Reforming the organization and operation of local governments.

(Baonghean)In the 1992 Draft Constitution (amended), local government is regulated in Chapter IX, comprising 5 articles (from Article 115 to Article 119). Compared to the current Constitution, the draft is concise and succinct; the most significant new point is the absence of a provision specifying at which level the People's Council will exist.

This issue will be regulated by law, based on the characteristics of each administrative unit and the level of management. If the Constitution is too specific and detailed, it can easily lead to inadequacies when the situation changes. Therefore, concise and general provisions like Article 115 of the Draft Amended Constitution are necessary and appropriate. The Constitution is the fundamental law affirming basic, principled issues, not regulating specific matters. The organization of People's Councils at any level will be regulated in the Law on the Organization of People's Councils and People's Committees.

In addition, after studying the draft of the revised Constitution, we have identified several issues that require further comments:

The provisions on local government in the Draft Amendment to the Constitution do not contain any groundbreaking regulations on the control of state power at the local level. The regulations remain largely unchanged from before, failing to create a breakthrough in power control. According to Article 116 of the Draft Amendment to the Constitution, the People's Council is the state power organ at the local level, representing the will, aspirations, and right to self-governance of the people, elected by the local people, and accountable to the local people and higher-level state agencies; Based on the Constitution, laws, and documents of higher-level state agencies, the People's Council decides on measures to ensure the implementation of the Constitution and laws at the local level, on important local issues, and supervises the activities of state agencies at the local level; The People's Committee is the executive body of the People's Council and the state administrative agency at the local level. Article 118 of the Draft stipulates: People's Council representatives have the right to question the Chairman of the People's Council, the Chairman and other members of the People's Committee, the Chief Justice of the People's Court, the Chief Procurator of the People's Procuracy, and the heads of agencies under the People's Committee. The person being questioned must answer before the People's Council or provide a written response.

These regulations are not new, and significant limitations still exist in the operation of local governments. How will power be controlled when mutual oversight, or rather cross-checking, is necessary? Meanwhile, there are no regulations granting the People's Committee the power to supervise the activities of local state agencies. In reality, all state agencies have the right to supervise each other. Only then can the effectiveness of all agencies be improved. For a long time, we have often argued that the People's Council is ineffective, that its power is merely ceremonial, perhaps partly because this body is not subject to reverse oversight from administrative agencies.

Here, we only see supervision from the People's Council, and the People's Committee is the executive body of the People's Council. So, in some administrative territorial units that no longer have a People's Council, what will be the legal status of the People's Committee, or will there be exceptions? Thus, if the regulation stipulates that the People's Committee is the executive body of the People's Council, in administrative units without a People's Council, this regulation will become inadequate.

Therefore, we boldly propose amendments in the direction that: the People's Committee is a state administrative agency at the local level, not an executive body of the People's Council.

On the other hand, the Draft stipulates that "People's Councils are the state power organs at the local level," and the National Assembly and People's Councils at all levels are the system of state power organs. Accordingly, the National Assembly is the highest state power organ; the Government is the executive body of the National Assembly and the highest state administrative body; People's Councils are the state power organs at the local level, People's Committees are the state administrative bodies at the local level and the executive bodies of the People's Councils at the local level; the Courts and the Procuracy are the judicial system. Therefore, it can be understood that the National Assembly is the highest organ of state power, not the highest state power organ.

If the People's Council is considered a state power organ at the local level, then does that mean the People's Committee does not possess state power? Clearly, in our opinion, all state organs possess state power, regardless of whether they are executive or judicial organs. The legal status of the People's Council must be clearly affirmed: it is the representative body of the people at the local level, elected by the local people. This truly reflects the nature of an elected body. Therefore, we propose amending the regulations to stipulate that: the People's Council is the representative body of the will and aspirations of the people at the local level, elected by the local people, and accountable to the people.

Of the five provisions on local government in the Draft Amendment to the Constitution, only Article 116 addresses the responsibilities of individuals and the People's Committee as a whole. The Chairman and members of the People's Committee bear collective responsibility for the committee's activities and individual responsibility for the performance of assigned tasks before the People's Council and higher-level state administrative agencies. This provision is not strong enough to significantly enhance the accountability of the heads of the People's Committees with the powers granted to them.

With the provisions in the Draft Amendment to the Constitution, individual responsibilities may have been clarified, but the responsibilities of the head of the People's Committee remain unclear. Therefore, in our opinion, it is necessary to add a provision stating that the Chairman of the People's Committee is responsible for the activities of the People's Committee to the People's Council and the superior state administrative agencies. This provision will further clarify the responsibilities of the Chairman of the People's Committee. If we stipulate "The Chairman of the People's Committee and the members of the People's Committee bear collective responsibility for the activities of the People's Committee" as in the Draft without clearly defining the responsibilities of the Chairman, then when problems arise, the collective will bear responsibility, not the Chairman of the People's Committee.

Currently, we are piloting the non-establishment of People's Councils at the district, county, and ward levels in some localities. In the absence of People's Councils, the Chairpersons of the People's Committees at the district, county, and ward levels will not be elected by the People's Councils at the same level, but will be directly appointed by the Chairperson of the People's Committee at the next higher level. This appointment mechanism concentrates a significant amount of power in the hands of the Chairperson of the People's Committee at the higher level in selecting subordinate officials. Therefore, we believe that regulations increasing the authority of the Chairperson of the People's Committee at the higher level must be linked to specific responsibilities.

Nguyen Trong Hai (Trong Hai & Associates Law Office)