Suggestions on supervision mechanism of the executive under judicial power

Tạp chí Khoa học Viện Đại học Mở Hà Nội 52 (02/2019) 1-5 1 SUGGESTIONS ON SUPERVISION MECHANISM OF THE EXECUTIVE UNDER JUDICIAL POWER Pham Hong Phong*1 Date received the article: 6/8/2018 Date received the review results: 4/2/2019 Date published the article: 25/2/2019 Abstract: The Executive and the Judicial are two fundamental branches of state power structure. In Viet Nam, the Government administers executive branch in order to manage the society by law. Currently, Vietnam only have regulations on the implementation of the National Assembly’s supervision towards Government as the highest institution with supreme supervision of the State machinery, which leads to several limitations. Therefore, the supervision of executive branch needs a more effective mechanism, including the judicial supervision. Keywords: executive, judicial, executive supervision mechanism. The Executive and the Judicial are two fundamental branches of state power structure. Administrative agencies undertake executive power to manage the society by law. The Government is the leading institution in the executive system with executive power and also the highest administrative agency. Executive power includes two major components which are regulatory power and administrative power. In order to exercise regulatory power, the Government enacts by-law documents to concretize laws given by legislature and materialize these laws in practice. By exercising administrative power, the Government ensures the unified state management of all socio-economic sectors. * Deputy Chief Justice - The People’s Court of Ho Chi Minh City The Executive has a highly important position in the society in general and in state power structure in particular. It can be said that the executive is the face of the regime, the measure reflecting state-citizen relationship and the national image in international relations. The reason for such a high-valued position is that the executive has exclusively significant missions, functions and tasks that no other institutions may have. The Executive ensures the unified implementation of policies and laws on a national scale. Every policy and law enacted by the legislature must go through the executive to be realized in practice. Besides, by exercising regulatory power, the executive may have influence on 2 Nghiên cứu trao đổi ● Research-Exchange of opinion motivating or undermining the efficiency of an act from legislature. In fact, without effective performance from the executive, even the best policies or laws will hardly bring positive impacts to the society. Furthermore, the practices of state management have shown that the executive is able to build and submit draft laws. In the state apparatus, executive branch uses state power to directly administer all socio-economic sectors by law on a regular basis. It shows the outstanding advantage of executive branch in comparison with other state agencies including the legislative which indirectly affects individuals and organizations in society; and the judicial which is the mechanism for the resolution of disputes. While performing state management functions, executive authority set up administrative relationships with individuals and organizations under its management in society. This is characterised by a command - obedience relationship in which administrative agency performs state management functions by administrative orders and other entities under its management are required to obey even though these orders might be illegal sometimes. In particular, no other agency except for the executive can use coercive state power. Also, the executive holds all the strongest national coercive forces, which brings the huge advantage for the executive not only in implementing their power to citizens but also in the relationship with other State agencies. Additionally, the executive holds in hand all social resources and has powers to mobilize those resources in performing executive power. With all of these advantages above, the executive tends to "expand" its power compared to other branches in the State apparatus. However, at the same time, such advantages can also lead to the abuse of power done by administrative agencies in the process of exercising their power, infringing upon the legitimate rights and benefits of individuals and organizations in society. It is clear that supervising the executive, preventing the abuse of power, maintaining the balance between legislative, executive and judicial branch is an objective and essential requirement of all regimes. In the research to strenthen state institution towards building a democratic State, protecting people and preventing power abuse, the theory of seperation of powers has emerged. Under this theory, there is a system of checks and balances under which the three branches of government (legislative, executive, judicial) are kept separate and each branch is given certain powers so as to check and balance the other branches. This is also the most crucial criteria of the rule of law in the capitalist nation. Recently, in Vietnam, under the leadership of the Communist Party, politicians and scholars have interested in researching for improving power control mechanism, especially focused on supervision of executive branch. There are many research studying about supervision mechanisms towards government activities. However, those studies only focuse on supervision mechanisms from legislative branch as the highest agency implementing supreme supervision over state machinery including executive agencies. Furthermore, Nghiên cứu trao đổi ● Research-Exchange of opinion 3 some studies examined supervision mechanism from mass organizations in the political system; and supervision mechanism from the people towards executive agencies. From the political viewpoint, the issue of power control has been officially set out to examine in the most fundamental document of the Party for the first time. From legal perspectives, Vietnamese legal framework has recognized only the supervision of the executive carried out by the National Assembly as the highest agency performing the supreme supervision to the State machinery. To be specific, the Constitution, Law on Organization of the National Assembly 2001 and Law on National Assembly’s supervision activities 2003 prescribed the implementation of the National Assembly's supervisory activities towards the Government as follows: - Reviewing government reports; - Checking the constitutionality and legality of documents issued by the Government, the Prime Minister; - Checking the Prime Minister, Ministers and other members of government’s answers to the interrogation; - Establishing a temporary committee to investigate a certain problem and reviewing investigation report. Based on supervision results, the National Assembly has the following rights: Firstly, request government, Prime Minister to enact by-law documents guiding the implementation of Constitution, Law, Resolution of the National Assembly; Secondly, abolish partly or the whole document of the government, Prime Minister if it goes against the Constitution, Law, and Resolution of the National Assembly; Thirdly, enact resolution about answering the interrogatory and responsibility of those being asked if it’s necessary; Fourthly, dismiss or remove the Prime Minister; approve the dismission or removal of Deputy Prime Minister, Ministers and other members of the government. By applying the Constitution, Law on Organization of the National Assembly 2001 and Law on National Assembly’s supervision activities 2003, the National Assembly’s supervision of the government has been strengthened in recent years. The interrogation of the Prime Minister, Ministers and other members of government has been concerned by voters and maintained stably. Interrogation has become more popular at the meetings of the Standing Committee of the National Assembly. The Standing Committee of the National Assembly and other Committee have followed supervision programs more regularly. Nevertheless, it can be seen that the efficiency of the National Assembly’s supervision was low in spite of its reinforcement: the temporary Committee has not been used yet; the National Assembly rarely enacted resolutions about answering interrogations; accountability mechanism is not clear; the mechanism to dismiss officials did not work. It is stipulated that the Government is accountable to the National Assembly and supervised by the National Assembly, but in case the Government violates Constitution or laws such as enacting wrongful decrees 4 Nghiên cứu trao đổi ● Research-Exchange of opinion or committing violations, it is not clear if the entire Government or the Prime Minister as the Head of the Government should take responsibility. The current collective accountability mechanism is just a formality as no one is actually responsible for anything. Particularly, supervision mechanism of the executive in the relation with judicial branch has not been studied properly. In the Constitution 2013 as well as other constitutions, the relationship between the executive and judicial was very blur. This is considered as a theorical and practical gap that need to be studied soon. In terms of function and authority, judicial branch is responsible for resolving disputes and making judgements. Through performing this function, judicial agencies adjudicates constitutional and legal violations of individuals and organizations; and resolves disputes among state agencies as well. From the institutional viewpoint, judicial power is a branch in state power structure, a vital institution in check and balance mechanism between agencies in the the political system. Hence, judicial power automatically has supervising role in order to check the executive, maintain the balance between the excutive, legislative branch in operating state power. In Viet Nam, conducting judicial power in the relation with executive power is limited to adjudicating several entities in the executive system. For example, administrative cases include specific administrative documents and behaviors of executive officials or organs. In the judging process, judicial agencies can give suggestions to tackle problems in performing executive functions. Adjudicating constitutional violations of individuals has been regulated by the Criminal Code. Therefore, there is a gap on adjudicating constitutional violations of executive agencies and their officials. Similarly, illegal or wrongful documents issued by executive agencies have not been judged by any agency. In fact, as mentioned above, the supervision of executive documents is carried out by the National Assembly. Vesting this authority in the National Assembly is not effective as most of the National Assembly delegates work on part time basis while executive documents are enacted almost daily to keep up with the demand of managing all aspects of the society. Moreover, resolving disputes relating to constitutional authority among State agencies has not been implemented by judicial power. It is necessary to understand that resolving authority related disputes is not only about judicial procedures order but also has the special meaning in designing a system of specialized agencies. This will help to ensure constitutionality and legitimacy of the executive in particular and state machinary in general as well as avoid function overlap. However, this issue has not been concerned in Viet Nam from both theorical and practical aspect, legal studies as well as administrative sciences in state operation. This is the reason why many documents issued by different state agencies overlap or contradict with each other. This also explains function overlap among State agencies which leads to arbitrary design of organizational structures and personnel arrangement. Clearly, the Nghiên cứu trao đổi ● Research-Exchange of opinion 5 supervision of executive branch has not brought high effectiveness as expected. Apart from check and balance theory, in searching for a preeminent state model, scholars also suggested constitutional protection regime as a principal element in the rule of law. Accordingly, whatever the regime is, it is compulsory to have a judicial review institution. This institution may be designed as a Constitutional Court in judicial system or Constitutional Protection Committee in legislative system, together with judicial power aiming at strengthening the judicial functions, making judgments on constitutional or legal violations and solving authority related disputes among state agencies. In the preparation of Constitution 2013 in Viet Nam, the constitutional protection regime was subjected to be regulated officially in the constitution. However, due to various reasons, it has not been recognized in the Constitution and further research is needed to develop a suitable mechanism. If constitutional protection regime is applied, those drawbacks will be surmounted. In the meantime, scientists and policy makers might choose a possible solution in the current situation such as increasing power of judicial branch in judging documents issued by the executive./. Reference: 1. The Communist Party of Vietnam, Documents of the 12th National Congress of delegates, Publishing house of the Party Central Office, Hanoi, 2016.. 2. The Communist Party of Vietnam, the Platform for national construction in the transition period to Socialism (Supplemented and developed in 2011). 3. Tran Anh Tuan: "Some comments on completing the regime of the Government in the amendment of the 1992 Constitution", Proceedings of the Workshop on Government and Local authorities in the Constitution, Hanoi, March 8, 2013. 4. Constitution - Theoretical and practical issues, Vietnam National University, Hanoi, 2011. 5. Civil society in Europe, Publisher. General Legal Publishing House, Hanoi, 1998. Author Address:: Deputy Chief Justice - The People’s Court of Ho Chi Minh City Email: phamphongtahg@gmai.com