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Separation of Powers

The idea that a just and fair government must divide power between various branches did not originate at the Constitutional Convention, but has deep philosophical and historical roots.

In his analysis of the government of Ancient Rome, the Greek statesman and historian Polybius identified it as a "mixed" regime with three branches: monarchy (the consul, or chief magistrate), aristocracy (the Senate) and democracy (the people). These concepts greatly influenced later ideas about separation of powers being crucial to a well-functioning government.

Centuries later, the Enlightenment philosopher Baron de Montesquieu wrote of despotism as the primary threat in any government. In his famous work "The Spirit of the Laws," Montesquieu argued that the best way to prevent this was through a separation of powers, in which different bodies of government exercised legislative, executive and judicial power, with all these bodies subject to the rule of law.

The U.S. System of Checks and Balances

Building on the ideas of Polybius, Montesquieu, William Blackstone, John Locke and other philosophers and political scientists over the centuries, the framers of the U.S. Constitution divided the powers and responsibilities of the new federal government among three branches: the legislative branch, the executive branch and the judicial branch.

In addition to this separation of powers, the framers built a system of checks and balances designed to guard against tyranny by ensuring that no branch would grab too much power.

"If men were angels, no government would be necessary," James Madison wrote in the Federalist Papers, of the necessity for checks and balances. "In framing a government which is to be administered by men over men, the great difficulty is this: You must first enable the government to control the governed; and in the next place, oblige it to control itself."

Checks and Balances Examples

Checks and balances operate throughout the U.S. government, as each branch exercises certain powers that can be checked by the powers given to the other two branches.

The president (head of the executive branch) serves as commander in chief of the military forces, but Congress (legislative branch) appropriates funds for the military and votes to declare war. In addition, the Senate must ratify any peace treaties.

Congress has the power of the purse, as it controls the money used to fund any executive actions.

The president nominates federal officials, but the Senate confirms those nominations.

Within the legislative branch, each house of Congress serves as a check on possible abuses of power by the other. Both the House of Representatives and the Senate have to pass a bill in the same form for it to become law.

Veto power. Once Congress has passed a bill, the president has the power to veto that bill. In turn, Congress can override a regular presidential veto by a two-thirds vote of both houses.

The Supreme Court and other federal courts (judicial branch) can declare laws or presidential actions unconstitutional, in a process known as judicial review.

In turn, the president checks the judiciary through the power of appointment, which can be used to change the direction of the federal courts

By passing amendments to the Constitution, Congress can effectively check the decisions of the Supreme Court. But an amendment must either be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of state legislatures. Either way, a proposed amendment only becomes part of the Constitution when ratified by legislatures or conventions in three-fourths of the states (38 of 50 states).

Congress (considered the branch of government closest to the people) can impeach both members of the executive and judicial branches.

Checks and Balances in Action

The system of checks and balances has been tested numerous times throughout the centuries since the Constitution was ratified.

In particular, the power of the executive branch has expanded greatly since the 19th Century, disrupting the initial balance intended by the framers. Presidential vetoes-and congressional overrides of those vetoes-tend to fuel controversy, as do congressional rejections of presidential appointments and judicial rulings against legislative or executive actions.

Executive orders, official directives issued to federal agencies by the president, are powers afforded to the executive branch that do not require congressional approval. They are not directly provided for inthe U.S. Constitution, but rather implied by Article II, which states that the president "shall take Care that the Laws be faithfully executed." Executive orders can only push through policy changes; they cannot create new laws or appropriate funds from the United States treasury.

Overall, the system of checks and balances has functioned as it was intended, ensuring that the three branches operate in balance with one another.

Roosevelt and the Supreme Court

The checks and balances system withstood one of its greatest challenges in 1937, thanks to an audacious attempt by Franklin D. Roosevelt to pack the Supreme Court with liberal justices. After winning reelection to his second term in office by a huge margin in 1936, FDR nonetheless faced the possibility that judicial review would undo many of his major policy achievements.

From 1935-36, a conservative majority on the Court struck down more significant acts of Congress than any other time in U.S. history, including a key piece of the National Recovery Administration, the centerpiece of FDR's New Deal.

In February 1937, Roosevelt asked Congress to empower him to appoint an additional justice for any member of the Court over 70 years of age who did not retire, a move that could expand the Court to as many as 15 justices.

Roosevelt's proposal provoked the greatest battle to date among the three branches of government, and a number of Supreme Court justices considered resigning en masse in protest if the plan went through.

In the end, Chief Justice Charles Evans Hughes wrote an influential open letter to the Senate against the proposal; in addition, one older justice resigned, allowing FDR to replace him and shift the balance on the Court. The nation had narrowly averted a constitutional crisis, with the system of checks and balances left shaken but intact.

The War Powers Act and Presidential Veto

The United States Congress passed the War Powers Act on November 7, 1973, overriding an earlier veto by President Richard M. Nixon, who called it an "unconstitutional and dangerous" check on his duties as commander-in-chief of the military.

The act was created in the wake of the Korean War and during the Vietnam War and stipulates that the president has to consult Congress when deploying American troops. If after 60 days the legislature does not authorize the use of U.S. forces or provide a declaration of war, soldiers must be sent home.

The War Powers Act was put forth by the legislature to check the mounting war powers exercised by the White House. After all, President Harry S. Truman had committed U.S. troops to the Korean War as part of a United Nations "police action." Presidents Kennedy, Johnson and Nixon each escalated the undeclared conflict during the Vietnam War.

Controversy over the War Powers Act continued after its passage. President Ronald Reagan deployed military personnel to El Salvador in 1981 without consulting or submitting a report to Congress. President Bill Clinton continued a bombing campaign in Kosovo beyond the 60-day time in 1999. And in 2011, President Barack Obama initiated a military action in Libya without congressional authorization. In 1995, the U.S. House of Representatives voted on an amendment that would have repealed many of the Act's components. It was narrowly defeated.

State of Emergency

The first state of emergency was declared by President Harry Truman on December 16, 1950 during the Korean War. Congress did not pass The National Emergencies Act until 1976, formally granting congress checks on the power of the president to declare National Emergencies. Created in the wake of the Watergate scandal, the National Emergencies Act included several limits on presidential power, including having states of emergency lapse after a year unless they are renewed.

Presidents have declared almost 60 national emergencies since 1976, and can claim emergency powers over everything from land use and the military to public health. They can only be stopped if both houses of the U.S. government vote to veto it or if the matter is brought to the courts.

Sources

Checks and Balances, The Oxford Guide to the United States Government.
Baron de Montesquieu, Stanford Encyclopedia of Philosophy.
FDR's Losing Battle to Pack the Supreme Court, NPR.org.
State of Emergency, New York Times, Pacific Standard, CNN.

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Checks and Balances - Definition, Examples & Constitution

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Checks and balances refers to a system in U.S. government that ensures no one branch becomes too powerful. The framers of the U.S. Constitution built a system that divides power between the three branches-legislative, executive and judicial-and includes various limits and controls on the powers of each.

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This in theory allows for checks and balances, stemming from the social pressure to curb corruption and arbitrary power

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This in theory allows for checks and balances, stemming from the social pressure to curb corruption and arbitrary power

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90 million Vietnamese citizens now have a new constitution adopted by the National Assembly on November 28, 2013, the culmination of a three-year process. What is new and what does it mean for Vietnam going forward?
What's new?
Initially, the government planned to amend, rather than replace, the 1992 Constitution. While the actual result has been a "new" 2013 Constitution, unsurprisingly a great deal stands unchanged. The prominent role of the Communist Party, class-based sovereignty, and the unity of power-despite petitions for competitive politics, popular sovereignty, and the separation of powers-remain strong features of the Constitution. Secondly, the basic institutional structure is also unaltered. Calls for establishing a Constitutional Tribunal were ignored in the final draft; the National Assembly's powers remain unchecked, including electing the State president; and the People's Council at district level remains intact. Likewise basic state policies, specifically the leading role of State enterprises and the State's prerogative powers over land, continue as before despite numerous calls for reform.

On the positive side, there is emphasis on human rights protection as a response to domestic pressure and external criticisms. Human rights protection is listed as one of the fundamental objectives of the state. Chapter 2 of the Constitution dealing with the subject has been renamed to include a specific reference to "human rights" in the title, with rights such as the right to life, environmental and cultural rights featuring for the first time.

However, Vietnam's new human rights regime seems to be a paradox. A new provision allows the restriction of human rights for a wide range of reasons - national defence, public security, social order, social morality, and public health - despite criticism from Vietnamese experts. This may be a sign of the regime's conflicting interest between the preservation of social-political stability and the desire for increased international legitimacy through commitments to human rights standards. Note that Vietnam became a member of UN Human Rights Council shortly before the adoption of the Constitution.

Some other changes are likely just rhetoric. First, the preamble confirms the Vietnamese people as the author of the Constitution but this recognition is far from meaningful, as popular ratification of the Constitution (and any amendments) was not accepted. The ordinary legislature rather than the people continues to possess supreme power in constitution making and amendment. Second, in the hope that trust in the Party can be enhanced, Party accountability to the people is introduced in Article 4 which provides that "the Communist Party of Vietnam [...] submits to people's supervision, and is accountable to the people in its decisions." But how to enforce that accountability remains unclear. Third, Article 2 provides that State bodies shall "control one another in the exercise of the legislative, executive and judiciary powers." This in theory allows for checks and balances, stemming from the social pressure to curb corruption and arbitrary power. But this principle is not reified by concrete institutional design. As intimated earlier, the National Assembly remains supreme to all other State bodies and is subject to no external institutional controls. The proposal of a constitutional tribunal aimed at reviewing the constitutionality of State actions was eventually ruled out. Hence, the principle of constraints on State power still awaits its meaning.

On the other hand, there are a few institutional changes. First, the functions of the three State branches are more clearly defined. Second, the National Commission of Elections and the State Audit Office - which are actually pre-existing institutions - are now given constitutional status. Third, judicial independence is strengthened, through explicit recognition of the role of the courts in protecting justice and human rights and the prohibition of interference by other State bodies in judicial adjudications. But judicial independence in Vietnam is still a conundrum as functional guarantees of the independence remain poor and the courts remain weak and subject to the supervision of the National Assembly and the Procuracy.

A number of other changes are technical. Several chapters are merged to make the constitution more succinct, and many provisions are rewritten without changing their substantive meaning.
A Charter for Comprehensive Renovation?
November 28, 2013 was "a good day" in the words of the constitution-makers when the new Constitution was approved by 97, 56% of Assembly delegates. The official stance is that the new Constitution reflects the will of the People as the charter for "comprehensive renovation of both political and economic systems, meeting the demands of construction and defence of the nation in a global era."

But immediately after the adoption of the Constitution, online voices cried out their disappointment. Several authors of Petition 72 protested that the new Constitution expresses the will of the Party rather than the people since most proposals made during public consultations were rejected. Some dissidents warned that the new Constitution will lead the country to a darker future - a movement has appeared on Facebook, calling for civil disobedience and boycotting the Constitution. Many of these criticisms focus on the absence of a referendum, the leading role of the Communist Party, the loyalty of the military to the Party, and the State's domination of the economy and land management.
Flickering Hope?
As the regime persistently adheres to socialism under the rule of the powerful Communist Party, essential tenets such as the leading role of the Party, the unity of State powers, the loyalty of the military to the Party and the State's domination of national resources are unlikely to be altered. But in response to social pressure and the impact of globalization, changes through ordinary politics may be possible within the new constitutional framework.

First, the Party may further discipline their members according to the Party's campaign "criticism and self-criticism." In addition, party and State institutions of anti-corruption may be more active, as recent serious corruption cases indicate. These are important avenues to maintain political legitimacy if constitutional changes are ruled out.

Second, the regime may continue the promotion of welfare rights. Past experience indicates that the promotion of social and economic rights has considerably enhanced quality of life, which has conferred more legitimacy on the leadership. Future legitimacy may be further guaranteed in the same way.

Third, courts and local governments may witness more developments as their reforms are less vulnerable to socialist policy. The new Constitution has not specified the organization of courts at local level, opening the door for realization of the 2005 Party project to re-organize local courts in a way that separates them from local governments, reducing the interference of local governors in judges' decisions. As for local government, administrative accountability and grassroots democracy may bring further reform.

A Fourth reason for hope stems from Article 51 of the new Constitution. Despite the reconfirmation of the State's domination of the economy and land, this article requires equal competition among all economic sectors. If this article is implemented private enterprises may be treated in a more equal manner, and mechanisms may be introduced to control corruption in State-owned enterprises. Similarly Article 54 provides that "the recovery of land must be public and transparent, and compensation must be provided in accordance with the law". This effectively limits the State's power of appropriation to some degree, thus reducing the risk of peasant resistance movements such as in the Tiên Lãng and Văn Giang cases.

Last but not least, the adoption of what may have been intended as just constitutional rhetoric - such as popular sovereignty over constitution-making, constraints on state power, and Party accountability - may provide new impetus for social and intellectual debate over the meaning of these principles, which in turn may create more pressure on institutional and even constitutional reforms.
Bui Ngoc Son is a Lecturer at the Vietnam National University in Hanoi

Disclaimer: The views expressed in Voices from the Field contributions are the author's own and do not necessarily reflect International IDEA's positions.

90 million Vietnamese citizens now have a new constitution adopted by the National Assembly on November 28, 2013, the culmination of a three-year process. What is new and what does it mean for Vietnam going forward?
What's new?
Initially, the government planned to amend, rather than replace, the 1992 Constitution. While the actual result has been a "new" 2013 Constitution, unsurprisingly a great deal stands unchanged. The prominent role of the Communist Party, class-based sovereignty, and the unity of power-despite petitions for competitive politics, popular sovereignty, and the separation of powers-remain strong features of the Constitution. Secondly, the basic institutional structure is also unaltered. Calls for establishing a Constitutional Tribunal were ignored in the final draft; the National Assembly's powers remain unchecked, including electing the State president; and the People's Council at district level remains intact. Likewise basic state policies, specifically the leading role of State enterprises and the State's prerogative powers over land, continue as before despite numerous calls for reform.

On the positive side, there is emphasis on human rights protection as a response to domestic pressure and external criticisms. Human rights protection is listed as one of the fundamental objectives of the state. Chapter 2 of the Constitution dealing with the subject has been renamed to include a specific reference to "human rights" in the title, with rights such as the right to life, environmental and cultural rights featuring for the first time.

However, Vietnam's new human rights regime seems to be a paradox. A new provision allows the restriction of human rights for a wide range of reasons - national defence, public security, social order, social morality, and public health - despite criticism from Vietnamese experts. This may be a sign of the regime's conflicting interest between the preservation of social-political stability and the desire for increased international legitimacy through commitments to human rights standards. Note that Vietnam became a member of UN Human Rights Council shortly before the adoption of the Constitution.

Some other changes are likely just rhetoric. First, the preamble confirms the Vietnamese people as the author of the Constitution but this recognition is far from meaningful, as popular ratification of the Constitution (and any amendments) was not accepted. The ordinary legislature rather than the people continues to possess supreme power in constitution making and amendment. Second, in the hope that trust in the Party can be enhanced, Party accountability to the people is introduced in Article 4 which provides that "the Communist Party of Vietnam [...] submits to people's supervision, and is accountable to the people in its decisions." But how to enforce that accountability remains unclear. Third, Article 2 provides that State bodies shall "control one another in the exercise of the legislative, executive and judiciary powers." This in theory allows for checks and balances, stemming from the social pressure to curb corruption and arbitrary power. But this principle is not reified by concrete institutional design. As intimated earlier, the National Assembly remains supreme to all other State bodies and is subject to no external institutional controls. The proposal of a constitutional tribunal aimed at reviewing the constitutionality of State actions was eventually ruled out. Hence, the principle of constraints on State power still awaits its meaning.

On the other hand, there are a few institutional changes. First, the functions of the three State branches are more clearly defined. Second, the National Commission of Elections and the State Audit Office - which are actually pre-existing institutions - are now given constitutional status. Third, judicial independence is strengthened, through explicit recognition of the role of the courts in protecting justice and human rights and the prohibition of interference by other State bodies in judicial adjudications. But judicial independence in Vietnam is still a conundrum as functional guarantees of the independence remain poor and the courts remain weak and subject to the supervision of the National Assembly and the Procuracy.

A number of other changes are technical. Several chapters are merged to make the constitution more succinct, and many provisions are rewritten without changing their substantive meaning.
A Charter for Comprehensive Renovation?
November 28, 2013 was "a good day" in the words of the constitution-makers when the new Constitution was approved by 97, 56% of Assembly delegates. The official stance is that the new Constitution reflects the will of the People as the charter for "comprehensive renovation of both political and economic systems, meeting the demands of construction and defence of the nation in a global era."

But immediately after the adoption of the Constitution, online voices cried out their disappointment. Several authors of Petition 72 protested that the new Constitution expresses the will of the Party rather than the people since most proposals made during public consultations were rejected. Some dissidents warned that the new Constitution will lead the country to a darker future - a movement has appeared on Facebook, calling for civil disobedience and boycotting the Constitution. Many of these criticisms focus on the absence of a referendum, the leading role of the Communist Party, the loyalty of the military to the Party, and the State's domination of the economy and land management.
Flickering Hope?
As the regime persistently adheres to socialism under the rule of the powerful Communist Party, essential tenets such as the leading role of the Party, the unity of State powers, the loyalty of the military to the Party and the State's domination of national resources are unlikely to be altered. But in response to social pressure and the impact of globalization, changes through ordinary politics may be possible within the new constitutional framework.

First, the Party may further discipline their members according to the Party's campaign "criticism and self-criticism." In addition, party and State institutions of anti-corruption may be more active, as recent serious corruption cases indicate. These are important avenues to maintain political legitimacy if constitutional changes are ruled out.

Second, the regime may continue the promotion of welfare rights. Past experience indicates that the promotion of social and economic rights has considerably enhanced quality of life, which has conferred more legitimacy on the leadership. Future legitimacy may be further guaranteed in the same way.

Third, courts and local governments may witness more developments as their reforms are less vulnerable to socialist policy. The new Constitution has not specified the organization of courts at local level, opening the door for realization of the 2005 Party project to re-organize local courts in a way that separates them from local governments, reducing the interference of local governors in judges' decisions. As for local government, administrative accountability and grassroots democracy may bring further reform.

A Fourth reason for hope stems from Article 51 of the new Constitution. Despite the reconfirmation of the State's domination of the economy and land, this article requires equal competition among all economic sectors. If this article is implemented private enterprises may be treated in a more equal manner, and mechanisms may be introduced to control corruption in State-owned enterprises. Similarly Article 54 provides that "the recovery of land must be public and transparent, and compensation must be provided in accordance with the law". This effectively limits the State's power of appropriation to some degree, thus reducing the risk of peasant resistance movements such as in the Tiên Lãng and Văn Giang cases.

Last but not least, the adoption of what may have been intended as just constitutional rhetoric - such as popular sovereignty over constitution-making, constraints on state power, and Party accountability - may provide new impetus for social and intellectual debate over the meaning of these principles, which in turn may create more pressure on institutional and even constitutional reforms.
Bui Ngoc Son is a Lecturer at the Vietnam National University in Hanoi

Disclaimer: The views expressed in Voices from the Field contributions are the author's own and do not necessarily reflect International IDEA's positions.

THE CONSTITUTION OF THE SOCIALIST REPUBLIC OF VIETNAM (AS AMENDED in 2013 )

Vietnam: Draft Constitution of 2013

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Vietnam's new Constitution: A Charter for Comprehensive Renovation?

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90 million Vietnamese citizens now have a new constitution adopted by the National Assembly on November 28, 2013, the culmination of a three-year process. What is new and what does it mean for Vietnam going forward? What's new? Initially, the government planned to amend, rather than replace, the 1992 Constitution.

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National Assembly discription

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National Assembly - Highest organ of State power, highest representative body of the people | Politics | Vietnam+ (VietnamPlus)

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Within the State apparatus of Vietnam, the National Assembly (NA) is the highest representative body of the people and the highest organ of State power of the Socialist Republic of Vietnam.

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Process of awareness on mechanism of state power control in the period of renovation

Before the renovation period, the term "control of state power" did not exist in official documents of the Party and State of Viet Nam. However, in the Constitutions and laws on the organization of state apparatus, there were regulations stipulating the control of state power. For example, the National Assembly had the authority "to supervise the observance of the Constitution" (Clause 3, Article 50 of the 1959 Constitution), "to exercise supreme oversight of compliance with the Constitution and law" (Clause 3, Article 83 of the 1980 Constitution). The State Council "supervises the work of the Council of Ministers, the People's Supreme Court and the Procurator General of the People's Supreme Procuracy" (Clause 7, Article 100 of the 1980 Constitution), "supervises and guides the operation of the People's Councils at all levels" (Clause 9, Article 100 of the 1980 Constitution). The People's Supreme Procuracy "supervises observance of the law by ministries and other bodies of the Council of Ministers, local authorities, social organizations and the People's Armed Forces" (Article 138 of the 1980 Constitution). Despite stipulations of the Constitutions, the state power was organized in accordance with the principle of socialist concentration of power hence the state power was not assigned in a transparent manner, and therefore, there was no basis for the mechanism of state power control. Thus, the mechanism of state power control has not been formed true to its meaning to ensure the exercise of state power as stipulated by the Constitutions.

The Platform on National Construction in the Transitional Period to Socialism (1991) set out a new principle of organization of state power in building the rule of law socialist state in Viet Nam, "state power is unified in the exercise of and clear assignment of legislative, executive and judicial powers." Though there was no element on state power control in this principle, it was a fundamental change in thinking about "building Viet Nam's rule of law state of the people, by the people, for the people" that the 7th Party confirmed. Building the rule of law state has become a major and strategic policy of the Party and State, including the organization and operation of the state apparatus. Accordingly, in 2001, the State of Viet Nam amended some articles of the 1992 Constitution on the state apparatus organization to institutionalize the Party's stance and lines on building the rule of law socialist state, and affirmed that "our State is the rule of law socialist state of the people, by the people and for the people. State power is unified with assignment and coordination among agencies in the exercise of legislative, executive and judicial powers." For the first time, the term "the rule of law socialist state" and the principle of "assignment, coordination" are prescribed in the Constitution of the Socialist Republic of Viet Nam. This is the foundation essential for the thinking on state power control at the 10th and 11th Party Congresses. The section "Continuing to build and perfect the rule of law socialist state" of the documents of the 10th Party Congress mentioned the "construction, improvement of the mechanism to supervise and control constitutionality and legality of activities and decisions of bodies of authority," which elaborated in-depth on the issue of "developing mechanisms for ruling on violations of the Constitution in legislative, executive and judicial activities." This can be considered as new awareness, and a qualitative change in theoretical thinking. "All state power belongs to the people" which was prescribed by previous Constitutions is now fully aware of and consistent with. Because, if we do not recognize the exercise of constitutional powers as the root power which establishes legislative power, executive power and judicial power, the constitutional power is higher than legislative power, executive power and judicial power, we cannot accept the true meaning of "All state power belongs to the people" and have no basis to form mechanism for the sufficient and correct control of state power.

Building on new awareness on control of state power recorded in documents of the 10th Party Congress, the Platform for National Construction in the Transitional Period to Socialism (supplemented and developed in 2011) included in the principle of organization and operation of the rule of law socialist state of Viet Nam a new element, which is the control of state power. It was the first time when the documents of the Party recognized a basic principle in the organization and operation of the rule of law socialist state, fully containing the new qualitative values as compared to the principle of socialist concentration of power. That is the principle: state power is unified, with the assignment, coordination and control among agencies in the exercise of legislative, executive and judicial powers. Institutionalizing this principle, the 2013 Constitution solemnly declares in Article 2: "The State of the Socialist Republic of Viet Nam is a socialist state ruled by law and of the people, by the people and for the people. 2. The Socialist Republic of Viet Nam is the country where the people are the masters; all the state power belongs to the people and is based on the alliance of the working class, the peasantry and the intelligentsia. 3. The state power is unified and delegated to state agencies which coordinate with and control one another in the exercise of the legislative, executive and judicial powers."

Thus, it took 20 years to change perception on control of state power from the principle of socialist concentration of power which did not consider control of state power an objective necessity to the acknowledgement of the rule of law state in which control of state power is an integral part of the organization and operation of the state. It is the process of inheritance and development of thinking and struggling with the model of socialist concentration of power, because this model existed for a long time and deep-rooted in the way of thinking of many people that cannot be changed quickly. It is quite a process from the 6th Party Congress (1986) which initiated the renovation of state apparatus to the Platform for National Construction in the Transitional Period to Socialism (1991) which acknowledged that in the Vietnamese State, the three legislative, executive and judicial powers are unified and then to recognition of "Our State... is the socialist state ruled by law, of the people, by the people and for the people," operating under the basic principles "state power is unified, with the assignment and coordination, control among state agencies in the exercise of legislative, executive and judiciary powers." In terms of time, though this process is long, but that is the inevitable progress in perception through the Party Congresses.

The mechanism of state power control in the period of renovation

Given developments and changes in theoretical awareness as mentioned above, the mechanism of state power control has been gradually established and put into operation as follows:

However, there remain constraints in the mechanism of state power control:

Inspection and control of executive apparatus, the key means to serve state management, is seen as an independent institution to practice control of state power, but in reality, the Government Inspectorate and inspectors of the state management agencies are the institutions dependent on the heads of the management and in service of state management. Therefore, inspection and control of the apparatus of state management are not the subject and means to control of state power in their own right.

The shifting of function to supervise the observance of law by ministries, ministerial-level agencies, local authorities and state corporations of the People's Procuracy to elected bodies and inspection and control agencies in executive body after the 1992 Constitution was amended in 2001 has not strengthened the control of state power; negative phenomena and corruption have been discovered and settled slowly.

Within the Party, the control committees have actually exercised control over state power through control of Party officials and members in the state apparatus. They have been active only when there are complaints or denunciations, hence they lack proactivity and are not representative.

The mass media has an important role in controlling of state power, but has not been promoted sufficiently.

Continuing to build and perfect the mechanism of state power control in the new situation

Prompted by the above perspective, in relation to the control of state power, new understandings have been reflected in the 2013 Constitution. The 2013 Constitution has identified the people as the subject of constitutional power; The National Assembly is no longer the sole institution with constitutional power as stipulated by the 1992 Constitution. Thus, the 2013 Constitution lays the constitutional groundwork for the introduction of an external mechanism to control state power, meaning from the people. Elaborating on that, Article 6 of the 2013 Constitution stipulates, in addition to exercising state power throught representatives democracy (through the National Assembly and People's Councils and other agencies of the State), the people also exercise state power through direct democracy, such as elections and dismissal (Article 7); Citizens have the right to vote in the state referendum (Article 29); Citizens have the right to participate in managing the state and society, in discussions and make recommendations to government agencies (Article 28); The Vietnam Fatherland Front is the political unit of people's administration which supervise and provide social criticism towards activities of state agencies, elected representatives, officials, public employees and civil servants (Article 9); The Vietnam General Federation of Labor participates in inspection, and supervision and surveillance activities of state bodies (Article 10). Thus, the 2013 Constitution lays the foundation for the formation of a mechanism of state power control by the people in the form of direct democracy. With this foundation of regulations, there is a need to build a legal mechanism for the people to control the state power in the form of direct democracy (external mechanism of state power control).

For the first time in the history of constitution development of Viet Nam, the 1992 Constitution prescribed that the state power was made up of three legislative, executive and judicial powers (Article 2). But the 1992 Constitution did not identify explicitly legislative, executive and judicial bodies. The 2013 Constitution overcomes that constraint by identifying that the National Assembly shall perform the legislative power, the Government is the executive body and the People's Court shall perform judicial power. The recognition of the exercise of legislative, executive and judicial powers by different bodies is an important renovation compared to the principle of socialist concentration of powers of the past. It facilitates the definition of the tasks and powers properly and coherently between the offices of the National Assembly, the Government and the People's Court in the exercise of legislative, executive and judicial powers. This is the basis for control of state power and the basis for people to evaluate the effective and efficient exercise of each power to avoid overlapping, reliance, dependence or responsibility ambiguity of each power in the previous model, and build control mechanism of state power inside the state apparatus. However, the mechanism of assignment, coordination and control of state power has not been clearly defined at all levels. In reality, there remain irrational, ineffective and inefficient constraints in the state apparatus and operation of key institutions of the socialist rule of law system, such as the National Assembly, the State President, the Government, and the judicial system. Therefore, it is necessary to continue building and improving the mechanism to control legislative, executive and judicial powers (i.e. mechanism of state power control within the state apparatus), and ensuring that legislative, executive and judicial powers are controlled.

The fundamental issue of the control of state power is to enable the state apparatus to control society and control itself which is of no less significance. Accordingly, the mechanism of state power control must be comprehensive, including an external non-state mechanism for state power control, an internal mechanism for cross-control of state power by the legislative, executive and judicial bodies and an independent mechanism for state power control prescribed by the Constitution and law.

This article was published in Communists Review, No 880 (February 2016)

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Process of awareness on mechanism of state power control in the period of renovation Before the renovation period, the term "control of state power" did not exist in official documents of the Party and State of Viet Nam. However, in the Constitutions and laws on the organization of state apparatus, there were regulations stipulating the control of state power.

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Khác với lập hiến, tu chính Hiến pháp là một quyền lực giới hạn. Nếu lập hiến là một quyền lực nguyên thủy và không có giới hạn, nghĩa là nhà lập hiến không bị ràng buộc bởi một thủ tục pháp lý nào, thì tu chính Hiến pháp là một quyền lực hạn chế bởi nó phải tuân thủ Hiến pháp. Nói cách khác, quyền tu chính Hiến pháp là một quyền lực hiến định, nên bị giới hạn bởi Hiến pháp. Một nhà Hiến pháp học người Đức, Carl Schmitt chỉ ra rằng trong khi sửa đổi Hiến pháp, bản sắc và tính chỉnh thể của Hiến pháp phải được giữ lại. Điều này có nghĩa là quyền sửa đổi Hiến pháp chỉ bao gồm quyền thay đổi, bổ sung, mở rộng, loại bỏ những điều khoản của Hiến pháp nhưng vẫn giữ lại bản thân bản Hiến pháp. Đó không phải là quyền thiết lập một Hiến pháp mới, cũng không phải là quyền thay đổi nền tảng của quyền sửa đổi Hiến pháp[10

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Khác với lập hiến, tu chính Hiến pháp là một quyền lực giới hạn. Nếu lập hiến là một quyền lực nguyên thủy và không có giới hạn, nghĩa là nhà lập hiến không bị ràng buộc bởi một thủ tục pháp lý nào, thì tu chính Hiến pháp là một quyền lực hạn chế bởi nó phải tuân thủ Hiến pháp. Nói cách khác, quyền tu chính Hiến pháp là một quyền lực hiến định, nên bị giới hạn bởi Hiến pháp. Một nhà Hiến pháp học người Đức, Carl Schmitt chỉ ra rằng trong khi sửa đổi Hiến pháp, bản sắc và tính chỉnh thể của Hiến pháp phải được giữ lại. Điều này có nghĩa là quyền sửa đổi Hiến pháp chỉ bao gồm quyền thay đổi, bổ sung, mở rộng, loại bỏ những điều khoản của Hiến pháp nhưng vẫn giữ lại bản thân bản Hiến pháp. Đó không phải là quyền thiết lập một Hiến pháp mới, cũng không phải là quyền thay đổi nền tảng của quyền sửa đổi Hiến pháp[10

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https://en.wikipedia.org/wiki/Separation_of_powers

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The term " Separation of Powers" was coined by the 18th century philosopher Montesquieu. Separation of powers is a model that divides the government into separate branches, each of which has separate and independent powers. By having multiple branches of government, this system helps to ensure that no one branch is more powerful than another. Typically, this system divides the government into three branches: the Legislative Branch, the Executive Branch, and the Judicial Branch. The United States federal government and forty states divide their governments into these three branches.

In the federal government, Article 1 of the United States Constitution establishes the Legislative Branch, which consists of Congress. Congress, in addition to other enumerated responsibilities, is responsible for creating laws. As a general rule, the nondelegation doctrine prohibits the Legislative Branch from delegating its lawmaking responsibilities. Congress can, however, provide agencies with regulatory guidelines if it provides them with an "intelligible principle" to base their regulations on. For more information on the Legislative Branch, refer to "Congress."

Article 2 of the United States Constitution establishes the Executive Branch, which consists of the President. The President approves and carries out the laws created by the Legislative Branch. For more information on the Executive Branch, refer to "Executive Branch."

Article 3 of the United States Constitution establishes the Judicial Branch, which consists of the United States Supreme Court. The Judicial Branch interprets the laws passed by the Legislative Branch. For more information on the Judicial Branch, refer to "Judiciary."

Separation of Powers in the United States is associated with the Checks and Balances system. The Checks and Balances system provides each branch of government with individual powers to check the other branches and prevent any one branch from becoming too powerful. For example, Congress has the power to create laws, the President has the power to veto them, and the Supreme Court may declare laws unconstitutional. Congress consists of two houses: the Senate and the House of Representatives, and can override a Presidential veto with a 2/3 vote in both houses.

The Checks and Balances System also provides the branches with some power to appoint or remove members from the other branches. Congress can impeach and convict the president for high crimes, like treason or bribery. The House of Representatives has the power to bring impeachment charges against the President; the Senate has the power to convict and remove the President from office. In addition, Supreme Court candidates are appointed by the President and are confirmed by the Senate. Judges can be removed from office by impeachment in the House of Representatives and conviction in the Senate. In this way, the system provides a measure, in addition to invalidating laws, for each branch to check the others.

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The term " Separation of Powers" was coined by the 18th century philosopher Montesquieu. Separation of powers is a model that divides the government into separate branches, each of which has separate and independent powers. By having multiple branches of government, this system helps to ensure that no one branch is more powerful than another.

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Nguyên tắc phân quyền trong tổ chức và hoạt động của bộ máy nhà nước tư sản

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Nguyên tắc phân quyền trong tổ chức và hoạt động của bộ máy nhà nước tư sản. Sự vận dụng nguyên tắc phân quyền trong tổ chức và hoạt động của bộ máy nhà nước ở một số nước tư sản điển hình.

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Học thuyết phân quyền ( Separations of Power )

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Học thuyết phân quyền ( Separations of Power )

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Nội dung cơ bản của thuyết phân quyền:
Nội dung cơ bản của thuyết phân quyền được thể hiện qua những đặc điểm sau:
Một là, quyền lực nhà nước được cấu thành bởi các bộ phận khác nhau là: quyền lập pháp, quyền hành pháp và quyền tư pháp.
Hai là, các loại quyền lực nói trên không được tập trung vào tay một cá nhân hoặc một cơ quan nhà nước, mà phải được chia ra cho các cơ quan khác nhau thực hiện, nắm giữ: quyền lập pháp thuộc về cơ quan dân cử; quyền hành pháp do cá nhân đứng đầu chịu trách nhiệm nắm giữ; quyền tư pháp thuộc về một cơ quan có sự độc lập cao so với hai cơ quan còn lại để đảm bảo chức năng bảo vệ công lý.
Ba là, giữa các cơ quan nhà nước, trong quá trình thực hiện quyền lực, chúng có thể kiểm soát, kiềm chế lẫn nhau, để không cho bất kỳ cơ quan nào có thể lạm dụng quyền lực. Đó là cơ chế “quyền lực ngăn cản quyền lực” hoặc cơ chế “kiềm chế - đối trọng”.
Như vậy, có thể hiểu rằng phân quyền không những sẽ làm tăng thêm hiệu quả của mỗi nhánh quyền lực trong việc thực hiện những chức năng được giao, mà còn ngăn cản, kiềm chế không để một cơ quan riêng biệt nào tập trung quyền lực quá mức, dẫn đến lạm dụng quyền hành trong khi thi hành công vụ.

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Thuyết phân quyền trong nguyên tắc tổ chức, hoạt động của Bộ máy nhà nước Việt Nam theo Hiến pháp 1946

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Trong hệ thống tư tưởng của nhân loại về Nhà nước, Thuyết phân quyền được coi là một học thuyết dân chủ, tiến bộ bởi sự phân chia quyền lực được nêu ra trong học thuyết này chính là phương thức hữu hiệu để hạn chế quyền lực nhà nước, chống lại nguy cơ tha hoá quyền lực và bảo vệ nhân quyền. Do đó, p…

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Quyền lực nhà nước thống nhất, nhưng có sự phân công, phối hợp và kiểm soát giữa 3 quyền: lập pháp, hành pháp và tư pháp

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Quyền lực nhà nước thống nhất, nhưng có sự phân công, phối hợp và kiểm soát giữa 3 quyền: lập pháp, hành pháp và tư pháp

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- Việc thực hiện tốt các chức năng lập pháp, hành pháp và tư pháp đã tạo nên sự thống nhất quyền lực nhà nước. Sự thống nhất này nằm ngay trong sự phân quyền giữa lập pháp, hành pháp và tư pháp theo quy định của Hiến pháp.

2. Vận dụng thuyết phân quyền trong nguyên tắc tổ chức và hoạt động  Bộ máy nhà nước Việt Nam theo Hiến pháp 1946

- Hiến pháp 1946 đã áp dụng những nguyên lý cơ bản của thuyết phân quyền ở khía cạnh kỹ thuật tổ chức thực hiện quyền lực nhà nước. Điều đó được thể hiện tại Điều 22 Hiến pháp 1946: “Nghị viện nhân dân là cơ quan có quyền cao nhất của nước Việt Nam Dân chủ Cộng hòa”; Điều 43: “Cơ quan hành chính cao nhất của toàn quốc là Chính phủ Việt Nam Dân chủ Cộng hòa”;  Điều 63: “Cơ quan tư pháp của nước Việt Nam Dân chủ Cộng hòa gồm có: Tòa án tối cao, các toà án phúc thẩm, các tòa án đệ nhị cấp và sơ cấp”.

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1/ Sự cần thiết của Check and Balance:
- Quyền lực nhà nước bao giờ cũng được giao cho một nhóm người nắm giữ, nên rất dễ bị các cá nhân thao túng, lạm dụng.
- Quyền lực nhà nước là ý chí chung của xã hội nhưng lại được giao cho một số ít người với những khả năng hữu hạn khi thực thi.
- Nhà nước là chủ thể giữ độc quyền cưỡng chế hợp pháp.
- Quyền lực nhà nước là quyền lực được người dân ủy nhiệm.
2/ Các cơ chế kiểm soát quyền lực nhà nước trên thế giới
- Sự kiểm soát giữa các cơ quan trong bộ máy nhà nước
- Sự kiểm soát của xã hội
3/ Cơ chế kiểm soát quyền lực nhà nước ở Việt Nam hiện nay
Ở Việt Nam, xét về bản chất, quyền lực nhà nước là thống nhất, có sự phân công, phối hợp, kiểm soát giữa các cơ quan nhà nước trong việc thực hiện các quyền lập pháp, hành pháp và tư pháp. Việc thiết lập cơ chế kiểm soát lẫn nhau giữa các cơ quan quyền lực nhà nước là cần thiết, nhằm ngăn chặn khả năng lạm quyền, bảo đảm quyền lực nhà nước được sử dụng đúng mục đích.