C A LE Discu ssio n Pa p e r No .11
Se p te m b e r, 2 0 1 4

The Role of Vietnamese Government
in Legislation– in Comparison with Japan
Dr. PHAN Thi Lan Huong

Na g o ya Un ive r sity
C e n t e r fo r Asia n L e g a l Exch a n g eCenter for Asian Legal Exchange (CALE)

Nagoya University, JapanThe Role of Vietnamese Government in Legislation – in Comparison with Japan

Dr. PHAN Thi Lan Huong

VietnamTHE ROLE OF VIETNAMESE GOVERNMENT IN LEGISLATION
IN COMPARISON WITH JAPANContents
Abstract ................................................................................................................................................................. 1
Introduction........................................................................................................................................................... 2
I.

Delegated legislation and the legal system in Vietnam ............................................................................... 5A.

Why delegated legislation is needed?....................................................................................................... 5B.

The legal system in Vietnam .................................................................................................................. 11

II- How Vietnamese government takes part in legislation .................................................................................. 15
A.

Drafting laws .......................................................................................................................................... 16

B.

Issuing Decree-Laws .............................................................................................................................. 21

III. Current problems of legal system in Vietnam- Solutions for improving the quality of legal system ........... 23A.

Problem Identification ............................................................................................................................ 23

B.

Legislation by Japanese government and Constitutional Review .......................................................... 28

C.

Recommendation for improvingthe quality of legal system in Vietnam ................................................ 33

Conclusion .......................................................................................................................................................... 36
Bibliography ....................................................................................................................................................... 37

Abstract
Since Doimoi was introduced in 1986, Vietnam has made a great effort in building comprehensive legal
frameworks to support socio-economic aspects as well as to move towards a rule of law state. However, low
quality of current legal system is one of the main obstacles to prevent Vietnam from achieveing development
targets. Although legislative power is vested to the National Assembly but Government had played importantrole in legislation. Delegated legislation is carried out as alternative solution for solving the burden on
legislature as well as for responding quickly to the changes of economy and society. However, this practicealso cause many problems of legal system such as contradictory, overlap, and inconsistence which have raisen
challenges to Vietnam in process of implementing legislative reform. The problem is that theories andprinciples of delegated legislation are still under debated. How to improve the quality of legal system in order
to become more transparent, coherent, understandable, and enforceable is remaining as a significant

question for Vietnam when an effective channel for reviewing constitutionality and legality of legal
normative documents has not yet established. This paper aims at studying the role of Vietnamese government
in legislation based on Japanese’s experiences in order to identify possible solutions for Vietnam to improve
the quality of legal system responding to requirements of rule of law state.

1

Introduction
Since establishment in 1945 and especially since become independent country in 1975, the modern
constitutions of Vietnam such as 1980 and 1992 had followed the socialist modern as the former Soviet Union,
therefore the separation of state power principle was not adopted. Instead of that, the democratic centralism
principle was introduced as a fundamental principle for organization and operation of state organs. In addition,a single party policy also refers to the leading role of party in all aspect of society, especially in legislative
aspect. Therefore, legal system of Vietnam is also influent by this principle. Although separation of state
power has not regconized yet but legislative, executive and judicial powers have been carried out by the
specific state agencies without checks and balances principle. In other words, there is unclear distribution ofthese functions among state organs of Vietnam. Government has played important role in legislation whereas
the theories and principles of delegated legislation is still under debated.
Recently, the 2013 Constitution of Vietnam provides that: “The National Assembly is the highest
representative organ of the people and the highest organ of State power of the Socialist Republic of Vietnam.
The National Assembly exercises constitutional and legislative powers, decides significant national affairs, andexercise supreme control over all activities of the State” (Article 69). This provision indicates that thelegislative power is vested to National Assembly and only National Assembly holds power to promulgate
Constitution and Law. In addition, Article 96 provides that Government holds power to propose draft laws to
the National Assembly and to propose draft ordinances to the Standing Committee of National Assembly. In
addition, “the Government, the Prime Minister, Ministers and heads of organs of ministerial rank shall issue
legal documents to exercise their duties and authorities, review the implementation of these documents, andhandle illegal documents in concordance with the law” (Article 100). These regulations indicate delegatedlegislation with or without any limitation are essential to examine.
It cannot deny that delegated legislation is solution adopted by many contries in order to handle with theburden on legislature as well as to ensure legal system responds quickly to the changes of socio-economy,
especially in open-market economy. Therefore, Government had played a vital role in legislative processes in
Government not only proposes many drafted laws but also issues legal documents such as Decrees and2

Circular to support implementation of Law. Conseqently, regulations issued by government ministries are themain part of the source of law. However, confliction, inconsistence and unstability are common issues of legal
system in Vietnam. Although Vietnam had made a significant progress in reforming legal system throughintroducing the Law on Promulgation of Legal Normative Document (Law on Laws) 1 which provides
procedures, forms and competence of legislation; however, it could not handle with current problems of legal
system. Yet, the quantity of legal regulations in Vietnam has increased significantly as a ‘forest of laws’
whereas the quality has not yet improved relatively. Especially, the shortcoming of legal frameworks tosupport for socio- economic aspects of the shift from central planned economy to the opened market socialist
oriented economy is still unstable which causes many difficulties for business sectors and foreign investment
projects to develop their business in Vietnam.
This practice indicates that both executive and legislative organs take part in law-making processes in which
executive organs propose a greater part of laws and control the legislative process. Government is consideredthat has more discretion in legislation due to the lack of specific and concrete delegation of legislative powers.
In addition, Vietnam still lacks of an effective channel to review constitutionity and legality of legal normative
documents. Conseqently, legal system of Vietnam is inconsistent, ineffective and often contradictory.
With commitment to build up a rule of law state, Vietnam amended the 1992 Constitution in 2013. The newConstitution requires government to reviewing and amending all related legal documents in order to ensurethat the legal system become more consistent, coherent and comprehensive. To do that, Vietnam is planning torevise the Law on Laws 2008 in 2015 as a key factor for improving the quality of legal system. Hence, thetheories delegated legislation and the role of government in legislation are worth to study adequately in orderto answer the question how to improve the quality of legal system in Vietnam.
This paper aims at studying the role of government in legislative process in order to identify what are the major
problems in the law-making process, and the limitation in performing delegation of legislative powers incurrent practice of Vietnam. This paper also aims at answering the question that whether legislative power
1

The Law on Laws was adopted first time since 1996, revised in 2002 and finally replaced by the Law on Laws

2008.

3

should be delegated strictly to government in Vietnam. The first section will focus on analyzing the conceptsof delegated legislation based on specific socio-political conditions of Vietnam. The second section will
examine the current practice of law-making process in Vietnam based on both legislation and practices. In
comparative study with Japan in legislative processes, especially the role of government in law-making
processes, the third section will propose some recommendation for improving the quality of legal regulations
in Vietnam in order to ensure that legal system of Vietnam will become more consistent, effective andcomprehensive.

4

I. Delegated legislation and the legal system in Vietnam
A. Why delegated legislation is needed?
In the modern state which introduces the separation of power needs to make clear distinction among legislative,
executive and judicial power. In other words, principle of separation of powers indicates the division offunctions that appropriate to each branch of state organs and the boundary line clarifying of these threefunctions from the other. As Hiroshi described about spereation of state power as follows:“Under the separation of powers, the legislative power includes the power, through enactmentof laws, to specify the ends and means of public policy, but does not include executive power
to administer and enforce those laws or the judicial power to resolve cases arising underthem.”2Legislative power must be separated from executive and judicial power in order to ensure that all
government’s actions bound by laws. In general, a modern country often divides these powers to three
separated state organs which namely Diet/Parliament, Cabinet/Government and Supreme Court. The problem
is that how to interpete the concept of legislative power if constitution defines that legislative power is vested
to Diet/Parliament. Legislative power refers to general norms as the promulgation of Constitution and Laws.3
If legislative power is understood that only Diet/Parliament holds law-making power, then legislative works
must be carried out by the Partliament itself or its experts. Then, executive organ cannot invole in law-making
process because that is against the saparation of power.4 However, Diet/Parliament cannot itself create a legal
system comprehensively; hence, delegated legislation is considered as alternative solution for reducing theburden on legislation of the legislature. In other words, there is no pure separation of powers because executive
organs have to involve in legislation in order to meet demands of society management as Carl remarked:

2 Hiroshi Itoh, The Supreme Court and Benign Elite Democracy in Japan (Ashgate Publishing, Ltd., 2010),

pp138.
3 Hans Kelsen, General Theory of Law and State (The Lawbook Exchange, Ltd., 2009), 255.
4 Shuichi Sugai and Itsuo Sonobe, Administrative Law in Japan (Kyosei, 1999), 64.

5

“Although it is recognized that a “pure” separation of power cannot exist in parliamentary democracy
Japanese scholars maintain that a “practical doctrine of separation of powers exist”. In fact, however,most legislation passed by Japanese Diet is legislation that has its genesis in a Cabinet bill”.5
In fact, the legislative organ often faces with difficulties due to the lack of capacity, professional knowledge inorder to make laws; therefore it must delegate legislative power to the executive or judiciary as an alternative
solution.6 In principle, a country often divides these three functions as follows: the legislative power is vested
to the Diet or Parliament; the Government or Public Administrative organs hold the executive power’; and theSupreme Court and the lower courts carried out the judicial power. However, these organs do not only carryout these functions separatedly because they also contribute important role in legislation. In current practice,delegated legislation is adopted by many countries and has changed the traditional role of legislative bodies.
The fact indicates that the real role of law-making process depends on political tradition and form ofgovernment.7 For example, in some country, executive organs play important role in legislation by proposing
drafted law and judicial organs are responsible for interpretation of laws.
In general, there are two types of delegated legislation: normal and exceptional as follows: 8

The former is marked by two characteristics: first, its limits are clearly enforceable by the judiciary;and secondly, it does not delegate power to legislate on matters of principle or to impose taxation.
The exceptional type of delegated legislative powers is:a) To legislate on matters of principles, and even to impose taxation;b) To amend Acts of Parliament; either the Act by which the powers are delegated or other Acts;c) Conferring so wide a discretion on a minister, that it is almost impossible to know what limit
parliament did intend to impose; andd) Abandoning limits of delegated powers not formally, yet actually by forbidding control by
the courts of law.
As Hiroshi Oda explaines the reason of delegated legislation because legislature is not able to regulate thematters which relate to technical expertise or need to be adapted quickly to the changes of society. 9 Yet,delegated legislation is defferent from country to country depending on specific socio-polictical conditions.
Constitution of a country defines directly or indirectly delegated legislation, and with or without any limitation.
5 Carl F. Goodman, The Rule of Law in Japan: A Comparative Analysis (Kluwer Law International, 2003), 36.
6Itoh, The Supreme Court and Benign Elite Democracy in Japan, pp 125,126.
I.Bogdanovskaia,“The Legislative Bodies in The Law-Making Process” n.d., www.nato.int/acad/fellow/9799/bogdanovskaia.pdf.
8 Rumki Basu, Public Administration: Concepts And Theories (Sterling Publishers Pvt. Ltd, 2004), 345, 346.
9 Hiroshi Oda, Japanese Law, 3 edition (Oxford England ; New York: Oxford University Press, USA, 2011), 47.
76

Constitution of many countries defines that Parliament can delegate the legislative power to the Government
through providing that Government holds power to submit a bill. Although Constitution does not provide
clearly for delegation of legislative power to the Cabinet but delegation also refers to power of issuing cabinet
orders, ministerial ordinances, and other administrative rules.10
The Constitution of Japan also provides principle of separation of powers and each belongs to the different
organs called Diet, Cabinet and Supreme Court and other courts.11 However, there is also no pure of separationof state power. In Japan, as other parliamentary democracies, ministries and administrative organs of Japan
play a vital role in legistation.12 Therefore, legal system of Japan does not include only Constitution and Law.
In addition to legal document adopted by Diet such as Code and statutes, legal sytem of Japan also includes
rules issued by Cabinet and Ministries, rules of House of Representative or House of Councillors, and rules ofSupreme Court.13 These rules are also the sources of law in which cabinet’s orders are issued orders (seirei) toprovide detailed regulations or to handle with issues delegated by law in order to implement a Law (statute),
and Ministry ‘s ordinances (furei or shorei) are regulated to detailed implement the Cabinet Order or Law
under its jurisdiction.
Although Constitution does not define directly delegation of legislative power but legislative power is oftendelegated to orders of cabinet, ordinances of ministries and other administrative rules. 14 Article 73,
Constitution provides that: “The Cabinet, in addition to other general administrative functions, shall performthe following functions: Enact cabinet orders in order to execute the provisions of this Constitution and of thelaw. However, it cannot include penal provisions in such cabinet orders unless authorized by such law.” In
addition, the Cabinet Law also defines that: “No provisions imposing obligations or restricting rights can bemade in a Cabinet Order unless authorized by law” (Article11). Therefore, Cabinet’s order may not include
provisions which assign duties or restrict rights of individual/organization if the law does not delegate the

10 Ibid.
11 Goodman,The Rule of Law in Japan, 36.
12 “Role of Ministries and Agencies in the Legislative Process - Executive - Government - Japan - Asia,” accessed

April 28, 2014,
http://www.countriesquest.com/asia/japan/government/executive/role_of_ministries_and_agencies_in_the_legislativ
e_process.htm.
13 Dean, Japanese Legal System (Cavendish Publishing, 2002), 130.
14 Oda, Japanese Law, 47.

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power. In addition, the National Government Organization Law on also provides that: “For the purpose of
implementing any law or Cabinet Order or under special authorization by law or Cabinet Order, each
Minister may issue ordinances of his respective office (ordinances of the Prime Minister's Office or ministerial
ordinances) in respect of administrative affairs under his charge” (Article 12, section 1). In general, Cabinet
and Ministries hold power to promulgate orders and ordinances for implementing the law.
Significantly, delegation of legislative power in Japan is mentioned indirectly in Constitution as well as theLaws. Delegation of legislative power is not unlimited. Cabinet’s order cannot provide regulations related topenalties if the law does not allow government to do. Hence, constitutional review is adopted as essential
mechanism when delegated legislation is adopted. In other words, if a country introduces delegated legislation,
it is essential to review the constitutionality and legality of legal documents issued by the other state organs.
Although Vietnam introduces democratic centralism principle instead of separation of state power principle,
but it is essential to divide state functions into three main areas such as legislative, executive and judicial
functions. Constitution of Vietnam also defines that: National Assembly holds the constitutional and legislative
power (Article 69). It is often interpreted that only National Assembly can promulgate the Constitution andLaws. Therefore, it is essential to examine the concept of delegated legislation in specific conditions ofVietnam. Related to this concept, Dr. Luong Minh Tuan mentions that: if legislative power is understood that
only National Assembly holds power to promulgate and revise the Law, it will be quite narrow concept andvery hard to explain the fact that other competent state agencies also hold power to issue legal normative
documents (regulations).15 Delegated legislation in also defined indirectly in Constitution 2013 of Vietnam
such as Article 96 provides that Government holds power to psopose dratf laws (section 4); Article 100: “TheGovernment, the Prime Minister, minsters and heads of organs of ministerial rank shall issue legal documents
to exercise their duties and authorities, review the implementation of these documents, and handle illegal
documents in concordance with the law.” These regulations indicate that Vietnam also applies delegation oflegislative power.

15 TS. Luong Minh Tuan, “Cần Có Quy Định về Ủy Quyền Lập Pháp Trong Hiến Pháp,” Trung Tâm Thông Tin,

Thư Viện và Nghiên Cứu Khoa Học, Văn Phòng Quốc Hội, n.d.,
http://www.na.gov.vn/Sach_QH/Ban%20ve%20lap%20hien/Chuong2/12.htm.

8

However, the concept of delegation of legislative power under socio-political condition of Vietnam which had
followed democratic centralism principle is different from the other country. In principle, National Assembly
holds power to promulgate Constitutions, Laws and Ordinances. However, Laws and Ordinance of National
Assembly only provide very general regulations. Therefore, Government is delegated power to interprete
laws/ordinances. Law on Laws 2008 defines that: Government holds power to make Decree, Prime Ministerhas power to issue Administrative Decision, Organ of Ministerial level issue the Circular (Article 2, Law on
Laws 2008). Therefore, Government and Ministries have carried out executive functions in principle but also
holds power to issue legal documents. The problem is that how to determine power to issue legal documents ofGovernment and Ministries is the implementation of executive power or legislative power when concept ofdelegated legislation has not yet mentioned clearly in context of Vietnam. Consequently, it is hard to makeclear-cut between the laws and legal documents issued by executive organ if the hierarchy of legal system is
not established.
In general, concept of delegated legislation is not determined clearly in Vietnam. Another concept as such“power to issue legal norms” (quyen ban hanh van ban quy pham phap luat) is often mentioned as the powerof executive organs in implementing executive functions. However, “power to issue legal norms” may beconsidered as the delegated legislation if government/ministries issue legal norms for interpreting laws or
dealing with the issues which are not yet regulated by laws. For example, Government in Vietnam holds power
to issue Decree which provides specific administrative sanctions applied for administrative violation
meanwhile regulations related to rights and obligations of cizitens should be regulated by statute laws as
principle of separation of state power. This practice indicates that Vietnamese government not only carry out
executive function but also exercises delegated legislation in particularly. However, the problem is that there isa lack of line boundary between legislative and executive power in Vietnam. From legislative reform aspect,
Vietnam needs to clarify whether Government and Ministries can implement the delegated legislative power
unlimitedly.
To some extent, executive organs in many countries often involve in law-making process by drafting bills andsubmit to the Diet and Diet holds power to pass these bills. On the other hand, executive organs also issue legal
norms in order to implement executive functions. The problem is that it is difficult to answer the question:9

can executive organs has power to issue the legal norms which play a role as a law because there is no law
provides about these issues, are there any limitation in implement this power in the current legal frameworks ofVietnam is also essential to examine.
Vietnam scholars often mention that the power to issue the legal norms of executive power is the power ofmaking legal normative document (quyen lap quy) – as power of executive organ which is different from thepower of making laws (quyen lap phap). 16 On the other hand, when government submit the draft –laws is
considered that government takes part in law-making process. This case may be interpreted as delegatedlegislation (uy quyen lap phap) in Vietnam. In brief, government can take part in legislation by two ways: 1)
draft the laws and submit to Diet; and 2) promulgate legal norms under jurisdiction as prescribed by laws. The
first way refers to the delegation of legislative power in which government takes part in law-drafting as ademand from the executive needs or legislative organs face with difficulty in drafting the laws due to the lackof capacity, legislative techniques. The second way refers to power of executive organs in promulgating legal
norms independently. This issue is still under debated that is the implementation of executive power ordelegation of legislative power.
The problem is that it is very hard to define the case of implementing power to issue legal norms of executive
organs is the implementation of delegated legislative power or executive power in current legislation practiceof Vietnam. Delegated legislation in Vietnam has not yet defined clearly or studied adequately. There is nolimitation in delegated legislation so Government and Ministries have more discretion in issuing Dercees andCirculars. For example Article 14 provides that: Decrees issued by Government not only provide detailguidelines on the implementation of law and ordinance but also identify other important issues which are notmature enough to be developed into laws or ordinances to meet governance and socio-economic management
requirements (Law on Laws 2008). This regulation indicates that Government has power to issue legal
normative documents without laws or ordinances. These decrees are often considered as decree-laws and playa vital role in source of laws in Vietnam. This regulation also indicates that there is no clear-cut determination

16 Tran Minh Huong (ed), Textbook on Themes of Vietnamese Administrative Law (Giao trinh Luat Hanh chinh

Vietnam) 2013, chapter 6.

10

of powers to issue legal normative documents as government may has more discretion in legislation.
Consequently, legal system of Vietnam could not meet the requirement of rule of law principle.
The problem is that how to control the executive organs in legislative processes because it is very difficult todetermine the boundary line of legislative and executive power when introducing delegation of legislative
power. Because legal norms issued by executive organs are also defined as a source of laws therefore thequestion remains as executive organs also exercise legislative power? There is unclear distribution between
legislative and executive powers; as a result, government has played a vital role in legislation as well. As
Montesquieu (The Spirit of the Laws) mentioned: “When the legislative and executive powers are united in thesame person, or in the same body of magistrates, there can be no liberty.” In other words, the rule of law
principle will be violated if legislative and executive powers are not divided clearly. Rule of law requires
government action is bound by laws. Therefore, when delegating legislative power to the executive organs, itwill need a mechanism for ensuring that the legal norms issued by government comply with laws. In addition,
the constitution also needs to set up line boundary of issuing legal norms by executive organs in order toensure the supremacy of Constitution and Laws. It is essential to note that delegation of legislative power is
not unlimited but must be specific and concrete for ensuring rule of law principle.
B. The legal system in Vietnam
Rule of law state refers to the state management based on laws; therefore source of law is a key element oflegal system of every country. In general, sources of laws may include such as: Constitution, Laws, Rules andRegulations enacted by the Cabinet, ministries, and agencies belonging to the executive branch; Rules enacted
by the Supreme Court, concerning judicial procedures; International treaties; and Ordinances enacted by local
governments. However, some countries also define judicial precedents as one part of source of laws.17
Every country has to start from building a comprehensive, coherent, transparent and enforceable legal system
as the fundamental requirements of rule of law state. Therefore, law is a key factor for ensuring that all stateorgan’s activities bound by laws. However, law refers to various forms of legislation in written form because

17 I.Bogdanovskaia, “The Legislative Bodies in The Law-Making Process,” p?.

11

all three branches of state powers have participated in legislation. 18 For example, laws not only refer toConsitution, Law/Act but also include regulations issued by executive organs or judicial organs. Therefore,
written laws include many types of legislation which are essential to establish hierarchal order for
implementation. “Written laws form a hierarchy in accordance with their effect. The Constitution is the“Supreme Law of the nation’, next come statute laws enacted by the Diet, then cabinet orders, followed byministerial ordinances”.19 In principle, delegation of legislation requires all legal norms must comply with thelaws of parliament and under jurisdiction as prescribed by laws, and the changes of laws of parliament willlead to the changes of related legal norms issued by Government or Judicial Organs.
In general, sourses of law in Vietnam include all legal normative documents. Then, Law on Laws defines theconcept of legal normative documents as follows:
And the concept of legal normative document is defined as follows:“Legal documents are documents issued or jointly issued by state agencies in accordance with theauthority, formats, sequence of steps and procedures prescribed in this Law or the Law on the
Promulgation of Legal Documents of People’s Councils and People’s Committees, which includes
common rules of conducts, which has compulsory effectiveness and the implementation of which isguaranteed by the Government to regulate social relations” (Article 1).
However, Vietnam also defines the hierarchical order of sources of law as follows: (Article 2, Law on Laws
2008)
1.
2.
3.
4.
5.
6.

Constitution, laws and resolutions of the National Assembly.
Ordinances and resolutions of the Standing Committee of the National Assembly.
Orders and decisions of the State President.
Decrees of the Government.
Decisions of the Prime Minister.
Resolutions of the Justices’ Council of the Supreme People’s Court and circulars of the Chief
Justice of the Supreme People’s Court.
7. Circulars of the President of the Supreme People’s Procuracy.
8. Circulars of Ministers or Heads of Ministry-equivalent Agencies.
9. Decisions of the State Auditor General.
10. Joint resolutions of the Standing Committee of the National Assembly or the Government andthe central offices of socio-political organizations.
18 Bui Thi Bich Lien, “Legal Interpretation and the Vietnamese Version of the Rule of Law,” National Taiwan

University Law Review 6 (2009): 5,
Bui%20Thi%20Bich%20Lien_p321-337.pdf.
19 Oda, Japanese Law, 35.

http://www.law.ntu.edu.tw/ntulawreview/articles/6-1/11-Article-

1211. Joint circular of the Chief of Justice of the Supreme People’s Court and the President of theSupreme People’s Procuracy; those of Ministers or Heads of Ministry-equivalent Agencies
and the Chief Justice of the Supreme People’s Court, the President of the Supreme People’s
Procuracy; those of Ministers or Heads of Ministry-equivalent Agencies.
12. Legal documents of People’s Councils and People’s Committees.
According to this order, Constitution has the highest legal validity, and Law/Ordinance of National Assemblyis the major part of the sources of law. “Laws of the National Assembly shall address fundamental issues in
the following fields: economics, society, national defence and security, finance, money, budget, tax, ethnicity,religion, culture, education, health, science and technology, environment, external relations, organization andfunctioning of the state apparatus, civil service, public officials and civil servants, rights and obligations ofcitizens” (Article 11, section 3). However, a Law adtoped by National Assembly is not able to implement
without the guidelines on implementation issued by other competent state agencies. Consequently, legal
system of Vietnam is quite complicated becaust it includes 12 types of statutory documents issued by different
competent agencies. These types of documents are defined as the sourses of law if the content of these
documents include legal norms. The Law on Laws defines that:“Documents which are issued or jointly issued by state agencies but not in accordance with theauthority, formats, sequence of steps and procedures prescribed in this Law or the Law on the
Promulgation of Legal Documents of People’s Councils and People’s Committees are not legal
documents” (Article 1, section 2, Law on Laws 2008)
In reality, Decrees and Circulars are the most important part of legal system and have both positive andnegative impact on social development. In general, government of Vietnam plays important role in legislative
processes through the main areas as follows:-

Drafting the laws and ordinances;-

Providing guidelines on implementations of laws and ordinances;-

Provide specific actions to implement policies;-

Specify tasks, authority and organizational structures of Ministries and Ministerial level Agencies,-

Providing legal norms for applying the new issues which are not yet regulated by laws or ordinances(decree-laws). (Article 14, Law on Laws 2008).

13

In principle, legal normative documents issued by state agencies must be consistent with the Constitution,Laws, Ordinances and the other legal documents issued by higher state agencies. For example, legal normative
documents issued by Ministry must comply with Constitution, Laws, Ordinances and Government’s Decrees.
This requirement refers to constitutionality and legality aspect of legal normative documents. However, thenumber of unconstitutional or illegal normative documents issued by executive organs remains very high. For
example, around 50,000 legal normative documents issue by both central and local authorities were defined as
unconstitutional and illegal by Ministry of Justice recently.20 For example, Circular No 02 dated 13 January
2013 was difined as unconstitutional document by Legal Committee of National Assembly due to restrict the
number of vehicles registration by individuals, this provision consficts with property right of citizen guaranted
by Constitution. 21
As Bui Thi Bich Lien illustrates about legal system in Vietnam when all three branches have involved inlegislation as follows:

Although this system provides considerable flexibility for the state to use legislation to
respond quickly to economic and social changes, it presents the inherent problem of ajungle of regulations, which is both inconsistent and fragmented. The National Assembly(NA) and its Standing Committee (SCNA), as the legislature, is authorized to promulgate
Constitution, Laws and Ordinances. These documents are regarded as having the highest
legal validity. Yet, they are often abstract (luat khung or ‘framework’ law) and thus
require specific guidance for application. The Government and its various ministries thenmust issue inferior documents including Decrees and Circulars to support theimplementation of such laws.22
In fact, legal system of Vietnam includes a lot of regulations issued by Government, Ministries, and othercompetent state agencies. However, there is no standard for distinction between legal norms issued by National
Assembly with legal norms issued by executive organs in the case of Vietnam. From practical point of view,the competent organs or persons often follow the legal normative documents issued by executive organs rather
than the laws issued by National Assembly because they consider that legal normative documents ofgovernment shall provide guidelines on implementation and they have to obey the guidelines. This practice
20 “50,000 Văn Bản Sai Quy Định Bị ‘Tuýt Còi,’” accessed April 28, 2014,

http://hue.toaan.gov.vn/portal/page/portal/tandtc/ttsktand/307887?p_page_id=1752606&pers_id=1751929&folder_i
d=&item_id=35182064&p_details=1.
21 “Văn Bản Luật Vẫn ‘vô Tư’ Trái Luật - VnExpress,” accessed April 30, 2014, http://vnexpress.net/tin-tuc/thoisu/van-ban-luat-van-vo-tu-trai-luat-2034431.html.
22 Bui Thi Bich Lien, “Legal Interpretation and the Vietnamese Version of the Rule of Law,” 326.

14

indicates that legal system of Vietnam does not ensure the supremacy of laws and violates the rule of law
principle.
It cannot deny that delegated legislation is essential solution for ensuring that legal system responds to thechanges of society promptly however there is no provision for delegation of legislative power as well as fordetermining line boundary between legislative and executive powers. In reality, Decrees and Circulars are themost important sources of law but the theories and principles of delegated legislation have not yet clarified
clearly by Consitution and Laws; therefore, executive organs may have more discretion in implementation ofdelegated legislation. This fact indicates that Vietnam has not determined clearly the boundary of delegation oflegislative power; consequently, executive organs often issue legal normative documents without any
limitation. In addition, Vietnam lacks of independent mechanism for reviewing the constitutionality andlegality of legal normative documents issued by the executive organs. Consequently, this practice may violate
the rights and legitimate interest of citizens.
In brief, Vietnam still lacks of adequate theory on legislative power and delegation of legislative power;
therefore, that is not clear-cut determination of legislative and executive power in the case of Vietnam. The
need to answer the question such as executive organs in Vietnam are delegated legislative power still remains
as a controversial issue in both legal theory as well as practical aspect of Vietnam. Consequently, legal system
of Vietnam reveals many problems such as contradictory, inconsistency, overlap and unstability.

II- How Vietnamese government takes part in legislation
In general, Vietnamese government takes part in legislation through main activities as follows:1) drafting thelaws; and 2) promulgating the legal normative documents (Decree-laws) which are not only for guiding on
implementation but also for identifying other important issues which are not mature enough to be developed
into laws or ordinances to meet governance and socio-economic management requirements. The fact indicatesthat executive organs have involved significantly in legislation and the quality of legal system also depends
partially on executive organs; therefore building capacity of government in legislation is essential condition forimproving the quality of legal system in Vietnam. This section will examine the role of government inlegislation through two major activities in order to identify the current issues of legal system in Vietnam.

15

A. Drafting laws
Article 96 of Constitution 2013 defines that Government has power to propose drafted law to National
Assembly. This regulation refers to delegation of legislative power in Vietnam. It cannot deny that Vietnamese
Government had played a vital role in law-making process through submission its proposed laws to National
Assembly. This practice is similar to other country such as Japan. However, the most important issue is thequality of drafted law submited by government. It is essential to examine how government involves in lawmaking process by drafting the laws.
Law on Laws 2008 provides procedures for making –law which includes four major steps such as: proposal forlaws and ordinance development program; drafting; verification, review and comment; and approval.
Government often takes part in the first and second step of law –making process as follows:

Law ProposedbyGovernment

Drafted byRelated
Ministries

Comments andAssessment

Amendement,
Finalization, andSubmission to NA

The first step is development of legislation program.
Development of legislation program is defined concretely by Law on Laws 2008 and Decree No 24/ NĐ-CP
dated 05 March 2009 of Government detailing and providing measures for implementation of Law on Laws
2008. For example, Article 22, section 1 of Law on Laws regulates that:“Law and ordinance development programmes shall be formulated on the basis of adhering to the Party’s
directions and policies, socio-economic development and national defence and security strategies as well as
governance requirements in each period and ensuring fundamental rights and obligations of citizens.”
This article indicates that law development programs are made basing on the direction of Party or requirements
government. However, it is essential to note that the law and ordinance development program must follow theprocedures as prescribed by laws in order to ensure that programs are feasible for implementation in reality.
Law on Laws defines that government shall proposes law and ordinance development programs related to its
isues, functions and authorities. However, these proposals are often made basing on the proposals of

16

organization or individuals of line ministries when implementing field management. Therefore, Ministry ofJustice is responsible for supporting government in drafting the law and ordinance development programs.
The Committee for Legal Affairs of National Assembly will be responsible for receiving and reviewing law
and ordinance development programs. “The verification shall focus on the need to promulgate the proposed
laws/ordinances, their scopes and objects of regulation, their basic policies, consistence, feasibility and orderof priority as well as conditions for ensuring their development and implementation” (Article 25, Law on
Laws 2008). Hence, reviewing the law and ordinance development programs is an important process in orderto ensure that laws and ordinances promulgated by National Assemble respond to the needs of society.
From 2009-2013, Government has submitted 06 laws and ordinance development programs for the period of
2010- 2014 and also laws and ordinances development programs for National Assembly section XIII. It
indicates that government had played very important role from the fist step of law-making process throughsubmission of laws and ordinances development programs. However, some issues related to the laws andordinance development program are mentioned as follows:23

 The programs for development of laws and ordinance are unstable because the number oflaws or ordinances submitted by programs is changed due to the cancellation or adjustment of
the proposed organs. Since 2009, National Assembly and Standing Committee of National
Assembly have changed the programs related to 50 proposals of Government. During period
2010-2013, the changes of programs tends to be increased, especially the adjustment in theyear 2013 was more than two times of the year 2010.

 Proposal of law or ordinance only meets requirements of procedures for submission but not
yet drafted in detail, and regulation impact assessment is not carried out properly.
Some proposals do not meet requirements for submission and will be rejected by Standing
Committee of National Assembly, for example Law on Library, Law on Employement…

23 “Quy Trình Lập và Thực Hiện Chương Trình Xây Dựng Luật, Pháp Lệnh - Một Số Bất Cập Cần Hoàn Thiện -Ban Nội Chính Trung Ương,” accessed April 16, 2014, http://noichinh.vn/nghien-cuu-trao-doi/201401/quy-trinhlap-va-thuc-hien-chuong-trinh-xay-dung-luat-phap-lenh-mot-so-bat-cap-can-hoan-thien-293544/.

17Proposed organ do not submit its draft to government for recommendation on time; therefore,
Government cannot present any idea during process of verification by Standing Committee of
National Assembly.

In general, this period still reveals many problems because the National Assembly has not yet played activerole in constructing laws and ordinances development programs. Laws and Ordinance development programs
are often planned for long term period; hence some proposals become unnecessary because they do not meetsocial demands. Although the Law on Laws 2008 defines that member of National Assembly also has power tosubmit the draft law but he/she cannot draft law proposal due to lack of capacity. In addition, this law does notdefine any organ which is responsible for assisting the member of National Assembly to draft the proposal.
Consequently, government has played very important role in law-making development program. For example,
the number of proposals submitted by Government has been accepted by National Assembly and Standing
Committee accounts for 83%.
-

The second step- Drafting of law

In general, Standing Committee of National Assemble shall establish Drafting Boards and appont the leading
drafting organs. However, Government shall assign Ministries or Ministerial level organs to be a lead drafting
organ if the proposals of laws or ordinances submitted by Government (Article 30). Therefore, almost laws
have been drafted by Government because these laws are made basing on proposals of government. Drafting
Boards often include members who are representatives of the senior management of the lead drafting
agency/organization and other concerned agencies/organizations and experts/scientists. In practice, themembers of drafting board are often the senior public officials of line management Ministries related to scopeand content of draft laws.
Drafting Board has to implement the following tasks:
1) Reviewing and approving the outlines of the draft laws/ordinances and resolutions; 2) Deliberating
on related basic policies and substantive issues of the proposed laws/ordinances and draft resolutions;3) Deliberating on the draft documents; introductory notes supporting the submission of the draft
documents, detailed narratives of the proposed laws/ordinances and draft resolutions as well as on theincorporation of comments from agencies/organizations and individuals;

184) Ensuring the relevance of the draft documents to the Party’s directions and policies as well as theirconstitutionality, legality, consistence with the legal system and feasibility (Article 32)
In addition, the Law on Laws 2008 also defines the tasks of lead drafting agencies as follows: Reviewing law
enforcement/implementation and assessing existing legal documents related to the proposed law/ordinance; 2)Implementing regulation impact assessment and drafting report on impact assessement; 3) Conducting studies
about informations, documents and international treaties related to proposed law/ordinance; 4) Organizing thecollection of comments related to drafted laws; 5) Preparing draft documents … (Article 33).
Drafting laws/ordinance is the most important work in law-making process. The quality of law depends on
how the regulations are drafted. In order to ensure that all regulations of drafted laws/ordinances arecomprehensive, coherent and consistent with legal system, the drafting board has to review and assess all
related legal documents and carry out regulation impact assessment properly. In addition, Article 33 and 61 of
Law on Laws 2008 define about regulation impact assessment (RIA) in drafting period, however, RIA has not
yet carried out effectively and andequately. Consequently, RIA report cannot enable drafting board to selectthe best solutions and policies for law-making. 24 However, regulation impact assessement reports made by
drafting boards are often very low quality.
Significantly, members of drafting board are often senior public officials of ministries concerned to content ofproposed law/ordinance who often try to draft provisions for protect the interests/benefits of their line
Ministries or of group; therefore, these regulations do not meet requirement of society.25 For example, Law on
Social Insuarance aims at increase the age of retirement in order to avoid the damage of “social fund” without
consideration of legitimate rights and interests of workers; or law does not allow the small size enterprises toapply value at tax deduction in order to reduce the workload of tax authorities.
In other words, regulations are often influenced by lead drafting agency so the drafted law may not comply
with legal system in general. In addition, these persons also lack of drafting skills, legal backgrounds for

24 Danh gia tac dong cua che dinh RIA trong Luat ban hanh VBQPPL nam 2008, Bo Tu Phap, Vien Khoa Hoc Phaply, 2012.
25 “Đưa Cuộc Sống Vào Luật - Báo Công Thương Điện Tử,” accessed April 17, 2014,
http://baocongthuong.com.vn/doi-thoai/47639/dua-cuoc-song-vao-luat.htm#.U093SKLhz3E.

19

formulating legal norms properly, consequently the quality of drafted law remains very low and unfeasible indaily life.
Moreover, quality of drafted laws/ordinance is low because of the other reasons such as the lack of effective
mechanism for public participation in law-making process as well as the law does not defines clearly
responsible of the lead drafting agencies/organizations for consolidating, studying and incorporating thecollected comments of individuals or social organizations. Therefore, the drafted law may not respond to thewillings of people and the needs of society and protect interests of a specific group in society.
Ministry of Justice is responsible for assessing the proposed laws/ordinances before submission to theGovernment. However, Ministry of Justice also faces with difficulty in assessing the constitutionality andlegality of the drafted laws/ordinance due to the lacks of capacity in reviewing drafted legal regulations.
Bureau of Legal Normative Document Post-Review under Ministry of Justice is responsible for reviewing
constitutionality and legality of all legal documents issued by other Ministries and Local government at
provincial level.26 However, Ministry of Justice only has power to recommend to other state agencies if theirlegal documents are considered as unconstitutional or illegal documents. This mechanism is not strong enoughto protect constution as well as ensure the consistency of legal system.
The drafted law will be submitted to Government for deliberating and deciding the submission to the National
Assembly after assessing and finanlizing by Ministry of Justice and Drafting Board. National Assembly will
only responsible to discuss and has power to adopt or reject the drafted law. However, National Assembly
members are not able to give comments or analyze the legal norms properly because they often lack of
capacity and legal knowledge. Especially, the percentage of sepcialized member of National Assembly is quite
low, that accounts for 30% (National Assembly section XIII only has 150 specialized member/500 members).
In addition, one of significant issue that makes the law becomes ineffective and inefficient because the legal
norms formulated by drafting board are often in broad scope and very general, even the important issues whichchallenge drafting board will be shifted to decrees of Government. Consequently, law adopted by National
Assembly cannot implement due to the lack of guidelines on implememtation made by Government.

26Ministry of Justice in Vietnam website: http://www.moj.gov.vn/en/Pages/Organizationalstructure.aspx

20

In brief, government and ministries have played a dominant role in law-making processes because the National
Assembly lack of capacity in law-making and depend deeply on executive organs in drafting law aspect. This
practice indicates the weakness of legislation in Vietnam and also does not ensure the rule of law principle.
B. Issuing Decree-Laws
Constitution 2013, Article 100 defines that: “The Government, the Prime Minister, minsters and heads oforgans of ministerial rank shall issue legal documents to exercise their duties and authorities, review the
implementation of these documents, and handle illegal documents in concordance with the law.” This article
empowers Government and Minister to issue legal normative document but only “to exercise their duties andauthorities.” So this regulation can be interpreted that as the delegation of legislative power or only the
implementation of excutive power? In order to answer this question, it is essential to examine the content oflegal normative documents issued by Government and Ministries. Article 14, Law on Laws 2008 defines thatgovernment issues the Decree in the following cases:
1) To provide detailed guidelines on the implementation of laws and ordinance;2) To provide specific actions to implement policies related to the fields such as: economic, society,national defense, security…
3) To specify the tasks, authority and organization of Ministries…
4) To identify other important issues are not mature enough to be developed into laws or ordinances tomeet governance and socio-economic management requirements. The issuance of decrees shall be
subject to agreement by the Standing Committee of the National Assembly.
According to this article, Government exercise delegation of legislative power in the two cases: 1) providing
the guideines on implementation of laws/ordinances; and 2) identifying issues which are not yet regulated bylaws/ordinances. It is worth to note that there is no limitation in delegation of legislative power in Vietnam as
the law empowers government to issue Decree without any limitation. In principle, Vietnam also establishes
the principle of hierarchical of legal system such as Decree issued by Government must comply with
Constitution, Laws, Ordinances and Regulations adopted by National Assembly and Standing Committee of
National Assembly.

21

Guidelines issued by government and ministries are essential conditions for implementing laws/ordinance. In
other words, Law/Ordinance cannot come to effect if there is lack of guidelines on implementation. For
example, In order to implement the Law on State Compensation adopted by National Assemby in 2009,
Government issued Decree No 16/2010 and Ministry of Justice, Ministry of Finance, and Government
Inspectorate issued join-circular No 19/2010 for guidelines on implementation. However, the new circular No
04/2014/TTLT-BTP-TANDTC-VKSNDTC on guidelines on implementation of this law just issued in 2014
(after 3 years since this law came to effect). Moreover, some Law/Ordinance requires a huge number of legal
normative documents for guidelines such as Ordinance on Civil Judgement Enforcement in 2004 needs morethan 40 documents; and Land Law 2004 requires related state organs to issue around 126 legal documents for
guidelines on implementation, the number of legal normative documents related to environment is around 300
documents.27
This practice shows that the implementation of law/ordinance depends deeply on the guidelines of executive
organs without effective mechanism for protection of constitution. Therefore, legal system of Vietnam is nothierarchical and the Decree and Circular are often applied as main sources of law. In practice, application oflaw by authorities only base on the guidelines without essential consideration of provisions defined by
Law/Ordinance. However, Vietnam still lacks of concreted and detailed delegated legislation; therefore,
government/ ministry has more discretion in interpretation of law.
In general, Law/Ordinance does not provide detailed legal norms; therefore it always needs guidelines on
implementation issued by Government and Ministries. The matter is that government has more discretion tointerpret the content of legal norms in the ways that enable executive sectors to implement those legal norms
easier. For example, Law/Ordinance only provides very general terms and the detailed regulations related tostandards, measures, procedures… will be provided by Decree and Circular of Government and Ministry, suchas: Law on handling with administrative violations 2012 cannot provide the detailed administrative violations
as well as administrative sanctions applied for each administrative violation. Consequently, Government has

27 “Hoàn Thiện Hệ Thống Pháp Luật Đáp Ứng Yêu Cầu Xây Dựng Nhà Nước Pháp Quyền XHCN,” accessed April

18, 2014, http://luatsuhanoi.vn/index.php?page=productView&viewParent=301&id=875.

22

issued around 56 Decrees on handling with administrative violations in each field of state management. 28
Hence, government has power to determine what are violations and the measure of sanctions (warning, fine, orwithdraw of licence or postponement of operation; confiscation of properties related to violations…). The
needs to answer the questions such as whether government should have power to define the penalties applied
for administrative violations of individual and organization and the delegation of legislative power should be
limited in this aspect? Recently, many Vietnamese scholars have debated about the limitation of delegatedlegislation and what kind of regulations should be delegated. For example, the provisions which impose theobligations or restrict the rights of citizen can be issued by government or not?
Regarding to delegated legislation, another mater is that, Government also holds power to issue Decree inorder to deal with problems without existence of Law/Ordinance (Article 14, section 4 Law on Laws 2008).
This kind of decree is often mentioned as Decree-Law because it plays function as a Law. The reason why
Government can has power to issue Decree-Law because National Assembly and Standing Committee are notable to formulate Law/Ordinance whereas the new problems occurred in society are significant dealt with bylaws. This practice also indicates the fact of delegation of legislative power has been carried out without any
limitation; consequently, legal system of Vietnam has many shortcomings that prevent Vietnam from building
up a rule of law state.

III. Current problems of legal system in Vietnam- Solutions for improving the quality oflegal system
A. Problem Identification
Delegated legislation has many advantages such as it enables legal system responds quickly to the changes insociety; it allows government to issue rules and regulations for dealing with specific situations which are notyet mentioned by Law; it reduces the burden on legislature and enable government to deal with emergencies
promptly.29 However, delegated legislation also causes many problems of legal system, especially in a country

28 Decree

No 171/2013 on sanctions/penaties of road administrative violations and rail transport violations; or
Decree No 121/2013 on sanctions of administrative violations in constructions activities, real estate business…
29
Basu, Public Administration, 348.

23

that lacks of effective channel for reviewing constitutionality and legality of legal document issued byexecutive organs.
Since Doimoi was introduced in 1986 up to July 2013, Vietnam has issued around 471 Laws/Ordinances (290
Legal Codes, Laws/Acts and 181 Ordinances), 2783 Decress and 7080 Circulars and Joined-Circulars in orderto respond to the needs of open market economy.30 In general, legal system of Vietnam still has many issues
such as cumbersome, complex, contradictory, overlapping because legal normative documents are issued byvarious competent agencies without an adequate mechanism for reviewing constitutionality and legality.31
The current problems of legal system of Vietnam are metioned as follows:32-

Legal system of Vietnam consists of so many legal documents but is still incomprehensive because
legal normative documents are too focused on some aspects whereas the other aspect still lacks ofadequate legal normative documents for application. For example, there are so many legal normative
documents issued for guidelines on implementation in the field of investement, or land management.
Legal normative documents are issued in order to respond to the needs of open market economy;
therefore they are formulated in consistent with the changes of socio-economic conditions, in order toensure that laws can cover all aspects of society. This practice indicates the misunderstanding of ruleof law principle. Rule of law is interpreted as the supremacy of law which requires to promulgating a
lot of legal normative documents for application. Consequently, Vietnam has made a significant effort
in “producing” the legal normative documents. Each line management agency also wants to issue legal
normative documents for its field management even it is not necessary to have legal normative
documents for application. Consequently, some legal normative documents are not applicable due tothe lack of feasibility and effectiveness. On contrary, some aspects which need more detailed andcomprehensive legal frameworks for implementation have not yet provided adequately. For example,

30 “Một Số Giải Pháp Tăng Cường Tính Khả Thi Của Văn Bản Quy Phạm Pháp Luật,” accessed April 21, 2014,

http://moj.gov.vn/ct/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID=6009.
31 “Doi moi quy trinh lap phap va lap quy trong mot van ban phap luat” accessed April 20,2014
http://baophapluat.vn/hoat-dong-bo-truong/doi-moi-quy-trinh-lap-phap-va-lap-quy-trong-mot-van-ban-luat178736.html
32“Nâng Cao Chất Lượng Văn Bản Quy Phạm Pháp Luật,” accessed April 21, 2014,
http://caicachhanhchinh.gov.vn/Plus.aspx/vi/News/71/0/1010046/0/4876/NANG_CAO_CHAT_LUONG_VAN_BA
N_QUY_PHAM_PHAP_LUAT.

24

there is a lack of specific regulations on implemention and improvement of transparency,
accountability of state organs and public officials. For example, until now Vietnam does not have Law
on Administrative Procedures which considered as a key Law for promoting transparency of public
administration.
-

Legal normative documents are not consistent, coherent and comprehensive because of the lack ofeffective mechanism for reviewing constitutionality and legality of legal normative documents. For
example, Lawyer Quach Tu Man mentions that it is easy to find out the confliction between
interpretation of law by Government and Ministry and Law, such as: related to Law on Personal
Income Tax 2007, Decree No 65/2013 and Circular No 111/2013 of Ministry of Finance provide
guidelines on implementation of Law on Personal Income Tax, which define additional condition fortax exemption from transferring land-used right and selling a house if that person has ownership at
least 183 days whereas the Law on Personal IncomeTax does not define that condition. 33 Law on
Laws 2008 defines that Ministry of Justice is responsible for reviewing the drafted laws/ordinancesand drafted decrees, circulars before submitting to Government as well as in process of
implementation legal normative documents. However, Ministry of Justice lacks of capacity forreviewing a huge number of legal normative documents issued every year by both central and local
authorities at provincial level. In addition, Ministry of Justice had dealt with difficulty due to theburden of workload because it has played an important role in drafting process as a key lead drafting
agency. However, Ministry of Justice is not empowered to deal with illegal documents issued byother state agencies. It is only responsible to recommend the competent agencies to deal with illegal
normative documents.

-

Legal system of Vietnam lacks of stability because almost legal normative documents are formulated
basing on the urgent needs of society without consideration for long-term development strategies aswell as the sustainable development. Therefore, legal normative documents have been amended orrevised frequently. For example, Law on Administrative Complain and Denunciation was

33 “Văn Bản Quy Phạm Pháp Luật Dưới Luật: Những Khiếm Khuyết Thường Gặp | HCMC Bar,” accessed April 30,

2014, http://www.hcmcbar.org/NewsDetail.aspx?CatPK=4&NewsPK=374.

25

promulgated in 1998, revised in 2004, 2005, and separated in two different laws in 2011. Unstable
legal system has raised challenges to not only state authorities but also to individuals, organizations,especially business sectors in process of implementation. For instance, regulations related to land-used–right registration and land managements have changed quit often; hence individual have faced withdifficulties in exercising the property rights.
-

The feasibility of legal system of Vietnam remains very low because the drafting boards often pay
attention to review the constitutionality and legality of legal normative documents rather than consider
the feasibility of drafted legal documents. Especially, regulation impact assessments (RIAs) have notyet carried out properly during process of proposing, drafting and implementing. Legal normative
documents are promulgated basing on the proposals of competent agencies without consideration
carefully the needs of society as well as public opinion. Mechanism for public participation was
introduced and implemented but it could not achieve effective results. However, responsibility forcollecting, assessing the comments is not defined clearly by laws; hence drafting boards are notresponsible for explaining why they do not accept the comments from public. In addition, there is alack of effective participation of experts, scientists who play very important role in impact assessment
and proposing better solutions for drafting legal normative documents. In addition, Law on Laws 2008
does not define any standards or creterias for evaluating the feasibility of legal normative documents.
The standards for feasibility assessments just regulated by Decision No 1048/QĐ-BTP Ministry ofJustice on reviewing legal normative documents such as: the consistence of legal normative
documents with economic development; affection oflegal normative document to society (botpositive and negative affect); mechanism for emplementation related to determining clearly
responsibility, procedures; correspondence to administrative reform standards;…However, theassessement of feasibily of drafted laws/ordinances/ and other legal normative documents has not yet
implemented effectively. The problem is that the legal normative documents will be adopted whether
is feasible in reality or not. Consequently, drafting and promulgating agencies do not bear any liability
if the legal normative documents are unfeasible.

26

-

Legislative technique is also one of the factors that affect the quality of legal system.
Laws/Ordinances only provide very general legal norms and cannot be implemented without
guindlines on implementation issued by Government and Ministries. Drafting boards includes seniorpublic officials from relavant ministries and they have tried to interpret the laws/ordinances in theways that easier for implementation. The practice has revealed that Laws/Ordinance cannot be
implemented because of the lack of guilines. In addition, the guidelines on implementation may notconsistent, coherent because many compentent ageicies are responsibly for issuing the guidelines. For
example, there are 27 overlapped issues; 57 unclear provisions; and 29 unreasonable issues related to
documents on detailing the functions, duties of line ministries.34 Significantly, the legal normative
documents are often drafted by the same form in which the section for general provisions is quite longand re-regulated by the Decrees and Circulars as unnecessary section. In addition, low legislativetechnique also causes problems of inteprentation and application because the legal norms can beinterpreted by various meanings; as a result, the confiction in interpretation and application has
happened.

-

Mechanism for reviewing the constitutionalilty and legality of legal normative documents has not yet
implemented effectively because the lack of effective and independent organ which is empowered todeal with legal normative documents. In principle, illegal normative documnent is only abolished by
the adopted organs or by the higher state organs. For example, if the cicular of a Ministy is defined as
unconstitutional or illegal, Ministry of Justice only holds power to recommend to that Ministry forabolishment or report to Government for abolishment.

Report of Legal Committee of National Assembly section XI evaluates about legal system: “SomeLaws/Ordinances just provide very general provisons which causes difficulties for state organs. In general,
legal system still consists of many issues such as: shortages in number of laws; low quality, and protect fora group’s interests…” It is worth to note that government has involved in legislation through two mains
aspects: drafting law/ordinance, issuing decrees, circulars, and reviewing the constitutionalilty and legalityVũ Văn Thái. Xử lý chồng chéo chức năng nhiệm vụ đáp ứng yêu cầu cơ cấu tổ chức Chính phủ khoá XII.
TC Tổ chức Nhà nước. số 7/2007.
34

27

of legal normative documents. The quality of legal system depends deeply on the capacity of government
in legislation. Vietnam, in particular, still lacks of effective mechanism for improving the quality of legal
system.
It cannot deny that though separation of state powers is not introduced in Vietnam but division of statefunctions has been carried out as an essential condition for implementing state management. However, thedelegation of legislative power to executive sector without any limitation, low capacity of government inlegislation, and lack of effective mechanism for reviewing legal normative documents are the three main
reasons that causes legal system become inconsistent, incomprehensive and contradictory. Therefore, it isessential to identify the solutions for improving the quality of legal system in Vietnam in order to meetrequirement of rule of law principle.
B. Legislation by Japanese government and Constitutional Review
Like Vietnam, executive organs often play important role in legislation by involving in law-making process
and promulgating orders and ordinances. There are two kinds of bills such as bills submitted by Diet and bills
submitted by Cabinet. Among 100 bills enacted per year, most of them were submitted by Cabinet.35 Cabinet
holds power to issue oders to implement its function or implement laws. It is essential to answer two questions
concercening delegation of legislative power in Japan such as: 1) How Japan implements delegated legislation?
2) And, how Japan ensures the constitutionality and legality of rules and regulations issued by executive
organs? Answering these two questions will be a good reference for Vietnam in process of legislative reforms.
a) Limited delegated legislation in Japan
Concernling to delegated legislation in Japan, Hiroshi Oda mentioned about delegation of legislation in Japan
as follows:“Matters left to delegated legislation are fairly broad in Japan. For example, in the field of polution
controls, the emission standards are set by an order of the Prime Minister’s Office. The Foreign
Exchange and Foreign Trade Law provides that a person who intends to export goods may be required
to obtain a licence from the Minister of International Trade and Industry as provided by cabinet
order.”36“About the Cabinet Legislation Bureau / Cabinet Legislation Bureau,” accessed April 28, 2014,
http://www.clb.go.jp/english/about.html.
36 Oda, Japanese Law, 48.
35

28

This fact is similar to Vietnam as government also takes part in providing detailed guidlines on implementationsuch as providing “emission standards”. In principle, Law cannot provide too detailed the standards, conditions
related to line management because these standards, conditions are very specific and specialized issues.
Therefore, delegation of legislative power is essential condition for ensuring the implementation of Law.
However, delegated legislation in Japan is more clearly than the case of Vietnam because it also defines some
limited in Cabinet’s Order and Ministries’s Ordinance. For example, Constitution, Article 73 defines Cabinet
Order as follows: “However, it cannot include penal provisions in such cabinet orders unless authorized bysuch law.” In addition, the Cabinet Law also defines that: “No provisions imposing obligations or restricting
rights can be made in a Cabinet Order unless authorized by law” (Article11). These regulations indicate that
Cabinet cannot issue Order without any limitation. Unlike Japan, Vietnam dose not regulate any limitation ondelegated legislation, Government can issues decree quite freely as mentioned in above section. Decrees that
include imposing obligations or restricting rights of citizen are not considered as unconstitutional or illegal
cases in Vietnam because Law on Laws allows government to have more discretion in legislation. For example,

Decree No. 170/2007 ND-CP on amending and supplementing a number of articles of the Government’s
Decree No. 05/1999/ND-CP of February 3, 1999, on people’s identity cards was considered as unconstitutional
and illegal Decree because of imposing obligations for citizen to write their parent’s name in identity card.
This regulation is defined as violation of the privacy rights under Civil Code by Ministry of Justice. Therefore,
Government issued Decree No. 106/2013 to abolish this regulation. 37
Controversial issue related to delegation of legislative power is the boundary of delegation because executive
organs may have more discretion for drafting rules. Delegation of legislative power is required to be more
specific and detailed in order to ensure rule of law principle. It is worth to note that rules or regulations issued
by executive organs must comply with the Constitution and Law. However, both Constitution and Laws in
Vietnam have not yet regulated clearly degated legislation, as a result, many regulations issued by executive
organs are inconsistent with the Constitution and Laws.

37 “ChínhThức Bỏ Ghi Tên Cha Mẹ Trên Chứng Minh Nhân Dân | Tinmoi.vn,” accessed May 9, 2014,
http://www.tinmoi.vn/chinh-thuc-bo-ghi-ten-cha-me-tren-chung-minh-nhan-dan-011284341.html.

29

Significantly, constitutionality is one of the most controversial issues in Japan because the questions remainsuch as what kinds of provisions are regulated by cabinet’s order instead of Law. For example, Law on
Government Employees, Article 102 prohibits public officials from being participated in political activities;
however political activies are defined by the rules of Government Personel Authority. Therefore, this rule may
be considered as unconstitutional regulations because it relates to fundamental rights of public officials.38 It is
worth to note that Supreme Court of Japan is empowered to examine the constitutionality of cabinet’s order.39
To some extent, Japan has carried out delegation of legislative power in Japan is more specific than Vietnam
because the Constitution defines the boundary of cabinet’s order as well as empowers Supreme Court toimplement the function of Constitutional Court. However, Cabinet’s Order and Ministry’s Ordinance werealso defined as unconstitutional in some cases. For example, the “Stronglife Case” was a famous case in Japan
when registration of imported product was refused by Minister of Health and Welfare according to Cabinet’s
Oder. Related to this case, Supreme Court considered that: “There should be a strict interpretation andapplication of provisions relating to regulations by administrative authorities, to ensure the same are madewithin the designate area of the aim/purpose of the Act.”40 The fact is that executive organs may interprete andapply the provisions of Law defferent from the purpose of Law. In other words, the provisions of Law are too
general; therefore, they may cause defferent interpretation and application of the administrative authorities. It
is worth to note that Vietnamese government had played a vital role in interperetion of law without strict
judicial review like Japan. Consequently, administrative authorities often follow the regulations which areinterpreted by Decree or Circular rather than the regulations of Law.
Concerning delegation of legislative power, Cabinet also takes part in law-making process. Cabinet also holds
power to submit the bills (Article 72, Constitution). Therefore, Japanese Cabinet has played important role inlaw-making process through drafting bills. In order to achieve a policy goal resulted from implemetaion of

38 Oda, Japanese Law, 48.
39 “Overview of the Judicial System in Japan,” accessed April 22, 2014,

http://www.courts.go.jp/english/judicial_sys/overview_of/overview/index.html#02.
40 Shuichi Sugai and Itsuo Sonobe, Administrative Law in Japan, 104.

30

administrative duties, ministry will propose to enact a new law or to amend or abolish an existing law. Then, abill will be drafted by competent ministry and other related ministries will give comments for the first draft.41b) Constitutional and Judicial review
In fact, Japanese government also plays important role in legislation. However, delegation of legislative power
requires to reviewing the constitutionality and legality of order issued by cabinet in order to ensure rule of law
principle. In order to review constitutionality of legal documents issued by Cabinet or Ministries, Japan‘s
Cabinet itself established the Cabinet Legislative Bureau (Naikaku Hōsei Kyoku) and the Supreme Court holds
power of constitutional review based on the separation of power principle.
Cabinet Legislative Bureau:
Cabinet Legislation Bureau was established as an independent organ for examining and reviewing drafted bills,
ordinaces. “Cabinet Legislation Bureau has two formal tasks: 1) to provide opinions to the Prime Minister andthe Cabinet on legal issues; and 2) to examine drafts of all bills, regulations, Cabinet orders, and treaties forconsistency with the constitution and legal precedents.” 42 Cabinet Legislation Bureau assists Cabinet on
legislative works through examining the drafts of all bills, regulations before submission to the Cabinet. The
Cabinet Legislation Bureau will examine legally and teachically the drafted bills and orders as follows: 43The relationship between the proposed bill on one hand and the Constitution and other existing lawson the other, as well as the legal appropriateness of the contents of the bill;
Whether or not the intentions of the proposed bill are accurately expressed in the text;
Whether or not the structure of the bill (e.g. the order of articles.) is appropriate;
Whether the usage of letters or words is correct.

Cabinet Legislation Bureau focuses on reviewing technical of legislation and the clarity of drafts before
submission to the Cabinet.44 This process is considered as pre-judicial review of constitutionality and legalityof drafted laws, orders in order to ensure that laws, orders and regulations are consistent, coherent and comply
with constitution. After examining the drafted bills, Cabinet will make decision to submit the bills to the Diet
(to House of Representatives or to the House of Councilors) for promulgation. The key role of Cabinet

41 “Until the Law Can Be Done / Cabinet Legislation Bureau,” accessed April 22, 2014,

http://www.clb.go.jp/english/process.html.
42 Richard J. Samuels, “Politics, Security Policy, and Japan’s Cabinet Legislation Bureau: Who Elected These Guys,
Anyway?” (Japan Policy Research Institute, 2004), http://www.jpri.org/publications/workingpapers/wp99.html.
43 “Until the Law Can Be Done / Cabinet Legislation Bureau.”
44 John Owen Haley, The Spirit of Japanese Law (University of Georgia Press, 2006), 35.

31

Legislation Bureau is to ensure the “unified government interpretation”. Cabinet Legislative Bureau, in fact,
has played effective role in pre-enactment review because the member of CLB are themselves judges and theycarefully and expertly reviewing the documents before enactment, therefore, Supreme Court is hardly to findunconsititutionality in the final documents.45 In addition, CLB is refers as the ‘in-house lawyers’ of Prime
Minister and the members of CLB are also different from the members of any administrative agencies in Japan.
Members of CLB are senior officials who are legal experts with 15 or 20 years of experiences or senior
officials of Ministries such as Ministries of Jusitce, Ministry of Finance.46 Therefore, CLB has carried out
constitutional review effectively. It is a reason to explain why the number of unconstitutional cases in Japan isquite low.
Supreme Court:
Artice 81, Constitution defines that: “The Supreme Court is the court of last resort with power to determine theconstitutionality of any law, order, regulation or official act”, and, Article 98: "no law, ordinance, imperial
rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force orvalidity." It is essential to introduce judicial review of constitutionality and legality of legal normative
documents (rules) issued by executive organ for ensuring legal system to be consistent, coherent. JapaneseSupreme Court reviews both the constitutionality of legislation and legality of of orders and regulations
whereas Supreme Court of Vietnam is not empowered to implement judicial review related to legal normative
documents issued by Government and Ministries. Mechanism for protection constitution can be introduced inJapan because it adopts separation of state power. However, it is very hard for the case of Vietnam where thedemocratic centralism principle is adopted. The constitutional protection mechanism, in fact, was discussed in
Vietnam since 2001 when revising the 1992 Constitution. And, Communist Party (Tenth Congress) mentioned
that: “establish a system of adjudicating the constitutionality of the actions of legislature, executive and the
judiciary in Vietnam”. And once again the draft of the 2013 Constitution introduced the Constitutional

David S.Law, “Why Has Judicial Review Failed in Japan,” Decision Making on the Japanese Supreme Court,
2011, 1454, http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1061&context=lawreview.
46 Richard J. Samuels, “Politics, Security Policy, and Japan’s Cabinet Legislation Bureau: Who Elected These Guys,
Anyway?”.
4532

Council. However, the Constitutional Council was not adopted by new Constitution in 2013. 47 Hence,
Consitution of Vietnam Article 74 provides that: “Standing Committee of National Assembly has powers andduties to supervise the implementation of the Constitution, the law, the resolutions of the National Assembly,
decree-laws, the resolutions of the Standing Committee; to supervise the activities of the Government, theSupreme People's Court, the Supreme People's Procuracy, State Audit, and other organs created by the
National Assembly.” This provision only mentions the power to supervise the implementation which isdefferent from the power of judicial review. Hence, Vietnam still lacks of effective channels for reviewing
constitutionality and legalilty of Decrees and Circular issued by central government.
C. Recommendation for improvingthe quality of legal system in Vietnam
The fact is that Vietnamese government has played an important role in legislative process by drafting laws
and issuing legal normative documents. Government’s Decree and Ministry’s Circular are major part ofsources of law. However, executive organs have more discretion in rule-making due to delegation of legislative
power has not yet provided specifictly and concretely. Vietnam still lacks of an effective channel for reviewing
constitutionality and legality of legal normative documents; therefore, the quality of legal system of Vietnam
still remains very low. In order to improve the quality of legal sysem to become more efficient, coherent,
consistent and comprehensive, Vietnam needs to focus on the following solutions:-

Revising Law on Laws 2008, especially regulations related to ensure effectiveness of public
participation and the quality of regulation impact assessment. Drafting board shall be not only
responsible for collecting comments from individuals, organizations, especially scientists, experts inorder to improve the quality of drafting laws but also for explaining the reasons why they do not
accept comments from public. In addition, report of regulation impact assessment shall be carried out
effectively before, during and after promulgating legal normative documents by independent agencies
rather than drafting board because it often lacks of capacity or over workload for implementing
assessment. Consequently, report on regulation impact assessment will indicate alternative options fordrafting board to select the best one. In addition, Law on Laws needs to define clearly the boundary

47 Albert Chen, Constitutionalism in Asia in the Early Twenty-First Century (Cambridge University Press, 2014),

209–211.

33

of delegation of legislative power in order to ensure that legal normative documents issued byexecutive organs comply with Constitution and Laws. Law on Laws shall include a strict regulation toensure that law’s interpretation and application of administrative authorities as the same as theaim/purpose of the regulations adopted by Law. It is essential to establish a hierarchical of legal
system in implementation process strictly.
-

Building capacity for Ministry of Justice as a lead drafting agency is essential condition for improving
quality of drafted laws, decrees and circulars. In addition, Ministry of Justice has played importantrole in reviewing constitutionality and legality of legal normative documents issued by otherministries and provincial local authorities; therefore, Ministry of Justice needs to have qualified staffs
who take part in legislative process effectively. Hence, training drafting skills is also an urgent needfor ensuring the drafted laws, ordinances, or decrees to become more clearly and coherently.

-

Significantly, Vietnam may consider to establishing a state organ such as Cabinet Legislative Bureau
like Japan which is responsible for reviewing constitutionality and legality of all documents before
enactment. This organ will include senior public officials who have experiences in legal aspects suchas legal professionals (lawyers, judges, senior legal officials…). This organ will have capacity andwill play a role in reducing the number of “bad-law” in Vietnam. Establishment of this organ alsoenable Vietnam to deal with current situation as such Ministry of Justice is lack of capacity to review
all legal documents and does not hold power to abolish illegal documents. 48 Cabinet Legislative
Bureau will be more effective solution for ensuring the constitutionality and legality of legal
documents becaust it reviews both pre-enacted and post –enacted documents. Significantly, legal
status of Cabinet Legislative Bureau is different from the legal status of Ministry of Justice; therefore,
it is a possible solution for Vietnam to improve the quality of legal system. On the other hand,building

capacity for Legal Commission of the National Assembly is an essential channel for

ensuring that all drafted laws are reviewed carefully before submitting to National Assembly forpromulgation.

48 Ministry of Justice only can recommend other state organs to revise or abolish the illegal documents.

34-

Empowering Supreme Court is another alternative solution for enhancing constitutional protection
mechanism in stead of establishing a Constitutional Court/Council. In other words, Supreme Court
needs to hold power to review the constitutionality and legality of legal normative documents issued
by executive organs as a significant independent channel in implementing judicial review. In addition,
when Supreme Court has judicial review of legal normative documents, it will allows citizen to bring
the legal normative documents to the court when these documents are considered as unconstitutionaland ellegal document and violate to his/her rights and legitimate interests.

In brief, the quality of legal system depens on the role of government in legislation. Promoting the qualityof draft laws, drecree will ensure that legal system become more consistent, coherent. Therefore,
reforming law-making process, promoting public participation in law making process, introducing
effective judicial review are the main factors for improving the quality of legal system in Vietnam./.

35

Conclusion
Although National Assembly in Vietnam has legislative power however Government had played a vital role inlegislation. The problem is that delegated legislation in Vietnam has not yet regulated strictly; consequently,
executive organs have more discretion not only in interpretation of provisions adopted by Law but also in
formulation legal norms (Deree-Laws). In addition, Vietnam still lacks of effective mechanism for reviewing
constitutionality and legality of legal normative documents issued by administrative authorities. Hence, legal
system of Vietnam reveals many shortcomings such as overlapping, contradictory, and infeasibility.
Consequently, administrative authorities can abuse state power easily during process of law application, andviolate the rights and legitimate interests of citizens. In order to ensure legal system will become moreconsistent, coherent and comprehensive, Vietnam needs to empower Supreme Court to carry out judicial
review related to legal normative documents issued by Government and Ministries. In addition, building
capacity of Ministry of Justice as a lead drafting agency in law-drafting process and pre-reviewing
constitutionalilty and legality of drafted Decrees and Circulars is essential condition for ensuring the quality ofdrafted legal normative documents. Vietnam may consider to establishing a Cabinet/Government Legislation
Bureau as Japan for improving the quality of legal system. Law on Laws should be revised with the aim at
promoting effectiveness of public participation in law-making process as well as the quality of regulation
impact assessment reports.
Rule of law requires that all actions of the state organs, groups, and individuals must abide by the constitution,
laws and regulations, and to exercise their powers within limits of the law. Therefore, building a rule of law
state requires that legal system must be consistent, conherent and comprehensive as a primary condition for
ensuring that all government actions bound by laws. Rights and legistimate interests of citizen can be protected
effectively if there is an effective judicial review mechanism is established for reviewing constitutionality andlegality of legal normative documents. Hence, adequate mechanism for ensuring effective role of government
in legislation, which is significant requirement of rule of law state should be strictly considered in Vietnam
today./.

36

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39

Dr. PHAN Thi Lan Huong
Born in Tuyen Quang province, Vietnam in 1975.
Dr. PHAN Thi Lan Huong has been working for Hanoi Law
University since 1997. She majors in Law on Public Administration.
She received Doctor of Laws Degree from the Graduate School of
Law – Nagoya University in 2012. Her dissertation is aboutreforming local government in Vietnam which has been considered acontroversial topic in Vietnam, especially since the Constitutional
amendment in 2013. She wrote journal articles and research papers
related to public administration in Vietnam in comparison with othercountries such as Japan.
In April and May 2014, she was invited by the Center for Asia Legal
Exchange (CALE) at Nagoya University as a visiting professor inJapan to conduct a research project on “The Role of Vietnamese
Government in Legislation – in Comparison with Japan”.

C ALE Discuss i on P ap er No. 11
The Role of Vietnamese Government in Legislation – in Comparison with Japan
Author

PHAN Thi Lan Huong, Dr.

Published byCenter for Asian Legal Exchange (CALE)
Nagoya University464-8601 Furo-cho, Chikusa-ku, Nagoya, JAPAN
Tel: +81 (0)52-789-2325
Fax: +81 (0)52-789-4902
http://cale.law.nagoya-u.ac.jp/

Issue date

15 September, 2014

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CALE Discussion Paper No.11 (September, 2014)
Nagoya University
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