The national assembly and the post-legislative scrutiny issue under the constitution of Vietnam

According to the Law on the Oversight Activities of the NA and the People’s Councils,“The NA’s Standing Committee oversees activities of the Government, the Prime Minister, Ministers a[r]

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THE NATIONAL ASSEMBLY AND THE POST-LEGISLATIVE SCRUTINY ISSUE UNDER THE CONSTITUTION OF VIETNAM

Dr Nguyen Thi Hong Yen, LLM La Minh Trang

International Law Department, Hanoi Law University (Vietnam)

Abstract

In Vietnam, legislative oversight is a means to hold the government and other state actors accountable for their actions and ensure their actions in accordance with the law Effective oversight is applied to ensure transparency and openness, to create the interactive environment where actions of government and other actors are debated and receive public input, to scrutinize government policies to ensure they have been implemented adequately and have obtained the desired impact; etc How does the National Assembly implement Post-Legislative Scrutiny and gain valuable experiences? And how can the National Assembly improve its capacity to this issue? To answer these questions, this article will focus on clarifying issues related to the Post-Legislative Scrutiny of the National Assembly under the Constitution and laws of Vietnam, the difficulties and challenges that the National Assembly is facing, thereby recommending solutions to strengthen the capacity as well as the effectiveness of post-legislative monitoring activities of the Vietnamese Parliament in the next stage

Keywords: National Assembly, post-legislative scrutiny, Constitution, Vietnam.

I INTRODUCTION

In Vietnam, Article 69 of the Constitution of Vietnam in 20131 recognizes the National Assembly (hereinafter referred to as the NA) as the highest organ of state power, and as the only institution with authority to enact the Constitution, codes and laws In addition to its legislative authority, the NA has decision-making authority in numerous crucial areas in relation to national socio-economic development including state budgets, financial and monetary policies, taxation and other significant domestic and foreign policies The NA also set out the regulations on the operation and activities of governmental institutions, the court and procuracy systems and exercises the supreme control over the conformity to the Constitution, the law and the resolutions issuing by the NA and all activities of the State’s actors (Article 70)2 When a document is passed by the NA and enters into force, then social practice is a standard measure to assess the quality of this law During the drafting process, although the lawmakers have expected cases which may occur in reality, the prediction cannot be 1 The Vietnamese National Assembly, The Vietnamese Constitution (2013).

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THE NATIONAL ASSEMBLY AND THE POST-LEGISLATIVE SCRUTINY ISSUE UNDER

completely accurate Furthermore, socio-economic life is always moving, thus, regulations is easy to be obsolete and outdated On that account, the monitoring of the implementation of laws plays an extremely important role Therefore, it can be said that monitoring legislations is a complicated process but monitoring the implementation of that law is more difficult because the social effect of the law is only determined when it has started the social life

Therefore, in this article, the authors will discuss issues relating to the post-legislative scrutiny of the NA under the Constitution 2013 and Vietnamese laws, as well as the difficulties and challenges that the NA is facing Thereby, the last part will focus on the recommended proposal to increase the capacity and the effectiveness of post-legislative monitoring activities in Vietnam

The methodology described in this article is the following: It will first introduce the overview of the post-legislative scrutiny, the important role of PLS process in ensuring the effectiveness of the NA’s activity and cases from foreign country Then, the article will take a quick look at the structure of the NA of Vietnam It will show that Vietnam has no specific body implementing post-legislative scrutiny Finally, the last part will present some of PLS’s proposals for Vietnam

II THE OVERVIEW OF THE POST- LEGISLATIVE SCRUTINY

The NA has a role in adopting legislation, it is also responsible for monitoring the implementation of legislation and evaluating whether the laws have achieved their intended outcomes The legislative process is an elabourate task The implementation is a complex task that does not happen by one or two bodies The NA plays an important role in monitoring the implementation of legislation The act of evaluating laws that the NA has passed is known as the post legislative scrutiny

The aim of having PLS includes main reasons:

- Firstly, to ensure the principles of legality and legal certainty are being met;

- Secondly, to apprehend the adverse effects of new legislation more timeously and readily; - Thirdly, to evaluate how effective the law is at regulating and responding to problems and phenomena;

- Fourthly, to improve legislative quality by learning from experience both in terms of what does and does not work, and in terms of relationship between the objectives and outcomes1.

1 The scope of the Post-Legislative Scrutiny

The post-legislative scrutiny (hereinafter referred to as PLS) reviews both the enactment of the law and its impacts on society Therefore, there are two aspects of PLS: (1) it looks at the enactment of law by answering whether the legal provisions have been entered into force, how legal practitioners and citizens have used the law; and (2) it reviews whether the intended policy objectives of the law have been met and how effectively it is

Because the evaluation of legislation is not only costly and time-consuming but also dependent upon the acquisition of information from outside government to make use of time and resources ef-1 Franklin De Vrieze and Victoria Hasson, Post-legislative scrutiny, comparative study of practices of post-legislative

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fectively, the NA needs a transparent process for identifying which legislation is selected for review.1 For example, consultation with key stakeholders is generally necessary if relevant data is to be ob-tained and accurate evaluation of effectiveness is to be made On that account, not all law has been evaluated, such as PLS may not be suitable for appropriate/consolidation legislation or legislation which makes minor technical changes only By contrast, if legislation relates to a state of emergency or has significant impacts to society, they should be subject to PLS

2 The role of PLS process to the effectiveness of the NA’s activity

Legislation monitoring mechanisms should be carried out by different actors such as policymakers, opinion leaders, even the media Among them, the National Assembly plays an important role in monitoring laws that it passes There are two functions of PLS to improve the effectiveness of the operation of the NA

(1) PLS is a measure for the NA to exercise the right to supervision

The NA has a responsibility to monitor how passed laws are implemented in reality through activities of the government Although the parliament takes responsibility in monitoring the implementation of legislation, the ex-post evaluation is also an essential tool for accountability and supervision over the executive sector On the one hand, PLS may be used as a necessary measure in political systems for the NA to hold their executive accountable On the other hand, new legislations and laws are probably improved through governmental activities When one document has been passed by the NA and enters into force, social practice is the standard measure to assess the quality of this law During the drafting process, although lawmakers have envisaged actual conditions to occur, their prediction cannot be completely accurate Furthermore, socio-economic life is likely to change, thus, regulations tend to become obsolete and outdated, requiring revision, amendment or even replacement On that account, monitoring the implementation of laws plays a crucial role In practice, where a law is issued, the government shall issue a set of legal documents, such as decrees, resolutions, circulars and others, with the aim of guiding the implementation of such law Therefore, in the process of implementing and applying laws, it is necessary to closely supervise them in order to promptly detect shortcomings and contradictions with the constitution Then, PLS is a powerful tool for the NA to carry out effective executive oversight By reviewing government actions or inaction, and by amending legislation of various kinds, the NA reports whether the laws are fit for purpose in social life In other words, PLS is part of the oversight role of the NA

(2) PLS is a measure for the NA to evaluate how laws have worked in practice.

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implementation and delivery of policy aims; and to identify and disseminate good practice so that lessons may be drawn from the successes and failures revealed by the scrutiny work1.

3 Case study from the United Kingdom in implementing PLS

PLS is not a new mechanism but is regulated in many legal systems to supervise the implementation of the law However, the method and extent of this process may vary from country to country Within the scope of this article, the authors provide case studies from the United Kingdom to propose a reasonable post-legislative scrutiny model for Vietnam

The United Kingdom can be considered to have comprehensive legislation of PLS In general, policy and legislations are under the supervision of main activities: evaluation, post-implementation review (PIR) and PLS Certainly, there are giant differences among three activities Evaluation is a general term referring to regulatory policy This activity can be carried out at any stage and in different ways with the aims to determine whether the policy is implemented effectively or what its economic impacts are In terms of the post-implementation review, it also monitors the impact of policy However, PIR is commonly conducted three or five years after policy implementation2 Lastly, PLS reviews how primary legislation is working in practice This process may examine the effectiveness of the legislation and revisit the extent to which the legislation and the supporting secondary legislation have been brought into force and consideration of the delegated legislation made under the Act

In the United Kingdom, there is freedom for all committees to conduct PLS activity This work combines internal departmental scrutiny with parliament scrutiny

The first one is known as the post-enactment review It is conducted by competent government

departments The department fleshes out a memorandum with information on the operation of different provisions of the act, provisions that have not been brought into force, etc For example, in January 2011, the government began the process of post-legislative assessment of the Freedom of Information Act 20003 This Act of the Parliament of the United Kingdom creates a public “right of access” to information held by public authorities It is the implementation of freedom of information legislation in the United Kingdom on a national level As part of that process, the Government submitted its assessment of how the Act has worked in practice to the Justice Select Committee in 2011 The Justice Select Committee launched a call for written evidence for its post-legislative scrutiny of the Freedom of Information Act4.

The second scrutiny is the parliamentary review In this way, the Government collects existing

data and the Parliament decide whether to conduct further PLS This model combines government scrutiny and parliament scrutiny In the United Kingdom, the relevant governmental department carries out an initial review (normally three or five years after Royal Assent) which is published as a Post-Legislative Scrutiny, ‘Post-legislative scrutiny’ (2006)

2 Peter J Larkham, ‘Conservation in action: evaluating policy and practice in the United Kingdom’ (1993) 64 Town Planning Review 351

3 The United Kingdom Justice Committee, ‘Post-legislative scrutiny of the Freedom of Information Act 2000’ (2012) London, TSO

4 The United Kingdom Ministry of Justice, Memorandum to the Justice Select Committee - Post-Legislative Assessment

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report and laid before the Parliament The relevant committee then reviews that report and collects other important data Therefore, interconnection with governmental databanks, incorporation of open data and the creation of an administrative apparatus for parliamentary support are prerequisites for an efficient implementation of PLS1 For example, the timeline for a written response from a government ministry on post-legislative scrutiny is between three and six months Then the parliament could review the follow-up to the recommendation of the body that conducted the parliament review six to twelve months after its completion

Another example is the memorandum from the Department of Health on the Mental Health Act 2008 Based on this memorandum, the Health Committee conducted PLS and published its report in 20132. III THE STATE ORGANIZATIONAL STRUCTURE AND THE NATIONAL ASSEMIBLY OF VIETNAM 1 The state organizational structure in Vietnam

Vietnam is under the leadership of the Communist Party of Viet Nam (CPV), otherwise referred to as “the Party”3 with democratic centralism principle, not based on the theory of the separation of powers The CPV Political Bureau monitors the execution of the resolutions of the National Congress and the Central Committee The Secretariat exercises leadership over the CPV’s daily affairs, monitors resolutions and centrally coordinates the Party’s activities The CPV acts as the leading force of the State and society4.Therefore, the CPV maintains close ties with the NA, The State President, the Government, and other sectors in the legal system

In Vietnam, the Government is not structured based on the model of the separation of powers5 The NA is constitutionally the highest state organization and the highest-level representative body in the country With the principles of universal, equal, ‘direct, and secret suffrage6, 487 elected members exercise the legislative power to draw up, adopt, and amend the constitution and to make and amend laws In addition, the NA has decision-making authority in a number of key areas of national socio-economic development, including state plans and budgets, financial and monetary policies, taxation and other significant domestic and foreign affairs policies7 Through its constitution-making powers, it defines its role and the roles of the State President, the Government, the local people’s councils (PCs) and people’s committees, the Supreme People’s Court (SPC)8, and the Supreme People’s Prosecutor (SPP)9 The NA can elect and remove government ministers, the chief justice of

1 Franklin De Vrieze and Victoria Hasson, Post-legislative scrutiny, comparative study of practices of post-legislative

scrutiny in selected parliaments and the rationale for its place in democracy assistance (London, 2017).

2 House of Commons Health Committee, ‘Post-legislative scrutiny of the mental health act 2007: first report of session 2013–14’ (2013) London: House of Commons ibid

3 The CPV is defined as “the leading force” of the country by the 2013 Constitution of Vietnam (Article 4).The Vietnamese National Assembly, The Vietnamese Constitution

4 Ibid, Article

5 Ibid, Article 3.2: “The State powers are unified and delegated to state bodies, which shall coordinate with and control

one another in the exercise of the legislative, executive and judiciary powers”.

6 Ibid, Article 7 Ibid, Art 69-71

8 The Supreme People Court of Vietnam, ‘Functions, duties and jurisdiction of People Court’ <https://www.toaan.gov vn/webcenter/portal/spc/about?dDocName=TOAAN011046> accessed Oct 2019

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the SPC, and the chief prosecutor of the SPP Finally, the NA has the power to initiate or conclude wars and to assume other duties and powers it deems necessary The NA also verses the activities of governmental institutions, the court and procuracy systems, and other state actors The term of each NA is five years, and meetings are convened twice a year, or more frequently if called for by the NA Standing Committee, which has been set up to serve as the legislature between the sessions of the NA, and it may issue ordinances as assigned by the NA1.

The Government of Vietnam is a unified administration responsible for the implementation of political, economic, cultural, social, national defense, security and external activities of the state2 It is also responsible for the effectiveness of the state apparatus itself from the top-down, stabilization in the country and the observance of the constitution The Government is accountable to the NA and reports to it periodically It is composed of the Prime Minister, vice prime ministers, ministers and other members Except for the Prime Minister, the members of the Government are not necessarily members of the NA

The People’s Courts, as stipulated under the 2013 Constitution of Vietnam, are established at district and provincial levels under the ultimate authority of the SPC, an agency officially regarded as equal to and independent from the Government3 Judges are appointed by a national judicial selection council for initial five-year terms with reappointments for 10 years4 The judiciary has six specialized subject matters of jurisdiction: the criminal, civil, administrative, economic, labour divisions and the newly created family and juvenile division The new 2013 Constitution underscores judicial independence, the adversarial principles of justice, and the role of the courts in guaranteeing human rights Nevertheless, these amendments require enabling legislation to be effective in practice

As for the People’s Procuracy, the 2013 Constitution of Vietnam5 gives the procuracy two main functions: to act as prosecutor in criminal trials, and to supervise justice activities, including investigation, detention, trials and enforcement of judgements The procuracy is charged with supervising the uniform implementation of the law of Vietnam Its key task is to ensure the objective and accurate prosecution of criminal cases and the supervision of the implementation of law enforcement agencies, including the courts, criminal investigation, enforcement of judgments and settlement of complaints and denunciations by citizens

2 Overview of the NA of Vietnam

On September 2, 1945, President Ho Chi Minh read the Independence Declaration on behalf of the provisional Government, and the Democratic Republic of Vietnam was born Then, on January 6, 1946, the First General Election was organized with the participation of all Vietnamese over the age of eighteen, irrespective of gender, wealth, nationality, religion and political opinions where their representatives were freely elected to the NA This NA voted and approved the first Constitution of

vksndtc.gov.vn/eng-290> accessed Oct 2019

1 The Vietnamese National Assembly, The Vietnamese Constitution., Art 73-74.

2 Vietnamese Government, ‘Political System’ <http://chinhphu.vn/portal/page/portal/English/TheSocialistRepubli-cOfVietnam/AboutVietnam/AboutVietnamDetail?categoryId=10000103&articleId=10001578> accessed Oct 2019 3 The Vietnamese National Assembly, The Vietnamese Constitution.,Art 102-106.

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the Vietnam on November 9, 19461 After many struggles defeating two wars of aggression by the colonialists and the imperialists, on April 30, 1975, the Vietnam War ended It was the start of the transition period toward reunification On July 1976, the NA of reunified Vietnam decided to change the country’s name to the Socialist Republic of Vietnam; the country entered a period of transition to socialism and strove for national construction2.

The people exercise the state power under the forms of direct democracy and indirect democracy through the NA, the People’s Councils and other state agencies.3 Since its creation, the NA of Vietnam has actively contributed to the development of this country in its capacity as the supreme organ of state power Particularly, the NA, together with the Government, establish the people’s democratic regime and initiated guidelines and policies to mobilize and organize the entire people to advance sustainable development

The NA of Vietnam includes some organs: The Standing Committee, the Ethnic Council and Committees of the NA as a map below:

(1) The Standing Committee

The standing committee is the permanent body of the NA, which is composed of the chairperson, who is the chairperson of the NA, vice-chairpersons, who are vice-chairpersons of the NA, and members Members of the Standing Committee must be NA deputies who work on a full-time basis and may not concurrently be members of the government4.

Duties and powers of the Standing Committee are regulated in Article 74 of the Constitution 2013 and the Law on Organization of the NA 2014 Particularly, they can be listed as follow:

- Interpreting the constitution, laws and ordinances;

- Supervising the implementation of the constitution, laws and resolutions of the NA, ordinances, resolutions of the Standing Committee;

- Suspending the implementation of documents of the government, the Prime Minister, the Supreme People’s Court, the Supreme People’s Procuracy or another agency established by the NA which contravenes the Constitution or a law or resolution of the NA, and submits to the NA for a decision to annul that document in its next session

- Supervising and abolishing the resolutions of the provincial-level People’s Council that contravene the constitutions, laws or documents of superior state agencies

(2) The Ethnic Council

The Ethnic Council is an agency of the NA which takes responsibility before and report on their work to the NA; when the NA is in recess, they shall report their work to the standing committee5 The ethnic council is composed of the chairperson, vice-chairpersons and members The chairperson of 1 The Vietnamese National Assembly, The Vietnamese Constitution (1946).

2 Nguyen Sinh Hung, ‘Vietnamese National Assembly - 70 years of constitutional history’ (Vietnam Law and

Legal Forum, 2016)

<http://vietnamlawmagazine.vn/vietnamese-national-assembly-70-years-of-constitutional-history-5319.html> accessed Oct 2019

3 The Vietnamese National Assembly, The Vietnamese Constitution., Art 6.

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the Council shall be elected by the council among its members The vice-chairpersons and members are approved by the Standing Committee To improve the performance of the Ethnic Council, the Law on Organization of the National Assembly stipulates that the Ethnic Council has a number of members working on a full-time basis

According to the Constitution 2013 and the Law on Organization of the NA 2014, the Ethnic Council advises the NA on ethnic issues, in particular:

- To verify and draft ordinances on policies on ethnicities

- To verify the assurance of policies on ethnicities in laws and draft ordinances before they are submitted to the NA or its Standing Committee

- The right to supervise the implementation of ethnic policies It means before issuing ethnic policy decisions, the Government must consult with the Ethnic Council1.

(3) Committees of the NA

The NA meets only twice a year, so it cannot discuss and decide efficiently issues without the support of specialized committees There are two types of committees of the NA: standing committees and ad-hoc committees The establishment and dissolution of the committees are decided by the NA

The duties of standing committees are to study and verify laws and ordinances, to submit to the NA and the NA Standing Committee for comments on law and ordinance formulation, to exercise the right to supervise in tasks and powers prescribed by law and to propose issues within the scope of operation of the committee

According to the Law on the Organization of the NA 2014, the NA has subject committees, they are:

(1) The Law Committee; (2) The Judicial Committee; (3) The Economic Committee;

(4) The Finance and Budget Committee;

(5) The National defense and Security Committee;

(6) The Committee for Culture, Education, Youth, Teenagers and Children; (7) The Social Affairs Committee;

(8) The Science, Technology, and Environment Committee (9) The External Affairs Committee2.

The ad-hoc committee is established by the NA when deeming it necessary to conduct research to verify bills, draft ordinances or other reports submitted by the Standing Committee, the Ethnic Council or other committees Furthermore, the ad-hoc committee may be established to investigate a specific matter It shall be terminated operation after fulfilling its tasks,3for example, the committee on amending the constitution; the committee for examining the NA deputy status, and so forth Ibid, Article 69

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Members of the NA and permanent parliamentary committees must be deputies to the NA and cannot concurrently be members of the government to ensure impartiality in monitoring the activities of Executive

The 2013 Constitution implied a strengthening of the role of the NA through providing for a more democratic representative composition, and more focus on the role of a law-making entity In recent years, the NA has become increasingly active and influential in setting national priorities Although most legislation still originates from the Government, such legislation is now more hotly debated in the NA and attract a larger audience Its members, most of whom are also members of the CPV, are increasingly open to criticizing the Government and exercising their oversight mandate over the executive branch The NA has a strong constitutional mandate in relation to national policy decisions and is showing increasing initiative in this area

In addition, there are still other challenges ahead to be overcome by the NA in the context of national development and international integration:

• Representation: lack of effective mechanisms and procedures for deputies to productively reach and interact with their constituencies to ensure their interest and voices are properly heard

• Oversight: Insufficient skills of deputies in understanding, analyzing, questioning and overseeing critically important issues proposed, presented and implemented by the government agencies and other state actors

• Law-making: Lack of tools and methodology to improve the assessment of the impact of proposed/enforced legislation and other parliamentary decisions, leading to a focus on routine and technical details in reviewing legal draft bills instead of paying attention to key policy issues Insufficient skills/attention to cross-cutting issues such as equality, distribution, disparity, HIV/AIDS and environmental concerns in reviewing draft bills

• Weak capacity of people’s councils: those local legislative bodies remain ineffective and inefficient in many ways, making it difficult for them to play a checks and balances role at sub-national levels People’s councils must ask more than a stamp on decisions already taken by People’s Committees

At the same time, the legal reform is underway in Vietnam with high priority given to the economic sector for accession to international commitment, increasing foreign investment and implementation of the free trade agreements (FTAs) This means nearly all the laws and regulations have to be revised, changed or new ones to be introduced In recent years, the NA has become more active, holding ministers more accountable and amending legislation1.

3 The role of the NA in supervising legislation

The NA plays an important role in promulgating important laws to contribute to the development of the economy, society, culture and education.

Many important laws have been issued to promote a process of intensive democratization of the social activities in Vietnam and firmly established the right of the people to be masters of the country Besides, policies on ethnic issues, national security, defense and foreign affairs have also been issued Nguyen Thi Hong Yen and Vu Ngoc Binh, ‚The Governance Framework, Legal Reform and Post-Legislative Scrutiny

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by the NA1 Legal reform has also been pursued with considerable energy and success in Vietnam in recent years, and the country has adopted numerous laws and policies to modernize its administrative and judicial systems These would, if properly implemented and enforced, significantly contribute to greater efficiency in governance and improved protection of individual and collective rights At the same time, the reform of the justice sector has been much slower, for reasons that relate to structure, organization, capacity, and other factors as well as problems within key justice sector institutions2.

In addition, Vietnam is a lower-middle-income country that has climbing from the ladder of the Millennium Development Goals (MDGs) to the Sustainable Development Goals (SDGs)3, and has made great strides towards industrialization and integration into a global economy The transition from central planning to a market economy started in 1986 with the reforms and is much advanced, but it is not yet complete To reach success, Vietnam has to tackle core challenges, including modernizing, strengthening, and developing public institutions, including the NA Some of the challenges to advance this objective consist of better access to adequate information; putting in place mandates and supporting them with processes, tools, and guidelines for more effective internal operations; leveraging external partnerships to contribute to inclusive policymaking; and, investing in capacity building and appropriately tailored technical solutions Furthermore, to ensure the attainment of success, the NA requires a constitutional blueprint with principles that lend themselves to institutional renovation in the legislative branch and facilitate rule of law, accountability, transparency, and oversight; leadership and political will; and well-targeted and timely international technical collabouration4

The NA also exercises the supreme supervisory power over the implementation of the constitution and laws

With the expansion of bureaucratic activities, the need for the NA to exercise its accountability or scrutiny roles efficiently and effectively is growing Furthermore, it is no longer possible for the NA itself to guarantee accountability across the entire range of these activities in the modern era The fact is that the modern state is so vast and complex, therefore, the NA alone cannot guarantee accountability across the entire range of government activity The NA’s role is in disentangling the key political issues from technical scrutiny, interpreting their significance and using this as the basis on which to challenge the Government The NA should be at the apex of the system of scrutiny

This organ controls the management of the state apparatus in all areas of social life The Constitution 2013 states that the NA has duties and powers to exercise supreme control over conformity to the Constitution, the law and the resolutions of the NA; to examine the reports of the State President, the Standing Committee of the NA, the Government, and others Therefore, when the laws submitted to the NA are undergoing in-depth discussion they are also subject to the monitoring and supervision mechanism by it

1 The Vietnamese National Assembly, Law on organization of the National Assembly., Art - 9.

2 The Vietnamese Ministry of Justice, ‘Institutional improvement and legal reform in Vietnam’ (Ministry of Justice, 2013) <https://moj.gov.vn/en/Pages/Talking-Laws.aspx?ItemID=23> accessed Oct 2019

3 World Bank, Vietnam 2035: Toward prosperity, creativity, equity, and democracy (World Bank Washington, DC 2016) creativity, equity, and democracy</style> (World Bank Washington, DC 2016

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According to the Law on the Oversight Activities of the NA and the People’s Councils,“The NA’s Standing Committee oversees activities of the Government, the Prime Minister, Ministers and other cabinet members, the Supreme People’s Court, the Supreme People’s Procuracy and the People’s Councils of the provinces or centrally-run cities in the implementation of the Constitution, laws and resolutions of the NA, ordinances and resolutions of the Standing Committee; and oversees legal normative documents of the Government, the Prime Minister, the SupremePeople’s Court, the Supreme People’s Procuracy, resolutions of the People’s Councils of provinces and centrally-run cities; and assists the National Assembly in exercising the oversight power under the assignment by the NA”1.

In 2018, the NA spent time to consider, discussed thoroughly and approved 16 laws, including numerous important bills such as the Anti-Corruption Law (amended), Law on Cyber Security, Law on Public Security (amended), Law on National Defense (amended), Law on amending and supplementing a number of articles of the Law on Higher Education and others

The NA holds a question and answer session with all the cabinet members to review and comment to the drafts This process partly represents the supreme supervision power of the NA to ensure the quality and feasibility of the law

IV A PROPOSAL FOR VIETNAM

1 The need for implementing PLS in Vietnam

The 1992 Constitution gave the NA increased independence, reinforcing its role as the supreme supervision authority for all the activities and operations of the State, with the right to monitor, examine and assess how agencies, organizations and individuals are implementing the law However, monitoring and supervision activities during the 1990s tended to be ad hoc, irregular and overly formal, with little real scrutiny of government activity or impact In recent years that the NA has institutionalized its right to question representatives of the Government Following the enactment of the Law on the Organization of the NA, and the Law on Monitoring Activities of the NA and PCs, the NA has proceeded with monitoring and supervision activities, commissioning reports and conducting questioning of officials

The NA’s monitoring and supervision work expanded with the 12th NA in 2006, which defined ten thematic areas for regular oversight, carried out more supervisory missions across the country, and launched televised question and answer sessions of top officials, including cabinet ministers and even the Prime Minister While the quality and consistency of oversight activities still varied significantly, at the end of its five-year term in 2011, the 12th NA could point to concrete examples of where its monitoring and supervision had led to action by government on issues as diverse as planning regulations, management of golf course licensing, coordination of rice exports, capital construction projects, planning and licensing of small and medium-sized hydropower plants, and regulation of gold and exchange markets2 The 12th NA also introduced a series of initiatives to make monitoring and supervision more systematic Issues were now categorized into groups for the Q&A sessions, 1 The Vietnamese National Assembly, Law on Oversight Activities of the National Assembly and People’s Councils

(2015), Art

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allowing deputies to pursue topics more coherently and in greater depth Monitoring and follow-up of the implementation of promises made in Q & A sessions were also improved1.

However, the lack of oversight on governmental activities leads to the need of a more effective scrutiny The Q&A component of the NA’s regular sessions continues to be an important means for the NA to demand answers from members of the Government on issues affecting the public interest, but there tends to be little follow up Committed individual deputies have achieved successes in specific interest areas, but the paths they chose and the techniques they employ often rely on individual initiatives, rather than from a clear understanding of their powers or available mechanisms and methods for more effective oversight With nearly three-quarters of the NA deputies replaced every five years, this may increase the risk that knowledge and experience that the previous NA’s tenure have gained will be lost Therefore, other model of monitoring must be developed further2.

The ability of the NA to perform the role of a check and balance on the executive and other state actors has also been strengthened It has been playing increasingly active roles in external oversight, despite being constrained by high turnover General elections will be held in 2021 to select deputies to the NA and the full-time membership is expected to increase The NA and PCs have been strengthened by an expanded legal framework and have taken on an enhanced role in law-making process and oversight Political developments about the role of the NA and decentralization present great opportunities for realizing and monitoring the rights of children, women, ethnic minorities, etc., but all this place heavy demands on institutions which require strengthened capacity to deliver Supporting the NA and its support structure by collabourating on interactive workshops and training is a key part of the development partners in Vietnam Greater openness and more opportunities for citizens to participate in governance are needed to support Vietnam’s long-term vision of becoming a modern industrialized society The increasing role of the NA in reviewing legislation and policies and a gradually more incisive media have contributed to greater transparency in the country, but there are limits to dissent The NA is recognized as having a key role to play in monitoring promotion and protection of human rights but could potentially play a stronger role in this regard, for example in relation to complaints and petitions

2 A proposal for a new body implementing PLS in Vietnam

Although PLS is part of the oversight role of parliament, it has not been given adequate attention in many countries Until now, in Vietnam, PLS process has not been examined in depth at an expert’s seminar level After determining the difficulties and challenges that the NA is facing, a recommended proposal to increase the effectiveness of post-legislative monitoring activities in Vietnam is a new committee

According to Article 119 of the Constitution 2013, Vietnam’s constitutional model is a decentralized model Therefore, all violations of the constitution will be handled The NA, its organs, the president, the government, the people’s courts, the people’s procuracies, other state organs and the entire people have the responsibility to protect the constitution This is a model that all state agencies 1 Vietnam News, ‘National Assembly greets new year’ (Vietnam News, 2008)

<https://vietnamnews.vn/politics-laws/173031/national-assembly-greets-new-year.html#lBZGHJrmfFc1Hqoy.97> accessed Oct 2019

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and the entire people have a responsibility to protect the constitution Because the constitution of Vietnam belongs to the people, by the people and for the people, the responsibility to protect the constitution lies with all the people

In Vietnam, the constitutional and legislative power of the NA comes from the position and nature of the highest state power body Therefore, only the NA has the power to define the highest legal normative laws, regulating the most basic social relations in the society The laws issued by other state agencies must not contravene the spirit and content of the constitution and laws Therefore, the proposed model for Vietnam is a standing committee on PLS In order to implement PLS effectively, the process needs to adhere to two basic requirements:

The first requirement is that PLS should be an inclusive process in which all groups may participate.

The information which is collected in the PLS process shall reflect the democratic level Therefore, PLS should be an inclusive process in which all groups are able to participate In preparing its review of laws, it depends upon the acquisition of information from outside the government PLS process should fully express opinions from a wide range of social classes, regions, ages, careers, including civil society organizations

PLS process must take place with a democratic, frank and responsible attitude from all classes and people across the country Therefore, in some countries, the NA will entrust to departmental selected committees to consider the operation of pieces of legislation; but in other countries, post legislative scrutiny committees are created independently In any case, the evaluations cannot be restricted to internal government data, and must be public

The second requirement is that PLS should take place appropriately after the law comes in force.

When one document has been passed by the NA and enters into force, social practice is the standard measure to assess the quality of this law During the drafting process, although legislators have envisaged actual conditions to occur, the prediction cannot be completely accurate After three years of implementation, regulations can be no longer suitable with reality, creating cost and time burden for businesses in compliance Furthermore, some content is no longer compatible with the new law

Besides, in order to institutionalize the Party’s guidelines and policies, ensure the uniformity of the legal system, and remove difficulties and obstacles in the process of law enforcement, PLS should take place after five years, according to the term of the Central Committee of the Communist Party of Vietnam

V CONCLUSION

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177

THE NATIONAL ASSEMBLY AND THE POST-LEGISLATIVE SCRUTINY ISSUE UNDER References

The Vietnamese National Assembly, Law on organization of People’s Courts (2014) The Vietnamese National Assembly, Law on organization of the National Assembly (2014)

The Vietnamese National Assembly, Law on Oversight Activities of the National Assembly and

People‘s Councils (2015)

The Vietnamese National Assembly, Resolution on the national assembly 2006 supervisory program (2005)

The Vietnamese National Assembly, The Vietnamese Constitution (2013) The Vietnamese National Assembly, The Vietnamese Constitution (1946)

World Bank, Vietnam 2035: Toward prosperity, creativity, equity, and democracy (World Bank Washington, DC 2016)

Nguyen Thi Hong Yen and Vu Ngoc Binh, “The Governance Framework, Legal Reform and Post-Legislative Scrutiny in Vietnam” (Academic Seminar on Post-Post-Legislative Scurity in Asia) House of Commons Health Committee, “Post-legislative scrutiny of the mental health act 2007: first

report of session 2013–14” (2013) London: House of Commons

The United Kingdom Justice Committee, “Post-legislative scrutiny of the Freedom of Information Act 2000” (2012) London, TSO

Vietnamese Government, “Political System” (<http://chinhphu.vn/portalpage/portal/English/The- SocialistRepublicOfVietnam/AboutVietnamAboutVietnamDetail?categoryId=10000103&arti-cleId=10001578> accessed Oct 2019

Franklin De Vrieze and Victoria Hasson, Post-legislative scrutiny, comparative study of practices

of post-legislative scrutiny in selected parliaments and the rationale for its place in democracy assistance (2017)

Nguyen Sinh Hung, “Vietnamese National Assembly - 70 years of constitutional history” (Vietnam

Law and Legal Forum, 2016)

<http://vietnamlawmagazine.vn/vietnamese-national-assembly-70-years-of-constitutional-history-5319.html> accessed Oct 2019

The United Kingdom Ministry of Justice, Memorandum to the Justice Select Committee -

Post-Legislative Assessment of the Freedom of Information Act 2000 (2011)

The Vietnamese Ministry of Justice, “Institutional improvement and legal reform in Vietnam” (Ministry of Justice, 2013) <https://moj.gov.vn/en/Pages/Talking-Laws.aspx?ItemID=23> accessed Oct 2019

Peter J Larkham, “Conservation in action: evaluating policy and practice in the United Kingdom” (1993) 64 Town Planning Review 351

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The Vietnamese Supreme People Procuracy, “Overview of the People’s Procuracy System of Vietnam” (<https://vksndtc.gov.vn/eng-290> accessed Oct 2019

Post-Legislative Scrutiny, “Post-legislative scrutiny” (2006)

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