The relationship between judicial and executive powers in exercising state power in Vietnam today

on the reality of the relationship between judicial and executive power in exercising state power. Third, research works on solutions to ensure the relationship between judicial and executive power in exercising state power. 1.1.2. Research situation abroad The dissertation also divides foreign documents into 2 groups: Theory and current situation, solutions to ensure the relationship between judicial and executive power. 1.2. Comments on the research situation related to the dissertation topic 1.2.1. General comments on the research situation 6 By reviewing domestic and foreign research works, the study may give the following comments: First, the number of research works related to the dissertation topic is quite rich and diverse, they are approached from many different directions and levels. Second, domestic works seek to examine issues related to principles of assignment, coordination and control between legislative, executive and judicial powers; in-depth research on the executive branch and executive power control, on the judicial branch and judicial power control; the relationship between the legislative and the executive. These studies also partly mention the relationship between judicial and executive power but mainly in terms of power control. Currently, there are not any scientific works examine intensively and systematically the relationship between judicial and executive power in exercising state power in Vietnam. Third, foreign research works mainly focus on theoretical issues and the relationship among 3 branches including legislative, executive and judicial branch. Some foreign scholars have also researched relatively comprehensively the history of Vietnam's constitution and also mentioned the principle of assignment, coordination and control of state power in the state apparatus. These research works are important materials to solve the research tasks in this dissertation. 1.2.2. The research issues have been clarified, inherited and developed by the dissertation Theoretically: - The domestic and foreign research works show that the people are the origin of state power. Therefore, in order for state power to really belong to the people, must avoid the abuse of power and power must be divided to assigned to different state agencies. 7 - The three branches of legislative, executive and judicial powers have relations to each other, in which, recognizing the independence of the judiciary. - Some studies introduce the concept of executive power, judicial power, agency exercising executive power, and agency exercising judicial power. - Some studies mention the relationship among the three branches of legislative, executive and judicial powers. However, they mainly focus on the relationship between the legislature and the executive, while not mentioning much on the relationship between the judiciary and the executive. Practically: - Some studies mention the reality of organizing executive power in Vietnam from 1945 to present, and the reality of judicial power in the socialist rule-of-law state of Vietnam. - Some studies mention the reality of assignment and coordination among state agencies in exercising legislative, executive and judicial powers before promulgating the 1992 Constitution and since the 1992 Constitution. However, the reality of the relationship between judicial power and executive power in the Vietnamese Constitutions has not been studied, and need to be further clarified. In terms of proposals and recommendations: - Some studies aim to propose recommendations and proposals to improve judicial and executive powers in the socialist rule-of-law state of Vietnam. - Some studies propose solutions to complete the assignment and coordination among agencies in exercising the legislative, executive and judicial powers. 1.2.3. Issues have not been resolved or incomprehensively resolved that the dissertation needs to further examine 8 From analysis of the reality of research situation, the dissertation tries to further examine the following matters: First, on the concept, characteristics, content and role of the relationship between judicial power and executive power. The study must give concepts with convincing scientific argument. Second, it determines and analyzes conditions that ensuring the relationship between judicial power and executive power. Third, it analyzes the process of forming and developing the relationship between judicial power and executive power in Vietnam's constitutional history as well as the reality of the relationship between these two power branches. Fourth, it identifies viewpoints and solutions to ensure the relationship between judicial power and executive power. 1.3. Research hypothesis and questions 1.3.1. Research hypothesis Examining theoretical and practical issues on the relationship between judicial and executive power from the legal perspective, the study has the following scientific hypotheses: In Vietnam, the power assignment and coordination between the legislative, executive and judicial powers in general as well as the assignment and coordination between judicial power and executive power in particular have been applied from many years but still not really clear and reasonable. Meanwhile, the control of judicial and executive powers is officially recognized in the 2013 Constitution. In fact, there are still limitations and inadequacies in implementing the relationship between judicial and executive power, not really ensuring the independence of the judiciary as well as the flexibility and flexibility of the executive. Therefore, it is necessary to aware and institutionalize fully to realize and ensure the relationship between judicial and executive powers, this is one of 9 the decisive factors contributing to improve the Socialist rule-of law state of the people, by the people and for the people. 1.3.2. Research question To fulfill the research purpose, the dissertation tries to answer the following questions: First, which theoretical issues on the relationship between judicial and executive powers need to be analyzed and addressed to form a cognitive basis for this relationship? What are philosophies ensuring the relationship between judicial and executive powers? Second, how is the reality of the relationship between judicial and executive powers regulated in the Constitution and legal documents of Vietnam? What are the advantages, disadvantages, and reasons of implementing this relationship? Third, what opinions and solutions should be proposed to ensure the relationship between judicial and executive powers in exercising state power in Vietnam. 10 Chapter 2 THEORETICAL ISSUES ON THE RELATIONSHIP BETWEEN JUDICIAL AND EXECUTIVE POWERS IN EXERCISING STATE POWER 2.1. The concept, characteristics, and roles of the relationship between judicial and executive powers in exercising state power 2.1.1. The concept of the relationship between judicial power and executive power in exercising state power 2.1.1.1. Judicial power Judicial power in the socialist rule-of-law state is a branch of power in the mechanism of assignment, coordination, and control of state power through the People’s Court hearing in order to maintain and protect justice, legal order, human rights, and legitimate rights and interests of individuals, agencies, organizations and the state in accordance with the law. For the entity exercising judicial power: The Court is the only agency exercising judicial power. 2.1.1.2. Executive power Executive power includes the right to make regulations and administrative right, in which the right to make regulations is the right to make national policies and to issue legal documents. The administrative right is the right to organize and operate economic, socio-cultural activities, ensure national defense and foreign affairs under the law. The 2013 Constitution stipulates that the Government is the agency exercising executive power. This does not mean the whole executive power vested in the Government and its members. However, the dissertation just mentions the agency exercising executive power to be the government in relation with the Court – the agency exercising judicial power. In the state apparatus, the Court is the agency exercising judicial power, the Government is the agency exercising executive power. To perform well their functions and tasks, there are always relations and interactions 11 between these two branches of powers. Depending on the form of regime, countries will have different ways of establishing the relationship between judicial and executive powers, but in general, this relationship is always established in three main aspects: the assignment, coordination and mutual control between these two branches of powers. From the concept and analysis mentioned above, it can be seen that the relationship between judicial power and executive power in exercising state power in Vietnam is the one to assign, coordinate and control the implementation of judicial and executive powers exercised by the judiciary and executive agencies to ensure the unification of state power; to effectively exercise judicial and executive powers under the law and strictly and promptly handle all violations to protect legitimate rights and interests of individual and organizations in society. 2.1.2. Characteristics of the relationship between judicial and executive powers in exercising state power in Vietnam First, the relationship between judicial and executive powers has control content and clear, specific, mandatory enforcement for the executive. Second, executive power has certain control over the judicial power but must ensure the independence of the People’s Court when exercising the judicial power. Third, although there is a clear division of functions of the relationship between the judiciary and the executive, close coordination to ensure the operational efficiency of both the executive and the judiciary. 2.1.3. The role of the relationship between judicial and executive powers in exercising state power in Vietnam First, it contributes to controlling the exercise of state power between the judiciary and the executive. Second, the establishment of the relationship between judicial and executive powers contributes to effectively exercise the judicial and executive powers. 12 Third, the establishment of the relationship between judicial and executive powers contributes to ensuring that state power is unified and belongs to the people. 2.2. The content of the relationship between judicial and executive powers in exercising state power in Vietnam 2.2.1. Assignment of judicial and executive powers in exercising state power in Vietnam In Vietnam, in the exercise of state power, the assignment of power is clearly shown. The 2013 Constitution stipulated the Government exercises executive power and the People’s Court exercises judicial power. In addition, the Constitution also stipulated the tasks and powers of the Government and People's Courts and concretized by the Law on Organization of the Government 2015 and the Law on Organization of the People’s Courts 2014. Accordingly, the Constitution gives 08 tasks and powers for the Government. For the Court, the Constitution hands over authority of hearing criminal, civil, marriage and family cases, as well as business, commerce, labor, administrative cases and other matters under the provisions of the law. The Court's duties are to protect justice, human rights, civil rights, the socialist regime, interests of the State, and legitimate rights and interests of organizations and individuals. 2.2.2. Contents of coordination between judicial and executive powers in exercising state power in Vietnam For Vietnam, the coordination between judicial and executive powers is constitutionalized in the 2013 Constitution. In this dissertation, the author focuses on studying the coordination between the People's Courts and the Government in building and educating law, as well as managing courts under the Regulation on coordination between the Government and the Supreme People's Court and the Supreme People's Procuracy was issued by Inter-Ministerial Resolution No. 15/NQLT/CP-TANDTC-VKSNDTC dated March 31, 2010. 13 2.2.3. Contents of control between judicial and executive powers in exercising state power in Vietnam * Controlling judicial power over executive power: In Vietnam, the Court controls executive power. The Court’s control has indirect nature through resolution of economic, labor, marriage and family disputes, and administrative cases. In the process of exercising executive power, state administrative agencies and competent persons in state administrative agencies issue administrative decisions, change or terminate social relations affecting interests of citizens, agencies and organizations. This process may lead to disputes among administrative agencies, citizens, and organizations. To resolve this dispute, the Court has the right to decide on administrative decisions and acts of the administrative bodies (settlement of administrative complaints). By assessing the legality or violations of administrative decisions, the administrative acts are sued and adjusted to be really an effective mechanism to ensure that the state administrative agencies strictly comply with provisions of the law in the process of performing their state administrative management functions. * Controlling executive power over judicial power: The court is a state agency, so in addition to the trial, it also conducts internal state administrative activities (setting up the administrative apparatus, cadres, civil servants and public employees, implement administrative operations; use of public property, state budget and other administrative activities). Accordingly, the Court must comply with the administrative law. This gives the Government the ability of controlling the Court over state administrative activities prescribed by law. 2.3. Conditions of ensuring the relationship between judicial and executive powers in exercising state power 2.3.1. Political regime Each political regime, whether pluralism or unitarity, any modern state has the presence of decentralization with different application. In countries 14 that the state power is exercised by decentralization and have a pluralistic political system, the judicial and executive powers operate on a mechanism of balance and counterbalance. Meanwhile, in unitary political regimes, branches of state powers do not often operate on the mechanism of balance and counterbalance but have a certain interaction and mutual control. 2.3.2. The state regime The polity is the place that shows the most concentrated interrelationship among legislative, executive, and judicial powers. Countries operating under the presidential-republic system such as the US, the branches of power have restraint, counterbalance. Countries operating under the parliamentary republics, state power is more flexible. This shows that the executive is not completely independent but has a close relationship with the legislature due to the accountability to the legislature and the shared staff between these two agencies. The head of state is only a symbolic executive because the executive apparatus belongs to the Prime Minister (PM) and the PM is responsible to the legislature. Judiciary is independent from the executive but not completely independent in the organization and the legislature. Countries operating under the mixed republic system with the features of both parliamentary and presidential-republic system such as France. Executive power exercised by the Government and in fact, by President. The President is the head of state and has a direct influence on the executive apparatus. As the head of state directly elected by the people, the President has the power to make national policy, presides over the Council of Ministers to adopt this policy. 2.3.3. The improvement of the provisions in legal system on the relationship between judicial and executive powers Whatever organize model, viewpoints on the relationship between state agencies must be expressed into the provisions of the law to have a legal basis for implementation in practice. in fact, however, when 15 institutionalizing the principles and viewpoints on the relationship between judicial and executive powers as well as other relations are not always complete and coherent. In the legal system, there are still inadequacies hard to implement or not specific enough to ensure clear division, close coordination and control between the judiciary and executive. 2.3.4. Organizational structure, capacity and quality of cadres and civil servants at judicial and executive agencies The People’s Court is organized to ensure independence, objectivity in trial, regardless of conditions, not pressure when considering and assessing the correctness and suitability of law in operations of executive agencies, executive officers and civil servants. To effectively support the judicial exercising agencies, the executive agencies also need to have a reasonable structure, clear, specific and feasible functions and tasks. This is a condition to ensure the relationship between executive and judicial powers. 2.3.5. Infrastructure, equipment, and funding for the operation of judicial and executive agencies To implement the relationship between judicial and executive powers in exercising state power, in addition to organizing apparatus, cadres and civil servants, it is necessary to invest in infrastructure, modern and reasonable equipment, and budget for serving judicial and executive operation. These physical conditions create favorable conditions for judicial and executive activities so as to ensure the effectiveness and efficiency of each activity, including assignment, service and creating favorable conditions for each other, and mutual control between the judiciary and the executive. 16 Chapter 3 THE REALITY OF THE RELATIONSHIP BETWEEN JUDICIAL AND EXCUTIVE POWERS IN EXERCISING STATE POWER IN VIETNAM 3.1. The reality of the legal regulations on the relationship between judicial and executive powers in exercising state power in Vietnam 3.1.1. History of developing the relationship between judicial and executive powers in exercising state power in Vietnam through the constitution 3.1.1.1. The 1946 Constitution The 1946 Constitution guaranteed the independence of executive and judicial powers. It affirms the principle is that the Government agencies and the Courts are the highest bodies of power, each agency holds a part of state power. The 1946 Constitution also created a mechanism of power balance, in which, the judiciary controls over the executive and vice versa. 3.1.1.2. The 1959 Constitution In general, the division of power among the legislature, the executive, and the judiciary is lighter than the 1946 Constitution. Theories on assignment of powers in the 1946 Constitution were “not inherited and promoted” in the 1959 Constitution. It can be said that, since the 1959 Constitution, the trend of concentrating state power on the National Assembly began to form, while the power of other agencies is only considered the power derived from the National Assembly (NA). 3.1.1.3. The 1980 Constitution In this stage, the exercise of judicial power of the executive agency has focused on the management of payrolls and funding. The Ministry of Justice is organized and responsible for managing courts and mainly takes care of the judiciary staffs such as submitting the total number of staffs and regulating specific staffs for each local People’s court and the local 17 governments are responsible for the local budget for the People's Court operation in the locality. 3.1.1.4. The 1992 Constitution (amended and supplemented in 2001) * From 1992 to before 2002 In this stage, the relationship between the Government and the judicial agency is mainly shown in the relationship of the manager with the subject- managed. Specifically, the management of the local People's Court continues to inherit provisions such as the 1981 Law on Organization of the People's Court and the newer point is that the Ministry of Justice comprehensively manages organization, staffs and operating costs. The separation of the court's operating budget from the local budget is a new point, this confirms the court's independence from the local government. * From 2002 to 2013 The 1992 Constitution has applied the rationality of the theory of decentralization to establish the relationship between the legislature, executive, and judiciary under the mechanism of assignment and coordination of power. However, before the 2013 Constitution came out, the three branches of legislative, executive and judicial powers were not independently authorized over three different agencies. According to the 1992 Constitution, the NA is the only body that can hold the legislative power. The division of power has not been thoroughly implemented as well. 3.1.2. The relationship between judicial and executive powers in exercising state power in the 2013 Constitution and relevant legal documents 3.1.2.1. The assignment of the Government and the People’s Court The 2013 Constitution has clearly pointed out the assignment of state power by authorizing executive power to the Government and judicial power to the Court. This is concretized by the Law on Organization of the 18 Court 2014 and the Law on Organization of the Government 2015 into specific tasks of the People’s Court and the Government. 3.1.2.2. The coordination between the Government and the People’s Courts There is a coordination between the Government and the People's Court in law-making, education of law and the Court’s management. 3.1.2.3. The control of the Government and People’s Courts * The Judiciary’s control over the executive Currently, the Court's control over the executive body is identified by hearing under procedure of administrative proceedings. The Peoples’ Courts currently do not have jurisdiction to administrative decisions and acts of Ministers or higher, and legal documents of the Government or lower level. * The Executive’s control over the Judiciary Currently, the Constitution and other legal documents do not have clear regulations on the Government’s control over the Courts, even fuzzy. The Government could control the court by controlling financial revenues and expenditures, and budget for the Court sector. 3.2. The practice of the relationship between judicial and executive powers in exercising state power in Vietnam today 3.2.1. The practice of assignment of judicial and executive powers in exercising state power in Vietnam today Article 94 of the 2013 Constitution has clearly pointed out that the Government is the agency exercising executive power, the court is the agency exercising judicial power in Clause 1 - Article 102, the 2015 Law on Government Organization and the 2014 Law on Court Organization were issued to concretize the 2013 Constitution have also clearly shown this matter. However, amongst those duties and powers, it is found that in Vietnam, the Courts currently do not have authority to hear legal documents 19 that are considered violating the Constitution. In addition, the law does not give the Court the right to interpret the Constitution and the law. 3.2.2. The practice of coordination between judicial and executive powers in exercising state power in Vietnam today When building the law and legal projects, the Government often consults with the Court and the Court sector always actively participates in. In legal education, through trial activities, especially in mobile court sessions, the People’s Courts have integrated the content of improving legal knowledge for those who attending the trial and for those who watching mass media as well. 3.2.3. The practice of controlling judicial and executive powers in exercising state power in Vietnam today 3.2.3.1. The practice of controlling executive power over judicial branches The Court’s control over the executive branch is generally identified by hearing administrative cases, complaints about administrative decisions or actions of the state administrati