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Friday, September 22, 2017, 10:12 (GMT+7)
“Separation of powers” is not the model of choice for the State of Vietnam

According to Article 2 of the 2013 Constitution of the Socialist Republic of Vietnam, “all the state power belongs to the People” and “the state power is unified and delegated to state agencies which coordinate with and control one another in the exercise of the legislative, executive and judicial powers”. Therefore, the law-ruled State of Vietnam shall not be organized into a “separation of powers” model.

Far from subjective, this is subjective in the sense that it is derived from the nature of the political, economic regime of the socialist law-ruled state and socialist democracy built by the Vietnamese people under the leadership of the Communist Party of Vietnam. It is 30 years of Doi Moi and experience learnt from other countries in the process of international integration that bear out the model of a socialist law-ruled state of the People, by the People and for the People, with unified powers rather than separation of powers.

Building and perfecting a law-ruled state reflects Vietnam’s consensus in conformity with the popular trend of our times. That popularity is reflected by particularity in Vietnam. Being fully aware of the “popularity” of the world precedes a better insight into the “particularity” of Vietnam  in the process of Doi Moi, development, national modernization and international integration. This serves as a dialectical interaction to be taken into consideration when determining guidelines, policies, models and measures for development. On the one hand, proactive integration and selective absorption of values and experiences around the world enable Vietnam not to be excluded from the global development trends. On the other hand, with her innovative, creative and independent thinking, Vietnam shall resolve the problems of her own by herself to avoid being merely a copycat of development models which do not match Vietnam’s conditions. That the socialist law-ruled state power is unified and delegated to state agencies which coordinate with and control one another in the exercise of the legislative, executive and judicial powers is Vietnam’s model of wise choice. This theoretical answer results from overall assessment of Vietnam’s 30 years of political reforms, demonstrating great maturity in the Party’s theoretical thinking on building political regime and its leadership over the State and society as a ruling Party.

The birth of the law-ruled state marks a step change in the development history of the State from theoretical doctrines to organization models in practice. When society is organized into the state, it becomes political society with two pillars: economy and politics. Modern society owes its development partly to the law-ruled state, which is an indicator of political civilized society that humans achieved in the age of bourgeois revolution. The law-ruled state is associated with the role of the law in social life, organization and operations of the state. The relations between the state and the law, the law and power have been recognized and handled over a long, complicated course of history. The ruling class holds state power whereby it represents the will and power of society. The class nature of the state  is common to every political regime of all time. This is also true of socialism, under which a new-type state with the working-class nature represents will and power of all the people while inextricably linked with a class. The new-type state with the working-class nature is characterized by the fact that the working class does not pursue self-interest in the sense that it does not seize private ownership. Not until it has brought interests to society does the working class find their own ones. Therefore, on its becoming the ruling class of the state, the working class’ historical mission is to exercise the people’s power. In the state with the working-class nature, all the state power belongs to the People.

According to V.I. Lenin, under socialism, antagonism will disappear, but contradiction will remain. While the state power is unified, it varies according to communities. In spite of its modernity in terms of organization, governance and institutionalization as well as its professional civil servants, the law-ruled state is imbued with the class nature, belonging to a class. The class nature is typical of the state, which is a classical principle of the Marxist theory of the State. This  is an objective reality.

While the class nature of the state is emphasized, it shall not be absolutized. The reason is that the state is part of society as a historical product of social history and of alterations in relations among nations, especially amidst today’s globalization and international integration. In line with modern political, legal thinking, the issue of the law-ruled state covers democracy, human rights and citizens’ rights besides the law, the state-to-law relations, the law-to-state power relations.

The idea about a state ruled by law is  a progressive political-legal one. This idea is realized only when the state is organized on a law-ruled basis, exercises democracy and protects basic human rights and citizens’ rights. The ideas about a law-ruled state by I. Kant and progressive theorists in the 17th and 18th centuries against despotism and abuse of power demonstrate the value of “liberation” in political, legal and humane terms. Building the law-ruled state shall be grounded in the absolute supremacy of the law. Far from being confined to declarations, “rule of law” shall be exercised in the state life, society, awareness, behaviours and lifestyle of civil servants and citizens.

Theoretical and practical values of the law-ruled state is reflected in seminal propositions by John Locke (a British thinker of the 17th century) and Charles Montesquieu (a French lawyer of the 18th century) as follows: (1) For citizens, everything which is not forbidden is allowed; for rulers (officials, civil servants and public employees), everything which is not allowed is forbidden. (2) Everyone enjoys equality and freedom in social life and before the law. (3) Power shall be controlled and restrained to avoid abuse. To this end, Charles Montesquieu put forward decentralization among the legislative, executive and judicial powers. Those powers shall belong to 3 respective bodies which control one another.

While Montesquieu’s doctrine of separation of powers, to some extent, gave enlightening meaning to theoretical thinking, it is hardly feasible in practice, even for the bourgeois state and capitalism. The problem is that rule of law, first and foremost Constitution, shall be upheld. The state itself, which introduces the law, shall also be controlled by the people. Karl Marx underlined that legally recognized freedom only exists in the state and in the form of the law.

The bourgeoisie waged the bourgeois revolution against despotic feudalism, “mercilessly destroying traditional order” to pave way for the development of capitalism as asserted by Karl Marx that it badly needed theories on building legal institutions. The theories backed up the bourgeoisie’s freedom ideals so that they could unleash capitalist productive power and affirm their rule. They also enabled the bourgeoisie to mobilize forces against despotic feudalism and absolute monarchy and to establish the bourgeois republic. After coming to power, the bourgeoisie wielded the entire state power. In reality, decentralization and devolution was confined to legal declarations due to the ruling bourgeoisie’ thirst for power. Separation of powers was not feasible as conflicts of interests and cuthroat economic competitions necessitated the bourgeoisie’s priority to consolidated power. Power struggle alongside conflicts of interests among the bourgeoisie attested to the bourgeois nature of the law-ruled bourgeois state.

Ideas about rule of law and the law-ruled state, freedom, democracy, equity and equality tend to be “refracted” through the prism of bourgeois interests and powers for the sake of the capitalists and ruling bourgeoisie. Democracy, human rights and citizens’ rights, which are noble social values to serve the development of individuals and communities as a yardstick of historical progress, were not fully and substantively implemented in bourgeois society, where inequality and polarization reigned. Moreover, the ruling bourgeoisie in capitalist societies tend to exploit those noble values and ideals to interfere in other countries’ internal affairs and to violate their sovereignty.

All in all, “separation of powers” offers certain suggestions as to the building of legal institutions and the law-ruled state as well as the implementation of democracy and human rights in modern society. However, its conflicts and shortcomings have been laid bare in the bourgeois law-ruled state, doctrines on political pluralism and multi-party systems, and power struggle among bourgeois political parties. As a result, “separation of powers” is not the model of choice for the State of Vietnam.

While the socialist law-ruled state, which is in the process of building and perfection, is among Vietnamese socialist society’s characteristics, it is one of the directions for Vietnam’s socialism building and a precondition for the country’s successful international integration. The 12th Party National Congress pointed out: “The continued building and perfection of the socialist law-ruled state under the Party’s leadership is central to the reform of the political system. In its organization and operations, the state shall fully implement democracy, strictly observe principles of rule of law while producing positive changes and better results”. This is entirely consistent with what is enshrined in the 2013 Constitution whereby “the state power is unified” since “all the state power belongs to the people”. Our law-ruled state’s long-term, key goal is to guarantee and promote the people's right to mastery and to develop their capacity as to mastery and democracy implementation as masters of the State and society. While powers shall not be separated, they shall be clearly delimited on the basis of delegation, coordination and control in the exercise of the legislative, executive and judicial powers. The reform of  the National Assembly (legislative power), Government (executive power), People’s Courts and People’s Procuracies (judicial power) shall be synchronously enacted “in tandem with the reform of the political system in the compact, valid and effective direction”. This is the key to the quality and efficiency of our socialist law-ruled state’s operations.

Another important issue concerns “the continued perfection of the mechanism to defend the Constitution and the law”. Only by an effective mechanism can unconstitutional infringements be dealt with transparently and equally. There is no restricted area as the state is inside society and of the people. Accelerating administrative reforms shall synchronize with judicial reforms while jurisdiction and responsibility among agencies and organizations in the State structure as well as the political system shall be clearly defined. “All state agencies, cadres, civil servants and public employees shall resolutely combat corruption, waste, all manifestations of bureaucracy, arrogance and authoritarianism while practising thrift”. Professionalism and specialization shall be guaranteed while ethics and discipline shall be valued among cadres, civil servants and public employees in oder to develop the people’s trust and satisfaction in the State.

All this necessitates concerted efforts and shared responsibilities by the Party, State, Fatherland Front and mass organizations in the spirit of democracy, solidarity and consensus for the development of the people – masters of a democratic society and law-ruled state

Prof. Dr. HOANG CHI BAO, Senior Expert

 Former Member of the Party Central Committee’s Theory Council

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