Sat. Feb 24th, 2024

The draft amendments to the 1992 Constitution are in the process of
public debate. Compared to the 1992 Constitution which has 147 articles
in 12 chapters, the draft revised Constitution consists of 11 chapters
with 124 articles, in which 14 articles remain unchanged, 99 others
have been revised and 11 new ones have been added.

The Vietnam Law and Legal Forum (VLLF) magazine published by the
Vietnam News Agency highlights new provisions of the draft in its issue
No. 221-222_ January February 2013.

Perpetuating the nature and overall model of the law-ruled socialist
state provided in the 1992 Constitution, the draft Constitution makes
clearer the principle of assignment, coordination and control among
state agencies and their functions in the exercise of the legislative,
executive and judicial powers. It also adds three independent
institutions being the Constitutional Council, the National Election
Council and the State Audit.

The National Assembly

Draft amendments to Article 83 of the 1992 Constitution reaffirm the
National Assembly as the highest representative organ of the people and
the highest state power body of the Socialist Republic of Vietnam. The
National Assembly has the power to make the constitution and laws,
decide on important national issues and oversee the State’s activities.

In the context of development of the
socialist-oriented market economy, the National Assembly has the power
to decide on objectives, targets, policies and basic tasks of national
socio-economic development. This provision aims to more clearly define
the role and responsibility of the National Assembly and relationship
between the Assembly and the Government.

The draft
provisions add a new power of the National Assembly to approve the
appointment, relief from office or dismissal of judges of the Supreme
People’s Court to meet the requirements of renewal of the model of
people’s courts, thus defining more clearly the role of the National
Assembly in relation to the judicial body and enhancing the status of
judges in line with the judicial reform.

Another new
power of the National Assembly is to supervise, prescribe the
organisation and operation and decide on personnel of the Constitutional
Council, the National Election Council, the State Audit and other
bodies established by the National Assembly.

The
draft Constitution specifies international agreements which the National
Assembly can ratify or cancel, including those on war and peace,
national sovereignty, fundamental civic rights and obligations and
membership of Vietnam in international and regional organisations
and international trade.

The competence of the
National Assembly to form a provisional committee to research and verify
a project or probe into a certain issue currently prescribed in the Law
on Oversight Activities of the National Assembly and the Law on
Organisation of the National Assembly is now enshrined in the draft
Constitution.

The draft Constitution defines more
clearly the competence of the Standing Committee of the National
Assembly and its powers to lead the work of the Ethnicities Council and
Committees of the Assembly, and to decide on the adjustment of
boundaries of administrative units within provinces and centrally run
cities.

It further says that the National Assembly
would elect the heads of the Ethnicities Council and Committees, while
deputy heads and members of these bodies would be ratified by the
Standing Committee. It also defines more clearly the power of these
bodies to request provision of information and adds their power to
request explanation.

For National Assembly
deputies, the draft Constitution grants them a new right to participate
as members in the Ethnicities Council or Committees in Article 87. This
provision, together with other provisions on the rights and
responsibilities of deputies, aims to ensure that deputies can bring
into play their strengths, qualifications and work experiences to
fulfill their duties.

The President

While retaining the provisions on the position and role of the
President as head of the State, the draft Constitution defines more
clearly the tasks and powers of the President in relation to the
legislative, executive and judicial bodies.

In
relation to the National Assembly, the draft Constitution continues
stipulating that the President has the power to promulgate the
Constitution, laws and ordinances and to propose the National Assembly
Standing Committee to re-consider its ordinances.

In
relation to the Government, the draft Constitution retains the
provision on the President’s power to propose the National Assembly to
elect, relieve from office or dismiss the Prime Minister and, on the
basis of resolutions of the National Assembly, to appoint, relieve from
office or dismiss Deputy Prime Ministers and other members of the
Government. It further clarifies the President’s competence to attend
cabinet meetings and request cabinet discussions on issues falling under
his tasks and powers when necessary.

In relation to
people’s courts and procuracies, the draft Constitution keeps the
provision on the President’s power to propose the National Assembly to
elect, relieve from office or dismiss the President of the Supreme
People’s Court or the Chairman of the Supreme People’s Procuracy. It
makes clearer provisions on the President’s competence to elect, relieve
from office and dismiss judges of the Supreme People’s Court on the
basis of ratification resolutions of the National Assembly, and adds the
task and power to appoint, relieve from office or dismiss judges of
other courts in line with the judicial reform.

At
the same time, the draft provides more clearly the tasks and powers of
the President in commanding the armed forces, acting as Chairman of the
Defense and Security Council and deciding to confer general ranks in the
armed forces.

The Government

The draft Constitution continues affirming that the Government is the
highest administrative state agency of the Socialist Republic of Vietnam
and the executive body of the National Assembly. And it goes further in
saying the Government is the body exercising the executive power in
conformity with the viewpoint and principle on organisation of the state
power.

The tasks and powers of the Government are
rearranged and restructured to suit its position as the highest
administrative agency. As per the draft Constitution, the Government is
responsible for organising the implementation of the Constitution, laws,
ordinances and resolutions of the National Assembly and its Standing
Committee, and orders and decisions of the President; and submitting
draft laws and ordinances to the National Assembly and its Standing
Committee.

The Government is responsible for
uniformly managing the state administration, building, and organising
the implementation of, the official-duty regime; performing the state
management of cadres, civil servants and public employees; and
implements the assignment and decentralization in the state
administrative system. It is in charge of leading operations of
ministries, ministerial-level agencies, government-attached agencies and
People’s Committees at all levels; and organising and leading
activities of inspection, examination and settlement of complaints and
denunciations.

The Prime Minister

The draft Constitution has also rearranged and restructured the tasks
and powers of the Prime Minister to correspond to those of the
Government, defining more clearly the competence of the Prime Minister
in directing and administering activities of the Government; leading the
state administrative system from central to local level to ensure the
uniformity and smoothness of the national administration. It adds a new
power for the Prime Minister to direct the negotiation and signing of
international agreements on behalf of the State as authorised by the
President, the negotiation and conclusion of and accession to
international agreements on behalf of the Government, and the
implementation of international agreements to which the Socialist
Republic of Vietnam is a contracting party.

Regarding ministers and other government members, the draft Constitution
stipulates that government members take personal responsibility before
the Government and the National Assembly for sectors under their
assigned charge and take joint responsibility for activities of the
Government.

It adds that ministers and heads of
ministerial-level agencies must report their work to the Government and
report according to regulations to the people on important issues under
their management.

People’s courts and procuracies

Basically perpetuating the provisions of the 1992 Constitution, the
draft Constitution reaffirms that people’s courts are adjudicative
bodies exercising the judicial power and people’s procuracies exercise
the prosecuting power and supervise judicial activities.

In addition to the tasks of protecting the interests of the State,
rights and legitimates interests of organisations and individuals, the
courts and procuracies must protect justice as well as human and civic
rights.

In line with the judicial reform on the
establishment of courts not based on administrative units, the draft
Constitution provides that people’s courts include the Supreme People’s
Court and other courts as prescribed by law. The National Assembly may
establish a special court in special cases.

Similarly, according to the draft amendments, people’s procuracies
include the Supreme People’s Procuracy and other procuracies as
prescribed by law.

The President of the Supreme
People’s Court and the Chairman of the Supreme People’s Procuracy are
elected by the National Assembly. Their term of offices is the same as
that of the National Assembly.

To meet the
requirements of judicial reform, on the basis of combination with the
existing inquisitorial model, the draft Constitution revises and
emphasises a number of principles in the organisation and operation of
people’s courts. It upholds the principle of argument (after the
adversary model) at court hearings and adds the principle of two-tier
trial.

The draft Constitution adds a new principle
that procurators must abide by the law and obey the direction of the
chairman of the people’s procuracy when exercising the prosecuting power
and supervising judicial activities.

The draft
Constitution no longer mentions the establishment of appropriate
people’s organisations at grassroots level to deal with violations and
minor conflicts and the Procuracy Committee as prescribed in the 1992
Constitution, leaving these issues to be dealt with in relevant laws.

Local administrations

Regarding
territory-based administrative units, like the 1992 Constitution,
Article 115 of the draft Constitution says that the country is divided
into provinces and centrally run cities; a province is divided into
districts, provincial cities and towns; a centrally run city into
districts and towns; a rural district into communes and townships; a
provincial city or town into wards and communes, and an urban district
into wards.

To create a constitutional basis for
renewing the organisation of local administrations, the draft
Constitution does not specify the organisation, tasks and powers of each
level of local administration. It reads that the establishment of
People’s Councils and People’s Committees in territory-based
administrative units is prescribed by law based on the characteristics
of each unit and management decentralisation.

New independent bodies

The draft Constitution has three new articles on three independent
bodies, including the Constitutional Council, the National Election
Council and the State Audit, which are all established by the National
Assembly.

The Constitutional Council will rule on
constitutional violations in legislative, executive and judicial
activities. It has the power to consider the constitutionality of
domestic legal documents, as well as international agreements concluded
in the name of the Vietnamese State before submission to the
National Assembly or President for ratification.

The National Election Council will organize National Assembly elections
and direct and organise election of Peoples’ Council deputies at all
levels.

The State Audit will audit the management and use of financial resources and national assets.

The organisations, tasks, powers and composition of the Constitutional
Council, the National Election Council and the State Audit will be
prescribed by law.

In its final article, the draft
Constitution says that it will be passed when it is voted for by at
least two-thirds of total number of National Assembly deputies and a
referendum on the Constitution will be decided by the National Assembly.-VNA

By vivian