New Law on Laws in Vietnam

A new Law on Laws (Law on Laws 2015) is just issued by the National Assembly in June 2015 and will take effect from July 2016. Hopefully, a few new points of the Law on Laws 2015 (discussed below) will help to improve the quality of Vietnamese law which is notoriously vague and inconsistent. In particular,

  • For the first time, the Law on Laws 2015 provides a definition of a “legal provision” (quy phạm pháp luật). In addition, the new Law prohibits the issuance of documents which are not law but contain legal provisions. Based on this express new prohibition, many official letters or instructions by Government authorities could technically be deemed invalid.
  • The Government and various Ministries within the Government are now only authorised to issue Decrees and Circulars to implement specific articles or clauses in Laws or Ordinances issued by the National Assembly or its Standing Committee and, in the case of Ministries, Decrees issued by the Government. Under the Laws on Law 2008, the Government may issue a Decree to implement a whole Law or Ordinance. The areas of law which are within the authorities of the National Assembly are vastly expanded in details. This could indirectly reduce the power to issue laws of the Government.
  • A Ministry within the Government is prohibited from issuing new “administrative procedures” (thủ tục hành chính) in its Circulars. Joint circulars issued by two or more Ministries are now not regarded as law. This restriction could substantially limit the power of Ministries to issue new restriction or new permits which are not provided by higher laws.
  • A list of prohibited practice in issuing laws (including issuing laws, which are contrary to the Constitution or higher laws) is provided. In addition, the Law on Laws 2015 also imposes clear liabilities and even penalties to the authorities or individuals who are in charge of drafting or issuing “poor quality” laws, who are late in issuing implementing regulations or who issue unauthorised implementing regulations. More specific liability or penalty may help to prevent the authorities from issuing laws, which are illogical or unrealistic.
  • The Law on Laws 2015 now also includes laws issued by local authorities and will replace the Law on Laws Issued by Local Authorities 2008.
  • An implementing regulation of a higher law will cease to be valid as and when the higher law ceases to be valid. This provision (which used to exist under the Law on Laws 1996) could help to clarify the status of many implementing regulations including many circulars of repealed Decrees or Laws.

Despite some positive changes, the Law on Laws 2015 contains some provisions which seem backwards. For example,

  • The requirement that a law must be published on the Official Gazette in order to be valid has been removed. This change technically could allow the Vietnamese Government issues unpublished laws, if necessary;
  • The provision of the Constitution could prevail international treaties entered into by Vietnam. Although the Constitution is the highest domestic law of Vietnam, under international law practices, the Constitution should still be prevailed by international treaties entered into by Vietnam in case of inconsistency. Given that the Constitution of Vietnam has a broad application, this provision may make implementing various international treaties in Vietnam more difficult; and
  • The Law on Laws 2015 fails to provide more comprehensive rules on how to interpret or apply a law. Especially, the relationship between a general law (e.g the Enterprise Law) and a “specialised law” (e.g. Law on Credit Institutions).