(Tiểu luận) the separation of powers inthe vietnamese legal system,constitutional restraints andchecks and balances underthe vietnam constitution

Law documents usedThis report mainly uses the Constitution of the Socialist Republic of Vietnam in 2013,promulgated by the 13 term of the National Assembly of the Socialist Republic of V

DEPARTMENT OF ECONOMICS AND LAW

-o0o -THE SEPARATION OF POWERS IN

THE VIETNAMESE LEGAL SYSTEM,

CONSTITUTIONAL RESTRAINTS AND CHECKS AND BALANCES UNDER

THE VIETNAM CONSTITUTION

INTRODUCTION TO LAW

Final Assignment - Report

Academic year: 2022-2023

Grade (in number) Grade (in words)

Examiner 1’s signature Examiner 2’s signature Invigilator 1’s signature Invigilator 2’s signature

Course code: PLUE111-ML528 Lecturer: LLM Tran Thanh Tam Author: Le Manh Tuan No.: 28

Student ID: 2212585029 Class: K61CLC7 (DC61TTMKC2) Group: 01

HO CHI MINH CITY, FEBUARY 13, 2023

1 Context of the report 4

2 Purpose of the report 4

3 Key highlights 4

4 Law documents used 5

CHAPTER I: THEORETICAL FOUNDATION ON SEPARATION OF POWERS 6

1 Aristotle and the “Politics” 6

1.1 The background 6

1.2 Three elements forming the government 6

2 Montesquieu and the “Spirits of the Laws” 7

2.1 The background and report’s foundation 7

2.2 Three branches of power 7

2.3 Criticism related to Montesquieu’s ideology 8

CHAPTER II: THE SEPARATION OF POWERS IN THE VIETNAMESE LEGAL SYSTEM 9

1 The legislative branch of the Vietnamese legal system 9

2 The executive branch of the Vietnamese legal system 10

3 The judicial branch of the Vietnamese legal system 11

4 The interrelationship between branches 12

4.1 The total power that the People possess 12

4.2 The reality in controlling power 12

CHAPTER III: CONSTITUTIONAL RESTRAINTS REGARDING THE VIETNAM CONSTITUTION 13

1 Primary restraints 13

2 Restraints in exercising power and maintaining rights 14

2.1 Individual rights 14

2.2 The exercising of the legal state bodies 14

CHAPTER IV: CHECKS AND BALANCES SYSTEM IN THE VIETNAM CONSTITUTION 16

1 The basis for a “checks and balances” system 16

2 The importance of a “checks and balances” system in Vietnam 16

3 The appearance of the “checks and balances” system in Vietnam 17

CONCLUSION 19

1 Summary 19

2 Recommendation 19

REFERENCES 20

3

1 Context of the report

Throughout history, humans have attempted to regulate nations using sophisticated legalsystems that benefit one or more classes Such legal power was either concentrated in ancienttimes and the Middle Ages or dispersed after the Age of Enlightenment in the 17th and 18thcenturies The latter period, in particular, had contributed to the growth of democracy, withthe separation of powers first implemented during the French Revolution Since then, manyheads of state and governments throughout the world have actively embraced the philosophy

of “separation of powers”, or trias politica, to offer appropriate powers to associatedauthorities while decentralizing authority within one's hands Vietnam, however, do notassociate with such doctrine but rather centralized legal power onto citizens In fact, itsgovernment does consist of separate entities that exercise legislative, executive, and judicialpowers and they work together in harmony in an attempt to depict the “citizens” or “people”factor of the Vietnamese regime

2 Purpose of the report

This report will discuss how Vietnam has implemented and adapted the division ofpowers into its legal system, which is primarily coagulated under the people’s hands, and howdifferent bodies of the states collaborate to pursue unity and harmony under the VietnameseCommunist Party’s leadership It will also explore and research the Vietnam Constitution in

2013 (hereby written as Constitution) in order to shed light on its constitutional constraintsand “checks and balances” feature within itself As a result, it aims to address the question ofwhether there is separation of powers in the Vietnamese legal system, and how such theoryhas been modified and adapted to match the Vietnamese ruling regime, and if there are controlmeasures in place

4 Law documents used

This report mainly uses the Constitution of the Socialist Republic of Vietnam in 2013,promulgated by the 13 term of the National Assembly of the Socialist Republic of Vietnam.thHowever, to support the ideas relating to historical basis of several key points, theConstitution of Democratic Republic of Vietnam in 1946 and 1959, which will be cited andwritten in the References section at the end of the report

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CHAPTER I: THEORETICAL FOUNDATION ON SEPARATION OF

POWERS

1 Aristotle and the “Politics”

One of the first pioneer in the ideology of separating powers within the states isAristotle His work, “Politics,” had laid the foundation and given preliminary guidance to lawmakers and country rulers During his times, he had observed the behavior and the flow ofwork between different bodies of government that ruled the states

He stated that “all states have three elements [ ] When they are well-ordered, the state

is well-ordered” (Aristotle, 1885) This implies that the activities of these three entities have

significant impact upon the stability of the state Although separate in terms of scopes of legalauthority covered, they should work together to provide sufficient care towards the citizensand the society that they are managing As a consequence, the welfare of the state is properlymaintained in numerous aspects

For the first element, Aristotle believed that it should “deliberates about public affairs”

(Aristotle, 1885) This entity is tightly attached to the authority in declaring decisions upondiplomatic relations, i.e., declaring war, peace or forming alliances of any kind On the otherhand, this element also has power upon passing laws and audits the accounts of magistrates

We can clearly see that he had laid a primitive guideline and connections of the first body andthe magistrates, who would be mentioned in the following element In modern terms, it can beseen that Aristotle had discovered the role and importance of an entity that would passes lawsand maintain relationships with neighboring nations, in other words, the legislative entity Thenumber of seats appointed to this varies from different form of governance

For the second element, he claimed that it should “concern with the magistrates”

(Aristotle, 1885) and execute the laws passed by the first element This entity also takes care

of the citizens’ affairs, ranging from infrastructure to military concerns We could modernlycall this the executive entity that would mainly interpret the laws

For the third element, the judicial entity, Aristotle argued about the sophisticatedformation of such entity He was concerned about the types of law courts, the quantity andquality of judges (Aristotle, 1885) Whether the formation of such courts is affected by the

form of government is also discussed in his work Additionally, such deliberate divisions ofcourts to address different cases was also thought to take proper coverage over all aspects ofcrime Therefore, the complexity of courts was higher during Aristotle’s time, among thosewho practiced his ideology into maintaining the justice of society.

From analyzing Aristotle’s work, we can see that only the separation of powers is statedand his work lacks the investigation and research upon the interrelationships among thosepowers Despite being primitive and preliminary in terms of separating powers, Aristotle’s

“Politics” remains as the bedrock foundation for later generations to inherit and grow on

2 Montesquieu and the “Spirits of the Laws”

Montesquieu was a prominent French philosopher and political theorists who livedduring the Age of Enlightenment in the 18 century He is best known for his work “ThethSpirit of the Laws,” which provides a detailed analysis of political systems and the principlesthat underlie them One of the key ideas put forward in this work is the concept of theseparation of powers, which has had a profound impact on political theory and constitutionallaw

The separation of powers theory holds that state authorities should be divided into threedifferent branches: legislative, executive, and judicial (Montesquieu, 1777) Each of thesebranches has a distinct role to fulfill in a country's government, and the power of each isconstrained by the other two This system of “checks and balances” is meant to prevent anyone branch from becoming overly dominant while also protecting citizens’ freedoms andrights This paper will use Montesquieu's definition and notion of the three branches of power

as the primary basis, reference, and building blocks for the subsequent chapters

Montesquieu claimed that the division of powers was important to prevent individuals

in positions of authority from abusing their power (Montesquieu, 1777) He believed thatpower should be distributed evenly and that no single person or organization should exerciseoutsized influence over others Montesquieu argued that by dividing government powers, acountry might prevent tyranny and ensure that the government functioned in the best interests

of the people

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Montesquieu argues in his work that the legislative arm of state should be in charge ofestablishing laws This section is in charge of representing the people and safeguarding theirinterests The legislative branch is made up of elected legislators who answer to their voters.

To prevent abuse of power, Montesquieu considered that this department of the state should

be retained separate from the executive and judicial branches

The executive power is in charge of the law enforcement, which is promulgated by thelegislative branch that Montesquieu mentioned earlier, in such a manner that maintain theessence of just and fairness This branch often consists of the government, with its head beingthe President or the Prime Minister

Lastly, Montesquieu contended that the judicial branch should be in charge of lawinterpretation and enforcement This department is made up of judges who oversee resolvingconflicts and preserving the legal system Montesquieu thought that the judicial branch should

be separate from the legislative and executive branches in order to avoid political interventionand ensure that justice is accomplished

The separation of powers has become a cornerstone of democratic government and isincorporated in many nations' constitutions across the world It has been a key component ofthe United States Constitution from its establishment (Spurlin, 1984, Chapter 7)and has beenadopted by many other countries This system has been recognized with preventing abuses ofpower, encouraging transparency and accountability, and safeguarding individual rights andliberties

However, the separation of powers is not without its critics Some argue that it can lead

to inefficiency and gridlock in government, making it difficult for laws to be passed or foraction to be taken on critical issues Others argue that the system is too rigid and can preventthe government from responding quickly to changing circumstances Notably, Karl Marx hasstated that the separation of powers, “in reality is just a mediocre division of labor in industry,applied to the state apparatus for the purpose of simplifying and controlling.” (Karl &Friedrich, 1993)

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CHAPTER II: THE SEPARATION OF POWERS

IN THE VIETNAMESE LEGAL SYSTEM

In this chapter, the problem of whether Vietnam has incorporated any precedingdoctrine to its legal system will be discussed The division of legal power had primarily beenstated in the very first Constitution of Vietnam in 1946 (The National Assembly ofDemocratic Republic of Vietnam, 1946, arts 22, 23, 52, 63) However, it is noted that sincethe promulgation of the Constitution of Vietnam in 1959, Vietnamese legal system uses aunified power system rather than separating powers in accordance to the aforementioneddoctrine of trias politca (The National Assembly of Democratic Republic of Vietnam, 1959,art 4)

Furthermore, the unification of the three legal branches is emphasized in the latestConstitution under Article 2, point 1, 2 and 3 as:

2 The Socialist Republic of Vietnam State is a socialist rule of law State of the people, by the people, and for the people.

3 The people are the masters of the Socialist Republic of Vietnam State; all state powers belong to the people whose base is the alliance between the working class, the peasantry, and the intelligentsia.

4 The State powers are unified and distributed to state bodies, which shall coordinate with and control one another in the exercise of the legislative, executive and judiciary powers.

(The National Assembly of Socialist Republic of Vietnam, 2013, art 2) Despite being unified, the state still divides certain part of the legal system tocorresponding branches in order to operate harmonically under the supervision of the people

as the total coagulation of power will not be effective in terms of operation efficiency

1 The legislative branch of the Vietnamese legal system

The legislative branch of the Vietnamese legal system consists of the National Assembly

of the Socialist Republic of Vietnam (hereby written as the National Assembly), which isregulated in Article 69 of the Constitution:

2 The National Assembly is the highest representative organ of the people and the highest organ of State power of the Socialist Republic of Vietnam.

3 The National Assembly exercises constitutional and legislative powers, decides significant national affairs, and exercise supreme control over all activities of the State.

(The National Assembly of Socialist Republic of Vietnam, 2013, art 69)Furthermore, the rights and duties of the National Assembly is defined clearly in theconsequent article 70, point 1:

The National Assembly has the following duties and powers:

1 To make and amend the Constitution; to make and amend laws.

(The National Assembly of Socialist Republic of Vietnam, 2013, art 70.1)This means that, the National Assembly has power over drafting and promulgating legaldocuments such as the Constitution, Codes, or laws Such power fits the ideology of how alegislative branch should operate according to Montesquieu However, it should be denotedthat the total legislative right of making and amending the Constitution belongs to the people

of public, with the National Assembly being the supreme representative of the people’scouncil

2 The executive branch of the Vietnamese legal system

The executive branch of the Vietnamese legal system is responsible for implementingthe laws and policies established by the legislative branch The executive branch isresponsible for overseeing a wide range of government functions, including national defenseand security, foreign affairs, economic development, and social welfare programs It is alsoresponsible for appointing officials to various government agencies and departments, and forenforcing the laws and regulations established by the legislative branch The head of theexecutive branch is the government with the Prime Minister, Ministers and head of ministerialagencies as in:

Article 94

The Government is the executive organ of the National Assembly, exercise the executive power, and is the highest organ of State administration of the Socialist Republic of Vietnam.

The Government is accountable to the National Assembly and shall make its reports to the National Assembly, its Standing Committee, and the State President.

Article 95

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1 The Government shall be composed of the Prime Minister, the Deputy Prime Ministers, the Ministers, and heads of organs of ministerial rank.

The structure and numbers of members of the Government are decided by the National Assembly

The Government shall operate as a collegium and take its decisions by a vote of the majority.

2 Prime Minister is the head of the Government, is accountable before the National Assembly on the activities of the Government and assigned duties, and shall report to the National Assembly, the National Assembly’s Standing Committee, and the State President on the activities of the Government and the Prime Minister

3 The Deputy Prime Ministers shall assist the Prime Minister in the performance

of his duties, as required by him, and are accountable to the Prime Minister In the absence of the Prime Minister, one of his Deputies shall be delegated by him

to direct the work of the Government.

4 The Ministers and Heads of organs of ministerial ranks shall be personally accountable to the Prime Minister, the Government, and the National Assembly

on their respective fields and branches, and shall be, together with other members of the Government, collectively accountable for the activities of the Government.

(The National Assembly of Socialist Republic of Vietnam, 2013, arts 94, 95)Overall, the executive branch in Vietnam plays a significant role in the country's legalsystem, and its close relationship with the Communist Party can help its ability to carry out itsfunctions effectively

3 The judicial branch of the Vietnamese legal system

The judicial branch of the Vietnamese legal system is in fact, different from otherrelated branches in other countries Aside from having courts ranging from Provincial to theSupreme Court to execute the judicial power, Vietnam also has a system of institutes tocontrol and ensure proper judicial activities called the people’s procuracies as stated:

Article 102

1 The people’s courts are the judicial organ of the Socialist Republic of Vietnam, exercising the judicial power.