Eople’s participation right in legislative activities in Viet Nam - Current situation and solutions

36 Tạp chí Khoa học Viện Đại học Mở Hà Nội 51 (01/2019) 36-43 PEOPLE’S PARTICIPATION RIGHT IN LEGISLATIVE ACTIVITIES IN VIETNAM - CURRENT SITUATION AND SOLUTIONS Mai Thi Thanh Tam*†††††††††††††††††††††† Date received the article: 6/7/2018 Date received the review results: 4/1/2019 Date published the article: 29/1/2019 Abstract: Exercising people’s participation in legislative activities plays an important role in ensuring democracy in a socialist state based on the rule of law. This not only demonstrates the public participation in state management, but also contributes to improving the effectiveness of legislative activities. However, despite the great efforts of the State to promote the people’s right to participate in legislative activities, the current situation in Vietnam has shown that people’s participation in legislative activities has not met the requirements of the practice. Therefore, it is imperative to take measures to ensure people's participation in legislative activities. Keywords: people, participation right, legislative activities 1. The role of ensuring people's participation right in legislative activities in Vietnam People’s participation right in State management is an important criterion to assess the democratic level of a society. In the State apparatus, the National Assembly is defined as the "highest representative body of the People, the highest state authority of the Socialist Republic of Vietnam”1, the only organ with constitutional and legislative powers in Vietnam; hence, people’s participation * Ho Chi Minh National Academy of Politics 1 Article 69, the Constitution of the Socialist Republic of Vietnam 2013 in legislative activities is a necessary and crucial requirement. First of all, ensuring people's right to participate in legislative activities comes from the need to ensure democracy in building the Socialist State of Vietnam with the rule of law. In the process of national renovation and development so far, the issue of building and strengthening “the socialist rule-of-law state of the people, from the people and for the people” has always been concerned and focused by the Party. Since the 7th Party Congress, Nghiên cứu trao đổi ● Research-Exchange of opinion 37 through every congress, the Party's theoretical thinking about “the socialist rule-of-law state of the people, from the people, for the people” has gradually been developed. In the Party’s Strategy for national development during the transition period to socialism (revised and developed in 2011), the Party reaffirmed that “Our State is a socialist rule-of-law State of the people, from the people and for the people. All State power belongs to the people and is based on an alliance between the working class, the peasantry and the intelligentsia, led by the Communist Party of Vietnam”; “The State serves the people, works closely to the people, fully exercises the people's democratic rights, respects and listens to the people's opinions and operates under the supervision of the people” 2. This view has been institutionalized in the 2013 Constitution. The 2013 Constitution states that “The Socialist Republic of Vietnam is a socialist rule-of-law State of the People, from the People and for the People. The Socialist Republic of Vietnam is characterized by the people’s mastery, all State power belongs to the people and is based on an alliance between the working class, the peasantry and the intelligentsia”. The democratic characteristic of the Vietnamese socialist rule of law is not 2 The Communist Party of Vietnam (2011), Documents of the 11th National Congress of the Party, National Political Publishing House, Hanoi, p.85 3 V. I. Lenin, Corpus, Episode 34, Su that Publishing House, Hanoi, p.412. only reflected in the responsibility of the State to serve people but also reflected in the mobilization of the people to participate in State activities including legislative activities (one of the main areas of State operation). Ensuring people’s participation in legislative activities will contribute to promoting democracy as well as the political activeness of the people, thereby exercising people’s participation right stipulated by the Constitution. Secondly, ensuring people's participation in legislative activities contributes to concretizing the principle of people's participation in state and social affairs management. V. I. Lenin considered attracting people to participate in State management as "a wonderful method to increase the State apparatus tenfold"3* President Ho Chi Minh also highly appreciated the role of people in state management. He emphaised that “Doing anything needs people. Without the people, work can't be done”4. According to the President Ho Chi Minh, the State must rely on people's forces, ensure the motto "to bring all issues to the people to discuss and find solutions"5.† Absorbing the views of Marxist classic scholars on people's right to participate in state management, 4 Ho Chi Minh, Discussing about the State and laws, National Political Publishing House, Hanoi, 2001, p.481. 5 Ho Chi Minh, Discussing about the State and laws, National Political Publishing House, Hanoi, 2001, p.464. 38 Nghiên cứu trao đổi ● Research-Exchange of opinion Vietnam's constitution and laws have acknowledged people's participation right in state management. On the basis of promoting people’s participation right in state and social affairs management recognized in the previous Constitutions, the 2013 Constitution provides that “Citizens have the right to participate in state and social affairs management, participate in discussion and petitioning State agencies about the issues of the grassroots, local or national level. The State facilitates citizen participation in state and social affairs management; ensures publicity and transparency in receiving and responding to the opinions of citizens” (Article 28) People's participation right in state management is expressed in all three main aspects of the State's operation, namely legislative, executive and judicial activities. Since the nature of legislative activity is to bring the will of the people into law, thereby exercising the people’s mastery; ensuring people's right to participate in legislative activities is a prerequisite for the laws to fully and correctly reflect the will and aspirations of the people. Gathering the opinions of experts, scientists and the people becomes an indispensable step in the process of law making. Thirdly, ensuring people's participation right in legislative activities contributes to improving the effectiveness of legislative activities. People's right to participate in legislative activities not only contributes to the realization of the people's mastery but also helps to improve the effectiveness of legislative activities. People participation in legislative activities supports the investigation, assessment and identification of social issues need to be adjusted; and at the same time, creates the channels for verifying information and critical analysis of policy. Policies or laws that involve people’s participation, especially people directly affected by the laws or policies will become more practical, thus ensuring the efficiency and effectiveness of the policy and legal documents. The participation of the people in the legislative process is also an opportunity to popularize and disseminate policy and legal information, thereby raising people's awareness of law (including understanding laws, respecting and complying with laws). Moreover, people's participation in the legislative process helps to create a balance of benefits, harmonize conflicts and build a high level of social consensus. This is an important factor for the laws to be translated from the documents into the praxis. In addition, citizen participation in the legislative process makes the legislature more cautious during the legislative process. This is clearly an objective and effective oversight of the legislative process and relevant parties in this process, which is also an inexorable Nghiên cứu trao đổi ● Research-Exchange of opinion 39 trend of a modern democratic society regardless of any political institution6. * 2. Current situation of ensuring people's participation in legislative activities in Vietnam Citizens can participate in legislative activities through several forms such as: commenting on draft legal documents; participating in voting when the State holds a referendum on the Constitution or laws and presenting citizens' initiatives or agendas. Vietnamese legal framework only recognizes citizens’ right to participate in legislative activities through contributing opinions in the legislative process (Law on the promulgation of legal normative documents 2015) and voting when the State organizes referendums on the Constitution or laws (Law on Referendum 2015). Firstly, regarding collecting people's opinions in the legislative process, the 2013 Constitution and the Law on Promulgation of Legal Normative Documents 2015 stipulates that citizens have the right to contribute ideas in many stages of the legislative process, from the stage of planning, drafting; commenting on draft laws and ordinances to the stage of appraisal and verification of draft laws and ordinances. It can be said that the current regulations have created an important legal basis for people to exercise their 6 Vietnam Institute for Legislative Studies (2018), The citizen participation’s right in the state and social affairs management according to the Constitution - Current situation and recommendations. right to contribute ideas in the legislative process. In fact, collecting people's opinions in legislative activities have become regular activities of functional state agencies. However, the activity of gathering people's opinions in the legislative process still has many limitations. For instance, the subjects who are consulted on the draft laws are quite limited; there is no appropriate mechanism for the subjects directly affected by the law to actively participate in the legislative process. Gathering public opinions as well as the value of public consultation’s result has not been clearly regulated; the legislative process has not yet engaged a contingent of experts with high professional qualifications and legal knowledge to participate in legislative activities. Moreover, there were often cases where the time period for gathering opinions was too short and urgent, which limited the widely public participation. Also, there is no mechanism relating to the responsibilities of state agencies in collecting opinions and responding to people's opinions. Secondly, as for exercising the citizen right to participate in voting in the case of referendum, referendum is a form of direct democracy which clearly reflect the principle “State power belongs to the people”. Through voting activities, citizens express their will and opinions 40 Nghiên cứu trao đổi ● Research-Exchange of opinion about issues raised in the referendums, including constitutional and legislative issues. The 2013 Constitution of Vietnam states that "Citizens who are over eighteen years olds have the right to vote when the State organizes a referendum" (Article 29). This provision is concretized in the 2015 Law on Referendum, including principles of referendum; referendum issues; the subjects who are eligible for referendum voting; the scope of referendum organization; the subjects who have the right to request for referendums; cases where a referendum is not organized; the result of referendums; the efficiency of referendum; tasks and authority of relevant agencies in the referendums; and procedures for organizing referendums. The Law of Referendum has established the legal basis for people to participate more actively in deciding issues of national importance, including legislative activities. However, in fact, no public referendum has been held yet. Moreover, some regulations on referendum in the Referendum Law have constrained the ability to realize this right in practice. Article 14 of the Law on Referendum stipulates that “The Standing Committee of the National Assembly, the President of the State, the Government or at least one-third of the total number of National Assembly 7 Phan Trung Ly & Dang Xuan Phuong, Developing and strengthening mechanisms for the citizenz to exercise state power by direct democracy - Theoretical members has the right to request the National Assembly to consider and decide a referendum”. According to these regulations, apart from the above four entities, no other subjects (including the people) have the right to request the National Assembly to consider and decide a referendum. In addition, stipulating that the National Assembly has the right to decide on referendums (optional referendum) without prescribing mandatory issues need to undergo referendum and the requirement to organize referendums on national wide scale also limit the realization of the Law. 3. Some solutions to ensure people's rights to participate in legislative activities in Vietnam today Firstly, strengthening legal frameworks for people's participation rights in legislative activities in Vietnam. Strengthening regulations on gathering people's opinions in the legislative process: In order to strengthen regulations on gathering public opinion in the legislative process, it is necessary to clarify regulations on the mechanisms to engage experts, scientists and practical activists with relevant expertise; clearly specify that legal documents subjected to get public opinions should have a wide- ranging effects and cover many areas or emerge as outstanding issues need to be reviewed and adjusted7*; build accountability mechanisms of state and practical basis, National Political Publishing House, Hanoi, p.369. Nghiên cứu trao đổi ● Research-Exchange of opinion 41 agencies in gathering, analyzing, absorbing and responding to people's opinions; specify the time period of gathering public opinions which is compatible with the complexity of each bill. Strengthening regulations on referendums: The Law of Referendum 2015 has formed a legal basis for holding referendums in practice. The point is how to organize and prepare the necessary conditions in order to implement the these regulations. Besides, in the long term, in case of amending the 2013 Constitution or the Law of Referendum, some regulations on referendums should be revised. For example, it is necessary to legalize citizens' right to request for a referendum in order to further promote the people's mastery. In this case, it is necessary to specify a minimum number of people required to make request for a referendum. Apart from optional referendums stipulated in the current Constitution (referendums decided by the National Assembly), it is essential to supplement the form of mandatory referendum (the Constitution should provide the issues that must undergo a mandatory referendum). In addition, local referendums should be considered since there are issues of national importance under the jurisdiction of the National Assembly but only have direct effects within a locality or region, such as 8*Phan Trung Ly & Dang Xuan Phuong, Developing and strengthening mechanisms for the citizenz to exercise state power by direct democracy - Theoretical building a power plant, implementing a socio-economic project related to one or several provinces or cities, or problems that only local people can understand clearly. Adding the provisions on the agenda initiatives: The agenda initiative is a form of direct democracy in which citizens can propose issues that need to be included in the policy agenda or legislative program8.*Adding the provisions on agenda initiatives plays an important part in ensuring the direct participation of the people in legislative activities right from the first stage. The contents concerning agenda initiatives include the required number of signatures, the time allowed to collect signatures, and procedures for implementing agenda initiatives. Secondly, raising people's awareness of the right to participate in legislative activities in Vietnam. Acknowledging the right is the first and indispensable condition to ensure the effective implementation of public participation in legislative activities. Therefore, first and foremost, it is necessary to raise people's awareness of the right to participate in legislative activity as a right holder. The State should equip people with legal knowledge and skills so that they can exercise their right to participate in legislative activities by themselves. In and practical basis, National Political Publishing House, Hanoi, p.30. 42 Nghiên cứu trao đổi ● Research-Exchange of opinion addition, citizens need to be educated so as to fully aware of their rights and their position in relations with the State. Concurrently, citizens need to be encouraged to actively participate in legislative activities, thereby strengthening their ability to practice democratic rights. Thirdly, enhancing the responsibility of the State in ensuring people's right to participate in legislative activities. In a rule-of-law state, people's participation right in policy making and legislative process must be ensured by the duty and responsibility of the State in providing information, building legal mechanisms not only for listening and identifying people’s needs, but also attracting the effective participation of citizens in the process of making laws, in order to enable laws and policies to be tailored to people’s preference*. Therefore, it is necessary to enhance the responsibility of the State in ensuring people's right to participate in legislative activities. It is necessary to clearly define the responsibilities of the State in gathering public opinions, synthesizing, evaluating, absorbing, responding to public opinions. To do so, the State agencies must see the process of gathering people's opinions as a two-way process, in which the State is responsible for clarifying the issues that the State * Duong Thi Thanh Mai (2006), The participation of experts and scientists in the legislative process, Journal on Legislative Studies, (8). absorbs the people’s opinions; and at the same time, clarifying the issues which are not absorbed and explaining the reasons so that the people are able to understand and be aware of the value of their comments./. References: 1. Duong Thi Thanh Mai (2006)*, Participation of experts and scientists in the process of law-making, Journal of Legislative Studies, (8). 2. Communist Party of Vietnam (2011), Documents of the 11th National Party Congress, National Political Publishing House, Hanoi. 3. Prof. Dr. Phan Trung Ly, Dr. Dang Xuan Phuong (co-editor), Developing and perfecting the mechanism of people to implement state power by direct democracy - Theoretical and practical basis, The Truth National Political Publishing House, Hanoi. 4. National Assembly (2013), Constitution of the Socialist Republic of Vietnam. 5. National Assembly (2015), Law on Promulgation of Legal Documents. 6. National Assembly (2015), Referendum Law. 7. Nguyen Thi Thu Tra (2006), Attracting the participation of the people in legislative activities of the National Assembly of Vietnam, Master's thesis in law, Law Faculty - National University, Hanoi. 8. Institute of Legislative Studies (2018), Right to participate in the management of Nghiên cứu trao đổi ● Research-Exchange of opinion 43 the state and society of citizens according to the Constitution - Current status and recommendations, Scientific research at grassroots level, Hanoi Author Address: Ho Chi Minh National Academy of Politics Email: tammai213@gmail.com