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Draft Constitution pushes judicial reform

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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
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