THÔNG TIN TÀI LIỆU
MINISTRY OF EDUCATION & TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY THAI THI THU TRANG COMPARATIVE STUDY OF THE PARLIAMENTARY OMBUDSMAN IN THE WORLD AND THE APPLICABILITY IN VIET NAM Specialized field: Constitutional Law and Administrative Law Code: 9.38.01.02 SUMMARY OF DOCTORAL DISSERTATION IN LAW Hanoi – 2020 The dissertation is complete at: HANOI LAW UNIVERSITY Supervisor: Prof Dr Thai Vinh Thang Reveiwer 1: ……………………………… Reveiwer 2: ……………………………… Reveiwer 3: ……………………………… The dissertation is defended before the University PhD dissertation judgement Council at Hanoi Law University, dated ……… You might found this dissertation at: National Library Library of Hanoi Law University LIST OF SCIENTIFIC WORKS DISCLOSURE RELATING TO THE DESSERTATION 1.“The position and role of the Parliamentary Ombudsman in the state power control mechanism in the modern rule of law state”, Grassroots-level Research project, Hanoi Law University, 2017 “The role of inspectors in controlling power for the administrative agencies in some countries in the world”, Inspection magazine (3), 2016, p 39 – 42 “Parliamenrtary Ombudsman of Sweden, Finland and reference values for Vietnam”, Legislative Study magazine (16), 2017, p 57 – 64 “Possibility of using the Parliamentary Ombudsman Model in improving the quality of Congress’s supervision of administrative agencies in Vietnam”, Law and Development magazine, (9+10), 2018, p 67 - 74 “The Classic Parliamentary Ombudsman and the distortions of Parliamentary Ombudsman in the modern state”, Law and Development magazine, (11+12), 2018, p 72 - 78 PREFACE The necessity of the research topic Firstly, studying on Parliamentary Ombudsman is to meet the goal of building a socialist rule-of-law State, in which, the state apparatus must ensure the transparency, strongness and truly serve as a tool for People's benefit Secondly, studying on Parliamentary Ombudsman is the requirement to promote people's ownership under Article of the 2013 Constitution Thirdly, studying on Parliamentary Ombudsman stems from the goal of building a National Human Rights agency in Vietnam Fourthly, studying on Parliamentary Ombudsman comes from the requirement to improve the performance of the National Assembly of Vietnam, especially the ability of the National Assembly to control the system of public administration Fifthly, studying on Parliamentary Ombudsman stems from the need to reform the ombudsman system in Vietnam Although the Parliamentary Ombudsman is an institution that has never been established in Vietnam, it is already in the state apparatus of many countries Therefore, it is really necessary to compare the Parliamentary Ombudsman models around the world and evaluate the applicability of the Parliamentary Ombudsman institution in Vietnam From the above reasons, I choose the research topic: "Comparative study of the Parliamentary Ombudsman institution in the world and the applicability in Vietnam" 2.2 The purpose and tasks of the research 2.2.1 The purpose of the research Studying the models of Parliamentary Ombudsman institution in the world in order to describe its position in state's activities as well as clarify the advantages of this institution in the modern rule of law state This research proposes to apply appropriately the Parliamentary Ombudsman model in Vietnam in order to improve the efficiency of the state apparatus in controlling power over public administrative agencies and promoting human rights and citizens' rights in the current period 2.2.2 The tasks of the research In order to achieve the above purpose, the thesis needs to perform the following tasks: - Clarify theoretical issues on the basis of forming the Parliamentary Ombudsman, the principles of organizing and operating Parliamentary Ombudsman institution, and its role in controlling state power and exercising people's democratic rights - Analyzing, evaluating and comparing different types of Parliamentary Ombudsman institution in the world through the in-depth analysis of it in some typical countries in the aspects of position, function, organizational structure, task and power - Analyzing the current situation of power control in Vietnam for public administrative agencies, clarifying the limitations and difficulties of the current control mechanisms, which indicates the the necessity of establishing a Parliamentary Ombudsman institution in Vietnam - Analyzing the mechanism to promote and ensure human rights in our country today, showing the suitability of the Parliamentary Ombudsman to be the national human rights agency in Vietnam - Analyzing factors affecting the organization and operation of the state apparatus when applying the Parliamentary Ombudsman into Vietnam on the basis of learning experience from other countries in the world Research subject and scope 3.1 Research subject - The thesis studies theoretical and practical issues on the organization and operation of the Parliamentary Ombudsman in the world on the basis of comparison and comparison between those models - The thesis studies the needs and applicability of the Parliamentary Ombudsman in Vietnam 3.2 Research scope - Regarding the spatial scope, the thesis focuses on the organization and operation of Parliamentary Ombudsman in different regions of the world - In terms of time range, the thesis studies the Parliamentary Ombudsman from its inception until now through classic and modern models - The thesis studies the current legal system and law enforcement practices related to power control mechanisms for public administrative agencies, researching the mechanism to ensure and promote human rights to assess the need to apply Parliamentary Ombudsman in Vietnam Theoretical basis, research questions and research hypotheses 4.1 Theoretical basis The research is based on theoretical issues about the organization and operation of the state apparatus on power control, independent constitutional bodies; principle of people's sovereignty, ensuring and promoting human rights in the modern rule of law state 4.2 Research question - What kind of agency is the Parliamentary Ombudsman in the state apparatus, and what role does it play in exercising state power? - What are the similarities and differences between the Parliamentary Ombudsman institution in the inception and this period? - What are the similarities and differences between the Parliamentary Ombudsman in different regions of the world? - Why is the Parliamentary Ombudsman institution increasingly being established in the world? Should Vietnam apply the Parliamentary Ombudsman institution? If so, what are the characteristics of the Parliamentary Ombudsman in Vietnam? What is the impact of the Parliamentary Ombudsman on the organization and operation of existing government agencies? 4.3 Research hypotheses Inspection of the Parliamentary Ombudsman from the perspective of comparing countries in the world is an independent control agency with diverse designs and flexibly applied in many countries In Vietnam, the addition of the Parliamentary Ombudsman in the organization of the state apparatus is feasible and necessary to meet the principle of power control, contributing to the goal of building human rights agency in Vietnam Research method - Methodology: The thesis uses methodology based on the theoretical basis of Marxism - Leninism and Ho Chi Minh thought on state and law; Political theories about the state and the laws in the world; The Communist of Party's views and guidelines and the legal system of the State on renovating the organization and operation of the state apparatus - Specific research methods: Comparative methods: The thesis applies comparative methods , especially in chapter II in comparing different models of the Parliamentary Ombudsman institution to point out the highlights, similarities and differences between the models In addition, the comparative method is also used to compare the model of Parliamentary Ombudsman inside and outside the administrative system, comparing Parliamentary Ombudsman with other independent constitutional agency Besides, the thesis also uses common research methods in the field of legal science such as: analysis, evaluation, and statistical methods New scientific contributions of the thesis Firstly, the thesis is a large-scale research project on Parliamentary Ombudsman from a comparative perspective, which makes a difference compared to previous studies The method of comparing laws makes the research on Parliamentary Ombudsman more extensive and comprehensive This is reflected in the following points: First, the comparison of the Parliamentary Ombudsman model of countries around the world based on time criteria helps to better clarify the origin and the development process of this institution Second, the comparison of Parliamentary Ombudsman Model according to space criteria with the variety of geographic areas clarifies the correlation between the characteristics of Parliamentary Ombudsman Model and the characteristics of the geographic areas This has important implication for assessing which model of the Parliamentary Ombudsman is appropriate for Vietnam conditions Third, analyzing and finding similarities among Parliamentary Ombudsman models in the world clarify its nature Perhaps this institution exists under many different variants but the similarities are the core element of the so-called Parliamentary Ombudsman, which identifies and distinguishes the Parliamentary Ombudsman from other institutions Fourth, analyzing and finding out the differences between Parliamentary Ombudsman models in the world demonstrate the diversity, flexibility in organization and operation of this type of agency in practice On one hand, it reflects the ability to "adapt" of the Parliamentary Ombudsman institution to various legal politics, meeting the needs of many countries around the world On the other hand, it provides the basis for lawmakers to assess the feasibility of establishing a Parliamentary Ombudsman agency in Vietnam Secondly, the thesis is the first project that studies in large-scale the ability to apply the Parliamentary Ombudsman institution in Vietnam This can be seen as an outstanding contribution of the thesis, contributing to improving the state apparatus in terms of enhancing power control over public administrative agencies and protection human rights and citizens' rights, thereby, contributing to the successful construction of a socialist rule of law state in Vietnam according to the 2013 Constitution This is reflected in the following specific points: First, the thesis analyzes and demonstrates the need to apply Parliamentary Ombudsman in Vietnam by pointing out its advantages in improving the quality of power control for public administrations as well as meeting the goal of building a national human rights agency in Vietnam Second, the thesis fully points out the political and legal basis as a prerequisite for the reception of Parliamentary Ombudsman institution in Vietnam Third, based on the comparative studies, the thesis proposes a specific model of Parliamentary Ombudsman which is considered suitable for the legal and political characteristics of Vietnam Fourth, not only propose specific models, the thesis also assesses the difficulties, challenges and the impacts of the Parliamentary Ombudsman agency in the State apparatus when this agency is established in Vietnam, along with setting out specific solutions to solve those difficulties and challenges This is what previous studies on the application of Parliamentary Ombudsman in Vietnam have been little or not mentioned Thirdly, in addition to the new contributions above, the thesis also adds theoretical analyzes and assessments on the mechanism of state power control, the relationship between control of state power and the protection of human rights in the modern rule of law state; point out the characteristics of the organization and operation of the system of public administrative agencies in Vietnam, on that basis, identify specific requirements in the power control mechanism for this type of body On the other hand, the thesis analyzes and points out the limitations of law on the issue of power control for public administrative agencies, giving lawmakers more ground to improve current legal provisions The structure of the thesis In addition to the Introduction, Conclusion, List of abbreviations, List of references, the content of the thesis is structured in chapters: Chapter Literature review Chapter Theory of Parliamentary Ombudsman and the comparasion of different types of Parliamentary Ombudsman in the world Chapter The demand of applying the Paliamentary Ombudsman to control the power of the public administrative agencies and build the National Human rights agency in Vietnam Chapter The possibility of establishing the Paliamentary Ombudsman in Vietnam CHAPTER LITERATURE REVIEW 1.1 Overseas researches on Parliamentary Ombudsman 1.1.1 Overseas research works on the Parliamentary Ombudsman as a power control agency 1.1.2 Overseas research works on the Parliamentary Ombudsman as a national human rights agency 1.1.3 Evaluation of overseas research works on the Parliamentary Ombudsman It can be seen that the research on the Parliamentary Ombudsman has been interested by many foreign scholars and the research has been conducted in many different aspects, in particular: Firstly, in terms of content: The researches have analyzed and clarified the position, functions, competence as well as the organization and operation of the parliamentary ombudsman Accordingly, the parliamentary ombudsman in the world is known for two basic roles Firstly, the parliamentary ombudsman is an independent constitutional institution that controls public administration, contributing to building a good governance Secondly, the parliamentary ombudsman is a type of national human rights agency that is used by many countries for its advantages To specific: As an independent institution in the mechanism of power control, studies of the Parliamentary Ombudsman helped the thesis determine its position in current power control mechanisms The modern state uses the power control mechanisms diversely and flexibly in organizing and operating the state apparatus The power control under the simple power division theory in the democratic states in the early 20th century revealed the limitations in the face of a rapid socio-economic development, followed by the emphasis on the role of administrative agencies That reliability required a new power control mechanisms to supplement the traditional power control mechanism Accordingly, the parliamentary ombudsman was born, considered as one of the institutions under the "soft control" mechanism With its independent and accessible characters, diverse and flexible forms of control, it has shown many advantages in controlling power, especially for countries where the organizing of activities between the legislative, executive and judicial branches has not been effective As a national human rights agency, the studies on Parliamentary Ombudsman have helped the thesis assess its development trends From a mere power control institution that helps parliament to control the government (some countries also control the Courts), the parliamentary ombudsman now serves as an agency to protect human rights The expansion in scope of function to become a national human rights agency makes the parliamentary ombudsman increasingly spread to countries around the world The overseas research works on the parliamentary ombudsman provide relatively sufficient information and documents, by which, the thesis is able to assess comprehensively the nature as well as explain the formation and development of the parliamentary ombudsman Secondly, in terms of research method: Most of the research works on parliamentary ombudsman were conducted in the form of comprehensive research Besides, there are also studies on the parliamentary ombudsman in a specific country The studies use analytical and statistical methods as the primary research method, while only a few studies use the comparative method as the main research method However, most of the studies is limited to a certain region or a specific group of countries, such as the studies comparing Parliamentary Ombudsman models by the development stage or Parliamentary Ombudsman models in Europe, Asia, and the America rather than a comparative study in a broad scope, The research methods that foreign scholars apply in studying parliamentary ombudsman help the thesis gain more experience in carrying out this topic 1.2 Domestic studies on Parliamentary Ombudsman and its applicability in Vietnam 1.2.1 Domestic studies on Parliamentary Ombudsman 1.2.2 Domestic studies on the applicability of Parliamentary Ombudsman in Vietnam 1.2.3 Evaluation of domestic studies on Parliamentary Ombudsman and its applicability in Vietnam First of all, regarding the studies on Parliamentary Ombudsman in Vietnam, some conclusions can be drawn as follows: Firstly, in terms of research scope: In Vietnam, although there have been studies on the Parliamentary Ombudsman in forms of both comprehensive and specific country research, the number of studies on is small in number and limited in scope compared to the world The studies only stop at the general level, mainly focusing on the Parliamentary Ombudsman in typical countries (such as Northern European countries) Therefore, the thesis based on the inheritance of domestic researches should continue to study the Parliamentary Ombudsman Agency at a wider and more comprehensive perspective The Based on the concept and classification of state mbudsman, it can be asserted that Parliamentary Ombudsman is outside the administrative system This statement is reflected in terms of not only organizational but also in operational aspect in which the Parliamentary Ombudsman have their own independence Currently, there are two basic models of inspectorate agencies in the world, one is in the administrative system and the other is outside the administrative system Based on the concept Parliamentary Ombudsman, it can be asserted that Parliamentary Ombudsman is outside the administrative system 2.1.2 The role of the Parliamentary Ombudsman 2.1.2.1 The role of the Parliamentary Ombudsman in controlling state power a The concept of power control and power control mechanism in the modern rule of law state Control of state power is essentially the grasp of the organization and operation of entities exercising state power, conducted by government agencies or citizents in order to ensure that state agencies exercise their power properly without the abuse of their authorizations or state power for self-seeking purposes, which againsts the nature of the democratic state State power control mechanism is the method, process, regulation and institutions related to the control of state power They are closely linked together by which the control of state power is carried out This mechanism aims to prevent and eliminate the risks of wrongdoings from State agencies and public servants in organizing and exercising state power, ensuring the state power is organized and implemented effectively in accordance with the provisions of the Constitution, laws b Parliamentary Ombudsman- An independent control agency that links power control from the state to power control from society From the concept and the mechanism of power control in the modern rule of law, it is possible to determine the position and role of Parliamentary Ombudsman in the organization and operation of the state apparatus as follows: First of all, it can be affirmed that the Parliamentary Ombudsman is a type of independent control agency, meeting the diversity in power control mechanisms in the rule of law for the following aspects: Firstly, Parliamentary Ombudsman is born due to the need to expand the function of the state 10 Second, Parliamentary Ombudsman are often regulated by the constitution like other independent control agencies that are established on the basis of the constitutional provisions of the states Thirdly, Parliamentary Ombudsman may be established by the National Assembly but its organization and operation not depend on agencies belonging to the traditional power branches Fourth, Parliamentary Ombudsman is accountable but not be checked by other institutions Fifthly, the activities of Parliamentary Ombudsman are purely professional, having specific functions and authority in certain fields Sixth, Parliamentary Ombudsman plays the role of power control agency but Parliamentary Ombudsman does not have the authority to interfere with the functions and duties of other institutions In addition, Parliamentary Ombudsman meet the flexibility of control power in the modern rule of law Parliamentary Ombudsman is a combination of the power control from the state and the power control mechanism from society Parliamentary Ombudsman in the world have a very close relationship with the people Thanks to the existance of Parliamentary Ombudsman, the control of state power of the people through the right to appeal and denunciations is more assured, motivating them to exercise their rights 2.1.2.3 The role of Parliamentary Ombudsman in protecting and promoting human rights Parliamentary Ombudsman is now known as one of the NHRI models that are commonly applied in many countries around the world Parliamentary Ombudsman is a NHRI with the following characteristics: (1) Have an independent position, often constituted and detailed by a statute, which protects and promotes human rights (2) Parliamentary Ombudsman is designed to be one or a team of ombudsmen (3) Receive complaints and denunciations of citizens and conduct investigation procedures if they deem that such complaints indicate acts of human rights infringement (4) Report to the National Assembly issues on human rights, discover and recommend to the National Assembly on the improvement of laws and limitations in state agencies' activities, especially the administrative system affects human rights and citizens' rights 11 (5) Regularly carry out activities to promote human rights such as organizing seminars for exchanging experiences and expertise among the ombudsman agencies that perform their functions in the field of human rights, strengthening propaganda and mobilization of relevant agencies and organizations in ensuring and promoting human rights 2.2 Types of Parliamentary Ombudsman from a comparative perspective 2.2.1 Comparison method of Parliamentary Ombudsman in the world Firstly, conceptually, comparing Parliamentary Ombudsman in the world is analyzing the content of the law provisions on the organization and operation of the Parliamentary Ombudsman as well as the related legal issues such as the circumstances of the birth of Parliamentary Ombudsman, the operation of Parliamentary Ombudsman among countries Based on the comparison, the similarities and differences in positions, roles, functions, organizational structures and forms of activities among Parliamentary Ombudsman would be clarified Secondly, the purpose of comparison method is to find out the similarities and differences between the Parliamentary Ombudsmans in the world, first of all to see the nature of the Parliamentary Ombudsman Thirdly, in terms of comparison criteria, there are two basic criteria The time criterion that allows to divide the Parliamentary Ombudsmans around the world into two basic model groups is the " Classical Parliamentary Ombudsman " and the " Modern Parliamentary Ombudsman " for comparison While, in terms of spatial criteria, the thesis bases on the geographical location and the similarity in the process of the birth of the Parliamentary Ombudsmans to classify Parliamentary Ombudsmans in regional countries 2.3 Types of Parliamentary Ombudsman from a comparative perspective 2.3.1 Classical Parliamentary Ombudsman 2.3.1.1 History of Classical Parliamentary Ombudsman In essence, the appearance of Parliamentary Ombudsman is based on the objective needs of control over administrative administration In practice, Sweden's history of developing a state power organization reflects the cause of the birth of Parliamentary Ombudsman 2.3.1.2 Characteristics of Classical Parliamentary Ombudsman - The legal position and function of Classical Parliamentary Ombudsman Classical Parliamentary Ombudsman is defined as an independent constitutional body, which oversees the observance of the laws of the courts and administrative agencies 12 - Structure and organization of Classical Parliamentary Ombudsman Ombudsman: are elected by the National Assembly based on criteria of professional qualifications and ethical qualities, ensuring independence in the performance of tasks Deputy ombudsman: is an adjunct to the Parliamentary Ombudsman in case of necessity rather than acting as a regular assistant for ombudsman Assisting staffs: Although the law does not regulate specifically but Parliamentary Ombudsman is always supported by a large number of Assisting staffs - Tasks and powers of Parliamentary Ombudsman On one hand, Classical Parliamentary Ombudsman has the authority to prosecute as a special prosecutor On the other hand, Parliamentary Ombudsman also has the right to propose and comment on relevant issues during the investigation process 2.3.2 Modern Parliamentary Ombudsman 2.3.2.1 History of Modern Parliamentary Ombudsman The inspection of the modern National Assembly came from practical needs: (1) The need to control administrative agencies to build a democratic state and (2) the trend of building national human rights agencies (NHRIs) in modern states 2.3.2.2 Characteristics of Modern Parliamentary Ombudsman The characteristics of Modern Parliamentary Ombudsman are the "deformation" of organization and operation of Classic Parliamentary Ombudsman Based on the change in function scope of Parliamentary Ombudsman, there are two deformations: (1) Parliamentary Ombudsman acting as the National Anti-Corruption Agency; (2) is an ombudsman body working with human rights body to form a Hybrid Human Rights Ombudsman Based on the origin of formation: Modern Parliamentary Ombudsman is formed from such branches of power as government or the president rather than from the National Assembly Based on authority: Parliamentary Ombudsman only makes recommendations and warnings, which mainly relied on the power of public opinion Based on the scope of supervision: Parliamentary Ombudsman can monitor the private sector and limit the supervision of Court activities Based on organization: Modern Parliamentary Ombudsman is also primarily designed as a national agency Some countries organize the Parliamentary Ombudsman system from the national to local levels In particular, there are countries where local parliamentary ombudsman is organized without the existance of national Parliamentary Ombudsman such as Germany, Canada, and the United States 13 2.2.4 The similarities and differences between Classic Parliamentary Ombudsman and Modern Parliamentary Ombudsman First of all, we can see that Classic Parliamentary Ombudsman and Modern Parliamentary Ombudsman have similarities: Firstly, both Classic and Modern Parliamentary Ombudsman are independent constitutional institutions Secondly, the power-control nature of both Classic and Modern Parliamentary Ombudsman are a part of the "soft" power control mechanism, supporting the traditional power control mechanism Thirdly, regarding the role of Parliamentary Ombudsman in the power control mechanism, the nature of power control of both Classic and Modern Parliamentary Ombudsman is complementary to the traditional power control mechanism Fourthly, regarding the mechanism of operation, both Classic and Modern Parliamentary Ombudsman are based on the investigation mechanism to clarify the facts on the basis of receiving complaints and denunciations of the people Fifthly, in relation to the traditional authorities, the Classic and Modern Parliamentary Ombudsman is both attached to the representative agencies Sixthly, regarding the relationship between the Parliamentary Ombudsman and the people, it can be seen that the organization and activities of the Classic and Modern Parliamentary Ombudsman are based on the strong relationship with the public Besides the similarities, Modern Parliamentary Ombudsman also has their own unique features or in other words, it is developed compared to Classic Parliamentary Ombudsman: Firstly, Modern Parliamentary Ombudsman has more functions besides the function of monitoring administrative agencies Secondly, the subjects that form Parliamentary Ombudsman are also more diverse, which can be formed by the coordination with executive branch Thirdly, the duties and powers of Modern Parliamentary Ombudsman are wider than classic Parliamentary Ombudsman Fourly, regarding to the role of the Parliamentary Ombudsman in society, compared to the classical Parliamentary Ombudsman, the modern model is increasingly known for more roles in society 14 CONCLUSION FOR CHAPTER From clarifying the theoretical basis of Parliamentary Ombudsman as well as the comparation of the organization and operation of Parliamentary Ombudsman in the world, some conclusions can be drawn: Firstly, Parliamentary Ombudsman is a type of ombudsman agency defined as an independent constitutional agency, plays a very important complementary role in the state power control mechanism in the modern rule of law besides the traditional power control mechanism Although the rule of law still considers decentralization as the most important form of power control, with the complex changes of society, new conception of the state function requires an effective control from the people and the independent institutions (independent constitutional agency), which would contribute to effectiveness of power control in the modern rule of law state Secondly, through a comparative study of the parliamentary ombudsman, we can see that the shift from the classic parliamentary ombudsman model to the modern parliamentary ombudsman model is a flexible transformation, catching up with the needs of the state and society, helping the parliamentary ombudsman spread all over the world The presence of the parliamentary ombudsman in not only countries with developed legal system, but also in others with developing legal system indicates the advantages of this model in controlling state power The parliamentary ombudsman has manipulated the ability of control power from both the state and the people, combining the function of controlling state power with the function of protecting human rights, which is the nature of the rule of law CHAPTER THE DEMAND OF APPLYING THE PARLIAMENTARY OMBUDSMAN TO CONTROL THE POWER OF THE PUBLIC ADMINISTRATIVE AGENCIES AND BUILD THE NATIONAL HUMAN RIGH TS AGENCY IN VIETNAM 3.1 The current organizing and operating of public administrative agencies in Vietnam and the requirement of controlling the public administrative agencies Firstly, the agency exercising executive power is at the same time the highest state administrative agency There was a time we considered the execution and the administration as one Secondly, the public administration apparatus has very broad authority This is also a common feature of the administrative apparatus in many countries around the world 15 Thirdly, the administrative apparatus is strictly controlled by the highest state power agency, the National Assembly Fourthly, the organization of the public administrative apparatus of Vietnam is in the process of reform, towards a service-oriented administration With the above characteristics, it shows that the control of power over administrative agencies is indispensable At the same time, the characteristics of public administration impose specific requirements for the mechanism of power control over the administrative system To specific: Firstly, the mechanism of control of the administrative system should be diverse Secondly, the control of public administration requires the professionalism Thirdly, the control of public administration requires flexibility The flexibility is manifested in the diversification of control methods 3.2 The current situation of controlling the public administrative agencies in Vietnam today 3.2.1 Controlling the administrative agencies through supervisory activities of the National Assembly Firstly, the National Assembly's supervision of the organization and operation of the public administrative apparatus is still formal and has not really appreciated the actual situation Secondly, the National Assembly has not focused on the professionalism in supervising the organization and operation of the administrative apparatus Thirdly, the National Assembly has not guaranteed the independence in supervisory activities for the organization and operation of the public administration apparatus 3.2.2 Controlling the public administrative agencies through Court and Procuracy Firstly, the Court hears cases involving administrative officials is facing many difficulties Secondly, the Procuracy's function of supervising judicial activities is not really effective 3.2.3 Controlling the public administrative agencies through the system of inspection agencies The control of public administration by inspection agencies is not really effective The biggest cause of this situation is that the current inspection is not really independent of the subjects, the review as well as the inspection remains heavily influenced by the head of the administrative body 16 3.2.4 Controlling the public administrative agencies from society Firstly, the control of administrative agencies from society through the Fatherland Front has not yet met these requirements, so the Fatherland Front's social criticism remains ineffective Secondly, control of administrative agencies from society through the implementation of the people's basic rights such as the right to appeal and denounce is still limited, failing to meet the needs of the people 3.2.5 General assessment of the effectiveness of the control mechanisms for public administrative agencies in Vietnam Firstly, the control of the administrative system lacks independence Secondly, the control mechanism for the administrative system in Vietnam lack professionalism Thirdly, there are still many limitations in the coordination between the control mechanisms for the administrative system 3.3 Current human right protection mechanism in Vietnam According to current legal system, all state agencies are obliged to protect human rights and citizens' rights Besides, there are a number of agencies carrying out intensive work in the field of human rights However, there is no NHRI which is a mechanism to protect and promote human rights in a professional way, with diverse and flexible operations, creating credibility with society as well as internationally in Vietnamese state apparatus The lack of NHRI is a constraint in the organization of the state apparatus from the perspective of protecting and promoting human rights Not only is it independent and professional in protecting human rights, but it is also the only state human rights body that is periodically assessed for independence and effectiveness by an international organization Accordingly, the existence of this agency would create the higher credibility from society and international community when assessing the responsibility of the state in protecting and promoting human rights 3.4 The need to apply the Parliamentary ombudsman in the organization and operation of the state apparatus in Vietnam 3.4.1 Parliamentary ombudsman contributes to the supervision capacity of the National Assembly on the administrative agencies Firstly, parliamentary ombudsman would help the National Assembly to promote its monitoring function through investigations 17 Secondly, parliamentary ombudsman would coordinate with specialized agencies of the National Assembly to better perform the work of settling complaints and denunciations of citizens Thirdly, parliamentary ombudsman in Vietnam, like parliamentary ombudsman in other countries, would help the National Assembly to review legal documents issued by administrative agencies that violate the constitution, laws and resolutions of the National Assembly 3.4.2 Parliamentary ombudsman carry out a number of judicial activities to improve the effectiveness of power control through the judiciary Parliamentary ombudsman are given powers related to judicial activities in order to coordinate with the courts or the prosecuting agencies to improve the effectiveness of judiciary's mornitor function over the administrative system such as prosecuting cases of corruption; inspecting prisons, educational institutions, improving the effectiveness of human rights protection 3.4.3 Parliamentary ombudsman enhances the efficiency of controlling administrative body system through inspection activities In order to increase the independence of the inspection agency with the system of administrative agencies, the inspection agency should be separate from the administrative agency, not under the Prime Minister but under the National Assembly 3.4.4 Parliamentary ombudsman promotes the role of controlling state power from the people through the right of complaints and denunciations The basis for the operation of parliamentary ombudsman is mainly through the people's complaints and denunciation channel with simple, convenient and low-cost procedures This helps people reflect their concerns and problems with the activities of government agencies instead of sending the complaints and denunciations directly to state agencies, especially administrative complaints 3.4.5 Parliamentary Ombudsman meets the demand of establishing a national human rights agency in Vietnam The establishment of NHRI is the goal that Vietnam needs to accomplish in order to improve its human rights protection and promotion mechanism The selection of parliamentary ombudsman as the NHRI will meet the following criteria: Firstly, it is necessary to select the model of NHRIs which is a common form of agency, applied by many countries Secondly, the establishment of NHRI should ensure the principle of cost saving 18 CONCLUSION FOR CHAPTER The analysis and assessment of the power control over the administrative system in Vietnam indecate that we need a flexible control mechanism like the parliamentary ombudsman agency in controlling power over the administrative system The presence of the parliamentary ombudsman not only adds a new form of control to diversify the power control mechanism, but it also contributes to the effectiveness and efficiency of control power mechanisms over the system of administrative agencies in Vietnam In addition, the parliamentary ombudsman also meet the goal of building NHRIs in Vietnam There is a close relationship between power control and protection of human rights, because after all, abuse of power and lack of power control are the main factors that cause to the infringe upon human rights and civil rights Therefore, the combination of controlling power and promoting and protecting human rights in an institution is reasonable, especially for countries that are tending to reduce costs in the organization and operation of state apparatus like Vietnam Accordingly, to assess the ability to apply a new institution in the state apparatus organization, the practical basis is the most important factor In other words, there is a need to add an institution in order to overcome existing constraints or to meet a specific requirement in state activities From this perspective, it is clear that the parliamentary ombudsman is fully applicable in Vietnam In addition, in order to comprehensively assess the ability to apply parliamentary ombudsman in Vietnam, it is necessary to consider in other aspects such as the legal basis, the effects of parliamentary ombudsman other agencies in the state apparatus CHAPTER THE POSSIBILITY OF ESTABLISHING THE PARLIAMENTARY OMBUDSMAN IN VIETNAM 4.1 The political basis for the establishment of the parliamentary ombudsman in Vietnam 4.1.1 The opinion of the Communist Party of Vietnam on the issue of state power control The inclusion of the content of state power control in the Party Platform and other political documents shows that the Party is acutely aware of the importance of controlling state power, considering this issue as an indispensable element to achieve the goal of building a socialist rule of law of the People, by the People and for the People The Party's renovation policy in building the state apparatus in general and controlling the state power in particular sets out the responsibility of our State to improve the law as well as build a systematic mechanism to control the state power in Vietnam 19 4.1.2 Vietnam Communist Party's views on promoting and protecting human rights and civil rights It can be affirmed that our Party always values and upholds human rights, which are the common accomplishments and aspirations of humanity Our Party always has directions to promote and protect human rights as well as citizen rights in Vietnam Our Party has also seen the close relationship between human rights and basic national rights, human rights must not be higher than sovereignty Although the Party's documents not specify the application of NHRI in Vietnam, the Party has pointed out the promotion and protection of human rights, along with the international commitments on human rights that Vietnam has signed It is clear that building a national human rights body is necessary 4.2 Legal basis for the application of the Parliamentary Ombudsman in Vietnam 4.2.1 The legal basis for the application of the Parliamentary Ombudsman is an independent control agency in the state apparatus The 2013 Constitution set out the issue of control of power as a fundamental principle in the organization and operation of the state apparatus Besides, Article of the 2013 Constitution confirms: "The people exercise their power by direct democracy, with representative democracy" Additionally, independent constitutional agency such as the National Election Council and the State Audit are appeared in the 2013 Constitution The above provisions are the basic legal basis for the addition of the parliamentary ombudsman institution as an independent power control body in the current state apparatus in Vietnam 4.2.2 The legal basis for the establishment of the parliamentary ombudsman as the national human rights agency The 2013 Constitution sets out the principles that affirm the role and responsibility of the State in protecting and promoting human rights development in Chapter with many new features compared to the previous constitutions Besides, from an international legal perspective, Vietnam has participated and made many commitments on human rights issues as well as the development of NHRIs Thus, both the national and the international aspects of the law show that building NHRIs in Vietnam at this time is necessary parliamentary ombudsman with the advantages of protecting human rights will be an appropriate choice in Vietnam 4.3 Proposing the Parliamentary Ombudsman model in Vietnam, its impacts on the organization and operation of the state apparatus and solutions 4.3.1 Regarding the position and function of the Parliamentary Ombudsman 20 In terms of position, the parliamentary ombudsman is an independent and permanent power control body that should be regulated in the constitution Functionally, parliamentary ombudsman performs two functions of controlling the public administration through investigation, review and evaluation of administrative decisions and administrative acts of administrative management agencies At the same time, applying the expanded function of the modern parliamentary ombudsman is the national human rights agency 4.3.1 Regarding the organizational structure of the Parliamentary Ombudsman The Parliamentary Ombudsman is designed on the basis of promoting personal responsibility In order to function well, the Parliamentary Ombudsman tends to consist of many Ombudsmen (3 to people) instead of one Ombudsman However, despite many Ombudsmen, the provisions of duties and powers must ensure the principle of independence and clear accountability mechanism To specific: - Parliamentary Ombudsman is elected by the National Assembly, specialized activities (the Ombudsman is not in charge of other roles or should not be a member of the National Assembly during the term), 5-years term, being independent of the National Assembly term; receiving salaries directly from the state budget approved by the National Assembly; exempt from criminal liability according to the law - Standards of Ombudsman: According to the experience of many countries, the person appointed as an ombudsman is knowledgeable about the law, especially in the field of administrative management, accordingly, they may have served as ministers or have been experienced judges in administrative cases On the other hand, in order to meet the role of a human rights agency, the Ombudsman must also have an understanding of human rights Besides, in terms of professional qualifications, Ombudsman must be a person with good moral qualities and prestige in society - Other members are approved by the National Assembly to be appointed, dismissed or demoted based on the recommendation of the Ombudsman The selection of these members must be based on clear standards such as professional qualifications (legal knowledge, ability to conduct investigations, analysis and data processing, knowledge in human rights field), in terms of quality and morality It should be noted that, according to the experience of many countries with the Parliamentary Ombudsman model, the assisting team must ensure a sufficient quantity to serve the professional work of the inspection agency - Budget for the Parliamentary Ombudsman: To ensure the independence of the parliamentary ombudsman, Congress decides to spend directly through a law or an annual 21 resolution According to experience in some countries, the salary for chief ombudsman is equivalent to the minister 4.3.2 Regarding the tasks and powers of the Parliamentary Ombudsman - Receiving and conducting investigations to resolve complaints and denunciations of people about administrative decisions of administrative agencies and in judicial activities Especially, the Parliamentary Ombudsman may consider administrative decisions and administrative acts that are considered to infringe upon basic human rights and citizens' rights If deeming it necessary, in this case, the parliamentary ombudsman may initiate the investigation himself / herself without having to rely on complaints and denunciations of the people The investigation may be carried out independently or in coordination with other governmental authorities if necessary The investigation process, if detected in the field of embezzlement, corruption, may exercise the right to prosecute, accuse as a special Prosecutor - Inspectors at the facilities are at risk of human rights violations such as in prisons, schools, and hospitals The inspection may be conducted on a regular or irregular basis or according to complaints and denunciations from people - Reporting and recommending to help the parliamentary ombudsman improve the regulations on organization and operation of administrative agencies towards better protection of civil rights and human rights, and at the same time help administrative agencies reform procedures administrative, improving work efficiency Considering whether the enactment of laws and bylaws is consistent with the Constitution, the implementation of Government human rights, investigative, prosecuting, and judicial activities in accordance with due process and procedures and in accordance with direction to justice and human rights - Implementing information and communication through measures such as publicizing survey results and recommendations of the parliamentary ombudsman is an indispensable tool to enhance the reputation of the parliamentary ombudsman, and at the same time improve the transparency in the operation of this agency - Cooperating with human rights agencies of the United Nations and ASEAN within the framework of human rights activities related to the country - Proposing the development of a national human rights plan for each stage from to years or longer - Proposing and promoting the participation, ratification or accession to international treaties on human rights Participate in the development of new UN human rights instruments or ASEAN 22 - Review and comment the government's report to international and regional human rights agencies, especially during periodic review - Monitor the results of settling complaints and denunciations of citizens and other individuals related to human rights CONCLUSION FOR CHAPTER In addition to the practical basis analyzed in Chapter 4, the political and legal basis also shows that parliamentary ombudsman is fully capable of being accepted in Vietnam The reception of parliamentary ombudsman will obviously require a change in the organizational structure as well as some authority duties of some state agencies in the Vietnamese state apparatus to ensure maximum efficiency of the new institution while overcoming the existing limitations of the operating state agencies It can be seen that the parliamentary ombudsman model that is suitable for Vietnam will be a mixed model that is both a control agency and a national human rights agency However, there needs to be more in-depth and detailed studies so that the parliamentary ombudsman when established in Vietnam will really be an agency to meet the need to better perform the functions of the socialist rule-of-law state as well as promote the human rights CONCLUSION Through the perspective of comparing the Parliamentary Ombudsman model in the world, it can be seen that the Parliamentary Ombudsman has a diverse design but no matter it is the classic or modern model, the outstanding role of this agency is controlling the administrative system through investigating largely based on the complaints of the people Despite being the latter, compared to the agencies in the traditional branches of power, in 100 years of development, the Parliamentary Ombudsman spread quickly and become increasingly popular around the world This is explained in many respects but can be summarized in the following points: Firstly, Parliamentary Ombudsman meets the specificity in the control mechanism for the administrative system The design of control forms is highly dependent on the characteristics of the object under control In other words, in order to effectively control state power, the state needs to determine what kind of state power it controls, what kind of power is to apply the control method appropriately Accordingly, to control administrative agencies - which exercise administrative power with the large number of agencies, carrying out tasks and powers associated with people's lives in many aspects, and the principle of operation has both unity and flexibility, control mechanisms requires a flexible and specialized agency to meet the expertise and independence in the control process 23 Parliamentary ombudsman is an appropriate complement to the administrative system control mechanism Secondly, Parliamentary Ombudsman meets the development trend of modern ruleof-law states Control of state power is always a problem in every form of state, even though the extent and manner of each period may vary In the rule of law, the issue of power control is given more and more attention On the other hand, the modern rule of law points out the intimate relationship between power control and other elements of the democratic state, such as power control to strengthen the relationship between the people and the representative (National Assembly/Parliament) or control of power towards the protection of human rights, the basic rights of citizens Parliamentary Ombudsman is a socially-based institution that is "friendly" to the people The process of exercising the authority of an inspection agency always takes the protection of people's interests as a criterion to evaluate administrative decisions and administrative acts of state agencies With the reports of Parliamentary Ombudsman, the National Assembly performs better its representative role through reorganizing the operation of administrative agencies and perfecting the legal system For Vietnam, the study of the Parliamentary Ombudsman is very important when the current mechanisms of power control over our country's administrative system are not really effective Although we have a system of inspection agencies to carry out professional control in administrative activities, the effectiveness and efficiency of inspection agencies in power control are not guaranteed Based on the conditions of practical basis, political and legal basis, it is clear that there are feasible elements for the application of the Parliamentary Ombudsman in Vietnam Parliamentary Ombudsman will contribute to the diversification of the state power control mechanism, especially when our state tends to use independent control agencies to support traditional power control mechanisms which are still limited Furthermore, Parliamentary Ombudsman with a mixed model combining the functions of the national human rights agency will meet the requirements for the establishment of a human rights agency in Vietnam However, this paper is only a prerequisite for more in-depth and specific studies on the design of Parliamentary Ombudsman model in Vietnam in order to apply this model inpractice, bring significant effects in the organization and operation of the state apparatus 24 ... Vietnam, along with setting out specific solutions to solve those difficulties and challenges This is what previous studies on the application of Parliamentary Ombudsman in Vietnam have been little... influenced by the head of the administrative body 16 3.2.4 Controlling the public administrative agencies from society Firstly, the control of administrative agencies from society through the Fatherland... public administrative agencies in Vietnam Firstly, the control of the administrative system lacks independence Secondly, the control mechanism for the administrative system in Vietnam lack professionalism
Ngày đăng: 04/06/2020, 09:22
Xem thêm: