Decentralised government in
Vietnam
Beren C.Vis
University of Groningen
1. Introduction#
Outsider view The legal
infrastructure of Vietnam is involved in a process of modernising and adapting to the environment
of a market oriented economy. The reform of the system of public administration
is part of this process. The aspect which adds to the Vietnamese situation its
special character is the fact that this modernisation and adaptation of the
public administration to a market oriented economy is taking place under the
po0liticval and organisational principle of
democratic centralism. This fact adds very interesting aspects to the
development process to a modern level of democratisation and good governance.
Very often a straightforward comparison is made
between the structure of democracy and good governance in western countries and
the actual circumstances in developing countries. In case of a country with a different
political (and perhaps more important even: a different historical) background
another yardstick should be used.
This article offers in introduction to the
present situation of regional and local
government in Vietnam. This introduction is limited to the structure as it
emerges from the legislation. As a foreigner who is not living in Vietnam I
must limit myself to the description and interpretation of what can be found in
today's legislation.
Good governance
Today’s policies and programmes
of States and International
Organisations stress the importance of good governance. The level of good
governance as realised in a country is a standard of growing importance along
which a country is measured to be
accepted as a full member of the
international economic and political community. But apart from this is a good
governance also an important factor in the organisation of public life in any
country as such. Good governance can be considered an important requirement for
the realisation of democracy in a
society.
Good governance is a rather broad
and undefined term. Although everyone will have a more or less general idea
about what good governance stands for a more precise description is
needed. With respect to the regional
and local levels of which we are speaking here good governance has to meet five
qualities. Firstly it contains[1]
a transparent, open and predictable political process allowing a political
opposition to express itself and to be heard sufficiently. A second quality is
the presence of a highly qualified
civil service with a professional ethos. As a third quality the presence next to the elected local or
regional board of a political organ implementing the policy decisions of the
board and which is and wants to be politically responsible and which for this
task can be made liable. The fourth quality is the existence of a powerful
civil society (the business community and the volunteer and professional
non-governmental organisations) which actively participates in public life. The
fifth and final quality is the functioning of all actors, politicians, public
professionals and civil society under the rule of law.
Good
Governance Qualities a.
transparent,
open and predictable political process
allowing opposition to express itself b.
highly
qualified civil service with high professional ethos c.
responsible
executive political organ implementing decisions of elected board d.
existence
of powerful civil society actively
participating in political life Check-list (GG- ) 1.
Legislation
guaranteeing democratic 'Rechtsstaat' and local autonomy 2.
Local
autonomy 3.
Supervision
of administration by the lower body 4.
Sufficiency
available financial means 5.
Size
of administrative units 6.
Mutual
autonomy of regional and municipal authorities 7.
Relation
between political executive and administration/civil service 8.
Level
of professionalism of civil servants 9.
Role
of citizens and social organisations 10.
Associations
of local (and regional) authorities
This characterisation of good governance can be
made operational for analysis of a specific
case
through
a set of ten more specific checking
points like e.g. the existence of special
legislation
concerning local and regional government and
guaranteeing the democratic Rechtsstaat and local
and regional autonomy. The Vietnamese
legislation
concerning local and regional government will
be
discussed in this article through the help of
this
and the other checking points. The check-list
will be indicated by: GG-number.
Not exhaustive
The following overview can not
offer
anything but a general overview of today’ s
situation
of provincial and local government in
Vietnam. This
article is limited to an overview of
Vietnamese
legislation on the subject as has been
published in
the English language edition of the
Official
Gazette from 1994 - 1999. Especially the
fact that
published and translated jurisprudence
was not
available prohibited to offer this overview
in more
detail.
Legislation. The Vietnamese legislator has
developed a
intensive activity in renewing and
improving the
legislation concerning the
different
aspects of regional and local government.
Particularly
the years 1992 (Constitution[2])
and
1994
(amended Law on the Organisation of the
people’s council and the people’s committee[3],
and the Law
on Election of the members of the
people’s
council[4])
are of great importance because of the basic legislation which has been
drafted. During the following years a large number of connecting regulations has come into power. The 1996
and 1997 Law on the state budget[5]
and the governmental Decree detailing the assignment of responsibilities for
managing, drafting, implementing and settling the state budget[6]
are of great importance for local and regional finances. Other connected
legislation will be referred to below. The general structure of this
legislation is supporting the functioning of the democratic 'Rechtsstaat' and
local (regional and provincial) government. (GG-1)
Administrative
Units
Article 118 of the Vietnamese Constitution defines the local and regional governments as
administrative units. The local and regional entities are units or branches
within the body of the administrative apparatus of the SR Vietnam. But they
differ from agencies and other public organisations in this respect that these
administrative units are governed and controlled by an elected body, the
People’s Council, and that they are managed by the Peoples Committee as
installed by the People’s Council. The People’s Council is the local organ of
State power (Article 119 Constitution), elected by the local people. The
People’s Council is not only accountable to the electors, but also to the
superior State organs. This relation is
worked out in more detail in articles 8[7] Law on Organisation of the People’s Council
and the People’s Committee (LPC) and article 62[8] Regulation on the Operation of the People’s
Council at All Levels (RPC).
Levels and divisions The administrative units as indicated above are organised
along two pillars and along three levels within each pillar. The two pillars
are the urban and the provincial pillar.
The
next table shows the general structure:
-
Central Government Level
National Assembly
Provincial level Cities Provinces
(4) (57)
District level Towns Districts Provincial Cities
Urban District Towns Rural District
Commune level Wards Commune Township Wards
In Article 118 of the Constitution the townlets
are mentioned but the English translation of LPC article 4 refers to district
townships instead of townlets. Both
terms will be taken as identical hereafter.
Council
and Committee The
People’s Council is the highest organ of the various administrative units on
each level . The translated Article 1 LPC states that:
'The People’ s Council is the organ of power
in the locality, representing the will, the aspiration and the right to mastery
of the local people.'
This article should be read in connection with
article 119 Constitution, for only then will it be clear which power is meant
here. The Constitution shows that this
organ is exercising the power of the State. “The people’s Council is the local
organ of State power; ..” In fact is the structure of the National
Assembly copied in the organisations of public administration at the provincial
and district level and on the local level in a simplified form.
The People’s Council is seen as a collective,
the individual deputy to the council represents the will and aspirations of the
local people (Art. 121 Constitution).
So logically the representation of this same will and aspirations of the people
by the People’s Council as such can only come into effect by and can only be
known from the decisions taken by the deputies.
The People’s Councils at provincial and
district level have a Standing Committee[9]
and they have a Chairman and a
Vice-Chairman on the commune level . Standing Committees and the Chairmen
fulfil the function of executive of the
People’s Council and the represent the council when it is not in session (Art.
36 LPC) with the People’s Committee. The Standing Committee consists of the
Chairman and the Vice-Chairmen of the People’s Council; they are elected from
among the deputies to the People’s Council at the first session after the
election of the council (Art. 34 LPC). The number of vice-chairmen at each
level is decided by the Standing Committee of the national Assembly (Art. 35
LPC).
Apart from the Standing Committee is a limited
number of specialised committees nominated at the provincial and the district
level. The People’s Council at the local level does not have Special
Committees.
The special committees are listed in Art. 29 RPC where a difference has been made
between the provincial level and the district level in such a way that there
are three special committees at the provincial level. These are the Economic and Budgetary Committee, the Social and
Cultural Committee and the Legal Committee. At the district level the Economic
and Budgetary Committee is missing.
In places where live many ethnic groups a
Committee for Ethnic Affairs[10]
may be established, but this is allowed at the provincial level only.
The People’s Council elects the People’s
Committee as its executive organ, the organ of local State administration (Art. 123 Constitution).
The People’s Committee has a President, a Vice-President and a varying
number of members as prescribed by Art. 47 LOC: on provincial level the number
lies between nine and eleven members (except for Hanoi and Ho Chi Minh city,
where the People’s Committee may have up to thirteen members), on the district
level the number lies between seven and nine and at the commune level it lies
between five to seven. The number of Vice-Presidents at each level shall be
provided by the Government.
(Special Economics and Budgetary Committee)
People’s Committee
Members
Special Social and
Cultural Committee
Vice-President(s)
Special Legal Committee President
Standing
Committee
Chairman
Vice-Chairmen
P E O
P L E ‘ S C
O U N C I L
administrative
C O N S T I T U E N C Y offices
3.
Elections
Now the general structure has been
sketched we can turn our attention to
the structure of elections, the capacities of the committees, counsels and
special committees and to the relation between the different levels of public
administration bodies. In this section we focus on the system of elections
first.
Elections and
voters The People’s Council at each level is elected through universal and equal suffrage and
direct and secret ballot. (Art. 7 Constitution). The voting age is 18 years,
the age required to be eligible to stand for the elections to the People’s Council is 21.[11]
One person can be elected member of the People’s Council on two levels at the same time, or of one
People’s Council when one is also member of the National Assembly. Elections stand under the supervision of the
National Assembly and they are carried out by the People’s Committee on each level as directed by the Government[12].
Selection
of candidates The
candidates for the elections are selected in two ways. The first one is the
selection by the Fatherland Front[13]
which “instructs its local chapters to organise consultations to select and
nominate candidates for the People’s Council”[14]. The other way to stand for elections is the
so-called self-nomination. A person can present himself as a candidate for
elections when he meets the requirements as formulated by law[15].
The list of self-nominated candidates and the list of candidates nominated by
the Fatherland Front are proposed by the Standing Board of the local Fatherland
Front Chapter to the so called ‘voters conference’ (organised in urban wards,
hamlets, townships and in State agencies and social and economic organisations
at the request and under the guidance of the Standing Board of the Fatherland
Front). The candidates are invited to such conferences which “on the basis of the criteria for the
People’s Council, pass judgements on and express their trust in the
self-nominated and nominated candidates by either a show of hands or a secret
ballot, depending on the decision of the conference.[16]
The final and official list of candidates for the elections is drawn up by the
Standing Board of the Fatherland Front “on basis of the list of the
self-nominated and nominated candidates and the results of the voters’
conference”[17] The role of the social organisations is more
or less decisive with respect to the drafting of the list of candidates for the
elections of representative political
bodies on the various levels of public administration (GG-9). But in fact is the
Fatherland Front acting as an administrative elections authority. This seems not to meet the independent position
of the social organisations as one of the fundamentals behind the idea of good
governance. The connection to the governmental and political structures are
very close. It depends on the internal independence and freedom of discussion
and expression of standpoints within
the social organisations whether this requirement of good governance is met.
Electoral
Units The
members of the People’s Councils at all levels are elected in electoral units;
each unit shall elect not more than three members; the list of candidates for
the unit must contain more candidates than can be elected.[18]
So every Province or City, District, Town, Ward, Commune or Township is divided
into electoral units, which in their turn are sub-divided into polling
stations. The maximum number of members to the People’s Council at communes, urban wards and townships varies from 19 to 25,
according to the number of inhabitants. In mountainous and island communes or townships the numbers
of members are the same, but the number of inhabitants required is lower.
Communes with less than one thousand inhabitants elect 15 members.
For rural
and urban districts, provincial towns and provincial cities the numbers
vary from 25 to 35, and here is the same distinction made between mountainous
and island areas and the other areas as is the case on the provincial level, where the numbers of members vary from 45 to 75,
except for Hanoi and Ho Chi Minh City and provinces with more
than two and a half million inhabitants where not more than 85 members can be
elected. [19]
4. Relation to voters and to the citizens in general
The relation between the citizens and the
public administration is of great
importance for the quality of government (see above, GG-9). In this section the relation between the voter and the
deputy is considered. Part of this relation is the public nature of the council
meetings, the possibility to lodge complaints and finally the possibility of
dismissal of a deputy.
Deputy
and voter Democracy is not fully realised by carrying
out the formal rules of the law on
elections, which constitute the system of periodical, general and secret
ballot. The period in between elections when the elected representatives are in
office is of equal importance. Because the flip side of the coin of democracy
shows the basic principles of transparency and control. The Constitution,
article 121, states that: 'the deputy to the People's Council represents the
will and aspirations of the local people; he must maintain close ties with the
electors, submit himself to their control, keep regular contact with them,
regularly report to them on his activities and those of the People's Council,
answer their requests and proposals; look into and activate settlement of the
people's complaints and denunciations.' The voters according to the
Constitution have a very close relation to the elected deputy, who in his turn
has the obligation to be very active in maintaining this relation.
The members of the People's Councils in
addition have the obligation to 'participate in all sessions and meetings of
the Council, <to> participate in discussions and vote on issues which
fall within the tasks and powers of the People's Council.'[20]
The sessions of the People's Council in principle are of public nature[21],
which is a basic provision to facilitate control by the voters and by the
citizens in general.
Fatherland Front An
additional and in fact a far stronger means of control of the People’s Councils
and of the People’s Committees is the supervising task of the Vietnamese
Fatherland Front. According to law[22]
the VFF
“contitues a part of the political system of the Socialist Republic of
Vietnam, led by the Communist Party of Vietnam; and constitues a political base
of the people’s administration, a place where the people express their will and
aspirations, the entire people’s great solidarity bloc is built up, the
people’s mastery is brought into full play, where its members hold consultative
meetings and coordinate and unify their actions, thus contributing to the firm
maintenance of national independence, sovereignty and territorial integrity,
and successfully carrying out the cause of national industrialization and
medernaization, so as stto achieve the objective of a prosperous people, a
strong country and an equitable and civilized society.”
The
VFF i.a. has the task to supervise the operations of the State agencies,
people-elected delegates, as well as State officials and employees. This tasks
is performed on all levels of the public administration, including the
provincial and local level. Article 11 of the law states that “at the regular
meetings of the People’s Councils, the Vietnam Fatherland Front Committees of
the same levels shall brief on their participation in building local
administrations, make proposals and petitions to the People’s Councisl and
People’s Committees on necessary matters.”
The supervision as exercised by the VFF is
nicely characterized in the wording of the preambule to the Law on Vietnam
Fatherland Front, where it is stated that the role of the VFF i.a. is to
contribute to exercising the socialist democracy, to consolidate the cohesive relationship between the people
and the Party as well as the State. The VFF in this structure secures the
accordance of the exercise of local powers not only with the law but also with
the policy of the Communist Party of Vietnam. The position of the elected
bodies in fact is subordinated to the VFF in formulating its policies. The
local autonomy can be exercised only to the degree variations are allowed
within the limits of the official policy of the CPV, as interpreted by the
local comittee of the VFF. As is stated by Abuza[23]
the process to a more open and western style democracy will be a very long one;
for the time being the expression of different opinions is a matter of inside
party discussions.
Reception
of Citizens The contacts between the public administration and the (individual) citizens are regulated
in two special regulations. The first is the Regulation on the exercise of
democracy in communes of May 11, 1998.
This regulation will be discussed later. The other is the Regulation on the
Reception of Citizens (RRC) of August 7, 1997. The aims of this regulation are
threefold (article 2):
1. Receiving information, proposals and opinions on issues related to the
Party's lines and policies, the State legislation and managerial work of
agencies and units;
2. Receiving complaints and denunciations the settlement of which comes under the jurisdiction of the heads of
the related agencies or units for consideration and decision, conclusion,
settlement or replying the citizen within the time-limit prescribed by the legislation
regarding the settlement of citizens' complaints and denunciations;
3. Guiding citizens in exercising their right to lodge complaints or
denunciations in accordance with policies and laws and to the right competent
agencies for consideration and settlement.
The Regulation can be seen as bringing into
effect the provision of Article 11 Constitution, which states that
'the
citizen exercises his right to mastery at the grassroots by participating in
State and social affairs; he is duty bound to help
protect
public property, legitimate civil rights and interests, maintain national
security and social order, and organise public life.'
The implementation of this regulation is
differently organised for the provincial and district level on the one hand and
for the commune level on the other. The Presidents of the People's Committees
on the provincial and district level 'shall arrange citizen reception places in
their respective localities on at least one day per month for receiving
citizens, excluding cases where the reception must be organised at urgent
request.'[24] On the
local level the Presidents of the People's Committees shall have to receive at
the office of the Committee at least twice a week. This difference seems to
indicate the importance of the People's Committees in wards, communes and townships
as the grass root presence of the public administration. There the everyday problems can be submitted to
the President of the People's Committee in person. This is in accordance with
the nature of the tasks of
administrative bodies on the local level. The tasks of the public
administration on the district and provincial level are of a more general and
long term nature, so the need for citizens to address those levels will be less
frequent.
The officials who are in charge of organising
the acceptance of the citizen are under the supervision of the State Inspector
General, who guides, inspects and urges them in organising the reception of
citizens according to law.[25]
The Ordinance on the Handling of Violations of Administrative Regulations is
applicable to failures in the organisation of the reception of citizens.
The reception of citizens thus is organised in
a rather formal way. This formal approach once more can be illustrated by the
provision that 'the official in charge of the reception of the citizen shall
wear uniforms and officials' cards as prescribed and make their titles know to
the citizens who are received. They are entitled to receive the citizens only
at their offices, not at their homes.'[26]
The Regulation provides for the official way in
which the citizen should fulfil his duty
as civilian to participate in the State and official affairs. The right of the citizen as expressed in
Article 53 Constitution can be exercised in a less structured way:
'The
citizen has right to participate in the administration of the State and
management of society, the discussion of problems of the
country
and the region; he can send petitions to State organs and vote in referendums
organised by the State.'
The Regulation on the Exercise of Democracy in
Communes could be related to this Article of the Constitution, but this
regulation is focussing on the inhabitants of the commune as a group and not so
much on the individual citizen, who is addressed in article 53 Constitution.
The Regulation on the Exercise of Democracy in Communes will be further
discussed below.
Right
of recall An
interesting legal provision with respect to these aspects is made in article 6
RPC. The second full sentence reads as
follows: 'The deputy to the People's Council who no longer deserves the trust
of the people shall, depending on the seriousness of his/her wrong doings, be
dismissed by the People's Council or the
voters.'(Italic added)
In order to be able to judge whether a deputy
no longer deserves this trust it must be possible to control. The first and
most fundamental point here is the public nature of the sessions of the
People's Council, as was mentioned above.
The procedure to recall is phrased as a
procedure of dismissal of the deputy. This perhaps is a more appropriate term
than using the term of recall, because it more precisely stresses the
seriousness of the matter. Only in case of
'serious wrong doings' dismissal can be executed. Doing wrong seems to
be more serious than a mere disagreement about the political standpoint the
deputy is taking in the council to which the term recall seems to refer
essentially. This will be clear in particular when a so called self nominated
deputy is involved. It seems to me that this dismissal may be considered in
case a deputy no longer meets the requirements of the article 3 LEPC[27].
Of the norms as mentioned in this Regulation the violation of the obligation to
protect the legitimate rights and interests of the citizens seems to be the
only one which in fact could be at the basis of this dismissal. Using the other
norms as a basis for dismissal would endanger the more or less 'independent'
position of the 'self nominated' deputy too easily and on a too fundamental
level, i.e. the fundamental level of this 'independent' position itself. And
this position should be protected to meet the 'recognition <by Vietnam>
of the individual as both the means and the end to developing a strong nation
…'.[28]
The procedure for dismissal is given in detail
in article 59 RPC when the decision for
the dismissal is taken by the People's Counsel itself. In case the voters request the dismissal
article 60 RPC applies: 'the dismissal <in this case> shall be conducted
at the constituency which elected the subject deputy'. The general idea of this
regulation is that the decision about the dismissal is organised along the same
lines as the periodical elections; the same kinds of committees are installed,
and so on. The RPC does not indicate how the voters can express their request,
but it may be presumed that this can be done through the use of the right of
the citizen to address public authorities and to lodge complaints[29].
The articles 11 and 12 of the Constitution are of special interest here too.[30]
5.
Scale of operation
Size
of administrative units The size of administrative
units should be appropriate for a good administrative performance. The scale of
operation is in may cases a decisive factor for the administrative capacity of
such an unit to meet the legally required level. The scale of operation is also
of great importance for the capacity of an administrative unit to meet the
demands of the constituency and to serve the local or regional population in an
optimal way. The Vietnamese central government has adopted a programme of
adjusting this scale of operation on the provincial as well as on the local
level. A big programme of decreasing
the scale of regional government and of increasing the scale of local
government has been carried out during the past years and it still continues to
be. Very regularly decisions either splitting up former provinces or merging
former, smaller communes, wards etc. into bigger units are being published in
the Công Báo (the Official Gazette,
publishing the VN legislation). The
number of provinces has been doubled over the past years and the number of municipalities is still
decreasing . The results are approaching a
halving of the number of municipalities.
The good governance check of the proper size of administrative units (GG-5) to meet the required level of
performance apparently has the full attention of the Vietnamese Government.
6. Capacities, relation between layers of public
administration
The Vietnamese Constitution does not contain a
straightforward provision on local autonomy (GG-2). Article 120 says that:
'On
basis of the Constitution, the law, and the formal written orders of superior
State organs the People's Council shall pass
resolutions
on measures for the serious implementation of the Constitution and the law at
local level; on the plan for socio-economic development and the execution of
the budget; on national defence and security at local level; on measures for
stabilising and improving the people's living conditions, fulfilling all duties
entrusted by the superior authorities and all obligations to the
country
as a whole.'
The previous Article 119 defines the People's
Council as the local organ of State power. So the obvious connection is made to
the National Assembly, which is the 'highest organ of State power of the
Socialist Republic of Vietnam'.[31]
Apart from its legislative capacity is one of the tasks of the National
Assembly to 'regulate the organisation and the activity of the … local
administrations.'[32]
To a considerable extent this is done through the legislation of the National Assembly and of other competent
State organs.
The local autonomy defined as 'an original
source of power to regulate its own affairs in its own right'[33]
is missing in the Vietnamese system. The 'Democratic centralism is the
principle governing the organisation and activity of the National Assembly, the
People's Councils, and all other State organs.'[34]
The local organisations are related in a hierarchical subordination to the
National Assembly.
Does this exclude every notion of local
autonomy from the Vietnamese system of public administration? I think that the
answer can be negative, because the notion of autonomy in systems which do not
base on the principle of democratic centralism also is of a relative nature. To
illustrate this relative meaning of the notion of local autonomy I briefly turn
to the Dutch situation.
Dutch
situation In the Netherlands do the Provinces and the
Municipalities have local autonomy. The local autonomy in fact is considered to
be the core of the powers vested in those organs of public administration both
in the Constitution and in the laws concerning Provincial and Municipal
administration. But both organs have a second field of power which consist in
the duty to assist in implementing legislation originating from a higher level
of public administration. The higher level for the provinces is the State
level, for the Municipalities the State and the Province can both be the higher
level.
The implementation must be required of the
Province or the Municipality by the higher legislation itself; implementation
may involve the issuing of additional (lower) legislation and /or
implementation by giving decisions for the individual case. Approximately 90%
of all municipal activity in the Netherlands concerns this so called -called
co-government. It offers the opportunity to adapt the implementation of central
legislation to the regional and local needs and circumstances through the
involvement of the local, elected representative body. Especially where the
legal rule which is implemented leaves a certain level of discretionary power
this local involvement is of great
importance. This way of implementing the higher legislation by the lower body
enhances the 'recognition that besides the collective needs of all citizens at
the local level a special need exists, common to the inhabitants of the local
territory'[35]
With respect to the freedom left to the
regional and local authorities to decide their own affairs the essential point
is how and to what extend supervision
is exercised. In the Netherlands this supervision is almost exclusively
exercised by the judiciary and it is limited to legitimacy control. The courts
do not go into questions of expediency of a decision. Judging the expediency of
a decision would affect the political side[36]
of the power of the provincial or local public body. In this way is the
co-government power approaching local autonomy very closely.
We can return to the Vietnamese situation. We
shall consider the two central issues concerning the autonomy question now. The
first one is the scope of local and regional tasks and powers and the second is
the nature of supervision.
Tasks and powers prescribed by law resolutions directives and decisions
Scope
of local and regional tasks The Ordinance of the
Concrete Tasks and Powers of the People's Council and the People's Committee on
Each Level[37] defines in
more detail what the tasks and powers of the provincial, district and local
level are. To start with repeats the Ordinance in Article 3 the principle of
democratic centralism according to which the People's Councils and Committees
are organised and according to which they operate. The Ordinance further gives
some general provisions which apply to all levels. In Chapters II, II and IV
special provisions are given for the tasks and powers for the People's Councils
and for the People's Committees on the provincial, district and local level.
According to article 3 has he People's Council
to issue resolutions '
when it takes decision on questions pertaining
to its tasks and powers'
which have to be submitted to the higher level
for ratification when it
concerns questions under the jurisdiction of the higher level.
Connected to this category of resolutions there is the group of decisions
or directives
which result from applying the law given tasks and powers.
To issue these decisions or
directives is also the power of the People's
Council. The Council also organises and
controls the implementation of
those decisions or directives.
The People's Council and the People's Committee
are the local organ of the State power
and the executive of the People's Council and the local administrative organ of
the State respectively. The have the
general task (or obligation)
'to
manage the locality according to the Constitution, law and the documents of the
higher State organs, ensure the unified
leadership
of the central level, develop the right to mastery of the people, strengthen
socialist legislation, prevent and fight against
all
manifestations of bureaucracy, irresponsibility, arrogance, authoritarianism,
corruption, wastefulness and other negative
manifestations
in the State agencies and officials and public servants and in local
administrative apparatus …' (article 3).
This could be restated as the task to
administer according to the rule of law and to see to it that those organs
which are subordinate to the Council maintain the rule of law in their
functioning. The attention given to the fight against corruption and other
evils in almost all annual opening speeches of the sessions of the National
Assembly of Vietnam illustrates that this explicit enumeration still may be
needed.
In the same time it can be interpreted as
illustrating the changing position of the public powers and of the public
administration in a market oriented environment where those shortcomings can
not be tolerated. Although in general they never can be accepted they are
counterproductive to a market system as such.
The powers and tasks of the People's Councils
and People's Committees are prescribed by law, which is nothing else than the
generally accepted idea of limiting the powers of the public authorities
through the rule of law: power only in so far as prescribed by law, and execution
of power only according to legal rules.
Apart from powers which may be vested in the
lower levels of the public administration by other legislation the main set of
tasks and powers is formulated in the Ordinance on the Concrete Tasks and
Powers of the People's Councils and People's Committees on All Levels. Each
chapter of this Ordinance has the same structure. The first part of a chapter
focuses on the tasks and powers of the People's Council, the second part on
those of the People's Committee.
The tasks and powers for the People's Council
and for the People's Committee on each level both are listed in a fixed order.
The lists of fields in which the council or the committee have a task offer an
overview of the task areas common to regional and local authorities all over
the world. This is common to those authorities when we do not take into account
the legislative technique by which those tasks (and powers) are attributed to
them. The term of local autonomy usually is connected with the technique of
attributing a rather undefined, general power to a local authority, like: 'the
power to regulate and administer the local affairs.'[38]
But the limits to this general power and consequently the limits of this
autonomous capacity are defined by higher legislation. The level of local
autonomy is in reality dependent on the degree of freedom to decide how to implement higher legislation such that
this implementation matches the local needs best.
It should be noted here that for Hanoi a
special ordinance has been issuedprescribing “the objectives, mechanisms,
policies and the responsibility assignment and the State management devisiioon
in the cause of constructing, developing and defending the Capital”. [39]
In this ordinance special powers and obligations on a vast variety of policy
areas are listed concerning the People’s Councils and the People’s Committee of
Hanoi. The development of the Capital of Hanoi is brought under the overall
planning as approved by the Government – article 11.
In general it can be stated that the degree of
independence of decision making is one part which constitutes local autonomy;
the other one is the variety of fields in which the local authorities in fact
have tasks and powers. The list of task areas as assigned to the Vietnamese
local authorities is shown in the box:
|
People's Council Task field P
D L -
economics
5 31 57 -
culture, education, social affairs
6 32 58 -
science, technology, environment
7 33 - defence,
security, social order, safety 8 34
59 -
implementation of policies for
nationalities and religion
9 35 60 -
law enforcement 10 36
61 -
building of the local administration and
managing of the administrative boundary of
the locality 11 37
62 -
supervision of other organisations 12 38
63 -
special tasks for offshore districts 39 -
discharge, planning 13 40
64 -
urban development 41 Ordinance on the concrete tasks and powers
of the People's Council and People's Committee on all
levels (Provincial, District
and Local) |
People's Committee Task
field P
D L -
planning, budget, finance 14 42
65 -
agriculture, forestry, fisheries, water
conservancy, land 15 43
66 -
industry, small industries, handicraft 16 44
67 -
communications, transport 17 45
68 -
urban development construction and management 18 -
trade, service and tourism 19 46
69 -
education and training 20 47
70 -
culture, information, physical training
and sport 21 47
70 -
social affairs and life 22 47
71 -
science, technology and environment 23 48 -
national defence 24 49
72 -
public security, social order and safety 25 50
73 -
implementation of policies for
nationalities and religion 26 51
74 -
law enforcement 27 52
75 -
building of the local administration and
managing of the administrative boundary of
the locality 28 53
76 -
special tasks for offshore districts 54 -
various, urban development 29 55 - foreign
countries 30 -
special for provincial towns and cities 56 -
special for wards 77 |
The
various fields cover almost all domains of public administration which usually
are taken care of by the lower public bodies. The Ordinance lists in more
detail the general provisions already given in the LOPC for the People's
Council in articles 11 - 18 and for the People's Committee in articles 43 - 44.
It has been mentioned before that special committees are installed on the most
important fields of tasks, i.e. Economics and Budget, Cultural and Social Life
and finally the Judicial Committee.
The concrete tasks are summed up in detail in
the Ordinance; a clear separation between tasks and powers for the provincial,
regional and municipal authorities is made. The conclusion may be drawn that
the mutual autonomy has been secured (GG-6),
be it within the framework of the fixed set of tasks and powers.
Supervision The principle of democratic
centralism requires a properly functioning
structure of supervision of higher levels of public administration over
the lower bodies (GG-3). This
supervision first of all should focus on the compliance with (higher) legislation. The idea of local
autonomy easily can be endangered when supervision would focus on compliance
with higher formulated policies in detail too much. A difference can be made
between choosing an unexpected solution which may fit into the policy as
formulated on a higher level and a decision which is contrary to this policy.
The latter should be subject to intervention by the higher level in order to
protect and maintain the coherence in implementing national policies. This
approach is also a quite regular one in countries where the democratic
centralist principle is not accepted.
But in general it can be said that the
supervision on legality protects best the autonomous power of the elected
bodies on the lower levels to serve the local needs and interests.
The main provision concerning this supervision
is given in LOPC, article 8:
'The
People's Council is subject to the supervision and operational guidance of the
Standing Committee of the National Assembly
and
the guidance and inspection of the Government in its execution of the written
decisions of State organs of the higher levels as
prescribed
by the Standing Committee of the National Assembly.'
In addition to this provision states LOPC that
the People's Council on each level supervises (i.a.) the Standing Committee and
the People's Committee. This supervision in particular concerns the 'observance
of the laws'[40] which is
accordance with the remarks as given above.
The formal supervision as almost always is the
case is executed at the end of the line. The maintenance of the proper relations between the different
levels of the public administration in practice is more often secured by
ongoing contacts and discussions. The provisions concerning the contacts
between the public authorities and the citizen as well as those concerning the
contacts with the social organisations[41]
are of even more importance here.
The supervision over the administrative
organisation and the specialised branches of the administration of the lower
levels of public administration (GG-7)
is mainly the responsibility of the President of the People's Committee. His
duties and powers are listed in Article 52 LOPC. He has the duty to
'
take measures to renovate the working style; manage and conduct the efficient
activities of the administrative apparatus; prevent
and
resolutely fight against bureaucracy, irresponsibility, arrogance,
authoritarianism, corruption, wastefulness and other
negative
manifestations in State and local organs and their employees;'
The political executive in this way has the
overview over the body of civil servants. It may be presumed that in the
Vietnamese situation the core task of the President of the People's Committee
is to guide and to stimulate the training of the civil servants to update their
level of professionalism to the changing - market oriented - environment (GG-8). The need for a good
infrastructure to provide for the professional training of civil servants of
all kinds of specialisations is one of the main problems to be solved by the
Government.
Financial
means It would be unrealistic expecting that in a
developing country the financial means for public authorities would be
sufficiently available (GG-4), let
alone for the lower levels of public administration. Vietnam is no exception in
this matter. The central provision for the financial relation between the
central government and the lower bodies are given in the Law on the State
Budget[42]
The budget of the local administration is
comprised in the State Budget; the relation between the budget of the various
levels is structured along a set of four principles[43]:
'1.
The central budget and the budget of each level of local administration shall
be determined according to the concrete sources of
revenue and concrete spending tasks;
2. Additional allocation from the
higher-level budget to the lower-level budget shall be made to ensure equality,
balanced
development among the regions and
localities. This additional allocation shall be the revenue of the lower-level
budget;
3. In case the higher-level State management
agency to carry out an expenditure that comes under the former's
responsibility,
funds must be transferred from the
higher-level budget to the lower-level budget for performing such task;
4. Except for the supplementary allocations
to the revenue source and the authorised spending as stipulated in Clauses 2
and 3 of
this Article, the budget of one level
shall not be used to pay for the spending that belongs to the task of another
level.'
The LSB also gives provisions for the revenues
for the budgets on the provincial level - article 30 - and for the district
level - article 32 -, the commune and
township level - article 34 and finally for the ward - article 37. The general
idea is that the revenues for the budget of each level as much as possible
should be collected within the territory of this body, supplemented by
additional allocations through the central budget to balance the development of
the different regions and localities.
The overview of the spending tasks is given in
LSB, articles 31, 33, 35and 36 and 38 respectively, along the same lines and
categories as is given in the Ordinance on the Concrete tasks and Powers of the
people's Council and People's Committee at Each Level.
8.
Conclusion
The conclusion can be short. The overview as
given here shows that the requirements connected to the idea of good governance
are fulfilled to a very high degree by the Vietnamese legislation. This at the
same time is the restriction which allows only to attach a limited value at
this overview. Good governance is something which should be experienced in
reality by the inhabitants of a country and perhaps even more by the public
administration itself. This overview could not take into account the real life
experiences of today's Vietnam. This unfortunately is beyond my capacities.
Berend C. Vis
Groningen, March 15, 2000