Some international models of control of the constitutionality of legal acts and suggested improvements to vietnams condition

ị HẢ K O I LAW UN1VERSITY I U N D ƯNIVERSITY PACULTY OF LAW TAO THI QUYBN f w f r * a t i o h i l models of tmmi ■tONSTITUTIOíilALITY 0FlEGU 4CTS ‘ ỉVỈPROViMENTS ĨO.VIEĨNAMS COMìỉllO^ • V' ' * * ÍASTER OF IAW THESỈS ĩ 1A N O I - Ơ O Í LUND UNIVERSITY HANOI LAW UNIVERSITY FACULTY OF LAW SOME INTERNATIONAL MODELS OF CONTROL OF THE CONSTITUTIONALITY OF LEGAL ACTS AND SUGGESTEDIMPROVEMENTS TO VIETNAM ’S CONDITION SPECIALITY: CODE: INTERNATIONAL AND COMPARATIVE LAW 60 38 60 MASTER OF LAW THESIS STUDENT: TAO THI QUỴEN THƯ V ỊỆ N ÍR!ION& ĐA! HU< II/- 'I Ị phongga/ Ịj § ụ SUPERVISORS 1- Dr Vu Hong Anh 2- Prof Joakim Nergelius Ha Noi - 2004 HANOI LAW UNIVERSITY LIIND UNIVERSITY FACULTY OF LAW SOME INTERNATIONAL MODELS OF CONTROL OF THE CONSTITUTIONALITY OF LEGAL ACTS AND SUGGESTED IMPROVEMENTS TO VIETNAM’S CONDITION SPECIALITY: CODE: INTERNATIONAL AND COMPARATIVE LAW 60 38 60 MASTER OF LAW THESIS STƯDENT: TAO THI QUYEN Supervisors Dr Vũ Hồng Anh Prof Joakim Nergelius Ha Noi - 2004 CONTENTS - Introduction ' 2Background of the control of th constitutionality of legal acts 2.1- The ideas of the control of the constitutionality of legal acts and development of the control institutions of the constitutionality of legal acts in the world 2.2- The roles of the control institutions of the constitutionality of legal acts 2.2.1-1 he role o f control institution o f the constitutionality o f legal acts m ensuring the supremacy o f the Constitution and the synchronization o f legal system 2.2.2- The control o f the constitutionality o f legal acts is very important in ensuring the fundam ental rights and liberties o f individuals 2.2.3- Controlling o f the constitutionality o f legal acts plays an important role in ensuring the balance in state power's structure 3- Typical models of the control of the constitutionality of legal acts in the world 3.1- American model 3.1.1- With regard to the state organ which carries the function control o f the constitutionality o f legal acts 3.1.2- The moment at which control o f the constitutionality o f laws is pet formed 3.1.3- The initiative power to raise the question o f the constitutionality o f the law before the court -T he legal effect o f the decision o f review 3.1.5- The time when the declaration o f unconstitutionality is to be effective 3.2- European model 3.2.1- Willi regard to the state organ which carries out the control o f the constitutionality o f legal acts 3.2.2- Methods o f control o f the constitutionality o f legal acts 3.2.3- The effect o f the decision o f the Constitutional Court 14 14 16 16 17 17 18 22 20 21 21 22 23 24 25 2.3- French model 3.3.1- With regard to state organ which carries out the control o f the constitutionality o f legal acts and its authorities 3.3.2- The methods o f control o f the constitutionality o f legal acts and the types o f legal acts which can he controled 3.3.3- The effect o f decision o f the Constitutional Council 3.4- Mixed model 3.4.1- The American m odel’s elements in the mixed model 3.4.2- The elements o f the concentrated system 3.5- Other model 3.6- Comments on advantages and disadvantages o f above models o f the control o f the constitutionality o f legal acts 4- Applying foreign experiences of control of the constitutionality of legal acts on Vietnam ’s condition 4.1- Law on control of the constitutionality of legal acts and its implementation in Vietnam 4.2- Some suggested solutions to apply foreign experiences in order to improve activity of control the constitutionality of legal acts in Vietnam 5- Conclusion 27 27 28 29 30 30 31 33 34 37 37 48 51 1- Introduction 1.1 Rationale Nowadays, many countries in the world have built the state governed by law (in other words that is the state according to law or state according to the rule o f law) The concept of the state according to law is based on the principle that all state powers stem from the law or be established by law and limited by law The basic characteristics o f state governed by law that are: l The nomination of law (in which the Constitution is supreme) in every fields of life; State powers are regulated and limited by the law; Recognize and establishing the fundamental rights and liberties o f citizens in the Constitution and ensuring these fundamental rights and liberties; Have an effective mechanism to control the submission o f The State and state bodies to the Constitution and law Consequently, one o f the basic elements o f the state according to the rule of law is the principle o f the supremacy o f the Constitution over all other norms in the legal order and over all state acts; Power o f state is essentially limited by law and it must subjects to some form of constitutional control Therefore, in almost all countries in the world, the mechanism to control o f the constitutionality of legal acts has been establishing Generally, the control o f the constitutionality o f legal acts is the constitutional function of a competent state agency (such as a special Constitutional Court or Constitutional Council or ordinary courts) to review/consider the constitutionality o f legal acts issued by other state agencies In some countries, these agencies has power to declare a law unconstitutional by declaring it null or void by annulling it, and as a result, refuse to enforce it The objective o f control o f the constitutionality is not only to ensure the supremacy o f the Constitution over all other norms in the legal system and that all legal acts of the state are adopted or issued in accordance with the Constitution but also to ensure that state acts respect the fundamental rights and liberties o f citizens With that important role, the mechanism o f control o f the constitutionality is obviously extremely necessary in the state according to the rule o f law In other words, in the state according to law, it must ensure the submission to the Constitution and establish the mechanism to protect the Constitution Since early 1990s, V ietnam has implemented the policy o f renovation in order to built The Socialist Republic State of people, by people and for people and governed by the law This policy was institutionalized in Art o f 1992 Constitution (Amendment 2001) as follows: "The Socialist Republic o f Vietnam is state o f people, by people and fo r people and governed by la w ” In addition, Vietnamese Constitutions state that the Constitution is basic law of the State and supreme legal effect However, up to now, there is not any a professional and complete mechanism o f control o f constitutionality o f legal acts The control of the constitutionality o f legal ! acts has conducted mainly through functions o f control o f The National Assembly However, this control has been considering not to be effective There are still many weak points in operation o f the control o f the constitutionality o f legal acts o f Vietnamese National Assembly While, there are some unconstitutional legal acts in Vietnam In the practice, there are some legal acts, which are not conformity with the Constitution, therefore the unity o f legal system is not ensuring In the other respect, there are some legal acts that implement of them limits rights and liberties o f citizens or causes damages to inhabitants, but the inhabitants not now to complain to what agencies with how procedures Therefore, it is very necessary and urgent to establish a professional a n d complete mechanism o f the control of the constitutionality o f legal acts in Vietnam, both in theoretical and practical respect Up t o n ow, i n V ietnam, there a re s till very a little a rticles c oncerning t o control o f constitutionality and in the world and foreign law on control o f constitutionality o f legal acts Some authors also brought out the necessary to establish a mechanism o f the control o f the constitutionality o f legal acts in Vietnam However, I think, present problem is not only to study and compare characteristics o f models o f control of the constitutionality, but also to analyze the background o f control o f the constitutionality, a n d to point out the role o f this mechanism in the state according to the rule o f law Another important problem is to evaluate the current law on control o f the constitutionality o f legal acts in Vietnam Therefore, I decide to choose the topic: "Some international m odels o f control o f th e constitutionality o f legal acts and suggested im provem ents to Vietnam's condition" as master thesis's topic 1.2 Purposes: Base on the results o f solving above problems, the thesis will achieve its aims, namely enhancing the aware on the background and the role o f control o f the constitutionality o f legal acts, characteristics o f models; and suggesting some improvements to apply foreign experience to establish a mechanism o f the control o f the constitutionality o f legal acts, which is reasonable and compatible with Vietnam's condition 1.3 Questions In order to achieve thesis’s aim, I will deal with questions as follow: - Analyze the background of the control o f constitutionality o f legal acts by focusing on the ideas o f the control o f the constitutionality o f legal acts in the world and roles o f institution of the control o f the constitutionality o f legal acts - Describe the characteristics o f typical models o f the control o f constitutionality o f legal acts in the world After that, I will point out the advantages and disadvantages of each model - Examine Vietnamese law on control of the constitutionality o f legal acts and its implementation - Finally, I suggest som e 1egal solutions to establish a m echanism o f the control of the constitutionality o f legal acts in Vietnam 1.4 Limitation: Because o f the variety of control of constitutionality o f legal acts in the world, I can not approach all models o f control o f the constitutionality of legal acts In this thesis, I only examine typical models Moreover, in many legal systems, constitutional control is over all state acts, including the legislation and administrative documents and judicial decisions In the frame o f this thesis, I will focus on controlling o f constitutionality o f legal acts, especially on legislation 1.5 Basic materials: In order to complete this thesis, I will refer books concerning the matter o f control o f the constitutionality of legal acts I will compare models, which described in these books At the same time, I use som e Vietnamese and English articles in internet, for example, West Law, Hein-on-line, Lund University’s w e b pages, and so on Moreover, I will refer to some cases relating to the matter o f control o f the constitutionality o f legal acts I also investigate Vietnamese law, especially Constitution (1992 and amendment 2001), Law on control activity o f the National Assembly (2003), Law on enactment legal documents ; a n d to consider th e reports o f Vietnamese state agencies to evaluate the current law on control o f the constitutionality of legal acts in Vietnam 1.6 Methods: The main methods o f this thesis are analyzing and comparing I will also use the historical comparative method 1.7 Contents Thesis will be divided into three chapters as follows: Chapter I: Background of the control of the constitutionality of legal acts 1.1- The ideas of the control of the constitutionality o f legal acts and development o f the control institutions o f the constitutionality o f legal acts in the world 1.2- The roles of the control institutions of the constitutionality o f legal acts Chapter II: Typical models of the control of constitutionality of legal acts in the world 2.1- American model 2.2- European model 2.3- French model 2.4- Mixed model 2.5- Other model Chapter III: Applying foreign experiences of control of the constitutionality of legal acts on Vietnam’ condition 3.1- L a w o n control o f the constitutionality o f legal acts and its implementation in Vietnam 3.2- Some suggested solutions to apply foreign experiences in order to improve activity o f control the constitutionality of legal acts in Vietnam 2- Background of control constitutionality of legal acts of the 2.1- The ideas of control of the constitutionality of legal acts and the development of the control institutions of the constitutionality of legal acts in the world The idea o f control o f the constitutionality o f legal acts appeared was firstly established in the begining o f 17lhe century The establishment and development o f this idea is very closed to the constitutionalism in Europe and America It is very special that in England there is not written Constitution, but the origin o f the idea o f control o f constitutionality o f legal acts appeared firstly in this country Prior to the seventeeth century, in the English legal system, statute law was considered merely as excentionally created norms in relation to the previously established common law Lord Coke stated clearly the relation between common law and statute law made by Parliament in B onham ’s case that: “ in m a n y cases, the common law will control acts or Parliament, and sometimes adjudge them to be utterly void: for when an act or Parliament is against common right and reason, or repugnant or impossible to be performed, the common law will control it and adjudge such act to be void” ' According to C o k e ’s opinion, the common law was superior to the authority o f Parliament2 He refered the norms o f comm on law to the fundamental and permanent norms In short, common law is a higher law binding on Parliament and on ordinary courts3 One o f these fundamental laws was The Magna Carta which was considered as the remote antecedent o f modern Constitution4 Therefore, base on the principle that common law was supreme, the idea of control of constitutionality of legal acts firstly established in England According to this principle, the Privy Council has power to declare ' See the q u o ta tio n a n d its c o m m e n t s in C.H M d l w a i n , T h e H ig h C o u r t o f P a r lia m e n t a n d n.\ S u p re m a c y , Y a le , 19 10, p p - See the c ritic ism o f L o rd C o k e 's c o n c e p ts in L.B Boudin, G o v e r n m e n t b y J u d ic ia r y , N e w Y o r k , 1932, V ol.I, pp.485 -517 E C o ke q u o ted by E S C o rw in , 'The " H ig h e r L aw " B a c k g r o u n d o f A m e r i c a n Con stitu tional L aw ', 1955, p 38 R e g a rd i n g the i n c o n s is te n c y o f C o k e 's v iew s see W H o ld w o rth , A H isto ry o f E nglish L aw , Vol V, L o n d o n , 1966, p.475 ' C.H M e 11w ain, T h e H ig h C o u r t o f P a r lia m e n t a n d its S u p re m a c y , Y a l e , 1910 pp - Allan R B r e w e r —Ca ria s "J u d ic ia l R e v ie w in c o m p a tiv e la w " - C a m b r i d g e U n iv e rsity Press Evist P u b lish e d 1989, p.98 + Decisions, Instructions, Circulars of Minister, Head of Ministeriallevel bodies + Resolutions o f Justice Council o f Supreme People's Court + Decisions, Instructions, Circular o f Direction o f The Supreme People's Procuracy + Resolutions, Joint-Circulars among Competent State Agencies o f betweem Competent State Agencies and socio-political associations + Resolutions o f People's Council + Decisions o f People's Committee Such, according to Article 81, the National Assembly have to control a too large num ber o f legal acts Actually, the National Assembly cannot control all those legal acts by itself In order to conform with its capacity and present c ondition, th e National Assembly only focuses o n control o f legal acts enacted by higher state agencies, namely, the National The Prime Minister, The Supreme People's Court, The Supreme People's Procuracy The National Assembly controls o f legal acts o f other bodies through the National Assembly's Standing Committee It means that the right o f control o f legal acts o f the National Assembly is carried out by the National Assembly in two ways: First, control activities o f the National Assembly itself and o f agencies belong to its inner mechanism.These control activities are direct and base on the provisions o f the Constitution and law; Second, the National Assembly authorises The State President, The Government, The People's Supreme Court, The People's Supreme Procuracy, People's Councils o f all levels to control o f legal documents o f agencies and associations pursuant to law provisions In the sphere o f this thesis, we only consider the control activity carried out directly by the National Assembly and its inner institutions namely, the National Assembly's Standing Committee and we focus on the legal documents enacted by the National Assembly, the National Assembly's Standing Committee, The State President, The Government, The Prime Minister, The Supreme People's Court and The Supreme People's Procuracy However, with regard to this matter, there is differences between the provisions o f the Constitution, the Law on promugation o f legal documents and Law on control activity o f The National Assembly Although under the Constitution and Article 81 o f Law on promulgation o f legal documents, the legal documents such as Constitution, Law, Resolution o f The National Assembly are the objects o f control activities o f The National Assembly, but Law on control activity o f The National Assembly does not provide any provisions for the control right of The National Assembly over these legal documents 41 Article o f Law on control activity o f I'he National Assembly stipulates for control activities o f National Assembly, and sub-section provides legal acts control as follow: "The National Assembly reviews normative legal docum ents o f state The President, The G overnm ent, T h e Prime Minister, The Supreme People's Court, The Supreme People's Procuracy that have symptom o f breach o f Constitution, Law, Resolution of The National Assembly" Such, Law on control activiy o f The National Assembly just provides for control right o f The National Assembly over normative legal documents o f The State President, The Government, The Prime Minister, The Supreme People's Court, The Supreme People's Procuracy but does not stipulate for control right over legal acts enacted by The National Assembly itself Therefore, there are seme differencies in provisions o f Constitution, Law on control activities o f The National Assembly and Law on promulgation o f legal acts abou; this issue Among three above legal acts, top priority must be given t) The Constitution because o f its supreme legal effect From that point, we an explain that the National Assembly o f Vietnam has a control right over legal acts o f the National Assembly through its activities such as amendment, supplement to legal documents (including the Constitution) enacted by The National Assembly if it is not comformable Moreover, The National Assembly has a right to review and abolish a part o r whole o f unconstitutional legal act enacted by The National Assembly at the requesi o f the National Assembly's Standing Committee, The State President, Th; Ethnical Council, the C ommittees o f T h e National A ssem bly, T h e Government, The Prim e Minister, The Supreme People's Court, The Suprem e People's Procuracy, The Vietnamese Fatherland Front and members o f The National Assembly However, that control o f the constitutionality o f legal acts enacted by the National Assembly is vaguely stipulated in the Constitution and provided in Law on enactment legal acts is inadequate In order to have a sufficient and obvious legal mechanism for this activity, Law on control activity o f The N ational Assembly should be added the provisions which stipulate that legal acts enacted by the The National Assembly itself as the object o f control o f the National Assembly and provide clearly process and procedure to control them 4.1.3- About the moment at which control of the constitutionality of legal acts is performed In principle, the constitutionality o f legal acts must be controlled before enactment as well as after enactment, promulgation and taking effect This is an important requirement for control o f legal acts of the National Assembly in the context o f building the State according to the rule o f law in Vietnam If the National Assembly just controls the enactment but does not control after taking effect, it will lead to situation in which unconstitutional legal acts are in operation are detected but we not know which body has competence to solve, which procedure should be applied and how to solve these legal acts 42 However, under current law, the control o f legal acts after enactment is provided limitedly and vaguely Actually, control of legal acts is mainly carried out before enactment, pass and taking effect o f legal documents In order to ensure the constitutionality, lawfulness, and synchronization o f legal system for law bills and ordinance bills before reference to the National Assembly and The National Assembly's Standing Committee, Article 95 o f Constitution 1992 (amended and supplemented in 2001) provides: The National Assembly's Standing Committee is responsible for presiding over investigation or taking part to investigate law bills and Ethnical Council and the committees are responsible for investigation ordinance bills Article 34 o f Law on promulgation legal documents provides for the investigation as follows: “A investigated body carries out investigation over all the facets o f law bill, ordinance bill, resolution bill such as mainly focusing on constitutionality, lawful and synchronization o f legal acts is correspondence with legal system” In order to concrete the investigation o f The Legal Committee o f The National Assembly a n d resolve th e relation between T h e Legal Committee o f The National Assembly and other investigated bodies in the process o f investigation the constitutionality o f law bills, ordinance bills, Law on amendm ent and addition o f Law on promulgation o f legal documents (2002) supplemented section 34a as follows: “The Legal Committee o f National Assembly ta k e p a r t i n investigation to la w bills, ordinance bills that is presided over investigation by Ethnical Council and other committees o f the National Assembly In case o f having different view with that of responsible body for investigation to constitutionality, lawful and synchronization o f legal system in correspondence to law bill, ordinance bill, the Legal Com m ittee responds to the National Assembly, the National Assembly's Standing Committee about its point o f v ie w ” The National Assembly's Standing Committee gives idea about law bills and resolution bills The organs, organizations, and mem ber o f the National Assembly who refered bills to the National Assembly are responsible for studying, acquiring suggestion o f the National Assembly's Standing Committee In case o f having different opinion, National Assembly will decide In the stage o f passing law, through arrangement group session and plenary o f the National Assembly, the National Assembly continues carrying out oversee o f the constitutionality o f legal acts After legal act, resolution o f the National Assembly, resolution ordinance o f National Assembly's Standing Committees are passed, they will be promulgated In the stage o f promulgating normative legal acts, the State President has a right to require the National Assembly's Standing Committee to review the ordinance passed by the National Assembly's Standing Committee because o f its unconstitutionality and unlawfulness If that ordinance still be passed by the National Assembly's Standing Committee and State President disagrees, State President can refer to next session o f the National Assembly to decide 43 In conclusion, under the Law on control activity o f the National Assembly and Law on promulgation legal documents, the control o f constitutionality o f legal acts is carried out from the stage o f examining and verifying law bills, ordinance bills, the stage o f passing those bills and the stage o f proclaimation This control activity in Vietnam is similar to priorcontrol activity in France However, a s analysed above about the French model, if Constitutional Council claims that the legal act unconstitutional, that document will not be enacted and have no effect In other case, if the Constitutional Council claims that an article of a legal act is unconstitutional and that section is an integral part o f legal document, the whole o f that legal act will not be enacted If the Constitutional Council supposes that unconsitutional section can be seperated from the rest part o f document, the President can either promulgate that insufficient legal act or refer to Congress for re-discussion In all those situations decision o f the Constitutional Council can not be reviewed, it is compulsing and final judgement This decision forces subjects who submitted Bills to amend unconstitutional provisions With regard to the Legal Committee of National Assembly o f Vietnam, after investigating the constitutionality o f Law bills, ordinance bills, this body just has a rights to petition for or to make a report on the constitutionality o f bills to the National Assembly of the National Assembly's Standing Committee for the National Assembly decides The control o f constitutionality o f legal act is mainly carried out in the stage passing and promulgation Furthermore, only discussion and decision o f National Assembly in these steps have decisive significance to the constitutionality o f legal acts 3.1.4- With regard to subjects which have a right to request the review constitutionality of legal acts Under the provisions of Constitution, Law on promulgation legal documents and Law on Control activity o f The National Assembly, the subjects that have a right to request the review constitutionality o f legal acts are different from the subjects o f European model and American model In European m odel, th e right to request the review constitutionality o f legal acts is raised by one o f litigants or by random ways, the Constitutional Court has n o t this right In Am erican model, th e j ustices have a right to review the constitutionality o f legal acts under their initiative even if constitutional issue is not raised by any litigants in hearing In Vietnam there are detail provisions for subjects who have a right to request the review the constitutionality of each kind o f legal act Regarding to documents o f the National Assembly, resolutions and ordinances o f the National Assembly's Standing Committee, the review o f constitutionality o f these documents does not relate to any certain cases, it results from the request o f organs that are concretely provided in law, that is: The National Assembly's Standing Committee, The Government, The Supreme People’s Court, The Supreme People’s Procuracy, The Vietnamese Fatherland Front and its members, members of The National Assembly Therefore, under the 44 Vietnamese current law, there are many kinds of subject which have a right to require the review the constitutionality o f legal acts In order to carry out the control o f constitutionality o f legal acts regularly and qualitiatively, it requires the subjects to have competence and responsibility to practise its power well Nevertheless, in Vietnam currently, most o f above subjects have not met the requirements of control legal documents, many o f them have not enough capacity and not caring about discovering the unconstitutional provisions o f legal documents in order t o require review their constitutionality Meanwhile, some other subjects such as legal scholars, experts, or litigants in a case can discover unconstitutional points o f legal acts that can limit the performance o f reasonable rights and obligations o f citizens o f demage them, but they have no right to require the review those documents I personally think that, this is an important lack o f Vietnamese law involving the subjects that have a right to require the review the c onstitutionality of legal acts This issue m u st be studied and solved in the process o f innovation and strengthening the control of constitutionality o f legal acts 3.1.5- About control procedures Under Article 10, sub-section of Law on Control activity o f The National Assembly, The National Assembly reviews the normative legal documents o f The National Assembly's Standing Committee, The State President, The Government, The Prime Minister, The Supreme People’s Court, The Spreme People’s Procuracy that have unconstitutional or illegal symption in the order as follows: - The National Assembly's Standing Committee submits normative legal acts that has illegal signs for The National A ssem bly’s inspection - The National Assembly discusses In the process o f discussion, the head o f organ that promulgated legal act can supplement related issues - The National Assembly issues resolution about the legal act is not contrary to the Constitution, Laws, resolutions o f The National Assembly; decides to abolish a part or whole of legal acts that are contrary to The Constitution, Laws, resolutions o f The National Assembly In fact, these are vague provisions about order and procedure o f legal document control Futhermore, there has not been provisions about order and procedures control of legal acts enacted by The National Assembly itself With these stipulations, it is difficult for bodies that has control competence to carry out effectively their control function This is a reason why The National Assembly seldom conducts sessions to discuss about the constitutionality of legal acts and issues resolution about constitutionality or unconstitutionality o f that document 45 3.1.6- For the legal effect of decisions of control of the constitutionality of legal acts As above analysis, according to the Vietnamese law, control o f the constitutionality o f legal ac ts o f th e N ational A ssem bly is exercised both before the promulgation and after the adoption o f legal acts and they come into force In the fact, among above mentioned proceedings, the constitutionality o f legal acts is examined mainly before the promulgation o f legal acts, especially in the period o f verifying the bills However, the effect o f verification has not been stipulated clearly Thus, the state agencies which drafted the bill is not obliged to acquire the consult o f verifying agencies Consequently, the affect o f the verification on the drafting agencies is not remarkable In the period which legal acts become effective, when discovering the unconstitutional elements in the legal acts which promulgated by the Government, by the Prime Minister, by the Supreme People's Court and by the Supreme People's Procuracy, the Standing Committee o f the National Assembly suspend the implementation o f these unconstitutional legal acts After that, in the nearest plenery session o f the National Assembly, the Standing Com m ittee o f th e N ational A ssembly submit its opinion for the National A ssem bly’s resolution This resolution may declare a part or whole legal acts null and void and repeal them For the legal acts which promulgated by the Standing Committee o f the National Assembly and by the President, when discovering their unconstitutional elements, the National A ssem bly’s members will propose the Standing Com m ittee o f the National Assembly, the President to amend or repeal a part or whole that legal acts These agencies have to consider the matter and to reply the National A ssem bly’s member If the National A ssem bly’s m em ber not agree with the respond o f the Standing Committee o f the National Assembly or o f the President, he has pow er to request th e S tanding C om m ittee o f the National Assembly to subm it this matter for the National A ssem bly’s consideration and decision in the nearest session Besides, base on the result o f control activities, the National Assembly could bring out a resolution related to the am endm ent or addition some articles o f a legal acts in order to overcome gaps in legal system and to resolve the mistakes which caused by implementation o f unconsitutional legal acts Thus, in Vietnam, the legal effect o f decisions o f constitutional control has not been stipulated clearly The decisions o f the competant agencies which have power to control o f the constitutionality o f legal acts are not compulsory measures Therefore, the strictness o f the constitutional control is not ensured In the other hand, the quality o f verification o f legal acts is not very good M any unconstitutional elements o f legal acts have not been discovered Thus, the verification o f the constitutionality o f legal acts did not meet the dem ands o f control activities 46 Although the National Assembly has power to repeal legal acts o f the Standing Com m ittee o f the National Assembly, The President, the Government, the Prime Minister, the Supreme People Court, the Supreme People Procuracy on the gounds that they are unconstitutional, but in the fact, it seldom applies this sanction With regard to the moment at which the decision on the constitutionality o f legal acts becom e effective: Differ from other models o f control o f the constitutionality o f legal acts, in Vietnam, in each decision that declare repeal a part or all legal acts, the moment at which the validity o f legal acts will be finished is stipulated clearly Briefly, in Vietnam, the principle that the supremacy o f the Constitution was expressed clearly, so that all other state acts promulgated must b e com form able to the Constitution, a n y ac ts which contrary to the Constitution will be declared to be null and void Although there is not a professional and responsible agency has power to control the constitutionality o f legal acts, but Vietnamese law has provided certain legal basis for the control o f constitutionality o f legal acts According to the present Vietnam ese law, the power to control legal acts is empowered the National Assembly The National Assembly's control is a supreme control In which, one o f the demands o f this control is to oversee the constitutionality o f legal documents and the synchronization o f legal system Law on control activities o f The National Assembly has been adopted in 2003 created legal basis for the control activities In this law, the subjects o f control, the contents o f control, the powers o f competance state agencies, the procedure o f control and the legal effect o f the result o f control were stipulated Implementing o f control activities according to this law has achieved certain goals The National Assembly's role in ensuring the supremacy o f the Constitution and the legality has been affirmed and enhanced However, because o f the lack o f provisions related directly to the control the constitutionality o f legal acts, especially acts promugated by the National Assembly, and unclear provisions on the procedure o f control activities, the quality and the effect o f the control activity o f National Assembly is not very well In the fact, there is a few o f legal documents which discovered to be unconstitutional and abolished While as, the quality o f promulgation legal acts o f the National Assembly, the Standing Committee o f the National Assembly, the President, the Government, the Supreme People's Court, the Supreme People's Procuracy is not good In the legal system, there are many legal acts which must be modified and added frequently; Many acts contrary to the acts promulgated by the higher state agencies h a v e not been discovered a n d resolved timely Consequently, in Vietnamese legal system, there are still some unconstitutional acts, the synchronization and the hierachy o f legal system have not been ensured Therefore, there are many urgent and difficult problems in both the Vietnamese law and the implementation the law on control the constitutionality o f legal acts These problems should be resolved rapidly and timely That means, renovating and completing the institution o f control o f constitutionality o f legal acts in Vietnam is very necessary and urgent It was time Vietnamese legislators have to research and chose the reasonable 47 and compatible experiences in control the constitutionality of legal acts of foreign countries in order to apply in concrete circumstances in Vietnam 4.2- Some suggested solutions to apply the foreign experiences to improve the control activity the constitutionality of legal acts in Vietnam Base on the exploration o f the typical models o f control o f the constitutionality o f legal acts in the world and the evaluation o f the situation and its causes o f the activity o f control o f the constitutionality o f legal acts in Vietnam, we suppose that, in order to enhance the effect of this activity, the following demands must be considered: - Firstly, renovating and completing the institutions o f control o f the constitutionality o f legal acts should obey the principles for the operation and organization o f The Vietnamese State governed by law Am ong these principles, we express especially the principle that the State's power is unite and originated in the people And according to Article 83 o f 1992 Constitution, The National Assembly is the highest in the State's apparatus Obviously, in Vietnam there is not the counterpoisement o f the State's power Therefore, the courts, including the Supreme People Court, are not able to review the acts adopted by the National Assembly - Secondly, because o f the non - professional National Assembly, it is very difficult for this state agency to control effectively the constitutionality o f legal acts Therefore, it was time to establish a professional and responsible state agency to control o f the constitutionality o f legal acts - Thirdly, when renovating and completing the institutions o f control o f the constitutionality o f legal acts, the unity and the stability o f The State's apparatus must be ensured At the same time, it is necessary to distinguish clearly between the power to control and the pow er to examine and supervise o f other state agencies On the grounds o f above considerations, we would like to give some suggestions as follows: 1In the short term, legal system must be amended and completed This should concentrate on the following matters: - Stipulating clearly the control authorities o f the National Assembly and inner bodies o f the National Assembly Specifying the objects which falling into control authority o f each agency; - Supplementing the provisions relating control the constitutionality o f legal acts promulgated by the National Assembly - Stipulating clearly the procedures for conducting control authority of the constitutionality o f legal acts These procedures must be reasonable and feasible 48 - Specifying the subjects have right to request review constitutionality o f legal acts At the same time, providing responsibilities o f these subjects the the - A m e n d i n g the p rovisions relating to the effect o f the decisions of control competent agencies in order to enhance the binding value o f these decisions 2Besides, in the long term, a professional and separate state agency which are responsible for the protection the supremacy o f the Constitution should be established In particular, the institution o f control o f the constitutionality o f legal acts in Vietnam will be identified by the following characteristics: a) For the state agency which exercise the p o w e r to control o f constitutionality o f legal acts: As above analysis, in Vietnam state power is not separated but united In the state's apparatus, the National Assembly is considered to be the highest state pow er body, and the court system is placed in the lower position Therefore, the power to control o f constitutionality of legal acts in general and o f the laws enacted by the National Assembly can not be empowered the court system We suppose that, it is better and compatible for Vietnam if the appropriated and reasonable elements o f both the diffuse model and concentrated model will be chosen to apply W e would like to suggest that a professional and responsible state agency, which separated from other state agencies and is similar to the Constitutional Council o f France wil be established in Vietnam This agency will be empowered to control o f constitutionality o f legal documents, including the documents enacted by the National assembly For the m em bers o f this agency, we may follow the France's experiences The constitutional agency will combine the members which are chosen from both three branches in the state apparatus, that are the National Assembly, the President or the Government, and the Supreme People's Court This will ensure the requirement that the constitutional protective agency must play an intermediary role in the state apparatus On this position, the professional constitutional protective agency will be a b le to exercise more effectively the pow er to control o f constitutionality o f legal acts b) For the fra m e o f legal acts w ill be controled by the constitutional protective agency The subjects o f the control will combine the legal acts which enacted by the state agencies at the highest levels in the state apparatus as follow: - Laws enacted by the National Assembly; - Ordinances, resolutions enacted by the Standing Committee o f the National Assembly; Orders, Decisions o f the President; 49 Resolution, Decrees o f the (jovernmnent; Decisions, Directions of the Prime Minister; Decisions, Directions, circulars o f the Ministers; Resolutions o f the Council of Judges o f The Supreme People Court; Decisions, Directions, Circulars o f the Chief o f The Supreme People Procuracy; Besides, the international treaties should be objeccts o f activities of control o f constitutionality c) For the m om en t at which the control o f constitutionality o f legal acts is perform ed In order to reduce enacting the unconstitutional bills and to limit the consequences which caused by the implementation o f the unconstitutional legal acts, the constitutional agency have been em pow ered to control the constitutionality o f both bills and legal acts which were promulgated and adopted That means, in this respect, we will apply both the preventive review o f the French model and posterior review o f concentrated model d) F or the validity o f the result o f control o f the constitutionality o f legal acts In order to enhance the effect o f control o f legal acts, theo validity of the result o f CC m ust b e regulated t o b e compulsory binding value T h e decisions o f the constitutional agency are final judgements, they can not be reviewed by any other agencies e) It is better i f the fra m e o f the subjects have p o w er to request the control o f constitutionality o f legal acts will be extended In order to protect m o re effectively the rights and interests o f the citizens which are stipulated in the Constitution, we suppose that, the individuals and organizations should be permitted to request the control o f the constitutionality o f legal acts f) With regard to the procedure f o r conducting control o f constitutionality o f legal acts, Vietnamese law on control activity should provide a comfortable and resonable procedure for conducting this constitutional control In these provisions, each steps o f the proceedings must be stipulated clearly and easily to perform This will facilitate the competent agencies to complete their duties 50 5- C o n clu sio n In the present, Vietnam has been building the Socialist Republic State which according to the rule of law, ensuring the supremacy o f the Constitution and the synchronization and the unity o f legal system is a top important requirement While as, activity o f control the constitutionality o f legal acts in Vietnam is considered to be ineffective Therefore, renovating and completing the institution o f control the constitionality o f legal acts in Vietnam became a extremely urgent and necessary task With the hope o f contributing to enhance the knowledge on the idea o f control o f the constitutionality o f legal acts and its role in the state governed by law and to improve the quality and the effect of control of constitutionality o f legal acts in Vietnam, we decided to explore this topic In this paper, some main ideas of control o f constitutionality o f legal acts in the world were analized And the role o f control o f constitutionality o f legal acts in the state according to the rule of law were pointed out After that, characteristics o f the typical model o f control o f constitutionality o f legal acts were described and compared At the same time, we pointed out the advantages and disadvantages o f each models Base on evaluating o f the situation on the Vietnamese law on control o f constitutionality o f legal acts and its implementation, and bringing u p the causes o f th e i neffectiveness o f this activity, we suggested some solutions to apply the foreign experiences to enhance the effect o f control o f constitutionality o f legal acts in Vietnam We hope that, a professional and responsible constitutional agency will be established timely and compatibly in order to control the constitutionality o f legal acts This will ensure the principle o f the supremacy o f the Constitution, the synchronization and the hierarchy o f legal system Therefore, it will contribute to the progress of building 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w York, 1984, pp 7-13 42- T h e F e d e l C o n stitu tio n T rib u n a l L aw o f G erm any (FCT) was puplished on 12 M arch 1951 43- T h e F e d e l C o n stitu tio n T rib u n a l Lem o f G erm any T he interior regulation o f the Tribunal w as published in 1975 and reformed in 1978 44- (1936) United States Code 297 \ 45- 28 United Stales C ode 1252 46- 28 United States C ode 1254 47- 28 United States C ode 1256 48- 28 United States C ode 1257 ... acts of the 2.1- The ideas of control of the constitutionality of legal acts and the development of the control institutions of the constitutionality of legal acts in the world The idea o f control. .. 2.1- The ideas of the control of the constitutionality of legal acts and development of the control institutions of the constitutionality of legal acts in the world 2.2- The roles of the control. .. of the constitutionality of legal acts 1.1- The ideas of the control of the constitutionality o f legal acts and development o f the control institutions o f the constitutionality o f legal acts