Hanoi-Vietnam: Disputation on the Law on Promulgation of Legislative Documents 2008

1. Regarding the system of legislative documents:

1.1. The Minister only issuing Circulars is unconstitutional:

Article 2 - "The system of legislative documents" in Law on Promulgation of Legislative Documents 2008 stipulates the reduction of many forms of legislative documents compared to the Law on Promulgation of Legislative Documents 1996 is entirely necessary and reasonable to simplify the system of legislative documents. Among them is the removal of the form of Resolutions of the Government of Vietnam; decisions, directives of the Ministers, other members of the Government of Vietnam, and Heads of Government-attached agencies.

However, this contradicts Article 115 of the Constitution 1992 which stipulates, "The Government of Vietnam shall issue resolutions, decrees, the Prime Minister of Vietnam shall issue decisions, directives and inspect the implementation of these documents." And part 2, Article 116 of the Constitution 1992 stipulates, "Ministers, other members of the Government of Vietnam, Heads of Government-attached agencies shall issue decisions, directives, circulars." Clearly, Ministers are allowed to issue various types of legislative documents, but the Constitution only mentions three forms: decisions, directives, and circulars, determining these as legislative documents. According to the Constitution, besides Ministers, other members of the Government of Vietnam and Heads of Government-attached agencies also have the authority to issue legislative documents, but the Law on Promulgation of Legislative Documents only allows "Heads of ministerial-level agencies," omitting the authority of "Heads of Government-attached agencies."

1.2. Propose to review the regulation that each administrative level issues only one type of legislative document and name these document forms without overlapping the remaining documents. For instance, the National Assembly of Vietnam only issues Laws, the Standing Committee of the National Assembly of Vietnam only issues Ordinances, the Government of Vietnam only issues Decrees, the Ministers only issue Circulars. Consider renaming forms of legislative documents that overlap with individual documents, such as Resolutions, Decisions. For example, it can be suggested to remove the form of Decision of the Prime Minister or call it Circular Notification.

1.3. Agree to remove the following forms of legislative documents:

- Orders of the President, because the Orders announcing laws and ordinances of the President are merely administrative documents since the laws and ordinances themselves are legislative documents. Similar to issuing regulations, rules, stipulations, etc., attached to decrees, only the Decrees are legislative documents, while the accompanying documents are not. Considering orders announcing laws and ordinances as legislative documents would lead to duplication and overlap in the authority to issue legislative documents, making it unclear which documents are principal and which are supplementary.

- Directives of People's Committees at all levels, because Directives should only be documents that urge and remind the implementation of existing regulations.

- Resolutions and Decisions of People's Councils and People's Committees of commune and district levels, as it is unnecessary for this level to issue legislative documents.

1.4. Propose to also remove the following forms of legislative documents:

- Joint Resolutions, Joint Circulars between executive and judicial agencies and between Government of Vietnam agencies and socio-political organizations, as socio-political organizations should not issue legislative documents alongside state agencies. If necessary, issue documents in a higher form in place of Joint Resolutions and Joint Circulars.

- Remove the Resolution of the Provincial People's Council, as it is unnecessary (only leave one form of legislative document, the Decision of the Provincial People's Committee).

1.5. Propose to regulate: Circulars should only be used to guide the procedural implementation of higher-level documents, prohibiting the issuance of norms like other legislative documents.

2. Regarding the number of types of legislative documents regulating one matter:

Propose that each matter mentioned in the Law or Ordinance should only be detailed and guided for implementation in one level of sub-law documents. Specifically, a matter already regulated in the Law should only be detailed and guided for implementation in a Decree, not to be followed by a Decision of the Prime Minister or a Circular guiding the Law or Decree. Conversely, it should only be guided in a Decision or Circular and not simultaneously appear in a Decree.

3. Regarding the principle of priority application of legislative documents:

3.1. Need to reconsider part 2, Article 83 "Application of legislative documents" which stipulates: "In case the legislative documents have different provisions on the same matter, the document with higher legal validity shall be applied." This part is somewhat unrealistic, denying reality, unreasonable, even mistaken.

3.2. Part 2, Article 3 "Application of the Law on Enterprises, international treaties, and related laws," the Law on Enterprises clearly stipulates, "In special cases related to the establishment, organization, management, and operation of enterprises, the provisions of other laws shall apply." The Decrees guiding the implementation of the Law on Enterprises also clearly state, if there is a difference among laws, it will not accept the difference between the law and specialized circulars, decrees. However, in reality, over many years, it seems to have been accepted and had to accept prioritizing the application of specialized law, including circulars and decrees, not just specialized laws, typically in banking, securities regulations, etc.

4. Regarding the effective date of legislative documents:

Agree to change the regulation allowing some types of legislative documents to take effect earlier than stipulated in Article 78 "Effective date and Official Gazette publication of legislative documents" which is "not earlier than forty-five days from the date of promulgation or signing," except for "legislative documents regulating measures to be implemented in emergencies, documents issued to promptly meet requirements for natural disaster, epidemic prevention and control that can be effective from the date of promulgation or signing." This irrationality has long existed, seriously violating the 15-day period in the Law on Promulgation of Legislative Documents 1996, but the 2008 Law did not acknowledge it, while increasing the period to 45 days. This leads to a situation where many legislative documents are forced to violate, including circumventing the form of issuing individual documents.

5. Regarding the drafting team and drafting committee:

5.1. Need to reconsider the naming of the drafting team and drafting committee: With the word "drafting," it should logically be understood as having the duty of drafting. However, the law stipulates that the drafting committee does not have the duty of drafting. Therefore, it is proposed to rename the drafting committee as the Drafting Steering Committee, while the drafting team should be used to refer to the drafting department of one agency, and the drafting committee should be used to refer to the drafting department involving multiple agencies.

5.2. In case of an individual drafter it may also be referred to as a drafting team (a single person), similar to a single arbitrator referee as stipulated in the Law on Commercial Arbitration 2010.

6. Regarding draft documents:

The law stipulates "law draft projects, ordinance drafts, draft resolutions," but does not define what a project is, leading to practical confusion. For example, only mentioning a draft law without including other accompanying documents, often being called a law project. In the Law on Promulgation of Legislative Documents, there is only mention of draft Resolutions, Decrees, while each law includes both projects and drafts, with the draft being the core issue. If a project is understood to be broader than a draft, including a draft and some other documents and tasks, a Decree can entirely be a project. If projects and drafts are distinguished only between the law-making process and the decree-making process, this is a misconception and unreasonable.

7. Regarding the appraisal council:

Besides the drafting team, drafting committee, and appraisal council, a rebuttal council needs to be established, with the main task being to dismiss (to eliminate baseless, unreasonable, unfeasible content), not mainly to support the adoption of the draft like the current appraisal council.

8. Regarding a document amending many documents:

Propose to reconsider the policy of "expanding the application of the process of one document amending many documents." This is necessary under two conditions: complicated, prolonged drafting, passing process and a duplicated content in many documents issued at the same level. If ensuring simplified procedures (streamlined) depending on each document as planned for Law amendments, using one law to amend many laws should be minimized because although convenient for the drafting and issuing agency, it causes great complexity, confusion, difficulty in tracking, referencing, and implementation.

9. Regarding the authority to interpret laws and ordinances:

9.1. Propose to expand the authority to interpret laws, ordinances, in addition to the Standing Committee of the National Assembly of Vietnam, also to the Government of Vietnam and the Judicial Council of the Supreme People's Court. In reality, these two bodies, even other ministries and central authorities, frequently interpret laws and ordinances.

9.2. If conditions for specific regulations on the application of precedents are not yet sufficient, then principles for application need to be stipulated to provide a basis for guiding the application of precedents.

10. Regarding guiding documents:

10.1. Need to reconsider the provision in part 2, Article 8 "Detailing documents" “Detailed documents must be specified, not repeat the regulations of the detailed documents, and must be issued to be effective at the same time as the effective date of the document or article, clause, point specified in detail.” This regulation is unreasonable, unfeasible, one of the most frequently violated provisions. The demand not to repeat seems reasonable but leads to very difficult situations, even impossible to detail or guide implementation.

10.2. Particularly need to reconsider the regulation on detailed documents "must be issued to be effective at the same time as the effective date of the document," generally not ensured. According to me, it is essential to ensure the important principle stipulated in part 1, Article 8 "Legislative documents must be specified so when the document is effective, it can be implemented immediately" by removing the regulation that detailed documents must be issued at the same time as the main legislative document's effective date. To minimize situations where laws require decrees for detailed implementation, decrees require circular guidance. There needs to be a "licensing" mechanism for issuing guidance documents, only when new issues arise, inadequacies during implementation, should implementation guidance be issued. Also, solve issues thoroughly in the main legislative document. Simultaneously, establish a mechanism for quick revision, supplementation, promptly avoiding situations where life always waits for the law, even reaching an impasse.

10.3. Following the above requirements, it is also necessary to consider having fewer guiding documents with shorter lengths than the main legislative document, not overshadowing the main legislative document, such as a law with several dozen guiding documents or a law with a few pages, while the decree, circular extend to hundreds of pages like the Personal Income Tax Law and Corporate Income Tax Law (even though not drafted for the first time).

11. Regarding the structure of legislative documents:

11.1. Regarding the structure of chapters:

A document divided into chapters should have at least 4 chapters, because chapter 1 is general provisions, chapter 3 is enforcement provisions, having only one chapter of main content (often labeled Specific Provisions) does not make sense as general provisions must be compared to other parts, not just one specific chapter. Therefore, either structure into 4 chapters or do not divide into chapters.

11.2. Regarding the structure of articles and clauses:

Clause 3, Article 5 on "Language, document techniques in legislative documents,” the Law on Promulgation of Legislative Documents 2008 stipulates: “Legislative documents with wide coverage may be structured as parts, chapters, sections, articles, clauses, points; documents with narrow coverage structured as articles, clauses, points.” However, consider expanding the structure as in practice there are sub-sections, sub-clauses, points,... that cannot even be named. Acknowledging these structures complicates and makes documents cumbersome. Without recognition, regulations need clarity, and avoid "exceeding the framework.”

Regardless of expanding or maintaining the structure as per the current Law, there needs to be clear regulations splitting clauses, points, ensuring clarity, coherence in the law articles. All non-substantive content not belonging to any clauses need to be eliminated for consistency and logic. For example, Article 14 "Government of Vietnam Decrees," the Law on Promulgation of Legislative Documents 2008 stipulates: "Government of Vietnam Decrees shall regulate the following issues: 1. Detail execution of laws,...; 2. Specific measures for implementation...". Or Article 52 "Order of consideration, passage of draft laws, draft resolutions in one session of the National Assembly of Vietnam" stipulates, "The National Assembly of Vietnam considers and passes draft laws, draft resolutions in one session as follows: 1. Representative of agencies, organizations...; 2. Representative of the presiding agency…; 3. The National Assembly of Vietnam discusses...;” Therefore, section "Government of Vietnam Decrees shall regulate the following issues:" and "The National Assembly of Vietnam considers and passes draft laws, draft resolutions according to the following order" are not part of any clauses in the article structure. Eliminating these floating content segments can be done in three fundamental ways:

- First method: Delete the leading segment not belonging to a clause, keeping remaining content;

- Second method: Delete the leading segment not belonging to a clause, rename articles accordingly;

- Third method: Turn the leading segment not belonging to a clause into a general clause, remaining parts become a specific clause.

11.3. Regarding article and clause structure:

Increase clause structuring of articles, minimize segmenting articles into passages, ensuring clarity, specificity, reasonableness, convenience in referencing. Articles with more than two segments should be divided into clauses and clauses with more than two segments should be divided into points.

12. Regarding the notation of numbers in legislative documents:

12.1. Currently, there are three ways of notation for numbers in writing (such as "five years" in Ciminal Code 1999, "five percent or more" in Securities Law 2006, "thirty days" in Notary Law 2006, 2/3 in Health Insurance Law 2008, "six months" in the revised Lawyers Law 2012), in numbers (such as "03 years" in Civil Procedure Enforcement Law 2008, "15% equity" in Credit Institutions Law 2010, "90 days" in Complaints Law 2011, "15 years old" in Labor Code 2012, "one half" in Advertising Law 2012). Additionally, writing numbers followed by letters (like "tax rate is 4% (four percent)" in the revised Law on Land Use Right Transfer Tax 1999, "9 (nine) people" in Decree No. 24/2009/ND-CP dated March 5, 2009 of the Government of Vietnam detailing and measures for the implementation of the Law on the Promulgation of Legislative Documents). Conversely, writing words followed by numbers (like "twenty percent (20%) of total delegates" in the Law on Supervision of the National Assembly of Vietnam 2003, "thirty (30) days" in Decree No. 90/2011/ND-CP dated October 14, 2011 on Corporate Bond Issuance).12.2. The current regulations on writing numbers in legislative documents are both unreasonable and inconsistent. Article 10 "Presentation of numbers in draft documents," Resolution No. 1139/2007/UBTVQH11 dated July 3, 2007, of the Standing Committee of the National Assembly of Vietnam stipulates: "Numbers in draft documents must be expressed in words," except in cases: "Numbers in the opening part, closing part of the document; ordinal numbers of the unit structure of items, articles, clauses; numbers indicating the length of the period, numbers indicating the time, numbers indicating quantities of measurement units expressed in Arabic numerals. The number indicating the term of the National Assembly of Vietnam, the unit structure of chapters is expressed in Roman numerals." Article 23 "Presentation of numbers in legislative documents," Circular No. 25/2011/TT-BTP dated December 27, 2011, of the Minister of Justice on the Format and technical presentation of legislative documents of the Government of Vietnam, the Prime Minister of Vietnam, Ministers, Heads of equivalent agencies, and inter-agency legislative documents stipulates "Numbers in legislative documents must be expressed in Arabic numerals and annotated with words immediately after the number," except for cases "Numbers in the opening part, closing part of the document; numbers indicating the length of the period, numbers indicating the time, numbers indicating quantities of measurement units expressed in Arabic numerals."

12.3. It is recommended to choose a uniform way of writing in Arabic numerals, without annotation in words. This is both simple, concise, clear, and easy to follow.

13. Regarding other drafting techniques:

13.1. Regarding document naming:

The names of legislative documents are the summaries of the documents, which need to be extremely concise, so that issues can be easily visualized and distinguishable from other documents, without having to describe every specific issue inside the document, like "Law on Donation, Retrieval, Transplantation of Human Organs and Tissue, and Donation, Retrieval of Cadavers" or "Law on Vietnamese Workers Going Abroad for Work Under Contracts."

13.2. Regarding the names of chapters and articles:

It must be stipulated clearly, the name of a law article cannot be the same as the name of the chapter or section except in cases where a chapter or section has only one article (then it must be the same).

13.3. Technical regulations are needed to avoid the situation where amendment and supplement documents do not adhere to the structure of the original document, but the content of the amendments and supplements form a new structure (articles), leading to the inability to integrate the documents.

13.4. Some provisions in the Law on Promulgation of Legislative Documents are not accurate, such as Clause 1, Article 1 "Legislative Document" stipulates "A legislative document is a document issued by a state agency or jointly issued by state agencies" or Clause 1, Article 9 "Amendment, supplementation, replacement, annulment, abolishment, or suspension of the legislative document" stipulates "A legislative document can only be amended, supplemented, replaced, annulled, or abolished by a legislative document issued by the same state agency or suspended, annulled, or abolished by a document of a competent state agency." Because, in addition to state agencies, there are state titles and heads of ministries and central authorities that issue documents.

14. Regarding the role of the Ministry of Justice:

14.1. There should be a mechanism to avoid the situation, within the Ministry of Justice, where one department appraises while another department "whistles."

14.2. It is expected that documents drafted by the Ministry of Justice will have a longer lifespan, and not be short-lived like documents drafted by other ministries over the years.

Source: Civil Law Information

>> CLICK HERE TO READ THIS ARTICLE IN VIETNAMESE