separation of powers the protection of liberty and good governance 2

State power is unified, assigned and coordinated among state agencies in the exercise of legislative, executive and judicial powers." Thus, the 1992 Constitution amended and supplemented

FOREIGN TRADE UNIVERSITY HCMC CAMPUS DEPARTMENT OF ECONOMICS AND LAW

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INTRODUCTION TO LAW

ML 278

Final Assignment Academic year: 2023-2024

Examiner 1’s signature Examiner 2’s signature

Invigilator 1’s signature Invigilator 2’s signature

TABLE OF CONTENTS

INTRODUCTION 3

SEPARATION OF POWERS, THE PROTECTION OF LIBERTY AND GOOD GOVERNANCE Error! Bookmark not defined I Separation of powers 4

II The protection of liberty 8

III Good governance 9

CONCLUSION AND RECOMMENDATION 11

REFERENCES 12

The idea of separation of powers was coined by Ancient Roman philosophers, representatively the great scientist Aristotle (384 - 322 p CN) However, only during the Enlightenment did this idea be considered an independent theory The founder of this doctrine was John Loke (1632-1704), an English philosopher and the greatest contributor to its development was the French jurist S Montesquieu (1689-1755) Typically, this system divides the government into three branches: legislative, executive, and judiciary

The report attempts to answer Pete’s question that in most countries national governments are characterized by a separation of powers, and whether the separation of powers also applies to Vietnam or not

First of all, I will discuss and explain to Pete the situation of separation of powers

in Vietnam Then, the relationship between the separation of powers and the protection

of liberty and good governance will be mentioned Furthermore, this paper will apply The 2013 Vietnam Constitution, The 1992 Vietnam Constitution A lot of data from several reports and articles related to the separation of power in Vietnam are also referred to prove the key points We need to know exactly how the Vietnam political system works and how one legal branch controls and balances the power among the three bodies An in-depth understanding of specific provisions in the Constitution should help navigate the roles of delegation of power in Vietnam

SEPARATION OF POWERS, THE PROTECTION OF LIBERTY

AND GOOD GOVERNANCE

I THE DOCTRINE OF THE SEPARATION OF POWERS:

1.1 General knowledge:

According to the doctrine of separation of powers, state power is not unified, but divided into 3 powers including legislative power, executive power and judicial power Each branch has the right to independently exercise its legal capacity as well as to control and restrain other bodies

Wherever there is power, there is abuse, no matter who it belongs to Therefore, in order

to protect the primary freedoms of citizens and prevent abuses of power by someone holding state power, people establish legislation to limit power State power is divided into 3 branches, not only to specialize rights but more importantly to have mutual regulation and supervision between rights, creating a balance of power Each agency is entitled to operate in its own field, has no rights in another, but has the right to block the other Power versus power is the essence

of the separation of powers principle It can be said that the greatest advantage of the separation

of powers is to avoid dictatorship in the exercise of state power Many countries are exploiting and replicating theirs universal values regardless of economic, political regimes and cultural conditions

The most well – known countries using separation of powers is The United Kingdom and the United States with the usage of the tripartite system

1.2 Explanation for Pete:

Firstly, it must be known that the activity of the Vietnamese state apparatus is not

organized in accordance with the principle of separation of powers, where the system functions

on the balance of power between the legislature, executive and judiciary but rather the mix of both control and separation of power

The principle of organizing state power in Vietnam is that allocation (unified) associated with cooperation (separation), the control of power is not taken to create a counterbalance but

as an element for the good implementation of the allocation and cooperation among state agencies Nonetheless, the provisions of the Constitution have expressed the idea of applying power decentralization more than power centralization to ensure compliance with the social, political, economic and traditional regimes of Vietnam

Secondly, The 2013 Constitution expresses this idea more clearly than the 1992

Constitution in that while under the 1992 Constitution it mentions these three rights but not specific, under the 2013 Constitution it is about the three: legislative, executive and judicial powers

Article 2 of the 1992 Constitution (amended and supplemented in 2001) stipulates: "The State of the Socialist Republic of Vietnam is the socialist rule of law State of the people, by the people, for the people All state power belongs to the people, whose foundation is the alliance

of the working class with the peasantry and the intelligentsia State power is unified, assigned and coordinated among state agencies in the exercise of legislative, executive and judicial powers." Thus, the 1992 Constitution (amended and supplemented in 2001) only stipulates that state power is unified, assignment and cooperation among state agencies in exercising legislative, executive and judicial powers, but does not write about mutual control between these three types of agencies That’s why this model of organization of the state apparatus based

on this principle partly contains elements of the abuse of power among state organs

Meanwhile, the 2013 Constitution has added in an essential content: control between state agencies in the exercise of legislative, executive and judicial powers This principle is the basis for building a tool to control state power and ensure that state power truly belongs to the people Clause 3, Article 2 of the 2013 Constitution stipulates: "State power is unified, assigned, coordinated and controlled among state agencies in the exercise of legislative, executive and judicial powers." It can be said that this addition of the idea of state power control is an important move in the process of building a legal system, creating a foundation to overcome the drawback in mutual control among state agencies in the exercise of state power delegated

by the people With this addition, the principle of organizing our state power is determined by four important contents: unification of power, division of power, coordination of power, control

of power

Thirdly, The National Assembly is the highest representative organ of the people and

State power of the Socialist Republic of Vietnam, stipulated by the 1992 Constitution and the

2013 Constitution That means Vietnam did follow a ‘concentrated model’ of governance but some content has been modified in the 2013 Constitution to make it more suitable for overcoming the elements of a parliament with full powers in the socialist centralized state model

Article 69 of the 2013 Constitution stipulates: "The National Assembly exercises constitutional power, legislative power, decides important issues of the country and exercises supreme supervision over the operation of the state" instead of stipulating as in the 1992 Constitution: "The National Assembly is the only organ with constitutional and legislative power" (constitutional and legislative uniformity is one right – Article 83) Thus, compared to the 1992 Constitution, the 2013 Constitution has defined the functions of the National Assembly

- the agency exercising legislative powers more clearly

With the 2013 Constitution continuing to affirm that the National Assembly is the highest representative organ of the people, the highest organ of state power of the Socialist Republic of Vietnam, exercising constitutional and legislative powers, deciding important issues of the country and supreme supervision over the operation of the State The Constitution also more clearly defines the roles, responsibilities and relationships between the National Assembly and the Government, in accordance with the conditions of socialist-oriented market economy development and adds a number of rights related to decisions on objectives, targets, policies and basic tasks of socio-economic development

Finally, The Constitution clearly delineates duties between legislative, executive, and

judicial agency and establishes mechanisms to control power

The 2013 Constitution also more clearly defines the position, functions, tasks and powers

of 3 agencies and allocates some tasks and powers of these agencies with the aim of defining their functions more clearly and transparently, ensuring the effective assignment, coordination and control

Regarding the position and role of the Government, Article 94 of the 2013 Constitution stipulates: "The Government is the highest state administrative organ of the Socialist Republic

of Vietnam, exercising executive power and acting as the executive organ of the National Assembly" This means: The 2013 Constitution has clearly established the position of the Government as the exercising agency of executive power in the organization of the apparatus exercising state power Meanwhile, the 1992 Constitution does not specify which agency exercises executive power On the other hand, the position of the Government as the highest state administrative organ, exercising executive power comes first The role of the Government

in exercising executive power is concretized through the tasks and powers specified in Clauses

2, 3, 6 and 7, Article 96 of the 2013 Constitution For the first time, the 2013 Constitution provides for the right to establish independent regulations of the Government, the Prime Minister and Ministers - members of the Government in deciding policies according to their competence (Clause 2, Article 96) and promulgating legal documents to perform their tasks, his powers; inspect the execution of such documents and handle illegal documents in accordance with the law (Article 100) because the power to make regulations is also an integral part of the executive power

The 2013 Constitution also contains important additions to ensure the position and independence of judicial activities and take a step forward in creating elements of the mechanism for assigning, coordinating and controlling state power; demonstrate a new awareness of the roles and tasks of courts and procuracies, in line with the requirements of building and perfecting the judiciary of the socialist rule of law, in which human rights and citizens' rights are best protected and guaranteed by the exercise of judicial power Article 102

of the 2013 Constitution stipulates that "The court is the judicial organ of the Socialist Republic

of Vietnam and exercises judicial power"; Thus, the 2013 Constitution supplemented regulations on the position of people's courts as agencies exercising judicial power and amended and supplemented a number of regulations on principles of organization and operation of people's courts to ensure conformity with the requirements of judicial practice and reform; provide for principles on the model of organizing courts according to jurisdiction and trial level, regardless of administrative units

Thus, the fact that the 2013 Constitution for the first time clearly defines the Government exercising executive power along with stipulating that the National Assembly exercises legislative power and the People's Court exercises judicial power is an important step forward

in creating a constitutional basis to concretize the assignment mechanism, coordinate and control the exercise of state power in the rule of law, contributing to overcoming one of the major shortcomings of the 1992 Constitution This is a prerequisite for the people to have a basis to control and evaluate the effectiveness and effectiveness of each state agency in exercising the power entrusted by the people through the Constitution

The control from the National Assembly (legislature) over the Government in the exercise

of executive power is expressed in different aspects such as control over the scope of the Government's activities (the 2013 Constitution further delineates the authority to decide policies

of the National Assembly and the Government, define the boundaries between legislative power and legislative power); control the contents of activities, the performance of tasks and

powers of the Government (the National Assembly has the authority to approve or not approve policies and law projects promulgated by the Government, annul documents of the Government

or the Prime Minister contrary to the Constitution and laws etc.); control over the organization exercising executive power (the National Assembly regulates the organization and operation of the government and local governments, decides on the structure and number of Government members); control over individuals exercising executive power (the National Assembly elects, dismisses or dismisses the Prime Minister, approves proposals for appointment, dismissal or dismissal of Deputy Prime Ministers ) The 2013 Constitution does not provide directly for the judicial court's control over the exercise of executive power By regulating the organization and jurisdiction of the courts, it is possible to see the statutory mechanism of judicial control through the adjudication of administrative courts over administrative decisions, administrative acts of administrative agencies and competent individuals of those agencies

II The relationship between separation of powers and the protection of liberty

The major threat to individual liberty was abuse of the legislative process The major aim of the separation of powers is to prevent tyranny and protect liberty of each individual by ensuring that no one can take advantage of power abuse, trying to get to the highest place and ruin the whole system

Is individual liberty being preserved by the separation of powers? Many commentators have suggested that state power actually diminishes liberty, but is that true?

The allocation of power between the agencies may protect individual liberty better today than it did in the early years The 2013 Constitution, in distributing the powers, creates three distinct and separate departments: executive, legislative, and judicial This separation is not just a matter of convenience or of governmental solution Its object is basic and vital, namely, to avoid the concentration of all power in one hand

The Court relies on the separation of powers to secure individual rights in certain cases in which it refers to the inherent powers and superior fact finding ability For example, Article 32 of The 2013 Constitution, point 2 writes “ The right of private ownership and the right of inheritance are protected by the law” The state, dealing with problems peculiar to its own citizens, enacts legislation to enhance one of the basic personal rights of each individual - the right to preserve property

In its allocation of power between the 3 branches, the Constitution provides us with a system possessing powers sufficient to provide for our security and prosperity Yet these

powers are evenly diffused to pose no threat to individual liberty In protecting liberty, the Constitution continues to present itself as a mechanism for the protection of liberty for the Vietnamese people This means that if the government abuses their power that has something

to do with citizens’ liberty, the Constitution could be the essential key factor to prevent this from happening

However, the lack of a strong separation of powers in Vietnam's legal system can impact the protection of individual liberties The CPV's dominance and restrictions on political dissent can limit freedom of expression, assembly, and association The Law on National Security, for example, criminalizes activities deemed to threaten national security, which can be broadly interpreted and applied to curtail freedom of expression The

government has used these laws to prosecute individuals and organizations critical of the state Critics argue that these limitations undermine citizens' rights to express their opinions, participate in political activities, and challenge the government's decisions

III The relationship between separation of powers and the good governance

The separation of powers is a elementary principal in the process of building systems

of governance, and it plays a crucial role in ensuring good governance

Firstly, the distribution of powers help to protect individuals’ rights and liberties like

we have discussed above by creating a legal system where no branch could infringe upon the others This prevents potential abuses of power and contributes to good governance by reassuring the principles of justice and fairness

Secondly, by distributing powers among different branches, the separation of powers

allows for more effective and suitable decision-making Each branch holds its unique expertise and perspectives, leading to more comprehensive and well-considered policies and laws This helps to ensure that decisions are based on a wide range of information and perspectives, contributing to good governance

Finally, separation of powers promotes transparency within the governmental system

Each branch is exposed to the public, ensuring that actions and decisions are transparent and open to public review This exposition fosters trust between the government and its citizens, which is a crucial aspect of good governance

However, sometimes in Vietnam, the lack of a clear separation of powers can make it

challenging to achieve these principles The dominance of the CPV can hinder transparency

and accountability, as decision-making processes may not be subject to sufficient checks and balances Moreover, the influence of the CPV over the judiciary can undermine the rule of law, as the interests of the party may take precedence over fair and impartial legal judgments