VietNamNet talks with three guests about innovation in issuance of policies and drafting procedures of legal documents in Vietnam.
From left to right: Journalist Hoang Huong, Prof. Dang Hung Vo, Lawyer Nguyen Ngoc Lan, and Dr. Hoang Ngoc Giao.
Policies are an indispensable tool to guide development. Authorized to manage society, making and implementing policies is one of the most important functions of the State.
However, there are many problems from building policies to issuing laws to institutionalizing policies.
The program on evaluation of the land governance indicators of Vietnam of the World Bank and the Ministry of Natural Resources and Environment in 2013 showed that Vietnam was among the world's leading group for law creation but it was in the group of countries at the bottom of the list for law enforcement.
The inadequacies and deficiencies in the promulgation and implementation of policies and laws have been reported by the local media many times.
The phrases like "making policies in air-conditioned rooms," or "sitting in heaven to make policies", or even "patching bicycle tires" were said to reflect the situation.
This problem has not only caused losses in terms of effort, time and money of the whole policy and legal apparatus, but also has affected the reputation of legislative, executive bodies as well as social discipline.
We would like to introduce the guests who joined VietNamNet talks this time: Prof. Dr. Dang Hung Vo, former Deputy Minister of Natural Resources and Environment; Dr. Hoang Ngoc Giao, Director of the Institute for Policy, Law and Development Studies; Lawyer Nguyen Ngoc Lan, Deputy Director of the Centre of Action for Community Development (ACDC).
VietNamNet: A legal expert commented: "It is a cycle that every 10 years, our country enacted a Civil Code (1995, 2005 and 2015). Not many countries like Vietnam have up to three Civil Codes within a short period of time”. What is the cause of this phenomenon?
Lawyer Ngoc Lan: This cycle is not only for the Civil Code, but for many other laws or even the Constitution. To explain this phenomenon, we have to discuss many issues, such as:
- The acts, such as the Civil Code, is a big law with many rules, subjects and the scope of regulation, so the compilation process is time- and effort-consuming, while society changes hourly, social relations are constantly developing and changing. As a result, many new regulations became “backward” even before they were issued.
- The uniformity between acts, between the general rules and specific policies: In fact, the laws of Vietnam mainly regulate social relations that have arisen already.
It means that after social relations have occurred, we think of having rules to regulate these social relations but when these rules are issues, the society comes up with different social relations.
Vietnam’s previous laws partly "borrowed" norms of other countries (France, USA ...) so when they are applied in Vietnam, they are inappropriate.
There are acts that were not built based on consultation of the people’s opinion of the relevance between institutions and social practices.
The building of law is not attached to the actual needs of society ...
VietNamNet: How has the uncertainty and frequent change of laws affected social management and development of Vietnam?
Ms. Ngoc Lan: It is a waste of the country’s resources on the amendment of laws or building new laws to regulate social relations. It is the kind of "chasing" after the fact in building law. That situation harms the people’s trust in the state, the institutions and the legal validity of the law.
Prof. Dang Hung Vo: In Vietnam, the 10-year lifespan is already high for laws in Vietnam. Previously, some acts had the lifespan of only 3-5 years.
Vietnam is in the group of countries that are rated as very active in making laws. This represents a positive, energetic attitude but from a different perspective it suggests that this is a pretty big drawback: lack of long-term vision. There are many reasons for this phenomenon, as follows:
Firstly, the theory about the state, law, management, public servants, people, etc. are not identified clearly and consistently. In the thinking of public servants, not all of them clearly see their duties as civil servants of the people. So the law is a tool to "govern" the country or a social contract that is approved by the entire people? This thinking is not clear yet! The unclear theory will lead to the different way of legal handling.
Secondly, building laws always requires a long-term vision, from a few decades to hundreds of years. Prerequisites for law-makers is to predict impact in an objective way. Good predictions will help make acts that do not have negative impact in the future so that they don’t need to be amended. When prediction is wrong, acts will have to be amended, even just a few months after issued. Objectivity in forecasting the impact of law is very important, because lack of objectivity will reduce visibility. A country always needs a "chief architect" of the legal system in order to eliminate any gaps.
Thirdly, the law-making technique is also an important factor related to the lifespan of the law. This technique depends on wisdom of a person who is assigned of the law drafting. There are law-makers who show responsibility by listening to opinions from all sides of real life; but there are also people who show responsibility by deliberately taking some limited initiatives of himself to create his own mark in the legal system. Many "silly" regulations are created by this reason!
Fourthly, like it or not, the policy lobby process always takes place in practice and it is for the benefit of a few certain groups in society. If policy advocacy is for the benefit of a strong group, it is bad, but if it is for the benefit of disadvantaged groups, it is good. The process of advocacy also leads to the amendment of regulations in the future.
Fifthly, the major cause is that the process of law-making often fails to pursue real life. To bring the law into life, law-makers must bring life into the law first. That’s why the local media wrote about “the law that is written in air conditioned rooms," or "the laws that are written in heaven while real life is on the ground".
Recently, some used the image "the law is built in virtual space" to describe the rationality of many laws in our country. We collected the people’s comments on a number of important laws. But in fact, do managers want to hear people's opinions? And if they want, which way? The policy is right but the implementation is very formal. Life is only real when it is viewed through the eyes of the people.
Of course, constantly amending laws causes more harm than good:
Firstly, foreigners are afraid of legal instability in Vietnam, which hinders their participation in the development process of Vietnam. In 2008, the National Assembly approved the resolution on the pilot implementation of the policy on selling apartments to foreigners. Since then only over 100 transactions of that type have been made, even though demand is much higher. In fact, foreigners are afraid of the term "pilot" and they do not believe that this policy is stable and long-term so it is best for them to rent a house.
Secondly, legal instability always creates a shortage of social justice. When the policy changes, the benefit and the losers are not the same. For example, the policy on land compensation was amended annually in the period of 2004 - 2009. The people who were compensated later benefited a lot, more than those who had been compensated earlier, causing many lawsuits filed for injustice in compensation.
Thirdly, the legal system changing too fast makes the process of applying the law too complicated. The actual context is always many times more diverse than the legal context.
Fourthly, the change of policy and laws taking place too quickly creates great pressure on legal awareness of citizens and officials at the grassroots level. During my visit to several communes in the central province of Khanh Hoa, a commune chairman told me that commune officials took one year to thoroughly understand a new circular but when they were familiar to that circular, a new one was issued. And that’s a waste of their effort!
Fifthly, a legal system that is too complicated always creates the “half-light” context in the legal environment. This is a necessary condition for corruption and waste associated with law enforcement.
VietNamNet: What should we do to reject legal documents with short lifespan?
Prof: Dang Hung Vo: The most important thing is to change the law making institution.
This process must comply with the objective awareness, which is the task of the whole society, not dependent on the subjective perception of any individual. Objectivity in legal development can only be achieved by applying the institutions: creating conditions for all citizens to actually participate in the process of making laws on the basis of information transparency and accountability of officials.
To be continued…