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Section 2. Constitutional law
https://doi.org/10.29013/EJLPS-21-2-11-15
Dr. Vu Thi My Hang, National Academy of Public Administration, Vietnam E-mail: vmyhangnapa@gmail.com; nuingoc18@gmail.com
CONTRIBUTING TO LEARN MECHANISM OF COORDINATION BETWEEN LEGISLATIVE POWER, EXECUTIVE POWER AND JUDICIAL POWER IN STATE MANAGEMENT IN VIETNAM
Abstract. Completing the coordination institution to exercise state power is the top concern of each country in general as well as in Vietnam in particular. the constitution of the socialist republic of Vietnam has been changed 5 times, from the constitutions of 1946, 1959, 1980, 1992 amended and supplemented in 2001, 2013 clearly demonstrated that the relationship in horizontal decentralization has been increasingly improved and reached a consensus from a centralized mechanism to a decentralized mechanism, to coordination and then to decentralization, assignment, coordination and exercise control of power. the article studies some theoretical issues about legislative, executive and judicial power in state management in Vietnam as well as the coordination mechanism between these rights in the current state management.
Keyword: legislative power executive power, judicial power, mechanism of coordination, state management.
1. Introduction
Building a rational, effective and efficient state apparatus is the core content of creating a modern political and state institution. This is a matter of theory and practice about polity, forms of state organization in the constitutional history of countries in the world in general and of Vietnam in particular. With the preeminent nature of democracy and the socialist rule of law, state power is defined as the power authorized and delegated by the People. State power is concretized through provisions of the Constitution to delineate the duties and powers of legislative, executive and judicial. Therefore, in the process of deploying and realizing state power, there will inevitably arise the natural and legitimate requirement for division,
coordination and control between the legislative, executive and judicial bodies in accordance with each stage of development in the history of society.
In Article 2 of the Constitution of the Socialist Republic ofVietnam in 2013, the principle of assignment of state power has been specifically affirmed. It also stipulates and recognizes the subject of each branch of power as the core content of the basic law. With the main recognized function shown as state power, then the Constitution is the official document in the name of the People that expresses the functions of the State within a certain scope for the institutions and is expressed in many cases by specific regulations by empowering. Accordingly, with such regulations, according to the decentralized
model in a hard way or in a flexible and decentralized way, the Constitution forms a relationship for the purpose of interaction as well as a mechanism to control each other's powers, thereby clearly defining the relationship between the three main branches of legislative, executive and judicial powers. In order to assign power, it is necessary to determine the position, function, scope, limit of activities, how to coordinate and interact between agencies in the exercising of legislative, executive and judicial powers that characterize the basic function of the State. 2. Content of researching 2.1. Concepts of legislative, executive and judicial powers in state management in Vietnam
From the first Constitution (in 1946) to the Platform for national construction in the transitional period (added and developed in 2011) and the 2013 Constitution, it affirmed the principle of organizing state power. In Clause 2, Article 3 of the 2013 Constitution of the Socialist Republic of Vietnam, stipulates: "State power is unified, with assignment, coordination and control among state agencies in the exercise of legislative, executive and judicial powers" [5]. Accordingly, it is clear that the subjects exercising legislative, executive and judicial powers: The National Assembly exercises the legislative power (Article 69), The Government exercises the executive power (Article 94), the People's Court exercises the judicial power (Clause 1, Article 102), the People's Procuracy exercises the right to prosecute and supervise judicial activities (Clause 1, Article 107) [5]. In particular, the principle of "control" is added, "State power is unity, with assignment, coordination and control among state agencies in the exercise of legislative, executive and executive powers and judicial" [Article 2, Clause 3]. This new regulation concretizes a development step in theory and practice of building the rule of law in Vietnam. Accordingly, legislative, executive and judicial powers are defined with the following basic contents:
Firstly, legislative power is defined as the right to represent the People to express the general will
of the nation. Those who are given this right by the People are those who are elected by popular vote to form a body called the National Assembly. The basic attribute, throughout all activities of this right, is to represent the People, to ensure that the People's common will be expressed in laws that it is the only body authorized by the People to vote on laws. The right to vote on legislation is a legislative power, not a right to set out models of behavior for society.
Secondly, executive power is the right to organize the implementation of the general will of the country, which is assumed by the Government. The connotation throughout all activities of this right is to propose, plan and organize the drafting of national policies and after the national policy is approved, the person who organizes and manages the state is actually the organization that implements the law to ensure security, safety and social development. Exercising this right requires the Government and its members to be agile, decisive in a timely manner and with a unified centralized authority.
Thirdly, the judicial power is the right to adjudication, which is assigned by the People to the courts to exercise independently and only in accordance with the law. This is the most throughout and highest principle in the organization of the exercise of judicial power. This right clearly states: "It is strictly forbidden for agencies, organizations and individuals to interfere in the adjudication of judges and jurors" (Article 103, Clause 2) [5]. In fact, this content is aimed at protecting the common will of the nation by adjudicating violations of the Constitution and laws by citizens and state agencies.
The determination of legislative, executive and judicial powers in state management in Vietnam is an indispensable and objective matter, blending into the general flow of historical and social progress of countries around the world. Currently, the trend of clearly demarcating between the three legislative, executive and judicial powers is increasingly clear to ensure the promotion of the effectiveness and efficiency of the state's management activities over social life.
2.2. Some basic contents on the mechanism of coordination between legislative, executive and judicial powers in state management in Vietnam nowadays
The coordination mechanism between legislative, executive and judicial powers in state management in Vietnam is determined on the following specific contents:
Firstly, the coordination in the exercise of legislative power in state management
In the legislative process at the National Assembly, the Government plays the role of presenting, receiving feedback and discussing to complete the law project. The National Assembly has the right to propose and decide on amendments to the law project submitted by the Government, but the Government has the right to discuss the proposals and opinions of the National Assembly to convince the law project submitted by the Government. Even the Government may refuse to continue to submit the bill due to objections from the National Assembly. Although the Law on Promulgation ofLegal Documents does not provide for the Government's right to abandon the law project, but more clearly recognized the role of the Government in the process of receiving and revising the law project.
Secondly, about the coordination in the exercise of executive power in state management.
The assignment and coordination in the exercise of executive power is carried out in the course of performing the tasks and powers of the Government and for the purpose of fulfilling those tasks set forth by the Constitution for the Government, the subject of executive power. In particular:
For the organization of law enforcement: The Constitution stipulates the duties and powers of the Government "Organize the implementation of the Constitution, laws and resolutions of the National Assembly, laws and resolutions of the National Assembly Standing Committee, orders and decisions of the President" (Article 96, Clause 1) [5]. The Prime Minister has the following tasks: "Leading
the implementation of policies and organizing law enforcement" [Article 98, Clause 1]; Ministers and heads of ministerial-level agencies have the following tasks: "Organize the implementation and monitor the implementation of laws related to branches and domains nationwide" [Article 99, Clause 1]; Local authorities have the following tasks: "To organize the implementation of the Constitution and laws in the locality" (Article 112, Clause 1); The People's Committee has the following tasks: "Organize the implementation of the Constitution and laws in the locality" (Article 114, Clause 2) [5].
According to Article 96, Clause 2 of the 2013 Constitution, the Government has the task of "proposing and formulating policies to submit to the National Assembly and the National Assembly Standing Committee for decision or decide according to its competence to perform the tasks and powers specified in this Article; submit law projects, state budget projects and other projects to the National Assembly; submit the ordinance project to the National Assembly Standing Committee". For policymaker: Proposing a policy is a matter of high consensus when considering it as an authority associated with executive power.
For state management: The Constitution and Law on Government organization recognize the role ofthe Government in "unifying management" in all aspects of social life: economy, culture, society, education, health, science, technology, environment, information, communication, foreign affairs, national defense, national security, social order and safety. Simultaneously, the Law on Government Organization also recognizes the Government's authority to perform the unified state management of health, health care of the People and the population; on the implementation of social policies; on national defense; national, social order and safety; on foreign affairs and international integration; organization and operation of associations and nongovernmental organizations. The content of "unified" management was discussed in forums. This concept leads to an understanding ofone-point consistency, of
legal regulation, ofways and processes ofimplementa-tion. Practice shows that there are fields that are being managed by some actors in the political system. Therefore, it is necessary to clearly define the scope of the Government's management and at the same time, establish a corresponding coordination mechanism.
Thirdly, about coordination in the exercise of judicial rights in state management.
Judicial activity is the exercise of power - the right to judge and pronounce judgments on behalf of the state. therefore, judicial activities always require close coordination with legislative and executive powers to avoid abuse of power. Control of judicial activities, which is actually control of judicial activities, is carried out in the form of self-control and control from outside the system.
The 2013 Constitution affirms: The People's Court is the body exercising judicial power, and at the same time affirms that "The People's Court is the adjudicating organ of the Socialist Republic ofViet-nam..." (Article 102). Clause 1) [5]. This has created the basis for the establishment of a court-level court system, thereby enhancing the independence of the courts from local state agencies. Accordingly, legally, the Court has almost no dependence on the Government, so the Government's control over the Court is not high. However, to a certain extent, the Government can control the agency exercising judicial power by controlling the financial revenue and expenditure, the budget for judicial activities. Because the budget of the Court branch is only based on the state budget allocated by the National Assembly so There's no possibility that the Judiciary sector is underfunded due to unforeseen or poorly planned expenditures, therefore, the Court sector may have to request the Government to supplement the budget. The Government, therefore, has the right to request the judicial branch to give an overall explana-
tion of its organization and operation, considering it as a basis for providing additional funding, facilities and operating conditions for the Court.
Considering the coordination mechanism between judicial power and legislative and executive power in the opposite direction shows that the control of power from the Court to the executive branch in general is mainly identified through the adjudication of administrative cases; for complaints about administrative decisions or administrative acts ofstate administrative agencies. Accordingly, the operational status of the Administrative Court creates an effective control mechanism, improves the legality in the operation ofthe state apparatus, and ensures the legitimate rights and interests of citizens. During the judicial process, the Administrative Court may consider the legality of legal documents of state agencies, if this document is the cause of the protested illegal administrative decisions, it shall propose, amend, supplement or annul.
3. Conclusion
From the theoretical and practical aspects, it can be seen that state power in Vietnam is unified, with assignment, coordination and control among state agencies in the exercise of legislative, executive and judicial powers. In this system, the executive power is a constituent element, having a relatively independent position, a relative unity relationship, has an interaction with the legislative power, the judicial power, is the representative of state power in the executive field. The concretization of the coordination between agencies in the exercise of legislative, executive and judicial powers is of great significance to the process of building a State of law in Vietnam, in line with international trends. This sets an objective requirement for each component part to master the scope of responsibilities and powers in order to contribute to improving the effectiveness and efficiency of the State's management over all fields of social life.
References:
1. Communist Party of Vietnam, Document of the 13th National Congress of Deputies, National Political Publishing House, - Hanoi. 2021.
2. Tran Ngoc Duong. State apparatus of the Socialist Republic of Vietnam, National Political Publishing House,- Hanoi. 1999.
3. Tran Ngoc Duong. Some theoretical and practical issues on the formulation and promulgation of the Constitution, National Political Publishing House, - Hanoi. 2014.
4. Vu Thi My Hang. Performing the function of monitoring state power of the current National Assembly ofVietnam, Truth National Political Publishing House,- Hanoi. 2020.
5. National Assembly of the Socialist Republic of Vietnam. Constitution 2013. Truth National Political Publishing House,- Hanoi. 2013.
