Vietnam probably has too many, too elaborate laws

I had the chance to interact with professionals from other countries when invited by the World Bank as an advisor for resource development projects.

One day a Chinese colleague asked me: « Why does Vietnam have so many laws? »

I just laughed and said: « Every ministry and department in Vietnam wants to have laws for their activities to make them feel secure, and the Vietnamese government aims to build a country with strong rule of law. »

But the question an outsider had asked made me ponder.

The fact that the legal framework is patchy, has many gaps and many different provisions between related laws and even in the same law, making it difficult to enforce, is evident. In legal terms, this is a situation of « legal conflicts » and « legal gaps. »

In such a troublesome situation, the 2015 Law on Promulgation of Legal Documents stipulates that when there are conflicting regulations on an issue, the one set by the higher entity takes precedence.

In the case of conflicting regulations issued by the same agency, the one issued later wins.

However, implementing the law is not simple.

The issue of conflicting legal provisions has become so commonplace that many legal documents issued recently incorporate this phrase: « If the provisions of other laws are contrary to the provisions of this law, the provisions of this law shall apply. »

The passage of laws to supersede other laws, which happened occasionally in the past, has become frequent now.

I still remember that the first of this kind was the Law on Amending and Supplementing a Number of Articles of Laws related to Capital Construction Investment issued in 2009, which amended the Construction Law, the Bidding Law, the Enterprise Law, the Land Law, and the Housing Law.

However, it was only a while before more conflicts surfaced and became the main hurdles to approving investment projects.

How far will our country’s legal system need to go to eliminate these legal gaps and conflicts?

In other countries, there are legal documents that have existed for several hundred years with the occasional modification. For example, a French expert told me that the French Land Law, which was directly read by Napoleon to his secretary, has been in force for more than 220 years with only three changes in all of that time.

The legal conflicts in Vietnam are primarily caused by the lawmaking methodology, which sees agencies at various levels creating their own laws.

Laws are mainly created by the government, the executive body, after receiving proposals from ministries.

Ministries build laws in areas that they manage, and because each ministry has many departments or general departments, laws are then divided into many provisions. And when drafting a law, everyone wants to arrogate to themselves the authority to make decisions.

Then the appraisal of a bill is performed by the Ministry of Justice, which basically only has expertise in appraisal regulations.

The National Assembly is the body responsible for passing laws. There was an initiative to create a cohort of National Assembly deputies exclusively for lawmaking. But these deputies have not been capable of performing that task.

The second reason is that every law is too elaborate. After each revision, the provisions become significantly denser. This is not the right way to go about lawmaking because the more comprehensive a law is the more difficult it is to implement.

At this point, it is necessary to establish a basic legal framework to decide what needs to be included in a law. All other related regulations to implement that law will be decided by the government, ministries and the authorities in each locality.

The third reason is that most technical laws are written by technical experts, making them hard for the general public to understand.

I have heard from many experts from the Vietnam Bar Association that they could not understand some provisions in this or that law. Therefore, the codification of policies should be done by experienced legal experts.

The fourth reason is that the scope of a law is not clear or clearly defined. For example, what is the scope of the Land Law? All countries describe it as « land management » while China has a narrower definition: « land administration. »

Vietnam’s Land Law regulates both land use and land management.

The management of « residential land » should instead fall within the scope of the Housing Law, and other types of lands should be managed under other laws such as the Law on Forestry, the Law on Management and Use of Public Properties, the Law on National Defense, the Law on People’s Public Security, the Law on Tourism, the Law on Belief and Religion…

The Land Law should only prescribe general principles for the management and use of various categories of lands, while their specific use should be governed by relevant specialized laws.

Being ambiguous about the scope of regulation will lead to conflicts between the various laws governing the real estate market.

What is the solution for getting rid of the legal conflicts? We need to change the way we make laws.

First of all, the legal system must be designed objectively based on what laws are needed and their scope.

The process of elaborating and drafting legal provisions should involve professional organizations and individuals and overseen by the National Assembly.

The National Assembly can invite participation in the drafting of a law by experts from universities, research institutes, research groups, associations, social organizations and others.

The collection of public opinions must be done properly instead of just going through the motions as currently. The people must be adequately consulted and clearly explained about each specific area.

Laws are the foundation for development, and if the legal system is not strong, the development path cannot be smooth.

By Dang Hung Vo – VnExpress.net – July 24, 2023