Comparative study of the parliamentary ombudsman in the world and the applicability in Viet Nam

The analysis and assessment of the power control over the administrative system in

Vietnam indecate that we need a flexible control mechanism like the parliamentary

ombudsman agency in controlling power over the administrative system. The presence of

the parliamentary ombudsman not only adds a new form of control to diversify the power

control mechanism, but it also contributes to the effectiveness and efficiency of control

power mechanisms over the system of administrative agencies in Vietnam. In addition, the

parliamentary ombudsman also meet the goal of building NHRIs in Vietnam. There is a

close relationship between power control and protection of human rights, because after all,

abuse of power and lack of power control are the main factors that cause to the infringe

upon human rights and civil rights. Therefore, the combination of controlling power and

promoting and protecting human rights in an institution is reasonable, especially for

countries that are tending to reduce costs in the organization and operation of state apparatus

like Vietnam.

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general level, mainly focusing on the Parliamentary Ombudsman in typical countries (such as Northern European countries). Therefore, the thesis based on the inheritance of domestic researches should continue to study the Parliamentary Ombudsman Agency at a wider and more comprehensive perspective. The 8 thesis researches not only countries in the region of Europe where the Parliamentary Ombudsman is very developed, but also countries in other regions of the world such as the Americas, Asia and Africa with the purpose of finding out the characteristics and the diversity of the Parliamentary Ombudsman institutions in countries around the world, thereby, assess the development trend of this model. Secondly, in terms of content: Domestic studies on Parliamentary Ombudsman basically approach this agency either as a control agency or as a national human rights agency. Thirdly, in terms of research method: Most of the studies use analytical and statistical methods as the primary method while some carry out comparative research method although the number of countries in those studies is limited to two countries in Asean region. Additionally, in studying the applicability of the Parliamentary Ombudsman in Vietnam, most scholars have suggestions on the application of this type of agency in Vietnam, yet, the scholars only give some simple suggestions and arguments. In particular, Vietnamese scholars have not mentioned and analyzed the effects of the Parliamentary Ombudsman on relevant state agencies when is applied in Vietnam. Moreover, they have not made a decision on which model of Parliamentary Ombudsman is appropriate for Vietnam while the Parliamentary Ombudsman mechanism in the world is organized diversely, as well as not anticipating possible difficulties, giving solution to overcome difficulties when applying this model. These are the important tasks that I want to continue developing in this thesis. CONCLUSION FOR CHAPTER 1 By analysizing the researches on Parliamentary Ombudsman in Vietnam and in the world, we can see that although this topic has been studied a long time ago, many foreign scholars continue to study and recognize this agency in some new ways associated with the attemption of human rights protection and good governance. By contrast, the study of this mechanism in Vietnam is still limited in number and scale, most of studies are conducted within a few countries. Regarding the feasibility assessment in the application of the Parliamentary Ombudsman model in Vietnam, Vietnamese government has advocated learning experiences of applying the Parliamentary Ombudsman model in other countries to evaluate the applicability of this model in Vietnam in the 1990s. However, this model has not been applied in Vietnam for various reasons. On the other hand, from a research perspective, the application recommendations only stop at supporting the establishment but have not 9 proposed specific models for Vietnam nor assessed the impact of this institution in the operation of the state apparatus. Accordingly, Parliamentary Ombudsman is still a research topic that needs to be further exploited to better understand this mechanism, to have a comprehensive, accurate assessment, and to answer the question of whether the Parliamentary Ombudsman should be applied in Vietnam. If so, how to design this agency in the state apparatus. CHAPTER 2 THEORY OF PARLIAMENTARY OMBUDSMAN AND THE COMPARISON OF DIFFERENT TYPES OF PARLIAMENTARY OMBUDSMAN IN THE WORLD 2.1. Theory of Parliamentary Ombudsman 2.1.1. Concept of Parliamentary Ombudsman 2.1.1.1. Concept of inspectorate and state inspectorate According to the Legal Term Dictionary, “inspectorate” refers to “examining and supervising the implementation of policies, laws, tasks and plans conducted by state agencies and public servants, supervising the settlement of complaints and denunciations of authorities”. Inspection can be done by the state or social organizations. The term "state inspectorate " is used to identify the subject conducting the inspectorate activities which is a state agency rather than a social organization. State inspectorate can be defined as activities of competent state agencies using professional methods such as investigating and evaluating the activities of entities using state power or public services in order to detect or prevent violations in time by proposing to handle problems or handle them by using their respective competence. 2.1.1.2. - Parliamentary Ombudsman - a type of state inspectorate being outside the administrative system Currently, there are two basic models of inspectorate agencies in the world, one is in the administrative system and the other is outside the administrative system. The Parliamentary Ombudsman is a constitutional or established by the legislature body (Parliament) and is headed by an independent senior official responsible before the legislature (Parliamentary). These independent senior officials have the right to receive complaints from citizens against administrative officials and their staff, on that basis, the Parliamentary Ombudsman have the right to investigate, propose measures and issue reports. 10 Based on the concept and classification of state mbudsman, it can be asserted that Parliamentary Ombudsman is outside the administrative system. This statement is reflected in terms of not only organizational but also in operational aspect in which the Parliamentary Ombudsman have their own independence. Currently, there are two basic models of inspectorate agencies in the world, one is in the administrative system and the other is outside the administrative system. Based on the concept Parliamentary Ombudsman, it can be asserted that Parliamentary Ombudsman is outside the administrative system. 2.1.2. The role of the Parliamentary Ombudsman 2.1.2.1. The role of the Parliamentary Ombudsman in controlling state power a. The concept of power control and power control mechanism in the modern rule of law state Control of state power is essentially the grasp of the organization and operation of entities exercising state power, conducted by government agencies or citizents in order to ensure that state agencies exercise their power properly without the abuse of their authorizations or state power for self-seeking purposes, which againsts the nature of the democratic state. State power control mechanism is the method, process, regulation and institutions related to the control of state power. They are closely linked together by which the control of state power is carried out. This mechanism aims to prevent and eliminate the risks of wrongdoings from State agencies and public servants in organizing and exercising state power, ensuring the state power is organized and implemented effectively in accordance with the provisions of the Constitution, laws. b. Parliamentary Ombudsman- An independent control agency that links power control from the state to power control from society. From the concept and the mechanism of power control in the modern rule of law, it is possible to determine the position and role of Parliamentary Ombudsman in the organization and operation of the state apparatus as follows: First of all, it can be affirmed that the Parliamentary Ombudsman is a type of independent control agency, meeting the diversity in power control mechanisms in the rule of law for the following aspects: Firstly, Parliamentary Ombudsman is born due to the need to expand the function of the state. 11 Second, Parliamentary Ombudsman are often regulated by the constitution like other independent control agencies that are established on the basis of the constitutional provisions of the states. Thirdly, Parliamentary Ombudsman may be established by the National Assembly but its organization and operation do not depend on agencies belonging to the traditional power branches. Fourth, Parliamentary Ombudsman is accountable but not be checked by other institutions. Fifthly, the activities of Parliamentary Ombudsman are purely professional, having specific functions and authority in certain fields. Sixth, Parliamentary Ombudsman plays the role of power control agency but Parliamentary Ombudsman does not have the authority to interfere with the functions and duties of other institutions. In addition, Parliamentary Ombudsman meet the flexibility of control power in the modern rule of law. Parliamentary Ombudsman is a combination of the power control from the state and the power control mechanism from society. Parliamentary Ombudsman in the world have a very close relationship with the people. Thanks to the existance of Parliamentary Ombudsman, the control of state power of the people through the right to appeal and denunciations is more assured, motivating them to exercise their rights. 2.1.2.3. The role of Parliamentary Ombudsman in protecting and promoting human rights Parliamentary Ombudsman is now known as one of the NHRI models that are commonly applied in many countries around the world. Parliamentary Ombudsman is a NHRI with the following characteristics: (1) Have an independent position, often constituted and detailed by a statute, which protects and promotes human rights. (2) Parliamentary Ombudsman is designed to be one or a team of ombudsmen. (3) Receive complaints and denunciations of citizens and conduct investigation procedures if they deem that such complaints indicate acts of human rights infringement. (4) Report to the National Assembly issues on human rights, discover and recommend to the National Assembly on the improvement of laws and limitations in state agencies' activities, especially the administrative system affects human rights and citizens' rights. 12 (5) Regularly carry out activities to promote human rights such as organizing seminars for exchanging experiences and expertise among the ombudsman agencies that perform their functions in the field of human rights, strengthening propaganda and mobilization of relevant agencies and organizations in ensuring and promoting human rights. 2.2. Types of Parliamentary Ombudsman from a comparative perspective 2.2.1. Comparison method of Parliamentary Ombudsman in the world Firstly, conceptually, comparing Parliamentary Ombudsman in the world is analyzing the content of the law provisions on the organization and operation of the Parliamentary Ombudsman as well as the related legal issues such as the circumstances of the birth of Parliamentary Ombudsman, the operation of Parliamentary Ombudsman among countries. Based on the comparison, the similarities and differences in positions, roles, functions, organizational structures and forms of activities among Parliamentary Ombudsman would be clarified. Secondly, the purpose of comparison method is to find out the similarities and differences between the Parliamentary Ombudsmans in the world, first of all to see the nature of the Parliamentary Ombudsman Thirdly, in terms of comparison criteria, there are two basic criteria. The time criterion that allows to divide the Parliamentary Ombudsmans around the world into two basic model groups is the " Classical Parliamentary Ombudsman " and the " Modern Parliamentary Ombudsman " for comparison. While, in terms of spatial criteria, the thesis bases on the geographical location and the similarity in the process of the birth of the Parliamentary Ombudsmans to classify Parliamentary Ombudsmans in regional countries. 2.3. Types of Parliamentary Ombudsman from a comparative perspective 2.3.1 Classical Parliamentary Ombudsman 2.3.1.1. History of Classical Parliamentary Ombudsman In essence, the appearance of Parliamentary Ombudsman is based on the objective needs of control over administrative administration In practice, Sweden's history of developing a state power organization reflects the cause of the birth of Parliamentary Ombudsman. 2.3.1.2. Characteristics of Classical Parliamentary Ombudsman - The legal position and function of Classical Parliamentary Ombudsman Classical Parliamentary Ombudsman is defined as an independent constitutional body, which oversees the observance of the laws of the courts and administrative agencies. 13 - Structure and organization of Classical Parliamentary Ombudsman Ombudsman: are elected by the National Assembly based on criteria of professional qualifications and ethical qualities, ensuring independence in the performance of tasks. Deputy ombudsman: is an adjunct to the Parliamentary Ombudsman in case of necessity rather than acting as a regular assistant for ombudsman. Assisting staffs: Although the law does not regulate specifically but Parliamentary Ombudsman is always supported by a large number of Assisting staffs. - Tasks and powers of Parliamentary Ombudsman On one hand, Classical Parliamentary Ombudsman has the authority to prosecute as a special prosecutor. On the other hand, Parliamentary Ombudsman also has the right to propose and comment on relevant issues during the investigation process. 2.3.2. Modern Parliamentary Ombudsman 2.3.2.1. History of Modern Parliamentary Ombudsman The inspection of the modern National Assembly came from practical needs: (1) The need to control administrative agencies to build a democratic state and (2) the trend of building national human rights agencies (NHRIs) in modern states. 2.3.2.2. Characteristics of Modern Parliamentary Ombudsman The characteristics of Modern Parliamentary Ombudsman are the "deformation" of organization and operation of Classic Parliamentary Ombudsman. Based on the change in function scope of Parliamentary Ombudsman, there are two deformations: (1) Parliamentary Ombudsman acting as the National Anti-Corruption Agency; (2) is an ombudsman body working with human rights body to form a Hybrid Human Rights Ombudsman. Based on the origin of formation: Modern Parliamentary Ombudsman is formed from such branches of power as government or the president rather than from the National Assembly. Based on authority: Parliamentary Ombudsman only makes recommendations and warnings, which mainly relied on the power of public opinion. Based on the scope of supervision: Parliamentary Ombudsman can monitor the private sector and limit the supervision of Court activities. Based on organization: Modern Parliamentary Ombudsman is also primarily designed as a national agency. Some countries organize the Parliamentary Ombudsman system from the national to local levels. In particular, there are countries where local parliamentary ombudsman is organized without the existance of national Parliamentary Ombudsman such as Germany, Canada, and the United States. 14 2.2.4. The similarities and differences between Classic Parliamentary Ombudsman and Modern Parliamentary Ombudsman First of all, we can see that Classic Parliamentary Ombudsman and Modern Parliamentary Ombudsman have similarities: Firstly, both Classic and Modern Parliamentary Ombudsman are independent constitutional institutions. Secondly, the power-control nature of both Classic and Modern Parliamentary Ombudsman are a part of the "soft" power control mechanism, supporting the traditional power control mechanism. Thirdly, regarding the role of Parliamentary Ombudsman in the power control mechanism, the nature of power control of both Classic and Modern Parliamentary Ombudsman is complementary to the traditional power control mechanism. Fourthly, regarding the mechanism of operation, both Classic and Modern Parliamentary Ombudsman are based on the investigation mechanism to clarify the facts on the basis of receiving complaints and denunciations of the people. Fifthly, in relation to the traditional authorities, the Classic and Modern Parliamentary Ombudsman is both attached to the representative agencies. Sixthly, regarding the relationship between the Parliamentary Ombudsman and the people, it can be seen that the organization and activities of the Classic and Modern Parliamentary Ombudsman are based on the strong relationship with the public. Besides the similarities, Modern Parliamentary Ombudsman also has their own unique features or in other words, it is developed compared to Classic Parliamentary Ombudsman: Firstly, Modern Parliamentary Ombudsman has more functions besides the function of monitoring administrative agencies. Secondly, the subjects that form Parliamentary Ombudsman are also more diverse, which can be formed by the coordination with executive branch. Thirdly, the duties and powers of Modern Parliamentary Ombudsman are wider than classic Parliamentary Ombudsman. Fourly, regarding to the role of the Parliamentary Ombudsman in society, compared to the classical Parliamentary Ombudsman, the modern model is increasingly known for more roles in society. 15 CONCLUSION FOR CHAPTER 2 From clarifying the theoretical basis of Parliamentary Ombudsman as well as the comparation of the organization and operation of Parliamentary Ombudsman in the world, some conclusions can be drawn: Firstly, Parliamentary Ombudsman is a type of ombudsman agency defined as an independent constitutional agency, plays a very important complementary role in the state power control mechanism in the modern rule of law besides the traditional power control mechanism. Although the rule of law still considers decentralization as the most important form of power control, with the complex changes of society, new conception of the state function requires an effective control from the people and the independent institutions (independent constitutional agency), which would contribute to effectiveness of power control in the modern rule of law state. Secondly, through a comparative study of the parliamentary ombudsman, we can see that the shift from the classic parliamentary ombudsman model to the modern parliamentary ombudsman model is a flexible transformation, catching up with the needs of the state and society, helping the parliamentary ombudsman spread all over the world. The presence of the parliamentary ombudsman in not only countries with developed legal system, but also in others with developing legal system indicates the advantages of this model in controlling state power. The parliamentary ombudsman has manipulated the ability of control power from both the state and the people, combining the function of controlling state power with the function of protecting human rights, which is the nature of the rule of law. CHAPTER 3 THE DEMAND OF APPLYING THE PARLIAMENTARY OMBUDSMAN TO CONTROL THE POWER OF THE PUBLIC ADMINISTRATIVE AGENCIES AND BUILD THE NATIONAL HUMAN RIGH TS AGENCY IN VIETNAM 3.1. The current organizing and operating of public administrative agencies in Vietnam and the requirement of controlling the public administrative agencies Firstly, the agency exercising executive power is at the same time the highest state administrative agency. There was a time we considered the execution and the administration as one. Secondly, the public administration apparatus has very broad authority. This is also a common feature of the administrative apparatus in many countries around the world. 16 Thirdly, the administrative apparatus is strictly controlled by the highest state power agency, the National Assembly. Fourthly, the organization of the public administrative apparatus of Vietnam is in the process of reform, towards a service-oriented administration. With the above characteristics, it shows that the control of power over administrative agencies is indispensable. At the same time, the characteristics of public administration impose specific requirements for the mechanism of power control over the administrative system. To specific: Firstly, the mechanism of control of the administrative system should be diverse. Secondly, the control of public administration requires the professionalism. Thirdly, the control of public administration requires flexibility. The flexibility is manifested in the diversification of control methods. 3.2. The current situation of controlling the public administrative agencies in Vietnam today 3.2.1. Controlling the administrative agencies through supervisory activities of the National Assembly Firstly, the National Assembly's supervision of the organization and operation of the public administrative apparatus is still formal and has not really appreciated the actual situation. Secondly, the National Assembly has not focused on the professionalism in supervising the organization and operation of the administrative apparatus. Thirdly, the National Assembly has not guaranteed the independence in supervisory activities for the organization and operation of the public administration apparatus. 3.2.2. Controlling the public administrative agencies through Court and Procuracy Firstly, the Court hears cases involving administrative officials is facing many difficulties. Secondly, the Procuracy's function of supervising judicial activities is not really effective. 3.2.3. Controlling the public administrative agencies through the system of inspection agencies The control of public administration by inspection agencies is not really effective. The biggest cause of this situation is that the current inspection is not really independent of the subjects, the review as well as the inspection remains heavily influenced by the head of the administrative body. 17 3.2.4. Controlling the public administrative agencies from society Firstly, the control of administrative agencies from society through the Fatherland Front has not yet met these requirements, so the Fatherland Front's social criticism remains ineffective. Secondly, control of administrative agencies from society through the implementation of the people's basic rights such as the right to appeal and denounce is still limited, failing to meet the needs of the people. 3.2.5. General assessment of the effectiveness of the control mechanisms for public administrative agencies in Vietnam Firstly, the control of the administrative system lacks independence. Secondly, the control mechanism for the administrative system in Vietnam lack professionalism. Thirdly, there are still many limitations in the coordination between the control mechanisms for the administrative system 3.3. Current human right protection mechanism in Vietnam According to current legal system, all state agencies are obliged to protect human rights and citizens' rights. Besides, there are a number of agencies carrying out intensive work in the field of human rights. However, there is no NHRI which is a mechanism to protect and promote human rights in a professional way, with diverse and flexible operations, creating credibility with society as well as internationally in Vietnamese state apparatus. The lack of NHRI is a constraint in the organization of the state apparatus from the perspective of protecting and promoting human rights. Not only is it independent and professional in protecting human rights, but it is also the only state human rights body that is periodically assessed for independence and effectiveness by an international organization. Accordingly, the existence of this agency would create the higher credibility from society and international community when assessing the responsibility of the state in protecting and promoting human rights. 3.4. The need to apply the Parliamentary ombudsman in the organization and operation of the state apparatus in Vietnam 3.4.1. Parliamentary ombudsman contributes to the supervision capacity of the National Assembly on the administrative agencies Firstly, parliamentary ombudsman would help the National Assembly to promote its monitoring function through investigations. 18 Secondly, parliamentary ombudsman would coordinate with specialized agencies of the National Assembly to better perform the work of settling complaints and denunciations of citizens. Thirdly, parliamentary ombudsman in Vietnam, like parliamentary ombudsman in other countries, would help the National Assembly to review legal documents issued by administrative agencies that violate the constitution, laws and resolutions of the National Assembly. 3.4.2. Parliamentary ombudsman carry out a number of judicial activities to improve the effectiveness of

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