separation of powers constitutional restraints checks and balances

II.SEPARATION OF POWERS, CONSTITUTIONAL RESTRAINTS, CHECKS AND BALANCES1.DEFINITION The National Conference of State Legislatures, U.S.A., in their 2018NCSL Podcast entitled “Our America

DEPARTMENT OF ECONOMICS AND LAW

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In the current age of globalization and innovation, having a thorough understanding of thenuances of various legal systems is crucial Especially as a first-year student at Foreign TradeUniversity in the field of international trade, it is essential to have a grasp of the laws that governcountries and their political structures The aim of this report is to address the respond to aquestion of a friend of mine named Pete concerning the existence of separation of powers in theVietnamese legal system and particularly describe the Vietnam Constitution's checks andbalances and constitutional restraints

The main goal that this report aims to address is to provide a comprehensiveoverview and then give detailed information on critical elements of the Vietnamese legalsystem under the area of separation of powers, checks and balances and constitutionalrestraints Thus, the objectives are defining and explaining the concepts of those termsmentioned and their places in the legal framework of Vietnam

Overall, the Vietnamese legal system does not follow a strict framework ofseparation of powers like those of other nations Instead of isolating the powers oflegislative, executive, and judicial branches, Vietnam prioritizes the unity andconcentration of state power The vital presences of the constitutional restraints, checksand balances under the Vietnam Constitution prevent the excessive power of decision-making for any branch Constitutionally, the National Assembly hold the highest positionin the government of Vietnam

The applicable laws for addressing Pete’s query of the Vietnamese Constitution'schecks and balances and constitutional restraints and whether there is division of powerswill include the Constitution of the Socialist Republic of Vietnam (2013) and Law onOrganization of the Government (2015) as the foundation of this report

II.SEPARATION OF POWERS, CONSTITUTIONAL RESTRAINTS, CHECKS AND BALANCES

1.DEFINITION

The National Conference of State Legislatures, U.S.A., in their 2018NCSL Podcast entitled “Our American States” defined the term “separation ofpowers” as the divisions of state power and responsibilities into three distinctbranches: the legislative branch, the executive branch and the judicial branch.Each branch is assigned with specific tasks and may not perform those of otherbranches unless there is a permission from the Constitution.(Judd 2018)

For the system of separation of powers to function most effectively, threebranches need to work independently, function autonomously and present inseparate ways.(National Conference of State Legislatures 2021)

In Federalist No 51, James Madison makes the argument that theseparation of powers is a crucial component of the Constitution that will help toeliminate and reduce the consolidation of power and protect individual liberty.(Madison, Hamilton, and Jay 1787)

2.THREE BRANCHES

According to the separation of powers, the government is divided intothree branches: the legislative branch, the executive branch and the judicialbranch.(National Conference of State Legislatures 2021) The characteristics andresponsibilities of each branch are described as follow:

 The legislative branch is responsible for making a country’slaws and allocating money to function the government.(NationalConference of State Legislatures 2021)

 The executive branch is responsible for enforcing laws andadministering the public policy.(National Conference of State Legislatures2021)

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 The judicial branch is responsible for interpreting laws andapply those interpretations to resolve cases that come before it.(NationalConference of State Legislatures 2021)

3.EXAMPLES

In the United States, the practice of “separation of powers” is made inevery of fifty-one states with the distinct roles of the legislative, executive andjudicial branch(Vyver and D 1993):

 The Legislative Branch is characterized by the power ofmaking laws and modifying existing laws belonging solely to theCongress which consists of the House of Representatives and theSenate There are 435 elected members of the House ofRepresentatives and those members are distributed among the 50 statesbased on the current population of each state Meanwhile, the Senate ismade up of 100 Senators, 2 for each state.(The White House n.d.-c)

 The Executive Branch is responsible for implementing andenforcing the laws written by Congress The power of the ExecutiveBranch is hold by the President, who is head of state and Commander-in-Chief of the armed forces Moreover, the Vice President is also amember of the Executive Branch.(The White House n.d.-a)

 The Judicial Branch is characterized by the power ofinterpreting laws belonging to the Supreme Court of the United States.There used to be six Justices but since 1869, there have been nineincluding one Chief Justice.(The White House n.d.-b)

In contrary to the election by people of the executive and legislativebranches, members of the Judicial Branch are chosen by the President andapproved by the Senate.(The White House n.d.-b)

4.CHALLENGES

Having shown its positive impacts in helping to organize the stateframework, control the government and fight against corruption, the “separation ofpowers” doctrine is widely applied in some Western countries, the United States,

the United Kingdom, France, and Germany However, while considering it to bean ideal structure and exaggerating the effectiveness of the "separation of powers"doctrine in preventing corruption, some individuals show inappropriate acts ofcorruption or low levels of performance in legal institutions Therefore, the"separation of powers" should not be praised excessively as a cure-all remedy ofthe law.(Tran Hau Thanh 2019) Some challenges that have been posed to thepractice of the theory of “separation of powers” include the major challenge of thedifferences in structures, national traditions, nature or politic situations and othermajor elements contribute to the limitations of the “separation of powers”doctrine For instance, the application of the theory in federal state structures ismuch different than that in single state structures.

5.THE CASE OF VIETNAM

Vietnam does not adopt the system of separation of powers on the basis ofthe unity of state power to the people, the people are the supreme and onlysubjects of state power Provision 3, Article 2 of the 2013 Constitution of theSocialist Republic of Vietnam clearly states: “The State power is unified anddelegated to state bodies, which shall coordinate with and control one another inthe exercise of the legislative, executive and judiciary powers.” This principle ofstate power organization and the constitutionalized control of state powers is themost important legal basis to ensure all state powers belong to the people.(HoangChi Bao 2017)

Clause 1 and 2 of Article 2 of the 2013 Constitution of Vietnam state: “TheSocialist Republic of Vietnam is a socialist rule of law State of the People, by thePeople and for the People.” and “The people are the masters of the SocialistRepublic of Vietnam; all state powers belong to the people whose foundation isthe alliance between the working class, the peasantry and the intelligentsia” Whenthe state power is unified and belongs to the people, in principle, state powercannot be divided (shared with other individuals or organizations) Therefore, theidea of separation of powers, in essence, goes against the idea of unifying statepower.(Tran Hau Thanh 2019)

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Consequently, the system of “separation of powers” cannot be applicableto Vietnam as a constitutional principle or rule of law despite having somepositive aspects that can be consulted and studied It is vital to note that a doctrineor a model thoroughly tested in a nation cannot be considered true in any nation.(Tran Hau Thanh 2019)

1.DEFINITION

Constitutional restraints are a set of limitations, principles and guidelinesto limit the power of the government and protect the rights of the people.Therefore, these restraints are typically included in the supreme law of a nation,which is the constitution

2.THE CASE OF VIETNAM

The limitation of state powers within the Constitution and law is strictlyemphasized in the 2013 Vietnamese Constitution In particular:

 Article 14 states that “In the Socialist Republic of Vietnam,political, civic, economic, cultural and social human rights and citizen’srights are recognized, respected, protected, and guaranteed in concordancewith the Constitution and the law”

 Clause 1 of Article 8 states that “The State is organized andoperates in concordance with the Constitution and the law, managessociety by the Constitution and the law and practices the principle ofdemocratic centralism.”

Provisions to the constitutional restraints under the Vietnam Constitutionare also mentioned in several establishments related to the system of checks andbalances to ensure that no department abuse the state power and protect individualrights

C CHECKS AND BALANCES

1.DEFINITION

Checks and balances are various processes conducted in the government’sstructure to prevent any individual or department from having excessive andcentralized powers over decision-making, define clear and specific assigned dutiesand require cooperation from all departments to complete tasks Checks andbalances help to reduce errors, cut down inappropriate behaviors and decentralizethe state power of one branch.(Onion et al 2023)

2.EXAMPLES

The term of checks and balances plays a vital role in the area ofgovernment For instance, checks and balances are applicable in the politicalsystem of the United States, which established three branches: the executivebranch, the legislative branch, and the judicial branch.(Onion et al 2023)

3.THE CASE OF VIETNAM

The Constitution of Vietnam (2013)(Socialist Republic of Vietnam 2013)mentioned several aspects governing checks and balances in several articles.Furthermore, some articles also include the provisions to support checks andbalances in the political system of Vietnam Specifically:

 Article 2 states that “The State powers are unified anddistributed to state bodies, which shall coordinate with and control oneanother in the exercise of the legislative, executive and judiciary powers.”This establishment helps to prevent any branch of the government fromgrasping excessive control over others and becoming too powerful

 Article 4 states that “All Party organizations and membersof the Communist Party of Vietnam operate within the framework of theConstitution and the laws.” Although the Communist party holds the headposition in the Vietnamese government, this establishment ensures to limitthe Party’s power and keep it under the control of the Constitution and thelaws

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 Article 105-114 establish the responsibilities and theauthorities of the National Assembly, the President, the Prime Minister,and the People's Supreme Court and how each branch checks and controlsthe power of the others

Law on Organization of the Government (2015) does not specificallymention the term checks and balances However, it does include several articles toallocate the powers and duties of the National Assembly, the President, and thePrime Minister and provide mechanisms for each branch to conduct oversight andchecking of powers

In most countries, the system of separation of powers, constitutional restraints and checksand balances is necessary to prevent excessive power of the state institutions Besides, the systemensures the accountability of the government to the people

Generally, the Vietnamese legal system does not have separation of powers Rather thanstrictly follow the separation of power doctrine, Vietnam selects positive elements that suit theconditions of the country to apply for the organization and administration of the government Thestate power is unified and belongs to the people with state bodies that are independent institutionsexercising legislative, executive and judicial powers

Numerous establishments are made by the Constitution to make sure no one individual ordepartment has absolute control and become too powerful in spite of the lack of a separation ofpowers These protections include the legislative power of the National Assembly, the executiveduties of the President, and the judicial supervision of the Supreme People's Court in the area ofchecks and balances All works of the state bodies are in accordance with the Constitution andlaw

In conclusion, even though Vietnam's legal system does not specifically mention thenotion of separation of powers, it still distributes authority and upholds responsibility within thegovernment thanks to its system of checks and balances Vietnam's distinct political environmentand its dedication to defending the rights of its citizens are reflected in this strategy

Hoang Chi Bao 2017 “‘Separation of Powers’ Is Not the Model of Choice for the State of

Vietnam - National Defence Journal.” Retrieved November 17, 2023 (http://tapchiqptd.vn/en/research-and-discussion/separation-of-powers-is-not-the-model-of-choice-for-the-state-of-vietnam/10603.html)

Judd, Nigel 2018 “The Role of the Councillor.”

Madison, Hamilton, and Jay 1787 “The Avalon Project _ Federalist No 51.” (51)

National Conference of State Legislatures 2021 “Separation of Powers: An Overview.”

Retrieved November 17, 2023 of-powers-an-overview)

(https://www.ncsl.org/about-state-legislatures/separation-Onion, Amanda, Missy Sullivan, Matt Mullen, and Christian Zapata 2023 “Checks and

Balances - Definition, Examples & Constitution.” HISTORY Retrieved November 18,

2023 (https://www.history.com/topics/us-government-and-politics/checks-and-balances)

Socialist Republic of Vietnam 2013 “Hiến Pháp Năm 2013.” Retrieved November 17, 2023

215627.aspx)

(https://thuvienphapluat.vn/van-ban/Bo-may-hanh-chinh/Hien-phap-nam-2013-The White House n.d.-a “(https://thuvienphapluat.vn/van-ban/Bo-may-hanh-chinh/Hien-phap-nam-2013-The Executive Branch.” (https://thuvienphapluat.vn/van-ban/Bo-may-hanh-chinh/Hien-phap-nam-2013-The White House Retrieved November 18,

2023 branch/)

(https://www.whitehouse.gov/about-the-white-house/our-government/the-executive-The White House n.d.-b “(https://www.whitehouse.gov/about-the-white-house/our-government/the-executive-The Judicial Branch.” (https://www.whitehouse.gov/about-the-white-house/our-government/the-executive-The White House Retrieved November 18,

2023 branch/)

(https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-The White House n.d.-c “(https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-The Legislative Branch.” (https://www.whitehouse.gov/about-the-white-house/our-government/the-judicial-The White House Retrieved November 18,

2023 legislative-branch/)

(https://www.whitehouse.gov/about-the-white-house/our-government/the-8