'The typist' cannot stand replacing… the minister!

So once again, among many other times, a “typo” is the final explanation for a legal document (VBQPPL) with errors. This time it is Circular 45/2017 of the Ministry of Transport.

Although this Circular only took effect on January 15, 2018, it has "wasted ink" in many ways and raised doubts about the quality of drafting legal documents.

Because it is undeniable that every year the Department of Document Inspection, Ministry of Justice, compiles hundreds of illegal, unconstitutional, and erroneous documents, including some that have already "entered into life".

Circular 45/2017 may also be a “sad memory” for Minister of Transport Nguyen Van The when it was approved by the National Assembly a few dozen days ago. In his hands, this may be one of the first legal documents he signed as a minister.

This circular is flawed in that it does not list other documents proving the legal identity of citizens when checking in for flights as indicated. And of course, the Ministry of Transport has been very receptive when it promised to “correct” the circular before it takes effect. Regarding the handling of responsibilities, the Ministry of Transport has requested the Civil Aviation Authority, the Department of Transport and the Legal Department to review responsibilities during the drafting and submission of documents and report the results to the Ministry as soon as possible.

However, things are not that simple!

To ensure that legal documents are issued in a standard manner, are not unconstitutional or illegal, and are feasible, the National Assembly has issued the Law on Promulgation of Legal Documents.

The Law on Promulgation of Legal Documents 2015 clearly stipulates the collection of opinions from subjects directly affected by the document; opinions from competent agencies, other organizations, experts, scientists, etc.

Illustration photo.

Not only that, the process of appraising draft circulars has also been legalized. Even if we consider Circular 45/2017, according to the law, a circular with provisions that directly affect the rights, obligations, and interests of people, businesses, etc., we must also establish an appraisal advisory council.

After these extremely strict steps, the draft circular is submitted to the minister or head of the ministerial-level agency. If there are still different opinions, the relevant agencies must unify, complete, and revise it so that the minister or head of the ministerial-level agency can consider and sign the circular.

Therefore, the explanation of the Civil Aviation Authority that Circular 45/2017 is incorrect due to a “typing error” seems very forced. The errors in Circular 45/2017 that the Ministry of Transport is considering adjusting are errors in content, not form. The reason can only be: Either the procedure for issuing legal documents has not been strictly followed, or the capacity to draft legal documents is really problematic.

Furthermore, would the Ministry of Transport “correct” the circular and immediately fulfill its responsibility? It is not that simple! Because the circular has been officially issued. Moreover, the Law on Promulgation of Legal Documents clearly states: “Legal documents may only be amended, supplemented, replaced or abolished by legal documents of the same state agency that issued the document or suspended from implementation or abolished by a document of a competent superior state agency”.

Thus, the inevitable consequence is: The “adjustment” that the Ministry of Transport is implementing will not be able to legally correct the errors of Circular 45/2017. That “adjustment” will be nothing more than using one error to correct another. That so-called “adjustment” must be implemented by a legal document of this ministry. Fortunately, this circular is not so flawed that the Prime Minister must abolish it as stipulated in Article 165 of the Law on Promulgation of Legal Documents.

But that is not all, a “last resort” is to assign responsibility and enforce discipline. The Law on Promulgation of Legal Documents also clearly stipulates: “The head… must be responsible for failing to complete the task and, depending on the severity, will be handled according to the provisions of the law on cadres, civil servants and other relevant legal provisions in cases where the draft document does not ensure quality”.

All the above analysis and explanation is to say that: It would be truly receptive and legal if the Minister of Transport issued a circular as soon as possible to amend Circular 45 which has not yet dried the ink. At the same time, strictly implement the responsibility regime. And the "typist" cannot take responsibility for the minister.

Whether this should be considered a lesson for agencies when issuing legal documents or not is something that should be discussed further.

According to PLO