations as they are closely attached to the fast involving economic law in the last decade Within this context, the lobbyists include business groups and professional associations that are formally established in Vietnam It is first worth noting that although the concept of 'lobbying' is actually taking place in Vietnam, the Vietnamese linguistic structure does not contain any term capturing it (Castles, J, 2002) This fact shows a multi-faceted picture of the lobbying practice in relation to law formulations in Vietnam, which I will address below Local Business Community Although the Law has set a strict control regime, documents issued by the functional ministries have flourished and inevitably produced great inconsistency (McKinley, 2002) To cope with this fact, the Government has urged the ministries to consult the business community before issuing their documents, due to the concerns that inconsistent laws may hurt businesses and thus delay economic development The first attempt was introduced in a Directive of the Prime Minister that requires government agencies and local authorities to implement a series of activities to improve the business environment, including frequent consultation with enterprises.34 To reinforce this request, the Office of the Government soon after issued Official Letter No 2012/VPCP-PC specifically obliging functional ministries to seek opinions from the business community through their representative the Vietnam Chamber of Commerce and Industry (VCCI) prior to issuance of new legal documents Following the introduction of the Official Letter, the VCCI and its members have been involved in commenting on a number of draft law and regulations For example, VCCI appeared to be an effective forum to gather the contributions of businesses to the draft Law on Enterprises (Tran Huu Huynh, 2002).35 The draft Decree on Financial Regime for Private Enterprises is also mentioned as the pride of VCCI when the drafting agency actually took into account its comments and withheld the issuance of the draft Nonetheless, this Official Letter seems to have been forgotten in most cases Functional ministries tend to ignore the consultation obligation and follow their own way of practice despite VCCI's complaints.36 There may be a number of reasons why the Official Letter has somehow become meaningless The first account may be the form that the Government used to issue the document Under the Law, an official letter is not a legal document with binding effect It is normally characterized as an administrative decision which has low legal validity It should be noted, however, that in practice an official letter may include some legal norms or create an important precedent when it refers to a particular case and a particular issue (for instance, how to calculate corporate income tax for a company) Nonetheless, the Official Letter in this case deals with a matter of general nature and it is not addressed to any particular person or authority In Vietnam, such issues can be easily ignored due to an entrenched habit of 'cha chung khong khoc' which means no one cries for the common father Secondly, the VCCI is sponsored by the Government but it has no hierarchical status and formal administrative power to influence other government agencies Finally, local businesses seem to have little trust in VCCI as a powerful representative of their interests Thus, they not wish to act through the VCCI and show little effort to improve the situation Instead, they find other effective channels to enforce their interests such as informal lobbying through a network of personal relationships Apart from the VCCI, there are other business associations who are given occasional opportunities to get access to draft laws as 'relevant institutions'.37 However, these institutions are also far from sufficient to represent their members' interests38 and they are only consulted on a case-by-case basis Another formal channel through which local businesses can get involved in legislative drafting is that of workshops and seminars These events are often organized by drafting agencies or other government institutions Critics have been skeptical about the effectiveness of this method due to its unpredictability and bias For example, there have been a series of workshops on the draft Competition Law to gather opinions and comments39, while the issuance of the Ordinance on Price came to public as a surprise.40 In addition, there seems to be no meaningful representation at those workshops as the organizers often filter the list of participants (Nguyen Tien Lap, 2002) Nonetheless, evidence shows that businesses have become more vocal at these forums For instance, local companies showed their keen interest in the draft amendments of the VAT and corporate income tax laws and provided many inputs to improve the drafts.41 The draft decree on foreign lawyers is another example where local lawyers shared their radical thoughts with their foreign competitors.42 The Ministry of Justice has accepted a large part of their input to the revised draft Moreover, local businesses seem to have been less reluctant to publicly express their views on sensitive issues (Nguyen Tien Lap, 2002) This is arguably a positive signal that a part of the community has started to change their habit of ignoring the legislative drafting The Foreign Investors Following the initiative adopted at the Vietnam Consultative Group (CG) meeting in Tokyo in 1997, the first Private Sector Forum (PSF) took place in June 1998 at the midterm CG meeting Its objective is to create a forum for policy dialogue among the Government, donors and the private sector Participants in this Forum include Vietnamese and international private sector, donor countries, multilateral institutions, and the Vietnamese Government.43 In June 2001, the Forum was renamed as the Vietnam Business Forum (VBF) due to the Government's concerns that businesses which were partially state-owned would be ignored.44 The new name hat does not result in any significant changes to the face of the Forum In fact, it turns out to be a lobbying tool that serves the sole interests of foreign investors Different working groups of the VBF hold frequent meetings with government authorities to express their views on how to reach a better legal framework for foreign investment Apart from providing feedback on current laws and regulations to the Government, the VBF and foreign investors also have considerable access and input to the drafting process Although the Government only takes into account a relatively small part of VBF's proposals, VBF is likely the most active and effective lobbying group that contributes to law formulations In fact, VBF is a key actor that has pushed for the improvement of foreign investment legislation during the last few years For example, in 2001, the Manufacturing & Distribution working group produced a comprehensive position paper and a proposal to the Government and the National Assembly providing input to the draft Labor Code Amendments Some of these recommendations were eventually adopted into the amended law, including the provisions on hiring local staff, overtime working limit, dismissal, and termination of labor contracts The Forum has also provided extensive comments on other draft laws and regulations such as Land Law Amendments, the draft decree on foreign investment, and the draft decree on conversion of foreign invested enterprises into joint-stock companies.45 Justification for the VBF's success may lie in the fact that the Forum is supported by foreign donors and the diplomatic community, and thus it possesses a strong negotiating power with the Government The Forum has been officially linked to the CG and its annual meetings are chaired by the Country Director of the World Bank and co-chaired by IFC Furthermore, the Government seems to feel no threat from this Forum There are two different sets of rules applying to foreign investment and domestic businesses in Vietnam VBF only lobbies on behalf of the foreign investors and the changes they push for not significantly influence local businesses Hence, it does not expose government authorities to sensitive issues of conflict of interests The representative of the Ministry of Planning and Investment (MPI) who chairs most of the technical meetings with VBF groups acknowledged that foreign investors have a good understanding of the conditions on the ground and their proposals to draft laws are often constructive In addition, due to the loose co-operation among functional authorities, a local elite group tends to employ this Forum as an umbrella to assert their radical thinking over other government agencies in pushing for further reform For example, the MPI representative, while chairing the meetings, has used his discretion to instruct other government representatives to consider a variety of issues which not fall under his ministry's function such as banking, labor or technology matters Interestingly, the attention of the National Assembly and the Government about business interaction with lawmakers in formulating laws and regulations remains relatively low Despite VCCI and VBF involvement in legislative drafting, a Government survey shows that after the introduction of the Law, the business community had virtually no contribution to draft documents issued by the Government (Pham Tuan Khai, 2002: 8) It is likely that of the government officials who work directly with the VBF, only a small number is aware of this Forum and its activities Even these officials may not view it as a part of lobbying efforts to law formulations as the meaning of public participation is limited to the framework set by the Law Local understanding of the 'lobbying' concept, as noted above, may also contribute to the explanation of this fact Informal Lobbying The discussion would be incomplete without mentioning informal lobbying from local businesses Despite the recent movement toward being more proactive in legislative drafting mentioned above, the majority of local businesses still seems to prefer the traditional practice of creating a network of personal relationships with the bureaucracy (‘quen biet’ or making acquaintance) This method normally does not allow them to influence law drafting Rather, it enables them to reach favorable administrative decisions on their individual cases As such, it is likely to be more common with the issuance of official letters However, both the government and the businesses not view this as 'participation' in the law formulations process Conclusion Public participation in legislative drafting in Vietnam shows a mixed picture of the Government’s entrenched practice for policy setting and emerging entrepreneurial influence Public input to primary laws from the National Assembly and its Standing Committee remain relatively modest Inter-bureaucratic involvement is also rampant Meanwhile, active business groups have become more influential to secondary legislation governing economic activities The net result is that public consultation by lawmakers, law drafters and regulation officials is becoming more common in today’s Vietnam Although the current situation still reflects the dominant interactive role of foreign investors, other local interest groups may become more vocal if the Government presents them with more chances to get involved With the amendments of the Law on Promulgation of Legal Normative Documents, we may expect interaction between lawmakers and the public to grow, albeit gradually, as the working definition of ‘socialist democracy’ continues to perfect the framework of the ‘law-based’ society emphasized in the recent constitutional amendments This commitment is included in the bilateral trade agreement between Vietnam and the United States See also footnote 27 below Article 2, 1992 Constitution See also Tap Chi Khoa Giao (Journal on Science and Education) on-line, http://www.cpv.org.vn/anpham/khoagiao/baiviet/ See also Hoang Van Nghia (2002) 'Thuc Hien Dan Chu Trong Thoi Ky Doi Moi O Nuoc Ta' (Implementing Democracy in the Doi Moi (Renovation) Period in Our Country), Ly Luan Chinh Tri (Political Theories) 32 5 See also 'Nguyen Van Manh, 1998: 30' For detailed discussion, see Nguyen Dang Dung (2001) 'Phap Luat Khong Chi La Cong Cu Cua Nha Nuoc' (Law is Not Only the Instrument of the State), 11 Nghien Cuu Lap Phap (Legislative Studies Journal) In fact, these arguments contrast with the traditional instrumentalist theory They are often vague and confusing since the authors did not show sufficient recourses for their arguments See also Nguyen Manh Cuong (2002), 'Cac Hinh Thuc va Phuong Thuc To Chuc Lay Y Kien Nhan Dan Ve Cac Du An Luat, Phap Lenh' (Methods and Procedures to Gather the People's Comments on Draft Laws and Ordinances), Hanoi: Workshop on Perfecting the System to Facilitate People's Participation in Forming and Implementing Law, November For analysis on Asian-style democracy, see Neher D Clark and Marlay Ross (1995) Democracy and Development in Southeast Asia: The Winds of Change United States of America: Westview Press, Inc 10 See Regulations on the Procedures to Draft Laws and Ordinances, issued by the State Commission on August 6, 1988 11 Article 39 states that: 'depending on the nature and contents of a bill or draft ordinance, the National Assembly or the Standing Committee shall decide to gather people's comments on the draft bill or draft ordinance' 12 Article 30 13 The Law on Fatherland Front, promulgated by the National Assembly on June 12, 1999, Article (14) 14 Article 1(3) 15 During the last 12 years, the provincial authorities of a Central Highlands province has produced 516 legal normative documents, and among them 83 documents (16%) violate the Law At commune level, 14,075 documents were issued, and 33% of them (4,634) are inconsistent with the Law 16 Article 40 17 This is the impression from a speech delivered by representative of the Fatherland Front at the Office of the National Assembly Workshop, Hanoi: November 2002 18 For more detailed discussion, see Sidel, M (2002) 'Analytical Models for Understanding Constitutions and Constitutional Dialogue in Socialist Transitional States: Re-interpreting Constitutional Dialogue in Vietnam', Singapore Journal of International and Comparative Law, forthcoming 19 The reasons to revise the 1996 Law are addressed in the Report to Amend the Law on Promulgation of Legal Normative Documents, submitted by the Minister of Justice; see http://www.saigonnet.vn/quochoixi/baocao20021116.htm 20 Examples may include: amendments of the 1992 Constitution and the Land Law See further Sidel, Mark, 2002: 15 See also http://www.cpv.org.vn/news/quochoi2002/ngay4.htm 21 The Vice-Chairman of the National Assembly Nguyen Van Yeu states that: 'I understand that many delegates are not happy with the amendments However, I still propose the National Assembly pass the revisions on vital issues, so that we can apply the new lawmaking procedures' See http://vnexpress.net/Vietnam/Phap-luat/2002/12/3B9C346E/ 22 See also Nguyen Kim Thoa (2002) 'Ve Viec Lay Y Kien Doi Voi Van Ban Phap Luat Do Co Quan Nha Nuoc Trung Uong Ban Hanh' (On the Collection of Opinions on Legal Documents issued by Agencies of the Central Government), 10 Tap Chi Dan Chu va Phap Luat (Journal of Democracy and Law) 13 And Ministry of Justice (2002) 'Collection of Opinions Before and After the Issuance of the Legal Normative Documents with Respect to the Directly Affected Groups', Hanoi: Workshop on the Law on Amending and Supplementing the 1996 Law on the Promulgation of Legal Normative Documents, August 23 See section 'Lobbying and Interest Groups' later on in the body of this paper 24 Article amended 25 Chapter VI, Article 26 As a result of the traditional consensus decision-making regime, the 'for' rate to pass laws at the National Assembly is normally high (around 90%) However, there are two recent cases in which the vote is much below that level The first one is the ratification of the Bilateral Trade Agreement between Vietnam and the United States Many deputies voted against the Agreement: of the 380 NA deputies balloting, 278 voted 'for', 85 voted 'against', and the remaining 17 abstained As for the passage of the Amended Law, only 79.72% of the deputies voted 'for' 27 For example, there were 203 letters from individuals sent to the Office of the National Assembly, 29 messages sent via Internet, and 46 opinions on the Voice of Vietnam commenting on the draft amendments of the 1992 Constitutions These figures not seem to be significant in light of the 80 million population of Vietnam 28 The Law, Article 26(4) and Article 66, Decision No 110, Article 16 29 See also Tran Huu Huynh (2002), 'Roles Played by the Chamber of Commerce and Industry of Vietnam on the Participation in the Formulation and Implementation of the Legal Normative Documents on Economy', Hanoi: Workshop on the Amended Law on Law, August 22-24 30 For more examples, see 'Painter, Mark, 2003: 16' 31 These include: the Ministry of Justice, Ministry of Trade, Ministry of National Defense, Ministry of Planning and Investment, Ministry of Industry, Ministry of Science, Technology and Environment, Ministry of Finance, Ministry of Agriculture and Rural Development, Ministry of Police, Ministry of Education and Training, Ministry of Aquiculture, Ministry of Construction, Ministry of Health and Ministry of Foreign Affairs 32 These include: two General Departments, three National Committees, three television stations, fifteen provincial units of the Ministry of Culture and Information and the Office of Government 33 Data provided by the Office of Government, see Annex to Office of National Assembly Report, Hanoi: Workshop on Perfecting the System to Facilitate People's Participation in Forming and Implementing Law, November 34 See Directive No 16/1998/CT-TTg on Responding to Enterprises' Requests, issued by the Prime Minster on March 31, 1998, Item 3.1 35 Tran Huu Huynh, above 36 Mdm Pham Chi Lan (2002), speech delivered at Office of National Workshop, Hanoi: November The Ministry of Finance drafted this Decree with an aim to create a prudent regime to control private enterprises and it was made available for business comments However, it never came into existence due to strong criticism from private sector 37 For example, the Vietnam Lawyers Association was consulted on the Draft Ordinance on Lawyers, the Vietnam Bankers Association was consulted on the Draft Law on Credit Institutions 38 'Tinh Yeu Kem Cua Cac Hiep Hoi Doanh Nghiep Viet Nam' (Weaknesses of Vietnam's Business Associations), http://www.vnn.vn/ 39 http://vnexpress.net/Vietnam/Phap-luat/, and http://www.hue.vnn.vn/tintuc/ 40 Development Viet Nam Discussion Group, http://www.undp.org.vn/mlist/develvn/ 41 http://www.vnn.vn/ 42 There is a plan to revise the Decree on foreign lawyers to implement the BTA Drafting process started in April 2002, and a number of workshops have been held to gather comments for improving the draft However, as of the date of this paper, the decree has not been issued yet 43 http://www.vietnambusinessforum.org/ 44 www.geocities.com/phat_trien_vn/ 45 Full text of these papers can be viewed at the VBF website: http://www.vietnambusinessforum.org/  ... In Vietnam, the role for public participation in legislative drafting is defined by the operational parameters of 'socialist democracy' that govern public life in Vietnam The ideology determines... approach, public participation in lawmaking activities has been highly politicized (Nguyen Quang Minh, 2002: 14) In parallel with the democratic principle, legal scholars insists that the lawmaking... fact Informal Lobbying The discussion would be incomplete without mentioning informal lobbying from local businesses Despite the recent movement toward being more proactive in legislative drafting