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Final Pháp Luật Đại Cương thầy Trần Thanh Tâm
Typology: Schemes and Mind Maps
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To support the approval of the concentration of powers in the Vietnam legal system, the primary legal references used will be the Constitution of the Socialist Republic of Vietnam in 2013, enacted by the Thirteenth National Assembly of the National Republic of Vietnam. However, for comparison purposes, the Constitution of the Democratic Republic of Vietnam in 1946 and 1959 will also be mentioned and cited in the References part of the report.
Montesquieu was a renowned French philosopher and political theorist who lived during the Age of Enlightenment in the 18th^ century. His most famous publication, “The Spirit of the Laws”, provides a detailed analysis of the nature of contemporary political systems and their underlying principles. One of the key ideas that were first introduced in this work is the concept of the separation of powers, which has had an influential and long-lasting impact on today’s political theory and constitutional structure. The separation of powers theory states that the political authority of a state should be divided into legislative, executive, and judicial powers. He stated that, to most effectively promote political liberty, these three powers must be separated and operate independently: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” (Montesquieu, 1777). Each branch, namely legislative, executive, and judicial, has distinct powers and scope, with the power of one being constrained by the other two. This will curb tyranny and ensure that citizens’ well-being is preserved.
The concept of separation of powers emphasizes the termination of authoritarian monarchy and dictatorship and establishes the fundamental framework for democratic states. It is a direct critique of centralized authoritarian states and paves the way for democratic structures. Because of its practicality, the doctrine is applied in various countries’ political systems and has a profound impact on the structuring of people’s state power in the present day. Separation of powers is a complex, multi-dimensional doctrine that could be interpreted differently. For instance, while the United States, Great Britain, and Europian countries divide state powers into three branches: legislative, executive, and judicial, the
This chapter will discuss whether Vietnam has integrated any preexisting doctrine into its legal system. Overall, the organization and operation of the Vietnamese State apparatus do not follow the principles of separation of powers and this has been specifically stated in the 2013 Constitution under Article 2 as: “Article 2
1. The Socialist Republic of Vietnam State is a socialist rule of law State of the _people, by the people, and for the people.
“Article 1 Vietnam is a democratic republic. All state powers belong to the people, irrespective of race, sex, property, class and religion.” (the National Assembly of the Democratic Republic of Vietnam, 19 46 , art. 1) “Article 4. All power in the Democratic Republic of Vietnam belongs to the people. The people exercise power through the National Assembly and the people's councils, at all levels elected by the people and responsible to the people. Article 6. All organs of state must rely on the people, maintain close contact with them, heed their opinions, and accept their supervision. All personnel of organs of state must be loyal to the people's democratic system, observe the Constitution and the law, and wholeheartedly serve the people.” (the National Assembly of the Democratic Republic of Vietnam, 1959, arts. 4, 6) Additionally, although all state powers are given to the people, unification and non- division are guaranteed by the National Assembly. The National Assembly is the highest State body, specifically assigned to exercise legislative power. The National Assembly exercises constitutional and legislative powers, decides significant national affairs, and exercises supreme control over all activities of the State: “The National Assembly is the highest representative organ of the people and the highest organ of State power of the Socialist Republic of Vietnam […] activities of the State.” (The National Assembly of the Socialist Republic of Vietnam, 2013, art. 69).
Although there is no decentralization of powers, the provisions of the Constitution 2013 still express the idea of dividing State powers into different branches: legislative, executive, and judicial.
Article 94 The Government is the executive organ of the National Assembly, exercise the executive power, and is the highest organ of State administration of the Socialist Republic of Vietnam. The Government is accountable to the National Assembly and shall make its reports to the National Assembly, its Standing Committee, and the State President. “Article 95
_1. The Government shall be composed of the Prime Minister, the Deputy Prime Ministers, the Ministers, and heads of organs of ministerial rank. The structure and numbers of members of the Government are decided by the National Assembly. The Government shall operate as a collegium and take its decisions by a vote of the majority.
“Article 102
_1. The people’s courts are the judicial organ of of the Socialist Republic of Vietnam, exercising the judiciary power.
According to Article 3 of the Constitution, all legal powers are centralized and vested in the people of the Socialist Republic of Vietnam. Therefore, Montesquieu’s doctrine of separation of powers is not embodied in the Vietnamese governing system.
acknowledgment, respect, protection, and guarantee of these rights following the Constitution and other legal documents. “Article 14
_1. In the Socialist Republic of Vietnam, political, civic, economic, cultural, and social human rights and citizen’s rights are recognized, respected, protected, and guaranteed in concordance with the Constitution and the law.
The State Apparatus of the Socialist Republic of Vietnam is structured and functioning in accordance with the principle that all authority is centralized to its citizens; while there are divisions of power, coordination, and supervision between the state agencies in exercising legislative, executive, and judiciary powers. In such structure, checks and balances is a system in which one branch has the responsibility to “check” the works of the other two to create a “balance” of power between these branches, hence maintaining a strong political system. This will prevent one arm of government from gaining too much power which beyond its authority, since if one entity possesses such power, it will inevitably lead to the deterioration in morality and the collapse within that state.
In Article 70 of the Constitution 2013, regarding the rights and duties of the National Assembly, duties regarding the supervision and evaluations of other branches are written as: “Article 70.
_3. To exercise supreme control over conformity to the Constitution, the law and the resolutions of the National Assembly, to examine the reports of the State President, the Standing Committee of the National Assembly, the Government, the Supreme People's Court, the Supreme People's Procuracy, the National Commission of Election, the State Audit, and other organs created by the National Assembly;
Court, the Supreme People's Procuracy, the National Commission of Election, the State Audit, and other organs created by the National Assembly;
6. To regulate the organization and activity of the National Assembly, the State President, the Government, the People's Courts, the People's Procuracy, the National Council of Election., the State Audit, local governments, and other organs created by the National Assembly.” (The National Assembly of the Socialist Republic of Vietnam, 2013, arts. 69, 70.2, 70.6) Overall, the National Assembly possesses exclusive authority over the executive and judicial branches of the government; yet these branches are not given opposite control.
Through an in-depth exploration of the 2013 Constitution, it is apparent that Vietnam does not align with the principle of "separation of powers" introduced by Montesquieu. Instead, all the state powers belong to the people and the public, with the exercise of these powers being delegated to various governmental institutions at the state level. All these branches collaborate harmoniously with each other to ensure the future of a better society of the Socialist Republic of Vietnam. Additionally, constitutional restraints are crucial parts of the Constitution as they prevent the abuse of power from one branch of the government agencies. It is noticeable that these limitations are centralized in the hands of the citizens, with the National Assembly being the supreme representative of the people. Finally, concerning checks and balances, despite the presence of the system of “checks and balances in” the Vietnamese legal system, with the view to give people the right to observe, control, and examine the exercise of duties of all three branches of power.
Despite the strict mechanism of supervision and constraints in the Vietnam Constitution, there are still individuals and organizations that take advantage of the opaqueness in the Constitution for power abuse and acts beyond one’s authority. Therefore, to ensure that the state adheres to the orientation ruled out by the Documents of the 6th^ and 12th National Congress Party, there is a need for detailed, constantly updating guidelines and methods of sanctions along with improvements in the conscience and morality of lawmakers and politicians. Finally, the State should continue to construct a unified, citizen-driven legal system as well as take the rights, freedoms, and happiness of its citizens as the top priority, for the sustainable development of the Socialist Republic of Vietnam.
