(QLNN) – According to Article 112, the 2013 Constitution, local government shall organize and ensure implementation of the Constitution and law in their localities; submit to the examination and supervision by state agencies at higher levels. This provision of the Constitution provides a legal basis to specify the power and duties of the central government and the local government at all levels as well as to clearly define the conditions to ensure the implementation.
Decentralization of functions from the Government to the local government at present
Decentralization of functions from the Government to the Provincial People’s Committees (PPC) is one of the main issues of state organization.
In the 1992 Constitution, the chapter on local government includes eight articles and not clearly defined functions decentralized to localities. But in fact, the Government has increasingly promoted “administrative decentralization”, giving more functions to localities, especially the provincial authorities. While general and fundamental issues of function division and coordination in governance have been inherited, a number of new issues have been introduced to clarify the responsibilities of the highest state administrative body and the head.
The power division between central and local authorities and between local levels in each field is determined in the 2003 Law on Organization of People’s Councils and People’s Committees and in specialized laws (laws on land, budget, education …).
The Government has approved the master program of administrative reform (Decision No. 136/2001/QD-TTg dated September 17, 2001) which mentioned the organizational structure reform of the local government and identified the following reform tasks: clear and reasonable division of functions between central and local levels; identification of functions and duties of urban and rural governments; adequate organization of People’s Councils and People’s Committees. The Government’s Resolution No. 08/2004/NQ-CP dated June 30, 2004 on accelerating the administrative decentralization and function division between the Government and the provincial and centrally-run city governments has prioritized the areas of functions to be decentralized, including: planning management, planning and development investment; state budget management; land, resources and asset management; state enterprise management; managing public service delivery management; organizational structure and public official management.
Implementing Resolution No. 08/2004/NQ-CP, 22 ministries and ministerial-level agencies developed projects for administrative decentralization in various fields and sectors and proposed recommendations on amendment of laws, ordinances and government decrees to overcome the overlapping of duties, powers and to carry out decentralization and function division of about 300 types of activities. A series of government decrees on the provincial People’s Committee functions in planning management and planning; investment and construction management; ODA management; land and mineral resources management; management of payroll of public non-business units, management of management boards of industrial parks, export processing zones, economic zones, hi-tech parks, education and training, science and technology, transportation, environment, culture, information.
Definition of urban governance and rural governance, specific regulations on certain special cities have been institutionalized to a certain extent in the amended Law on Organization of People’s Councils and People’s Committees, the Ordinance on the Capital, and Decree No. 93/2001/ND-CP dated December 12, 2001 on transferring certain functions to Ho Chi Minh City.
Based on consideration of performance capacity of special cities, especially Ho Chi Minh City, the Government gave the City People’s Committees more autonomy in managing planning, plans, investment in socio-economic development, housing and urban infrastructure, budget, organizational structure and public officials.
Article 112, the 2013 Constitution states the local government shall organize and ensure implementation of the Constitution and law in their localities; decide on local issues prescribed by laws; and submit to the examination and supervision by state bodies at higher levels; the tasks and powers of local administrations shall be determined on the basis of determining the powers between state bodies at the central and local levels and for each level of local government; local government may, as necessary, be assigned certain tasks of state bodies at higher levels, along with the necessary means to ensure the performance of those tasks.
Article 13, the 2015 Law on Organization of the Local governments prescribes the administrative decentralization for the local governments. Based on working requirements, performance capacity, conditions for performance, and specific situations of localities, centrally and locally-based authorities shall be entitled to transfer one or several functions within their competence to local governments or inferior-level authorities to be carried out in a continuous and regular manner, unless otherwise prescribed by laws.
Decentralization must be prescribed in legal normative documents issued by the decentralizing state organs which should specify duties and powers decentralized to local governments or inferior-level state organs, and responsibilities of decentralizing and decentralized state organs. Decentralization must also be based on conditions, potentials, and capacity of individual localities, areas, regions, and at the same time avoid the risk of development imbalance.
Superior-level state organs, when decentralizing duties and powers to local governments or inferior-level state organs, must ensure necessary resources and conditions to be provided to perform these decentralized duties, and inspect and provide guidance on implementation of decentralized duties and powers as well as bear responsibility for the result of this implementation. Based on actual conditions of each locality, after getting functions transferred by the superior, the state organs shall be entitled to re-decentralize duties and powers to local governments or inferior-level state organs but must obtain consent from the superior.
The Government promulgated Resolution 21/NQ-CP dated March 21, 2016 on function division between the Government and People’s Committees of provinces and centrally-run cities, applying the principles of ensuring the unified management by the Government while promoting the initiative and responsibility of the provincial-level governments in performing state management tasks and serving the people, abiding by the principle of close combination of sector-based governance and territory-based governance; clearly determining state management tasks of the Government, the Prime Minister, ministries, agencies, and provincial-level governments. Decentralization must be accompanied by clear definition of tasks, competence and responsibilities associated with functions, tasks of each level, ensuring increased publicity, transparency and accountability;
Decentralization must conform with the level of socio-economic development of each locality in each period, the particularities of each sector or field, and the development conditions and potentials of each region, territorial area, and the type of rural or urban area. It must also conform with the governance capacity of each level, conditions and necessary resources for implementation, ensuring the synchronicity and consistency of legal normative documents on management of sectors and fields. Ministries and central agencies are required to enhance responsibilities for monitoring, guiding, examining and inspecting the decentralization implementation and handling of cases of improper implementation. Administrative discipline and rules shall be uphold while promoting democracy for people’s wider participation in public governance.
Decentralization is prioritized in the following areas: state budget management; exercise of rights and performance of obligations of the state owner toward state enterprises and state capital invested in enterprises; investment management (for investment financed by the state budget and government bonds); management of official duties, cadres, civil servants and public employees; land administration.
The Government Resolution sets out the following solutions: improving the system of legislative documents on sectors; speeding up application of information technology to official duties, state management and provision of public services; intensifying inspection, examination, control, supervision of decentralization and implementing necessary coordination by the Government, ministries and agencies after decentralization. It is necessary to review functions of all state agencies at both central and local level to ensure a task shall be performed by and fall under responsibility of a single agency in accordance with the decentralized functions.
In addition, it is necessary to reasonably cutting down licenses and simplify administrative procedures of licensing; regularly review, supervise and assess the regulations on business investment conditions; strictly handle the cases when the regulations on business conditions were drafted or promulgated beyond the given jurisdiction; review and cut down administrative procedures and modify the inappropriate workflow of services to be provided to people and enterprises.
Implementation of Resolution 21/NQ-CP
After more than 3 years of implementing Resolution No. 21/NQ-CP, the function division between the Government, ministries, ministerial-level agencies, and local governments has been improved, enhancing effectiveness of state management of sectors and areas, enabling the local governments to be more proactive in performing their local socio-economic development tasks.
Some ministries and agencies have promoted decentralization: The Ministry of Home Affairs has decentralized the functions of recruitment of civil servants and public employees, upgrading civil servants and public employees to the higher ranks, signing labor contract for certain types of work in state administrative agencies and public non-business units, streamlining, managing pay-rolled civil servants, the number of people working in public non-business units, commune fully-employed officials and part-time officials.
In addition to the function areas prioritized for decentralization, ministries and ministerial-level agencies have been proactive in reviewing and proposing the functions to be decentralized. After reviewing, the Ministry of Industry and Trade proposed for approval on transferring the settlement of 143 administrative procedures (127 procedures to be settled at the provincial level; 16 procedures at the district level) and other functions such as specialized inspection and examination, formulation of plans and strategies for sector, region development, and so on to local authorities.
However, according to the reports by localities, especially by those which are applying some specific mechanisms and policies and those which balance their local budget, the recent regulations on decentralization have had some limitations, namely:
Firstly, mass decentralization, regardless of the natural and socio-economic conditions of individual localities and the implementation of a single mechanism and policy in decentralization.
Secondly, incomplete decentralization (such as transferring power in making investment decisions to localities but the power in making decision on generating revenues for local investment not properly decentralized. As a result, the authority of investment decision-making is expanded but there is no financial resource to implement investment. Those localities which can balance their local budget but are not allowed to transfer allocations between levels of budget under their jurisdiction, which have restricted the socio-economic development of the locality.
Thirdly, the poor coordination among localities has not harmonized the relations in regional development (some localities identified as the key actor of the region are granted preferable treatment and policies to drive the regional development; however, these localities have not properly carried out their driving role, rather pursued their own interests; exists competition instead of coordination and cooperation among localities in attracting investment in the region.
Fourthly, the inspection and supervision mechanism is not specifically defined and the sanctions have not been strict enough. The number of professional supervisors is limited. In particular, the function transferring is not accompanied with power transferring; the superior authorities have still maintained their control through giving opinions, granting approval and permission; regulations on standards, specifications, norms … have not been timely amended and supplemented to conform with reality.
Fifthly, the slow paced, weak decentralization and a lack of resources to ensure the task performance. Decentralization of certain areas has not been implemented timely despite the issuance of regulations. There are some cases in which local authorities are capable to perform but not entitled to do.
Sixthly, there exist localism and competition among localities.
Seventhly, many localities trying to transfer back functions to the Government and the Prime Minister. There are many reasons of this “transferring back” functions. The most critical reason is a lack of clear, distinct division of authority between levels of government. Some duties and powers of provincial, district and commune authorities have not been clearly defined; some tasks are performed at all three levels (provincial, district and commune) while there is no distinction of authority and responsibilities of each level.
Recommendations to promote decentralization of functions from the Government to the Provincial People’s Committee
Firstly, the Government should early formulate and promulgate regulations on decentralization in sectors and fields; clarify views and principles of decentralization, areas to be prioritized for administrative decentralization; promote decentralization, transferring functions to local governments in conformity with urban and rural characteristics, governance requirements for sectors and fields, and the ability to balance the budget; clearly define the actors decentralizing, contents and scope of decentralization, the actors to be decentralized and their decentralized powers and responsibilities, ensuring a task to be governed by no more than two administrative levels; enhance the publicity, transparency and accountability of the decentralized state agencies.
Local government should be transferred the decision making concerning the payroll and job positions of civil servants and public employees. The provincial People’s Committees should be given more authority in considering and receiving without examinations for special cases in recruiting civil servants in accordance with the 2018 Law on Cadres and Civil Servants; the decision making concerning salary increase ahead of time of the senior civil servants without consultation with the Ministry of Home Affairs. The provincial People’s Committees should be also allowed to organize civil service rank promotion examinations including examination to the technical personnel, civil servant, principal civil servant, senior civil servant ranks without appraisal and approval by the Ministry of Home Affairs.
There should be more decentralization in public investment management including project adjustment, approval of investment guideline, investment decisions which should be associated with responsibilities of each administrative level in order to improve the effectiveness of management of state capital use for the entire investment process, adjustment of medium and annual investment plans. Regarding the public finance management, the provincial People’s Councils should be given the power to make decisions on fees and charges which have been not covered in the legislation. More decentralization should be in the health care sector, natural resources and environment, industry and trade; plan and investment to create favorable conditions for localities to promote their potentials and advantages in socio-economic development, contributing to the national development.
Secondly, define the standard norms of each sector, promoting the principle of state management by sector and territory. Decentralization is not carried out in certain sectors, including defense – security, religion.
Thirdly, in decentralization, it is necessary to promote the dynamism, creativity of local authorities and improve the effectiveness of state management which is a prerequisite for building an enabling state administrative apparatus. In addition, it is a must to ensure the central bodies’ unified management of institutions, policies, strategies, planning, plans, and the socio-economic development of the whole country.
Fourthly, in the decentralization process, it is crucial to takes into account the specific characteristics of each locality including urban, rural, mountainous areas, islands, and those localities that can balance their budget.
Fifthly, decentralization is based on the principle of subsidiarity that the function should be transferred to the administrative level most capable to perform it. For better decentralization, it is imperative to ensure condition for decentralization, clearly define the control mechanism, divide responsibilities and powers between the decentralizing and the decentralized agency.
Assoc.Prof.Dr. Tran Thi Dieu Oanh
National Academy of Public Administration
