Sự tham gia của công chúng trong xây dựng văn bản quy phạm pháp luật tt tiếng anh

MINISTRY OF EDUCATION

MINISTRY OF HOME AFFAIRS

AND TRAINING

NATIONAL ACADEMY OF PUBLIC ADMINISTRATION

TRAN THI HUONG HUE

PUBLIC PARTICIPATION IN BUILDING
LEGAL DOCUMENTS
Major: Public Management
Code: 9 34 04 03

DOCTORAL THESIS SUMMARY

HANOI, 2019


The thesis has been completed in: …………………………………
………………………………………………………………………

1. Assoc.Prof. PhD. Vo Kim Son

Science instructor:

2. Assoc.Prof. PhD. Dang Khac Anh

Reviewer 1…………………………………………………………..
Reviewer 2…………………………………………………………..

Reviewer 3……………………………………………………………

The thesis will be defended before Thesis Assessment Council of Academy.
Place: Doctoral Defense Room - Meeting Room ……..
House…… National Academy of Public Administration.
No: 77-Nguyen Chi Thanh Street – Dong Da Distric – Ha Noi.
Time: At…… on date………………….

This thesis can be searched in National Library of Viet Nam
or Library of National Academy of Public Administration.


PREFACE
1.
The reason of choosing the topic
Ensuring public participation in building legal documents (LD) plays an extremely
important role in ensuring the quality, effectiveness, efficiency and feasibility of the legal
documents. “Public participation is an essential factor for good governance” [157: p.23],
“is an approach that is judged to be the most effective way to achieve social justice,
society and human development” [155: p.2].
The Politburo’s Resolution No. 48-NQ/TU dated May 24, 2005, on the strategy for
developing and perfecting Vietnam’s legal system up to 2010, with orientations toward
2020, clearly states: “having the mechanism to attract associations, economic
organizations, socio-professional organizations, and good experts to participate in
researching and assessing the needs of law policy planning. Identifying social reviewing
mechanisms and acquiring opinions of different strata for projects and draft legal
documents” [10]. The document of the 12th National Congress continues to affirm:
“Continuing to promote socialist democracy, ensuring that all state power belongs to the
people ...” [38].
However, the current state of public participation is still formal, passive and

inefficient. According to the 2015 Report on Provincial and Public Administration Index
(PAPI), “regarding the participation in the development of policies and laws of the people
nationwide, only 13% of the respondents for know that they have participated in the
consultation process on national and local draft legal documents” [5].
Therefore, the study of the topic “Public participation in building legal
documents” aims at explaining the most basic issues about participation, building a
theoretical basis for the participation of public in building legal documents in Vietnam.
Since then, it has contributed to the reality, proposed to the state management agencies to
apply measures to ensure effective participation in order to achieve the ultimate goal of
improving the quality of the legal documents, improving the effectiveness, validity of
state management.
2. Research purposes and tasks
2.1.
Research purposes
The purpose of the thesis research is to clarify the theoretical and practical aspects
of public participation in building legal documents, thereby proposing solutions to ensure
public participation in building legal documents, contribute to improving the quality,
effectiveness and efficiency of legal documents.
2.2. Research tasks
- Overall assessment of the domestic and international research situation related to
the topic, thereby drawing out issues that must be further studied;
- Developing a theoretical framework for public participation in building legal
documents, which identifies the basic issues of participation content, forms of
participation, and factors affecting public participation in developing legal documents in
Vietnam presently.
- Analyzing the state of public participation in Vietnam’s current legal documents’
development.
- Proposing solutions to ensure public participation in the development of
Vietnam’s legal documents, with the ultimate goal of improving the quality, effectiveness
and efficiency of the legal documents.

3.
3.1.

Research subject and scope
Research subject

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The research object of the thesis is issues related to public participation activities in
developing legal documents.
3.2. Research scope
- Scope of content: The thesis conducts research on the most basic issues of public
participation, in which answers the two most basic issues of participation of the
participation content and form of participation.
- Scope of time: The thesis conducts research on public participation in building
legal documents in the period from when the 2015 Law on Promulgation of Legal
documents officially came into effect.
- Scope of the survey object: The thesis selects 3 forms of legal documents: Laws,
Decrees and Resolutions of provincial People’s Councils.
- Spatial scope: The scope of the survey, collection of data on public participation
in building legal documents is in 5 provinces and cities across the country. (Thai Nguyen,
Dak Lak, Son La, Hanoi, Ho Chi Minh City).
4.
Approach perspective, methodology and research method of the thesis
4.1. Viewpoints on approaching the thesis research
In order to promulgate legal documents of ensuring quality, serving the socioeconomic development and people’s life, the most important way is for the public (as the
object directly affected by the draft legal documents) substantially involved in the process
of developing the legal documents, has the right to directly influence the content of the draft
legal documents. However, from the perspective of managing and developing legal

documents, it is an activity of state power, carried out by competent state agencies.
Therefore, in order to effectively develop the legal documents, it is necessary to consider
what the public should participate in and how important it is to influence the content of the
draft legal documents. Therefore, the thesis refers to two basic issues of public participation:
what is the public’s participation in and how is the public involved in the preparation of
legal documents?
4.2. Methodology
The thesis is based on the methodology of Marxism - Leninism, Ho Chi Minh
ideology and the Party’s views and guidelines, the State’s policies and laws on people’s
participation in state management activities, establishment of legal documents. In addition,
the thesis also uses interdisciplinary methodology to study public participation in building
legal documents.
4.3. Specific research methods
4.3.1. Secondary document research method
4.3.2. Practical research methods
- Survey and investigation method
- Data processing method
- In-depth interview method
- Method of taking experts’ opinions

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5.
Research questions and research hypotheses
5.1.
Research questions
Question 1: What content does the public participate in establishing legal documents?
Question 2: How does the public get involved in developing the legal documents?
Question 3: What is the actual state of public participation in developing legal

documents?
Question 4: How to ensure the real public participation in building legal documents?
5.2. Research hypotheses
Hypothesis 1. The public needs to be involved in all aspects of the legal
documents’ action, including policy formulation (defining the nature of the problem to be
addressed, the target of problem solved, the need for establishing policies, formulating
policy options and selecting optimal solutions and positive and negative impacts of
policies) and normativeizing activities into draft legal documents (determine the legality,
logical, the language used in the draft text).
Hypothesis 2. There are many forms of public participation in building legal
documents, corresponding to the level of participation, in which there are basically five
forms of participation: Information - Consultation - Social reviewing - Referendum Initiative on building legal documents.
Hypothesis 3. In fact, the public does not fully participate in the contents of the
development of legal documents, and the current forms of participation in Vietnam are not
sufficient and quality insured for the public to effectively use in participating in
developing legal documents.
Hypothesis 4. In order to ensure effective and actual participation, thereby
contributing to improve the quality of the legal documents, it is necessary to ensure that the
public is involved in determining the contents of the policy-making period and regulatory
policies into draft legal documents. At the same time, there is a mechanism for the public to
effectively use the five forms of participation in Information - Consultation - Social
reviewing - Referendum - Initiative for building legal documents.
6.
New contributions of the thesis
6.1. Theoretical contribution
The thesis’s findings will contribute to perfect the theoretical basis of public
participation in building legal documents in Vietnam, an area that is still vacant today.
Identifying the concept of public participation in building legal documents; The concept of
public participation in building legal documents; Content of public participation in developing
legal documents; The form of public participation in the development of the legal documents

(which proposes two forms of public participation in the operation of the non-applicable legal
act preparation is the referendum and the Law on Initiatives of the Legal document formation).
At the same time, it also identifies factors affecting the public participation in building legal
documents in Vietnam today.
6.2. Actual contribution
The solutions given are based on the theoretical foundation and practical basis,
which are meaningful suggestions to agencies and organizations implementing LD
preparation activities. Specifically, the thesis provides: A Handbook of the contents of
public participation in LD preparation activities. Sample Questionnaire on issues of public
consultation in LD preparation activities. These are optional institutional tools to help
agencies and organizations to consult and build LD for consultation and use. In addition,
specific solutions to improve the effectiveness of the application of participation forms such
as using social media, prescribing the form of referendum in law formulation, allowing the

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public to have the right to the initiative to build LD are good suggestions for state agencies
to study and put into State regulations.
7.
The thesis structure
In addition to the preface and conclusion, the list of references, the thesis consists
of 4 chapters:
Chapter 1. Overview of research situation on issues related to the thesis topic
Chapter 2. Rationale for public participation in building legal documents
Chapter 3. Current situation of public participation in building legal documents in
Vietnam
Chapter 4. Opinion and solutions to ensure the public participation in building legal
documents in Vietnam at present
Chapter 1.

OVERVIEW OF RESEARCH SITUATION ON ISSUES
RELATED TO THE THESIS TOPIC
1.1.
Overview of research related to the topic
1.1.1. Domestic studies
1.1.1.1. The study of legal documents
Studies on LD are quite various, reflecting the interest of researchers as well as
inconsistencies in the interpretation of this type of text. The first trend, in the study of
drafting and processing state management documents by author Nguyen Van Tham [91];
Technique of establishment and regulation of the author Luu Kiem Thanh [90]; Basic
knowledge about drafting LD by author Nguyen Minh Phuong [76]; Documents and text
work in state agencies by the author Van Tat Thu [96] ... all use the concept of LD as
defined in the Law on Promulgation of LD. The second tendency is to discuss the issue of
revising the LD concept in the Law on Promulgation of LD, in a series of articles On the
concept of LD by Ngo Hong Thuy [97]; Regarding the competence to promulgate LD of
People’s Council and People’s Committee by author Pham Tuan Khai [61]; The concept
of LD from the theoretical and practical aspects by author Doan Thi To Uyen [103] ...
1.1.1.2. Researches on the development of legal documents
Specific researches on LD building activities in Vietnam are still few. Most of the
books and textbooks are now as follows: Textbooks for building legal documents of Hanoi
Law University [35]. Textbook of establishment technology and document issuance of the
Academy of Administration [57]. Basic knowledge about drafting of author Nguyen Minh
Phuong [76]. Text and text work in state agencies of the author Van Tat Thu [96]; Luu
Kiem Thanh’s establishment and regulation technique [90] ... only refers to the LD
development process and that procedure is based on the Law on LD issuance and guiding
documents. Almost no books mention and clarify the nature of LD preparation activities
from theoretical perspective. There are also a number of other studies that address LD
building activities.
1.1.1.3. The study of public concept
The studies refer to the public concept quite a lot, it can list some case studies:

People’s participation in the constitutional process - Theory, practice in the world and in
Vietnam of the authors’ group Dao Tri Uc, Nguyen Thi Mo, Nguyen Van Thuan and Vu
Cong Giao [102]; Report on evaluation of consultation process in legislative and
regulative process in Vietnam of the National Legislative Development Project 2015 [44];

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Public consultation: assessment of the current situation and proposing the proposed plan
of the author Nguyen Duc Lam [63]; The participation of social organizations in the
process of law-making of author Dinh Ngoc Quy [88]; The research report on hearings at
the Parliamentary Committees and the applicability in Vietnam of the authors Nguyen
Duc Lam, Hoang Minh Hieu, John Patterson, Kit Dawnay [64]. In the studies of the above
authors, they either did not explain the term of public, or when explaining the term, there
were many different views.
1.1.1.4. The study of the content of public participation in LD preparation
There are few studies mentioning the content of public participation in LD
preparation. In the Report of Proposing appropriate and effective consultation mechanism
for small and micro enterprises of Vietnam Chamber of Commerce and Industry (VCCI),
the content of public participation should be involved in the entire LD preparation
activities [75]. In the book of The People’s Participation in Constitutional Process Theory, Practice in the world and in Vietnam [102] mentioning the content of public
participation in the constitutional building activities may include defining people’s
concerns, desires, and policies in the draft Constitution. Or to comment on specific
contents of the draft Constitution [:p.53-54]. In the Ministry of Justice’s Draft Technical
Manual on Drafting, Assessing and appraising the impact of LD, it is said that
“Depending on the goals to be achieved and the issues under consideration, opinions on
various issues may be collected. [11: p.340].
1.1.1.5. The study of the forms of public participation in LD preparation
The researches on public participation forms in LD preparation are quite
diverse but no in-depth studies. The article of People’s participation in the public

policy making process by Tran Thi Vanh Khuyen [62]; Promote the depth of
democracy and increase the participation of the people in Vietnam in the 2006 Policy
Dialogue Document [109]; A series of policy discussion reports on public
administration reform and anti-corruption by Sara Dix [105] have mentioned the
forms of public participation in state management of which there are two basic forms
of participation: direct and indirect participation [103]; The legal basis for the
participation of social organizations in law development in Vietnam by Tuong Duy
Kien and Cao Thi Quyen [60] has mentioned the form of participation of social
organizations as the social reviewers”.
1.1.1.6. The studies on factors affecting public participation in building legal documents
Studies on the factors affecting people’s participation in LD preparation activities
in Vietnam are quite numerous, including some typical case studies: Increasing people’s
participation in State management activities by the author Ha Quang Ngoc, Ha Quang
Truong (2007) [74]; Public participation in the policy process by the author Vu Thanh
Son [89]; Report on Provincial Governance and Public Administration Performance
Index (PAPI) in 2015 [5]; “Ensuring the right to participate in the state management of
citizens in Vietnam” by Pham Tuan Anh [2]; Public consultation: assessing the current
situation and proposing the regulated plan by the author Nguyen Duc Lam [63]; Report
Proposing appropriate and effective consultation mechanism for small and micro
enterprises by Vietnam Chamber of Commerce and Industry (VCCI); UNDP and
OXFAM (2015) [75], Legal assessment of the consultation process by author Dao Thi
Hong Minh [68], Marking Vietnam’s civil society space by author Le Quang Binh et al. [
8]...
1.1.2. The researches in the world
1.1.2.1. The researches of legal documents

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In the world, very few countries use the term of LD. Author Nguyen Van Cuong

[20], [21], 22] has studied the concept similar to the concept of LD in Vietnam in the legal
documents of some countries such as England, Canada, USA, Australia. The research
results show that the Vietnam’s LD term is not used in the laws of other countries. But in
terms of the nature, characteristics and form, Vietnam’s LD term has content similar to
the term “legislation” in English.
1.1.2.2. Researches on the development of legal documents
In the world, very few countries use the term of LD. Therefore, there are not many
direct studies on LD, but as a type of state management decision, there are quite a lot of
studies on how to build it. Referring to the law making from the perspective of
management decision making theory, in the doctoral thesis of The use of public
involvement in Canadian health policy decision-making by Kathy K. Li, B.Sc., M.Sc
introduced the concept of policy making as a process related to problem identification and
solutions, setting of options, implementation, evaluation and summation”.[145].
1.1.2.3. Researches refers to public term.
There are quite a lot studies that refer to the term of public. In the book of Successful
transport decision-making. A project management and stakeholder engagement handbook
(GUIDEMAPS, 2004) [142], Users and implementers of innovative concepts. Stakeholder
analysis and recommendations for uptake by Buhrmann et al. (2009) have defined the
public in broad meaning of “The public is any individual, group or organization that is
affected by or may affect a draft project and project implementation” [126: p.2]. Cary
Coglianese, Heather Kilmartin, Evan Mendelson (2008) in the study of Transparency and
Public Participation in the Rulemaking Process, A Nonpartisan Presidential Transition
Task Force Report, has narrowed the public audience by eliminating state agencies and
organizations and only refers to participation in the drafting phase of the regulatory draft,
[128: p.2].
1.1.2.4. The researches on the public participation content in building legal
documents
The researches of the public participation content in management decision-making is
well researched, typically The public participation handbook - Making better decisions through
citizen involvement by James L. Creighton [147], Users and implementers of innovative

concepts. Stakeholder analysis and recommendations for uptake by Buhrmann et al. (2009) ...
[126] and public opinion should be involved in all stages of decision-making.
1.1.2.5. The researches on the public participation forms in building legal
documents
The researches mention a lot of forms of public participation in law making
activities. Examples of the following are: A Ladder of Citizen Participation by Sherry R.
Arnstein (1969) [116]; A New Ladder of Citizen Participation by Desmond M. Connor
(1988) [136]; A guide to effective participation, David Wilcox [135]; Active public
participation of OECD; Spectrum of Public participation (Scope of public participation)
by IAPP [157]; The public participation handbook - Making better decisions through
citizen involvement by author James L. Creighton [147] ... The researches have suggested
a participatory model with different types of participation.
1.12.6. The researches on the factors affecting the public participation in building
legal documents
Worldwide, the researches on the factors affecting public participation are diverse.
In the thesis “Public participation in the making and implementation of policy in Mauritus
with reference to Port Louis’s local government” by Sanjiv Kumar Babooa, the subjective
influences of participants such as: not desiring to change, not knowing about needs;
environmental disapproval, poor response, conflict have been mentioned [160]. In the

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research “An evaluation of public participation theory and practice: The Waterloo Region
case” by Galina Miroshnikova (2014) pointed out the reasons for delaying the process of
public participation [140].
1.2. Comment on research results and issues
1.2.1. Comment on research results
Through the review of the research on LD, LD preparation and the public’s
participation in LD preparation show that, although LD concept has been legalized, there

are still many debates about the content in reality of concepts and giving different
perspectives. Secondly, on the issue of LD preparation, LD preparation is often seen from
a legal perspective, as the process and procedures for issuing documents that get little
attention from the perspective of establishment management decision theory.
Thirdly, the researches related to public participation in LD preparation are
exploited at many research viewpoints. Firstly, for the current public concept, although it
has been widely used in research by researchers as well as practical activists, who is the
public yet to have a unity and there is no official regulation on public concept in legal
documents. Secondly, the researches on the content of public participation to answer the
question of what the public participating in LD establishment activities are currently not
specific. Thirdly, the researches on public participation patterns show that many types of
participation reflect the level of public participation in policy and law making activities. ...
Fourthly, on the researches of factors affecting public participation, many factors were
identified, from the perspective of state agencies, individual factors of participants, factors
under legal institutions. At the same time, there are a number of technical reasons, how to
organize participation activities.
1.2.2. Issues that need to be raised for further research
Firstly, it is necessary to have a unified view of LD that comes from management
science, from an essential perspective that a particular type of state management decision
has an important meaning in proposing a mechanism to elaborate and promulgate quality
and effectiveness assurance of this type of document. Secondly, on preparation activities,
LD needs to recognize that it is essentially a management decision-making activity. This
explains the public participation in LD preparation activities as a way to ensure the quality,
validity and feasibility of documents. Thirdly about the concept of public participation in
LD preparation, there are many notions about public subjects, so it is necessary to clearly
identify who the public is. Because only when clearly identifying the public audience it can
ensure the participation as well as having an effective way to attract the effective
participation of the public subjects. Fourthly, regarding the content of participation. Fifth,
on identifying the forms of participation. The level of participation reflects the actual public
participation in LD preparation activities. In order to provide the participation model,

theoretical research as well as practical evidence is required. Therefore, it is necessary to
concretize and institutionalize this content in order for the public participation to be
effective and actual. Sixthly, it is necessary to study the factors affecting the public
participation in establishing LD as a basis for completing the theoretical basis and
proposing solutions to improve the effectiveness of participation.
Conclusion of chapter 1

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In Chapter 1, the author has summarized the domestic and international researches
that are directly related to the thesis’s research issues, ie. LD issues, LD preparation
activities and public participation in LD development (which explores specific issues on
public term, concepts of participation, content of participation, form of participation,
factors affecting participation). The research results show that there are many researches
on public participation in the world today. However, for the issue of public participation
in LD preaparation in Vietnam, the researches are only in the form of articles, summarized
reports but no theoretical and practical research to answer these basic questions of
participation of: Who is the public? What is public participation? What is the need and
benefit of participation? What does the public participate? Are there any forms of
participation in LD preparation? Therefore, through the overview of the research situation,
it is shown that the thesis research is necessary and sound.
Chapter 2.
THEORETICAL BASIC FOR PUBLIC PARTICIPATION
IN BUILDING LEGAL DOCUMENTS
2.1. Legal documents and legal documents development
2.1.1. Legal documents
LD is a concept of a general nature, used to refer to a group of state management
documents that share certain characteristics. Although this concept is defined in the Law on
Promulgation of LD, this concept is still controversial and has been studied from different

viewpoints.
General approach from three approaches, within the scope of the thesis’s study,
“Legal documents are a type of management decision, issued by a competent state agency,
to regulate the general code of conduct, which contains the common will of the State and
society and obligatory in general, to regulate social relations within the scope of functions
and duties of the state”.
2.1.2. Development of legal documents
2.1.2.1. Concept of establishment of legal documents
Developing the LD as “activity of powerizing social standards” [24] is an
important form of the state’s operation in the implementation of its functions and duties.
Currently LD development concept is approached from many different viewpoints.
Approaching from the perspective of LD as a type of decision, so “LD develoment
is a decision-making process, which includes specific activities: identifying problems to
be solved; the need to issue policies, LD goals to be achieved; building the plan;
identifying positive and negative impacts of options; selecting the optimal plan and
interpreting the policy content into LD.”
2.1.2.2. The contents of LD development activities
Firstly, it is policy making. In which, the policy making process includes basic
activities: problem identification, identification of problem-solving goals, identification of
solutions, selection of optimal solutions [50].
Secondly, the drafting activities (codifying policy into LD).
2.2. Definition, characteristics and requirements of public participation in
building legal documents
2.2.1. Public concept and public participation in building legal documents
The public is a broad concept with many meanings and up to now there is no unified
understanding and not specified in the legal documents. Within the scope of the thesis’s study,

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“Public participation in LD development is individuals and organizations directly affected by
the forthcoming LD draft”.
The concept of participation has a long history [117]. At the same time, the
concept of participation is not a homogeneous concept, but the connotation of
participation contains many elements and levels of participation [140]. Approaching from
the perspective of responsibility of state agencies in ensuring the real public participation
in LD development, the thesis defines “Public participation in LD development is the
process that the public participates in policy development and LD drafting activities to
various levels, from accessing to information on the development of legal document
activities, participating in contributing ideas and reviews to policies in proposed LD
development and draft LD, to voting when the state takes the referendum and empowered
to propose LD development initiatives, to influence the content of the LD.”
2.2.2. Characteristics of public participation in building legal documents
In terms of subject of participation
In terms of content of participation
In terms of form and level of participation
In terms of purpose of participation
2.2.3. Requirements for public participation in building legal documents
2.2.3.1. Public participation for promoting democracy
2.2.3.2. Public participation for ensuring the publicity and transparency principle
2.2.3.3. Public participation for improving the quality of legal documents
2.2.3.4. Public participation for improving the capacity of the public and
promoting the social responsibility of citizens.
2.3. Contents and forms of public participation in building legal documents
2.3.1. Contents of public participation in building legal documents
The content of public participation reflects issues in which the public comments on
building legal documents. Answering the question of what the public participates in
building legal documents. The identification of the content of public participation is
meaningful for both State agencies and the public subjects.
2.3.1.1. The purpose of identifying the content of participation

The purpose of identifying the content of participation for the public
First of all, identify the content of participation helps the public to quickly grasp
the content of the draft legal document. Secondly, help the public save time and effort
when participating in building legal documents. Thirdly, improve the quality of public
participation in building legal documents.
The purpose of identifying the content of participation for state agencies
Firstly, help State agencies collect useful and purposeful information. Secondly,
help state agencies save time and resources to organize public participation activities.
Thirdly, ensure substantial and effective participation.
2.3.1.2. Opinions approaching the identification of the content of public
participation in building legal documents
Opinions approaching assessment of the effectiveness of participation from a
process perspective
Opinions approaching the nature of building legal documents as making
management decisions
2.3.1.3. The content of public participation in building legal documents
* Participate in identifying the nature of the problem to be solved

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The public needs to be involved in identifying what is the nature of the problem to
be solved? In order to understand the nature of the problem to be solved, the state agency
needs to clearly identify the problem: what is the problem to be solved? What causes
problems to be solved? Who is the main entity generating the problem to be solved?
* Participate in identifying the need for new policy proposals.
The identification of the need to promulgate legal documents is very important
because each policy issue requires a lot of effort and change. State agencies need to ask
the public about the following contents: Does the current legal document solve the
problem generated? Is it necessary to promulgate a new policy? Why?

* Participate in identifying objectives of policy
The objective of the policy is the result or value that the state wishes to achieve
when promulgating legal documents. Therefore, state agencies need to clearly identify
issues for the public to participate in building policy objectives in the draft legal
document: What is the objective of the policy? Why does the state choose objective for
this policy?
* Participate in proposing options to resolve policy issues and select policy
solutions
The solution is the way to solve the problem to achieve objectives of policy [50:
p.23]. Therefore, public agencies need to identify the contents for public participation
including: Are there any options to solve policy issues? Which option is optimal?
* Participate in identifying positive and negative impacts of the policy
Public participation in identifying the positive or negative impact of a policy on its
rights and interests is important in influencing the content of the policy in a draft legal
document. Therefore, in this content, state agencies need to ask the public questions: how
will the upcoming policy affect the lives of the people? What are the public's wishes and
aspirations for solving problems in draft legal documents?
* Participate in commenting on the legality of the draft legal document
The public who is involved in identifying the legality of draft legal documents is to
give their opinions on issues such as: form, content of draft legal documents in accordance
with the authority of the subject issued? Is the draft legal document content in accordance
with the provisions of the current legal documents with higher legal value? Does building
legal documents comply with the order and procedures prescribed in laws promulgating
legal documents?
* Participate in commenting on the reasonableness of the draft legal document
Reason is "reasonable, suitable with the logic of things" [39: p.486]. The
rationality of the draft legal documents is reflected in the conformity of the legal
documents with the law of objective advocacy of things, phenomena and processes related
to the contents of the draft legal documents under defined conditions and circumstances,
while also ensuring the feasibility of the document.

* Participate in commenting on the language of the draft legal document
The contents that need public participation in language include: Is the content of
draft legal documents reasonable, scientific? Is the language used in the draft legal
document clear, easy to understand or create ambiguity, confusing?
2.3.2. Forms of public participation in building legal documents

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2.3.2.1. Opinions propose forms of public participation in building legal
documents
Different forms of participation are to meet the different levels of public
participation in building legal documents because ultimately participation is the external
manifestation, mechanism, and way for the public to use their right to participate at the
proposed levels. Therefore, the opinion on proposing the forms of participation is based
on the level of public participation in building legal documents.
Summary of models defining the level of public participation in law-making
activities shows that basically the public participating in law-making activities has four
basic levels: Information - Consultation - Voting rights. Each level of participation
corresponds to specific types of participation and the purpose of the state.
Level of participation
Form of
Target oriented of State
participation
1. To be informed about
When the state wants to inform the public
1.
activities of building legal Information
about the content of the upcoming legal
documents

document
2. To be consulted about
the content of legal
documents

3. To be voted when the
State consults

When the state wants to seek additional
information to complete the draft legal
document

2.
Consultation

3. Social
criticism

When the government wants to make the
process of developing legal documents
transparent and ready to receive public
comments.

4.
Referendum

When the state desires to get the public's
consent on the content of legal documents

4. To be empowered to

propose building legal
documents

5. Initiative When the state wants to seek policy ideas
on building to build legal documents from the public
legal
documents
Table 2.1. The table shows the relationship between the level of participation, the form
of participation and the purpose of the State towards public participation in building
legal documents.
2.3.2.2. Forms of public participation in building legal documents
* Information
Information is one of the basic forms of participation, the first and the most
important premise for the public to participate at higher levels. This type of participation
provides one-way information flow, from agencies and organizations to the public.
* Consultation
According to the Vietnamese dictionary "Consultation" is to ask or express
opinions for reference (often an important issue) [113]. Therefore, it is very necessary to
understand correctly, thereby moving to the formal mechanism of this form of
participation and in which the inner meaning of the form of consultation is determined,

11


including the following contents: Firstly, the state agency has the authority to ask the
public to comment on draft legal documents. Secondly, the competent state agencies listen
and receive public comments. Thirdly, competent state agencies explain the receipt or
non-acceptance of public comments.
* Social criticism
Social criticism can be realized only when the following three contents are ensured:

Firstly, the drafting agency must request the criticism against the draft legal document.
Secondly, the public prepares content for criticism. Thirdly, there is an exchange and debate
between competent state agencies and the public to reach a consensus.
* Referendum
In English, referendum is the introduction of a document of the legislature, a
proposal to amend the constitution or an important national issue for the entire people to
decide in the form of voting. In French, referendum (référendum) is a procedure that
allows citizens of a country to show their approval or rejection of a measure (solution)
offered by state agencies through voting. [47].
* Initiative on building legal documents
The initiative on building legal documents is a form of participation based on the
form of the agenda initiative - one of the four forms of direct democracy [102: p.10.11]. In
this form of participation, the public has the right to propose initiatives to develop legal
documents, this is a type of subject rights recognized by law, the competent state agencies
have to consider propose initiatives to develop legal documents of citizens to be included
in the program of developing legal documents.
2.4. Factors affecting public participation in building legal documents
2.4.1. Objective factors
* Institutions.
* Building civil society
* Building social networks
* Factor of participation culture
2.4.2. Subjective factors
* The group of factors belongs to the capacity of state agencies
* The group of factors belongs to the capacity of the public
Sub-conclusion of Chapter 2
Chapter 2 has addressed the theoretical issues of public participation in building
legal documents. Explain basic issues of legal documents, activities of developing legal
documents, requirements of public participation in building legal documents. and the
central content of chapter 2 is the proposal of a theoretical framework for public

participation with two issues: the content of public participation in building legal
documents, answering questions. What is the public participation and the form of public
participation in building legal documents, answering the question of how the public
participates. The content of public participation reflects issues in which the public
contributes opinions when drafting legal documents. From the theory of participation, the
public should be involved in all stages of building legal documents, thereby proposing
five forms of public participation in writing activities. Legal documents include:
information - consultation - social criticism - referendum and initiative on building legal

12


documents. At the same time, we also study the factors affecting the public participation
in building legal documents.

PARTICIPATION

Theory of building
rational decision

Theory of decisionmaking with participation

Form of participation

Theory of direct
democracy

Content of participation

1. Nature of the problem to be solved

2. Objective of solving problem
3. The need to promulgate legal documents
4. Develop and select a plan
5. Positive and negative impacts
6. Legality
7. Reasonability
8. Languages used

1. Information
2. Consultation
3. Social criticism
4. Referendum
5. Initiative on building legal
documents

Factors affecting
- Objective
- Subjective

Figure 2.2. Diagram showing the theoretical framework for public participation in
building legal documents
Chapter 3
CURRENT SITUATION OF PUBLIC PARTICIPATION IN BUILDING LEGAL
DOCUMENTS IN VIETNAM AT PRESENT
3.1. The current situation of the law stipulates the public participation in
building legal documents in Vietnam at present

13

3.1.1. Legal documents regulating public participation in building legal
documents
3.1.2. General assessment of legal regulations on public participation in building
current legal documents
Firstly, current regulations of law still limit the right of public participation in
building legal documents. Secondly, the current laws are limiting the level of public
participation in building the third legal documents, a very important issue that needs to be
institutionalized. In the context of public participation, the law on the promulgation of
legal documents 2015 only stated the general principle "to clearly define each policy in
the proposal to ask for comments in accordance with the object to get opinions" for the
period of making proposal to build legal documents. In the drafting stage, there is no
regulation on the content of participation.
3.2. Current situation of public participation in building legal documents
3.2.1. Current situation of the number of public participation in building legal
documents
3.2.1.1. Number of public participation in building legal documents
The survey results of the public participation in building legal documents show that
the general situation is that very few people participate in building legal documents
although the draft legal documents have a direct impact on the lives of people.
3.2.1.2. Survey results of the reasons why public does not participate in building
legal documents
a) Survey results and assessments of officials and civil servants on the reasons for
not participating in building legal documents

Figure 3.2: Survey results of the public not participating in building legal documents
Unit: %
(Source: Survey of author, Sentence 8, Appendix I, II)
b, Survey results on people's assessment of the reasons not to participate in
building legal documents

14


A similar survey of the reasons for not participating in building legal documents of
the population group also showed a similar assessment with the group of officials and
civil servants.
3.2.2. Current situation of public participation in building content of legal documents
3.2.2.1. Current situation of posting documents of request for elaboration of legal
documents on the web portal of the drafting agency
3.2.2.2. The need to identify the content of public participation in building legal
documents
a) Survey results of officials and civil servants on the need to determine the content of
public participation in building legal documents

Figure 3.4. Survey results of officials and civil servants on the need to determine the
content of public participation in building legal documents
Unit: %
(Source of survey: Survey of author, Appendix I, Sentence 8).
b, Survey results of people on the need to determine the content of public
participation in building legal documents.
The survey results showed that people also assessed the content of the dissertation
as "very necessary" and "necessary" at a very high rate.
3.2.2.3. The purpose of identifying the content of public participation in building
legal documents
a, Assessment of officials and civil servants on the need to apply forms of public
participation in building legal documents
The survey results show that, with six meanings of identifying the content of
participation, there are very high selection rates.
b, People's assessment of the need to apply forms of public participation in
building legal documents

The survey is similar to the group of people, the rate of assessment of the purpose
and significance of identifying the purpose of identifying the content of public
participation in building legal documents at "Very true" and "true" are also very high.
3.2.2.4. Current situation of public participation in identifying contents of legal
documents-making activities
a) Current situation of officials and civil servants participating in identifying the
contents of building legal documents

15


Figure 3.8. Survey results of the current situation of officials and civil servants
involved in identifying the contents of the activity of building legal documents
Unit: %
(Source: Survey of author, Question 10, Appendix I).
b, Current situation of people participating in identifying the contents of building
legal documents

Figure 3.9. Survey results on the situation of the people involved in identifying the
contents of building legal documents
Unit: %
(Source: Survey of author, Sentence 10, Appendix II).
3.2.3. Situation of the use of public participation in building legal documents
3.2.3.1. Survey results of the need to apply the forms of public participation in
building legal documents

16


a, Assessment of officials and civil servants on the need to apply forms of public

participation in building legal documents

Figure 3.10. Survey results of officials and civil servants about the need to use the
forms of Public participation in building legal documents
Unit: %
(Source: Survey of author, Sentence 11, Appendix I).
b, People's assessment of the need to apply forms of public participation in
building legal documents
On the people's side, the rate of assessment of the need to use the forms of public
participation in building legal documents is very high.
3.2.3.2. Current situation of using the form of information in the activity of
developing legal documents
a, Survey results on the level of public access to information about building legal
documents through the web portal
b, Survey results on how the public access to information on building legal
documents
* For officials and civil servants, the survey results show that finding information
about building legal documents through the information channels specified in the law on
promulgation of legal documents. The law is very few.
* For the survey group who are residents, the percentage of people who participate
in the "regular" survey of information on the construction of legal documents is also very
low, on average (10.1%).
3.2.3.3. Current situation of using public consultation in building legal documents
a, Assessment of officials and civil servants on the use of consultation in building
legal documents

17


Figure 3.14. Survey results on the status of officials and civil servants using the form of

public consultation in building legal documents
Unit: %
(Source: Survey of author, Sentence 13,14,15, Appendix I)
b, Assessment of people on the use of consultation in building legal documents

Figure 3.15. Survey results on the current situation of people using public consultation
in building legal documents
Unit: %
(Source: Survey of author, Sentences 13,14,15, Appendix II)
3.2.3.4. Current situation of using social criticism
a, Assessment of officials and civil servants on the application of social criticism
Regularly

Sometimes

3. Being explained to receive critics. 17.5
38
2. Prepare content for review 7.7
30
1. Recommended to join the review 3 20
24.8

Seldom
24.5
40

Never
30
22.3

52.2

Figure: 3.16. Survey results on the current situation of officials and civil servants
Unit: %
(Source: Survey of author, Sentences 16, 17.18, Appendix I)
b, People's assessment of the application of social criticism

18


40
20

55

53

60

16

36.2
22.425.4

Regularly
28

20.1
15.3
11.6

6

11

Sometimes
Seldom

0
1. Recommended 2. Prepare content 3. Being explained
to join the review
for review
to receive critics.

Never

Figure: 3.17. Survey results on the current situation of people using social criticism
Unit: %
(Source: Survey of author, Sentences 16, 17.18, Appendix II)
c, Results of current situation on survey using social criticism
* Current situation of using social criticism method of officials and civil servants
The Survey results on the current situation of using social criticism show that,
among the three methods of organizing social criticism activities, the most commonly
used form of social criticism conference.
* Current situation of using social criticism of people
18.6

3. Organize direct dialogue

20.8

23.4
23.2
17.4

2. Send text directly
1. Conference

28

7.8

18

Never

32.6

Seldom
36
Sometimes
74.2

Regularly

Figure 3.19. Survey results of the extent to which people use social critical methods
Unit: %
(Source: Survey of author, Sentences 19, Appendix II)
3.2.3.5. Current situation of using the form of referendum
The results of public surveys on the need to apply a referendum in building legal
documents show that up to (89.6%) of officials and civil servants rated them as "very

necessary" and "necessary". This percentage is even higher for the group of people, with
(96.6%) of the respondents assessed that it is necessary to referendum at the "necessary"
and "very necessary" level. No comments rated "unnecessary".
3.2.3.6. Current situation of using the form of initiative on building legal
documents
Currently, the law on promulgating legal documents in 2015 has stipulated that in
addition to competent subjects such as the National Assembly, the government, the
President, the Vietnam Fatherland Front and its member organizations, there are already
provisions. Specifically on the rights and mechanisms to ensure the right of legislative
initiatives of the National Assembly while people as subjects directly affected by legal
documents are not regulated.
3.2.4 Impact of factors affecting public participation in building legal documents
3.2.4.1. Assessment of officials and civil servants on the impact of factors affecting
public participation in building legal documents

19


Very Affect

Affect

Seldom affect
87.4

77.6
28.6
7.2 3.2

19.4

3

22

14 7
2.8

9.2 3.4

5.6 1

78.4

76.2

71.4

61

Non affect

1. Institutions 2. Participatory
3. The
4. The
5. The capacity
culture
development of development of of the drafting
civil society social networks
agency

10.27.2 4.2
6. Capacity of
public
participation

Figure 3.20. Survey results and assessments of officials and civil servants on factors
affecting the public participation in building legal documents
Unit: %
(Source: Survey of author, Sentence 20, Appendix I).
3.2.4.2. People's assessments on the impact of factors affecting public
participation in building legal documents
88
77

Very affect

77.2

72.4
62

affect

46.4
37.2
14.8
8.2
1. Institutions

16.2

0.2

22.4
11

22.4
4.6

7.4 4.6

0

17.8
4 1.2

5

2. Participatory
3. The
4. The
5. The capacity of 6. Capacity of
culture
development of development of
the drafting
public
civil society
social networks
agency
participation

seldom
affected
no affect

Figure 3.21. Survey results on people's assessment of factors affecting public
participation in building legal documents
Unit: %
(Source: Survey of author, Question 20, Appendix II).
3.3. General assessment of the current situation of public participation in
building legal documents
3.3.1. Positive points
Assessing the current situation of public participation in building legal documents
from the perspective of content of participation, the actual results show that:
Firstly, in terms of the number of people participating in building current legal
documents, at a very low level (only from 9.6% to 31.2%) (Figure 3.1), there have been
significant changes compared to with similar survey results in the Provincial Governance
and Public Administration Index (PAPI) 2015.
Secondly, in terms of the participation in building the content of legal documents,
survey results on the situation of the public's participation in building the content of legal
documents show that the majority of the public are well aware of the need to develop
contents for the public to contribute their opinions about contents of draft legal
documents.
Thirdly, in terms of the use of public participation in building legal documents, a
positive point in the survey results about the use of public participation in building legal

20


documents is that the public is well aware of the need to increase deeper participation in
activities of building legal documents.

3.3.2. Limitations
Firstly, the number of people participating in building legal documents is very low
(from 9.6% to 31.2%).
Secondly, the current situation of the public to comment on the contents of the
draft legal document, the survey results indicate the fact that the public rarely gives
comments on the contents of draft legal documents.
Third, the application of current forms of participation is not effective.
3.3.3. Cause of the current situation
Firstly, in terms of institution, the state agencies have been conscious of clearly
defining the scope of participation so that the public can easily identify the content of
participation. However, the above regulations are not sufficient to enforce as well as guide
the agencies in charge of drafting legal documents to design a set of criteria on the
contents of participation, which are essentially the principles for public participation.
They have the basis to participate. Secondly, it is due to the subjective factor of the
agency conducting public consultation. Thirdly, from the public's own understanding, the
capacity to participate in building legal documents of the public. An understanding of the
content of the draft determines the opinion. Therefore, people feel interested in what
content they contribute to that issue, leading to the situation of "fortune teller watching
elephant" in comments, reviews and suggestions on the content of draft legal documents
ongoing consultation.
3.3.4. Assessment of factors affecting public participation in building legal
documents
3.3.4.1. The influence of objective factors
In general, the objective factors affect the public participation in building legal
documents in both positive and negative aspects.
Besides, these influencing factors have not yet played an active role in promoting
participation.
3.3.4.2. Influence of subjective factors
Subjective factors also have a two-sided effect on public participation. On the
positive side, the capacity of officials and civil servants, particularly the awareness of

officials and civil servants on the meaning and effects of public consultation on state
management activities, has also been changed. At the same time, officials and civil
servants had a more sincere attitude and demand in receiving comments from people.
Sub-conclusion of Chapter 3
The content of Chapter 3 conducts an assessment of the current situation of public
participation in building legal documents in Vietnam. The state of public participation is
assessed on two basic issues: the content of participation and the form of participation.
Results of the current situation survey on participation in the content of legal
documents-making activities show. In terms of the form of public participation in building
current legal documents, there are only three forms of information, consultation and social

21


criticism that are regulated and implemented in practice, while the two forms of
participation in referendums and initiatives to develop legal documents are: new proposal.
The results of the current situation survey on the application of both forms of quantitative
methods (primary and secondary data surveys), both qualitatively (pvs) show two problems.
Firstly, the public also thinks that the proposed forms of participation are necessary for the
public to have a diverse and effective mechanism of participation. Secondly, the current
situation with the forms of participation being used as information - consultation - social
criticism is not effective.
Assessing the causes of the current situation, the thesis has pointed out many
causes leading to the failure to identify the content of participation, the people did not
contribute comments on the content of legal document activities and the current
participation methods have not been effective. In addition, the survey also examines the
impact of factors affecting public participation in building legal documents, thereby
assessing the positive and negative impacts of factors affecting efficiency of Public
participation in building legal documents.
Chapter 4.

OPINIONS AND SOLUTIONS TO ENSURE THE PUBLIC PARTICIPATION IN
BUILDING LEGAL DOCUMENTS IN VIETNAM AT PRESENT
4.1. Opinion ensuring public participation in building legal documents
4.1.1. Ensuring public participation in building legal documents is aimed at
promoting democracy, building a true state of the people, by the people and for the
people.
4.1.2. Ensuring public participation in building legal documents is aimed at
building a system of legal documents of quality, validity and efficiency, ensuring
feasibility.
4.1.3. Ensuring public participation in building legal documents needs to take into
account convenience and maximum conditions for people to participate substantially and
effectively.
4.1.4. Ensuring public participation in building legal documents must be placed in
the context of national culture and traditions.
4.2. Group of solutions to ensure public participation in building legal
documents
4.2.1. Group of solutions to improve institutions on public participation in
building legal documents
4.2.1.1. Simultaneous use of mandatory and non-mandatory institutional tools for
public participation in building legal documents
4.2.1.2. Supplementing regulations on the process of public participation in
building legal documents
4.2.1.3. Supplementing provisions on legal responsibilities to agencies responsible
for drafting legal documents in receiving and explaining public comments.
4.2.2. Group of solutions to ensure quality of participation in the content of legal
documents

22

4.2.2.1. Building a Handbook to guide the content of public participation in
building legal documents
4.2.2.2. Supplementing the summary of issues to be commented by the public is a
mandatory document in the Request for comment form.
4.2.3. Group of solutions to improve the effectiveness of participation forms
4.2.3.1. Using social media to provide information on building legal documents
4.2.3.2. Using intermediary public consultation
4.2.3.3. Expanding the right of social criticism to social organizations (not
members of the Vietnam Fatherland Front)
4.2.3.4. Institutionalizing the form of referendum on law-making activities
4.2.3.5. Allowing people to have the right to initiative in building legal documents
4.2.4. Group of solutions to improve the capacity of civil servants and the public
4.2.4.1. Improving accountability of officials and civil servants
4.2.4.2. Improving the capacity of public participation
4.2.5. The group of solutions to build the foundation for public participation in
building legal documents
4.2.5.1. Encouraging development of civil society
4.2.5.2. Building a culture of participation
4.3. The relationship between the solutions
The above solutions may not cover all necessary contents in ensuring the public
participation in building legal documents. However, these solutions are necessary to
attract participation and ensure effective and effective participation in order to improve
the quality of legal documents. Each solution has certain advantages and limitations. At
the same time each solution must be implemented in specific conditions, with specific
objects. But solutions must be implemented systematically and synchronously, which
makes little sense when done individually.
4.4. Survey the necessity and feasibility of solutions to ensure public
participation in building legal documents
4.4.1. The need for the solution
Survey results on the need for solutions to ensure public participation in building

legal documents show that, out of the 12 specific solutions proposed, the public are
evaluated Very high prices at the "very necessary" and "necessary" levels.
4.4.2. The feasibility of solutions to ensure public participation in building legal
documents
Most of the assessments identified the proposed solutions as feasible, in which the
solutions were evaluated by the number of officials and civil servants highly feasible
(including feasible and very feasible). Thus, although the assessment of the necessity and
feasibility of the solutions is different, but in general, the opinions are all that the above
11 solutions are necessary and feasible in the implementation process. Most of the public
support the measures to ensure the public participation in building legal documents
proposed by the author is required.

23