The national assembly and the post-legislative scrutiny issue under the constitution of Vietnam

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THE NATIONAL ASSEMBLY AND THE POST-LEGISLATIVE

SCRUTINY ISSUE UNDER THE CONSTITUTION OF VIETNAM

<b>Dr. Nguyen Thi Hong Yen, LLM. La Minh Trang</b>

International Law Department, Hanoi Law University (Vietnam)

<b>Abstract</b>

In Vietnam, legislative oversight is a means to hold the government and other state actors
accountable for their actions and ensure their actions in accordance with the law. Effective
oversight is applied to ensure transparency and openness, to create the interactive environment
where actions of government and other actors are debated and receive public input, to scrutinize
government policies to ensure they have been implemented adequately and have obtained the
desired impact; etc. How does the National Assembly implement Post-Legislative Scrutiny and
gain valuable experiences? And how can the National Assembly improve its capacity to this
issue? To answer these questions, this article will focus on clarifying issues related to the
Post-Legislative Scrutiny of the National Assembly under the Constitution and laws of Vietnam, the
difficulties and challenges that the National Assembly is facing, thereby recommending solutions
to strengthen the capacity as well as the effectiveness of post-legislative monitoring activities of
the Vietnamese Parliament in the next stage.

<b>Keywords: National Assembly, post-legislative scrutiny, Constitution, Vietnam.</b>

<b>I. INTRODUCTION</b>

In Vietnam, Article 69 of the Constitution of Vietnam in 20131_{recognizes the National Assembly}
(hereinafter referred to as the NA) as the highest organ of state power, and as the only institution
with authority to enact the Constitution, codes and laws. In addition to its legislative authority, the
NA has decision-making authority in numerous crucial areas in relation to national socio-economic
development including state budgets, financial and monetary policies, taxation and other significant

domestic and foreign policies. The NA also set out the regulations on the operation and activities of
governmental institutions, the court and procuracy systems and exercises the supreme control over
the conformity to the Constitution, the law and the resolutions issuing by the NA and all activities
of the State’s actors (Article 70)2_{. When a document is passed by the NA and enters into force, then}
social practice is a standard measure to assess the quality of this law. During the drafting process,
although the lawmakers have expected cases which may occur in reality, the prediction cannot be
<i>1 The Vietnamese National Assembly, The Vietnamese Constitution (2013).</i>

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completely accurate. Furthermore, socio-economic life is always moving, thus, regulations is easy
to be obsolete and outdated. On that account, the monitoring of the implementation of laws plays
an extremely important role. Therefore, it can be said that monitoring legislations is a complicated
process but monitoring the implementation of that law is more difficult because the social effect of
the law is only determined when it has started the social life.

Therefore, in this article, the authors will discuss issues relating to the post-legislative scrutiny
of the NA under the Constitution 2013 and Vietnamese laws, as well as the difficulties and challenges
that the NA is facing. Thereby, the last part will focus on the recommended proposal to increase the
capacity and the effectiveness of post-legislative monitoring activities in Vietnam.

The methodology described in this article is the following: It will first introduce the overview
of the post-legislative scrutiny, the important role of PLS process in ensuring the effectiveness of the
NA’s activity and cases from foreign country. Then, the article will take a quick look at the structure
of the NA of Vietnam. It will show that Vietnam has no specific body implementing post-legislative
scrutiny. Finally, the last part will present some of PLS’s proposals for Vietnam.

<b>II. THE OVERVIEW OF THE POST- LEGISLATIVE SCRUTINY</b>

The NA has a role in adopting legislation, it is also responsible for monitoring the implementation
of legislation and evaluating whether the laws have achieved their intended outcomes. The legislative
process is an elabourate task. The implementation is a complex task that does not happen by one or
two bodies. The NA plays an important role in monitoring the implementation of legislation. The act
of evaluating laws that the NA has passed is known as the post legislative scrutiny.

The aim of having PLS includes 4 main reasons:

- Firstly, to ensure the principles of legality and legal certainty are being met;

- Secondly, to apprehend the adverse effects of new legislation more timeously and readily;
- Thirdly, to evaluate how effective the law is at regulating and responding to problems and
phenomena;

- Fourthly, to improve legislative quality by learning from experience both in terms of what does
and does not work, and in terms of relationship between the objectives and outcomes1_.

<b>1. The scope of the Post-Legislative Scrutiny</b>

The post-legislative scrutiny (hereinafter referred to as PLS) reviews both the enactment of the
law and its impacts on society. Therefore, there are two aspects of PLS: (1) it looks at the enactment of
law by answering whether the legal provisions have been entered into force, how legal practitioners
and citizens have used the law; and (2) it reviews whether the intended policy objectives of the law
have been met and how effectively it is.

Because the evaluation of legislation is not only costly and time-consuming but also dependent
upon the acquisition of information from outside government to make use of time and resources
<i>ef-1 Franklin De Vrieze and Victoria Hasson, Post-legislative scrutiny, comparative study of practices of post-legislative </i>

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fectively, the NA needs a transparent process for identifying which legislation is selected for review.1
For example, consultation with key stakeholders is generally necessary if relevant data is to be
ob-tained and accurate evaluation of effectiveness is to be made. On that account, not all law has been
evaluated, such as PLS may not be suitable for appropriate/consolidation legislation or legislation
which makes minor technical changes only. By contrast, if legislation relates to a state of emergency
or has significant impacts to society, they should be subject to PLS.

<b>2. The role of PLS process to the effectiveness of the NA’s activity</b>

Legislation monitoring mechanisms should be carried out by different actors such as policymakers,
opinion leaders, even the media. Among them, the National Assembly plays an important role in
monitoring laws that it passes. There are two functions of PLS to improve the effectiveness of the
operation of the NA.

<i> (1). PLS is a measure for the NA to exercise the right to supervision. </i>

The NA has a responsibility to monitor how passed laws are implemented in reality through
activities of the government. Although the parliament takes responsibility in monitoring the
implementation of legislation, the ex-post evaluation is also an essential tool for accountability and
supervision over the executive sector. On the one hand, PLS may be used as a necessary measure in
political systems for the NA to hold their executive accountable. On the other hand, new legislations
and laws are probably improved through governmental activities. When one document has been
passed by the NA and enters into force, social practice is the standard measure to assess the quality
of this law. During the drafting process, although lawmakers have envisaged actual conditions to
occur, their prediction cannot be completely accurate. Furthermore, socio-economic life is likely to
change, thus, regulations tend to become obsolete and outdated, requiring revision, amendment or
even replacement. On that account, monitoring the implementation of laws plays a crucial role. In

practice, where a law is issued, the government shall issue a set of legal documents, such as decrees,
resolutions, circulars and others, with the aim of guiding the implementation of such law. Therefore,
in the process of implementing and applying laws, it is necessary to closely supervise them in order to
promptly detect shortcomings and contradictions with the constitution. Then, PLS is a powerful tool
for the NA to carry out effective executive oversight. By reviewing government actions or inaction,
and by amending legislation of various kinds, the NA reports whether the laws are fit for purpose in
social life. In other words, PLS is part of the oversight role of the NA.

<i>(2). PLS is a measure for the NA to evaluate how laws have worked in practice.</i>

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implementation and delivery of policy aims; and to identify and disseminate good practice so that
lessons may be drawn from the successes and failures revealed by the scrutiny work1_.

<b>3. Case study from the United Kingdom in implementing PLS</b>

PLS is not a new mechanism but is regulated in many legal systems to supervise the implementation
of the law. However, the method and extent of this process may vary from country to country. Within
the scope of this article, the authors provide case studies from the United Kingdom to propose a
reasonable post-legislative scrutiny model for Vietnam.

The United Kingdom can be considered to have comprehensive legislation of PLS. In general,
policy and legislations are under the supervision of 3 main activities: evaluation, post-implementation
review (PIR) and PLS. Certainly, there are giant differences among three activities. Evaluation is
a general term referring to regulatory policy. This activity can be carried out at any stage and in
different ways with the aims to determine whether the policy is implemented effectively or what
its economic impacts are. In terms of the post-implementation review, it also monitors the impact

of policy. However, PIR is commonly conducted three or five years after policy implementation2_.
Lastly, PLS reviews how primary legislation is working in practice. This process may examine the
effectiveness of the legislation and revisit the extent to which the legislation and the supporting
secondary legislation have been brought into force and consideration of the delegated legislation
made under the Act.

In the United Kingdom, there is freedom for all committees to conduct PLS activity. This work
combines internal departmental scrutiny with parliament scrutiny.

<i>The first one is known as the post-enactment review. It is conducted by competent government </i>

departments. The department fleshes out a memorandum with information on the operation of different
provisions of the act, provisions that have not been brought into force, etc. For example, in January
2011, the government began the process of post-legislative assessment of the Freedom of Information
Act 20003_{. This Act of the Parliament of the United Kingdom creates a public “right of access” to}
information held by public authorities. It is the implementation of freedom of information legislation
in the United Kingdom on a national level. As part of that process, the Government submitted its
assessment of how the Act has worked in practice to the Justice Select Committee in 2011. The Justice
Select Committee launched a call for written evidence for its post-legislative scrutiny of the Freedom
of Information Act4_.

<i>The second scrutiny is the parliamentary review. In this way, the Government collects existing </i>

data and the Parliament decide whether to conduct further PLS. This model combines government
scrutiny and parliament scrutiny. In the United Kingdom, the relevant governmental department
carries out an initial review (normally three or five years after Royal Assent) which is published as a
1 Post-Legislative Scrutiny, ‘Post-legislative scrutiny’ (2006)

2 Peter J Larkham, ‘Conservation in action: evaluating policy and practice in the United Kingdom’ (1993) 64 Town
Planning Review 351.

3 The United Kingdom Justice Committee, ‘Post-legislative scrutiny of the Freedom of Information Act 2000’ (2012)
London, TSO

<i>4 The United Kingdom Ministry of Justice, Memorandum to the Justice Select Committee - Post-Legislative Assessment </i>

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report and laid before the Parliament. The relevant committee then reviews that report and collects
other important data. Therefore, interconnection with governmental databanks, incorporation of open
data and the creation of an administrative apparatus for parliamentary support are prerequisites for an
efficient implementation of PLS1_{. For example, the timeline for a written response from a government}
ministry on post-legislative scrutiny is between three and six months. Then the parliament could
review the follow-up to the recommendation of the body that conducted the parliament review six to
twelve months after its completion.

Another example is the memorandum from the Department of Health on the Mental Health Act 2008.
Based on this memorandum, the Health Committee conducted PLS and published its report in 20132_.
<b>III. THE STATE ORGANIZATIONAL STRUCTURE AND THE NATIONAL ASSEMIBLY OF VIETNAM</b>
<b>1. The state organizational structure in Vietnam</b>

Vietnam is under the leadership of the Communist Party of Viet Nam (CPV<b>), otherwise referred </b>
to as “the Party”3_{with democratic centralism principle, not based on the theory of the separation of}
powers. The CPV Political Bureau monitors the execution of the resolutions of the National Congress
and the Central Committee. The Secretariat exercises leadership over the CPV’s daily affairs, monitors
resolutions and centrally coordinates the Party’s activities. The CPV acts as the leading force of the
State and society4_._{Therefore, the CPV maintains close ties with the NA, The State President, the}
Government, and other sectors in the legal system.

In Vietnam, the Government is not structured based on the model of the separation of powers5_.
The NA is constitutionally the highest state organization and the highest-level representative body
in the country. With the principles of universal, equal, ‘direct, and secret suffrage6_{, 487 elected}
members exercise the legislative power to draw up, adopt, and amend the constitution and to make and
amend laws. In addition, the NA has decision-making authority in a number of key areas of national
socio-economic development, including state plans and budgets, financial and monetary policies,
taxation and other significant domestic and foreign affairs policies7_{. Through its constitution-making}
powers, it defines its role and the roles of the State President, the Government, the local people’s
councils (PCs) and people’s committees, the Supreme People’s Court (SPC)8_{, and the Supreme}
People’s Prosecutor (SPP)9_{. The NA can elect and remove government ministers, the chief justice of}

<i>1 Franklin De Vrieze and Victoria Hasson, Post-legislative scrutiny, comparative study of practices of post-legislative </i>

<i>scrutiny in selected parliaments and the rationale for its place in democracy assistance. (London, 2017).</i>

2 House of Commons Health Committee, ‘Post-legislative scrutiny of the mental health act 2007: first report of session
2013–14’ (2013) London: House of Commons ibid

3 The CPV is defined as “the leading force” of the country by the 2013 Constitution of Vietnam (Article 4).The
<i>Vietnamese National Assembly, The Vietnamese Constitution..</i>

4 Ibid, Article 4.

5 Ibid<i><b>, Article 3.2: “The State powers are unified and delegated to state bodies, which shall coordinate with and control </b></i>

<i>one another in the exercise of the legislative, executive and judiciary powers”.</i>

6 Ibid, Article 7.
7 Ibid, Art 69-71.

8 The Supreme People Court of Vietnam, ‘Functions, duties and jurisdiction of People Court’ <.
vn/webcenter/portal/spc/about?dDocName=TOAAN011046> accessed 2 Oct 2019.

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the SPC, and the chief prosecutor of the SPP. Finally, the NA has the power to initiate or conclude
wars and to assume other duties and powers it deems necessary. The NA also verses the activities of
governmental institutions, the court and procuracy systems, and other state actors. The term of each
NA is five years, and meetings are convened twice a year, or more frequently if called for by the NA
Standing Committee, which has been set up to serve as the legislature between the sessions of the NA,
and it may issue ordinances as assigned by the NA1_.

The Government of Vietnam is a unified administration responsible for the implementation of
political, economic, cultural, social, national defense, security and external activities of the state2_{. It}
is also responsible for the effectiveness of the state apparatus itself from the top-down, stabilization
in the country and the observance of the constitution. The Government is accountable to the NA and
reports to it periodically. It is composed of the Prime Minister, vice prime ministers, ministers and
other members. Except for the Prime Minister, the members of the Government are not necessarily
members of the NA.

The People’s Courts, as stipulated under the 2013 Constitution of Vietnam, are established at
district and provincial levels under the ultimate authority of the SPC, an agency officially regarded as
equal to and independent from the Government3_{. Judges are appointed by a national judicial selection}
council for initial five-year terms with reappointments for 10 years4_{. The judiciary has six specialized}
subject matters of jurisdiction: the criminal, civil, administrative, economic, labour divisions and
the newly created family and juvenile division. The new 2013 Constitution underscores judicial
independence, the adversarial principles of justice, and the role of the courts in guaranteeing human
rights. Nevertheless, these amendments require enabling legislation to be effective in practice.

As for the People’s Procuracy, the 2013 Constitution of Vietnam5_{gives the procuracy two}
main functions: to act as prosecutor in criminal trials, and to supervise justice activities, including
investigation, detention, trials and enforcement of judgements. The procuracy is charged with
supervising the uniform implementation of the law of Vietnam. Its key task is to ensure the objective
and accurate prosecution of criminal cases and the supervision of the implementation of law
enforcement agencies, including the courts, criminal investigation, enforcement of judgments and
settlement of complaints and denunciations by citizens.

<b>2. Overview of the NA of Vietnam</b>

On September 2, 1945, President Ho Chi Minh read the Independence Declaration on behalf of
the provisional Government, and the Democratic Republic of Vietnam was born. Then, on January
6, 1946, the First General Election was organized with the participation of all Vietnamese over the
age of eighteen, irrespective of gender, wealth, nationality, religion and political opinions where their
representatives were freely elected to the NA. This NA voted and approved the first Constitution of

vksndtc.gov.vn/eng-290> accessed 2 Oct 2019.

<i>1 The Vietnamese National Assembly, The Vietnamese Constitution., Art 73-74.</i>

2 Vietnamese Government, ‘Political System’
< accessed 2 Oct 2019.
<i>3 The Vietnamese National Assembly, The Vietnamese Constitution.,Art 102-106.</i>

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the Vietnam on November 9, 19461_{. After many struggles defeating two wars of aggression by the}
colonialists and the imperialists, on April 30, 1975, the Vietnam War ended. It was the start of the

transition period toward reunification. On 2 July 1976, the NA of reunified Vietnam decided to change
the country’s name to the Socialist Republic of Vietnam; the country entered a period of transition to
socialism and strove for national construction2_.

The people exercise the state power under the forms of direct democracy and indirect democracy
through the NA, the People’s Councils and other state agencies.3_{Since its creation, the NA of Vietnam}
has actively contributed to the development of this country in its capacity as the supreme organ of
state power. Particularly, the NA, together with the Government, establish the people’s democratic
regime and initiated guidelines and policies to mobilize and organize the entire people to advance
sustainable development.

The NA of Vietnam includes some organs: The Standing Committee, the Ethnic Council and
Committees of the NA as a map below:

<i>(1). The Standing Committee </i>

The standing committee is the permanent body of the NA, which is composed of the chairperson,
who is the chairperson of the NA, vice-chairpersons, who are vice-chairpersons of the NA, and
members. Members of the Standing Committee must be NA deputies who work on a full-time basis
and may not concurrently be members of the government4_.

Duties and powers of the Standing Committee are regulated in Article 74 of the Constitution
2013 and the Law on Organization of the NA 2014. Particularly, they can be listed as follow:

- Interpreting the constitution, laws and ordinances;

- Supervising the implementation of the constitution, laws and resolutions of the NA, ordinances,
resolutions of the Standing Committee;

- Suspending the implementation of documents of the government, the Prime Minister, the

Supreme People’s Court, the Supreme People’s Procuracy or another agency established by the NA
which contravenes the Constitution or a law or resolution of the NA, and submits to the NA for a
decision to annul that document in its next session.

- Supervising and abolishing the resolutions of the provincial-level People’s Council that
contravene the constitutions, laws or documents of superior state agencies.

<i>(2). The Ethnic Council</i>

The Ethnic Council is an agency of the NA which takes responsibility before and report on their
work to the NA; when the NA is in recess, they shall report their work to the standing committee5_{. The}
ethnic council is composed of the chairperson, vice-chairpersons and members. The chairperson of
<i>1 The Vietnamese National Assembly, The Vietnamese Constitution (1946).</i>

<i>2 Nguyen Sinh Hung, ‘Vietnamese National Assembly - 70 years of constitutional history’ (Vietnam Law and </i>

<i>Legal Forum, 2016) </i>

< accessed 2 Oct 2019.

<i>3 The Vietnamese National Assembly, The Vietnamese Constitution., Art 6.</i>

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the Council shall be elected by the council among its members. The vice-chairpersons and members
are approved by the Standing Committee. To improve the performance of the Ethnic Council, the
Law on Organization of the National Assembly stipulates that the Ethnic Council has a number of
members working on a full-time basis.

According to the Constitution 2013 and the Law on Organization of the NA 2014, the Ethnic
Council advises the NA on ethnic issues, in particular:

- To verify and draft ordinances on policies on ethnicities

- To verify the assurance of policies on ethnicities in laws and draft ordinances before they are
submitted to the NA or its Standing Committee.

- The right to supervise the implementation of ethnic policies. It means before issuing ethnic
policy decisions, the Government must consult with the Ethnic Council1_.

<i>(3). Committees of the NA</i>

The NA meets only twice a year, so it cannot discuss and decide efficiently issues without the
support of specialized committees. There are two types of committees of the NA: standing committees
and ad-hoc committees. The establishment and dissolution of the committees are decided by the NA.

The duties of standing committees are to study and verify laws and ordinances, to submit to the
NA and the NA Standing Committee for comments on law and ordinance formulation, to exercise
the right to supervise in tasks and powers prescribed by law and to propose issues within the scope
of operation of the committee.

According to the Law on the Organization of the NA 2014, the NA has 9 subject committees,
they are:

(1) The Law Committee;
(2) The Judicial Committee;
(3) The Economic Committee;

(4) The Finance and Budget Committee;

(5) The National defense and Security Committee;

(6) The Committee for Culture, Education, Youth, Teenagers and Children;
(7) The Social Affairs Committee;

(8) The Science, Technology, and Environment Committee
(9) The External Affairs Committee2_.

The ad-hoc committee is established by the NA when deeming it necessary to conduct research
to verify bills, draft ordinances or other reports submitted by the Standing Committee, the Ethnic
Council or other committees. Furthermore, the ad-hoc committee may be established to investigate a
specific matter. It shall be terminated operation after fulfilling its tasks,3_{for example, the committee}
on amending the constitution; the committee for examining the NA deputy status, and so forth.
1 Ibid, Article 69.

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Members of the NA and permanent parliamentary committees must be deputies to the NA and
cannot concurrently be members of the government to ensure impartiality in monitoring the activities
of Executive.

The 2013 Constitution implied a strengthening of the role of the NA through providing for a
more democratic representative composition, and more focus on the role of a law-making entity.
In recent years, the NA has become increasingly active and influential in setting national priorities.
Although most legislation still originates from the Government, such legislation is now more hotly
debated in the NA and attract a larger audience. Its members, most of whom are also members of
the CPV, are increasingly open to criticizing the Government and exercising their oversight mandate

over the executive branch. The NA has a strong constitutional mandate in relation to national policy
decisions and is showing increasing initiative in this area.

In addition, there are still other challenges ahead to be overcome by the NA in the context of
national development and international integration:

• Representation: lack of effective mechanisms and procedures for deputies to productively
reach and interact with their constituencies to ensure their interest and voices are properly heard.

• Oversight: Insufficient skills of deputies in understanding, analyzing, questioning and
overseeing critically important issues proposed, presented and implemented by the government
agencies and other state actors.

• Law-making: Lack of tools and methodology to improve the assessment of the impact of
proposed/enforced legislation and other parliamentary decisions, leading to a focus on routine
and technical details in reviewing legal draft bills instead of paying attention to key policy issues.
Insufficient skills/attention to cross-cutting issues such as equality, distribution, disparity, HIV/AIDS
and environmental concerns in reviewing draft bills.

• Weak capacity of people’s councils: those local legislative bodies remain ineffective and
inefficient in many ways, making it difficult for them to play a checks and balances role at
sub-national levels. People’s councils must ask more than a stamp on decisions already taken by People’s
Committees.

At the same time, the legal reform is underway in Vietnam with high priority given to the
economic sector for accession to international commitment, increasing foreign investment and
implementation of the free trade agreements (FTAs). This means nearly all the laws and regulations
have to be revised, changed or new ones to be introduced. In recent years, the NA has become more
active, holding ministers more accountable and amending legislation1_.

<b>3. The role of the NA in supervising legislation</b>

<i>The NA plays an important role in promulgating important laws to contribute to the development </i>
<i>of the economy, society, culture and education.</i>

Many important laws have been issued to promote a process of intensive democratization of the
social activities in Vietnam and firmly established the right of the people to be masters of the country.
Besides, policies on ethnic issues, national security, defense and foreign affairs have also been issued
1 Nguyen Thi Hong Yen and Vu Ngoc Binh, ‚The Governance Framework, Legal Reform and Post-Legislative Scrutiny

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by the NA1_{. Legal reform has also been pursued with considerable energy and success in Vietnam in}
recent years, and the country has adopted numerous laws and policies to modernize its administrative
and judicial systems. These would, if properly implemented and enforced, significantly contribute to
greater efficiency in governance and improved protection of individual and collective rights. At the
same time, the reform of the justice sector has been much slower, for reasons that relate to structure,
organization, capacity, and other factors as well as problems within key justice sector institutions2_.

In addition, Vietnam is a lower-middle-income country that has climbing from the ladder of the
Millennium Development Goals (MDGs) to the Sustainable Development Goals (SDGs)3_{, and has}
made great strides towards industrialization and integration into a global economy. The transition from
central planning to a market economy started in 1986 with the reforms and is much advanced, but it
is not yet complete. To reach success, Vietnam has to tackle core challenges, including modernizing,
strengthening, and developing public institutions, including the NA. Some of the challenges to
advance this objective consist of better access to adequate information; putting in place mandates and
supporting them with processes, tools, and guidelines for more effective internal operations; leveraging
external partnerships to contribute to inclusive policymaking; and, investing in capacity building and

appropriately tailored technical solutions. Furthermore, to ensure the attainment of success, the NA
requires a constitutional blueprint with principles that lend themselves to institutional renovation in
the legislative branch and facilitate rule of law, accountability, transparency, and oversight; leadership
and political will; and well-targeted and timely international technical collabouration4_.

<i>The NA also exercises the supreme supervisory power over the implementation of the constitution </i>
<i>and laws. </i>

With the expansion of bureaucratic activities, the need for the NA to exercise its accountability
or scrutiny roles efficiently and effectively is growing. Furthermore, it is no longer possible for the
NA itself to guarantee accountability across the entire range of these activities in the modern era.
The fact is that the modern state is so vast and complex, therefore, the NA alone cannot guarantee
accountability across the entire range of government activity. The NA’s role is in disentangling the
key political issues from technical scrutiny, interpreting their significance and using this as the basis
on which to challenge the Government. The NA should be at the apex of the system of scrutiny.

This organ controls the management of the state apparatus in all areas of social life. The Constitution
2013 states that the NA has duties and powers to exercise supreme control over conformity to the
Constitution, the law and the resolutions of the NA; to examine the reports of the State President, the
Standing Committee of the NA, the Government, and others. Therefore, when the laws submitted to
the NA are undergoing in-depth discussion they are also subject to the monitoring and supervision
mechanism by it.

<i>1 The Vietnamese National Assembly, Law on organization of the National Assembly., Art 4 - 9.</i>

<i>2 The Vietnamese Ministry of Justice, ‘Institutional improvement and legal reform in Vietnam’ (Ministry of Justice, </i>
2013) < accessed 2 Oct 2019..

<i>3 World Bank, Vietnam 2035: Toward prosperity, creativity, equity, and democracy (World Bank Washington, DC 2016)</i>
creativity, equity, and democracy</style> (World Bank Washington, DC 2016.

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According to the Law on the Oversight Activities of the NA and the People’s Councils,“The
NA’s Standing Committee oversees activities of the Government, the Prime Minister, Ministers
and other cabinet members, the Supreme People’s Court, the Supreme People’s Procuracy and the
People’s Councils of the provinces or centrally-run cities in the implementation of the Constitution,
laws and resolutions of the NA, ordinances and resolutions of the Standing Committee; and oversees
legal normative documents of the Government, the Prime Minister, the SupremePeople’s Court, the
Supreme People’s Procuracy, resolutions of the People’s Councils of provinces and centrally-run
cities; and assists the National Assembly in exercising the oversight power under the assignment by
the NA”1_.

In 2018, the NA spent time to consider, discussed thoroughly and approved 16 laws, including
numerous important bills such as the Anti-Corruption Law (amended), Law on Cyber Security,
Law on Public Security (amended), Law on National Defense (amended), Law on amending and
supplementing a number of articles of the Law on Higher Education and others.

The NA holds a question and answer session with all the cabinet members to review and comment
to the drafts. This process partly represents the supreme supervision power of the NA to ensure the
quality and feasibility of the law.

<b>IV. A PROPOSAL FOR VIETNAM</b>

<b>1. The need for implementing PLS in Vietnam</b>

The 1992 Constitution gave the NA increased independence, reinforcing its role as the supreme
supervision authority for all the activities and operations of the State, with the right to monitor,
examine and assess how agencies, organizations and individuals are implementing the law. However,

monitoring and supervision activities during the 1990s tended to be ad hoc, irregular and overly
formal, with little real scrutiny of government activity or impact. In recent years that the NA has
institutionalized its right to question representatives of the Government. Following the enactment of
the Law on the Organization of the NA, and the Law on Monitoring Activities of the NA and PCs, the
NA has proceeded with monitoring and supervision activities, commissioning reports and conducting
questioning of officials.

The NA’s monitoring and supervision work expanded with the 12th _{NA in 2006, which defined}
ten thematic areas for regular oversight, carried out more supervisory missions across the country,
and launched televised question and answer sessions of top officials, including cabinet ministers
and even the Prime Minister. While the quality and consistency of oversight activities still varied
significantly, at the end of its five-year term in 2011, the 12th _{NA could point to concrete examples of}
where its monitoring and supervision had led to action by government on issues as diverse as planning
regulations, management of golf course licensing, coordination of rice exports, capital construction
projects, planning and licensing of small and medium-sized hydropower plants, and regulation of
gold and exchange markets2_{. The 12}th _{NA also introduced a series of initiatives to make monitoring}
and supervision more systematic. Issues were now categorized into groups for the Q&A sessions,
<i>1 The Vietnamese National Assembly, Law on Oversight Activities of the National Assembly and People’s Councils </i>

(2015), Art 4.

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175

THE NATIONAL ASSEMBLY AND THE POST-LEGISLATIVE SCRUTINY ISSUE UNDER...

allowing deputies to pursue topics more coherently and in greater depth. Monitoring and follow-up
of the implementation of promises made in Q & A sessions were also improved1_.

However, the lack of oversight on governmental activities leads to the need of a more effective
scrutiny. The Q&A component of the NA’s regular sessions continues to be an important means

for the NA to demand answers from members of the Government on issues affecting the public
interest, but there tends to be little follow up. Committed individual deputies have achieved successes
in specific interest areas, but the paths they chose and the techniques they employ often rely on
individual initiatives, rather than from a clear understanding of their powers or available mechanisms
and methods for more effective oversight. With nearly three-quarters of the NA deputies replaced
every five years, this may increase the risk that knowledge and experience that the previous NA’s
tenure have gained will be lost. Therefore, other model of monitoring must be developed further2_.

The ability of the NA to perform the role of a check and balance on the executive and other
state actors has also been strengthened. It has been playing increasingly active roles in external
oversight, despite being constrained by high turnover. General elections will be held in 2021 to select
deputies to the NA and the full-time membership is expected to increase. The NA and PCs have been
strengthened by an expanded legal framework and have taken on an enhanced role in law-making
process and oversight. Political developments about the role of the NA and decentralization present
great opportunities for realizing and monitoring the rights of children, women, ethnic minorities,
etc., but all this place heavy demands on institutions which require strengthened capacity to deliver.
Supporting the NA and its support structure by collabourating on interactive workshops and training
is a key part of the development partners in Vietnam. Greater openness and more opportunities for
citizens to participate in governance are needed to support Vietnam’s long-term vision of becoming
a modern industrialized society. The increasing role of the NA in reviewing legislation and policies
and a gradually more incisive media have contributed to greater transparency in the country, but there
are limits to dissent. The NA is recognized as having a key role to play in monitoring promotion and
protection of human rights but could potentially play a stronger role in this regard, for example in
relation to complaints and petitions.

<b>2. A proposal for a new body implementing PLS in Vietnam</b>

Although PLS is part of the oversight role of parliament, it has not been given adequate attention
in many countries. Until now, in Vietnam, PLS process has not been examined in depth at an expert’s
seminar level. After determining the difficulties and challenges that the NA is facing, a recommended

proposal to increase the effectiveness of post-legislative monitoring activities in Vietnam is a new
committee.

According to Article 119 of the Constitution 2013, Vietnam’s constitutional model is a
decentralized model. Therefore, all violations of the constitution will be handled. The NA, its organs,
the president, the government, the people’s courts, the people’s procuracies, other state organs and the
entire people have the responsibility to protect the constitution. This is a model that all state agencies
<i>1 Vietnam News, ‘National Assembly greets new year’ (Vietnam News, 2008) </i>

< accessed 2 Oct 2019..

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ASIAN CONSTITUTIONAL LAW: RECENT DEVELOPMENTS AND TRENDS

176

and the entire people have a responsibility to protect the constitution. Because the constitution of
Vietnam belongs to the people, by the people and for the people, the responsibility to protect the
constitution lies with all the people.

In Vietnam, the constitutional and legislative power of the NA comes from the position and
nature of the highest state power body. Therefore, only the NA has the power to define the highest
legal normative laws, regulating the most basic social relations in the society. The laws issued by other
state agencies must not contravene the spirit and content of the constitution and laws. Therefore, the
proposed model for Vietnam is a standing committee on PLS. In order to implement PLS effectively,
the process needs to adhere to two basic requirements:

<i>The first requirement is that PLS should be an inclusive process in which all groups may </i>
<i>participate.</i>

The information which is collected in the PLS process shall reflect the democratic level. Therefore,
PLS should be an inclusive process in which all groups are able to participate. In preparing its review

of laws, it depends upon the acquisition of information from outside the government. PLS process
should fully express opinions from a wide range of social classes, regions, ages, careers, including
civil society organizations.

PLS process must take place with a democratic, frank and responsible attitude from all classes
and people across the country. Therefore, in some countries, the NA will entrust to departmental
selected committees to consider the operation of pieces of legislation; but in other countries, post
legislative scrutiny committees are created independently. In any case, the evaluations cannot be
restricted to internal government data, and must be public.

<i>The second requirement is that PLS should take place appropriately after the law comes in force.</i>

When one document has been passed by the NA and enters into force, social practice is the
standard measure to assess the quality of this law. During the drafting process, although legislators
have envisaged actual conditions to occur, the prediction cannot be completely accurate. After three
years of implementation, regulations can be no longer suitable with reality, creating cost and time
burden for businesses in compliance. Furthermore, some content is no longer compatible with the
new law.

Besides, in order to institutionalize the Party’s guidelines and policies, ensure the uniformity of
the legal system, and remove difficulties and obstacles in the process of law enforcement, PLS should
take place after five years, according to the term of the Central Committee of the Communist Party
of Vietnam.

<b>V. CONCLUSION</b>

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THE NATIONAL ASSEMBLY AND THE POST-LEGISLATIVE SCRUTINY ISSUE UNDER...
<b>References</b>

<i>The Vietnamese National Assembly, Law on organization of People’s Courts (2014)</i>
<i>The Vietnamese National Assembly, Law on organization of the National Assembly (2014)</i>

<i>The Vietnamese National Assembly, Law on Oversight Activities of the National Assembly and </i>

<i>People‘s Councils (2015)</i>

<i>The Vietnamese National Assembly, Resolution on the national assembly 2006 supervisory program </i>
(2005)

<i>The Vietnamese National Assembly, The Vietnamese Constitution (2013)</i>
<i>The Vietnamese National Assembly, The Vietnamese Constitution (1946)</i>

<i>World Bank, Vietnam 2035: Toward prosperity, creativity, equity, and democracy (World Bank </i>
Washington, DC 2016)

Nguyen Thi Hong Yen and Vu Ngoc Binh, “The Governance Framework, Legal Reform and
Post-Legislative Scrutiny in Vietnam” (Academic Seminar on Post-Post-Legislative Scurity in Asia)
House of Commons Health Committee, “Post-legislative scrutiny of the mental health act 2007: first

report of session 2013–14” (2013) London: House of Commons

The United Kingdom Justice Committee, “Post-legislative scrutiny of the Freedom of Information
Act 2000” (2012) London, TSO

Vietnamese Government, “Political System”
(< />SocialistRepublicOfVietnam/AboutVietnamAboutVietnamDetail?categoryId=10000103&arti-cleId=10001578> accessed 2 Oct 2019

<i>Franklin De Vrieze and Victoria Hasson, Post-legislative scrutiny, comparative study of practices </i>

<i>of post-legislative scrutiny in selected parliaments and the rationale for its place in democracy </i>
<i>assistance (2017)</i>

<i>Nguyen Sinh Hung, “Vietnamese National Assembly - 70 years of constitutional history” (Vietnam </i>

<i>Law and Legal Forum, 2016) </i>

< accessed 2 Oct 2019

<i>The United Kingdom Ministry of Justice, Memorandum to the Justice Select Committee - </i>

<i>Post-Legislative Assessment of the Freedom of Information Act 2000 (2011)</i>

The Vietnamese Ministry of Justice, “Institutional improvement and legal reform in Vietnam”
<i>(Ministry of Justice, 2013) < </i>
accessed 2 Oct 2019

Peter J Larkham, “Conservation in action: evaluating policy and practice in the United Kingdom”
(1993) 64 Town Planning Review 351

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178

The Vietnamese Supreme People Procuracy, “Overview of the People’s Procuracy System of Vietnam”
(< accessed 2 Oct 2019

Post-Legislative Scrutiny, “Post-legislative scrutiny” (2006)

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