Specificity of the provisions in Article 4 of the Draft Law on the Capital
The draft Law on the Capital (amended) stipulates Article 4 on the application of the Law on the Capital - this is a new provision, not yet included in the 2012 Law on the Capital.
Compared with the draft submitted at the 6th Session of the 15th National Assembly, the latest Draft Law on the Capital (amended) has added 2 more clauses 3 and 4 in Article 4.
Specifically, Clause 1, Article 4 of the Draft Law on the Capital (amended) clearly stipulates the principle of priority in applying provisions of the Law on the Capital with different content compared to provisions on the same issue in other laws and resolutions of the National Assembly currently in effect.
Clause 2, Article 4 stipulates a new mechanism, which is specific and different from the general principle of law application of the Law on Promulgation of Legal Documents. Specifically, in case a law or resolution of the National Assembly issued after the effective date of the Law on the Capital City has provisions different from those of the Law on the Capital City on the same issue that needs to be applied, it must be specifically stipulated in that law or resolution.
Clause 3, Article 4 stipulates: In case a law or resolution of the National Assembly issued after the effective date of the Law on the Capital has different provisions on the same issue as the Law on the Capital and the application of such provision is more convenient for the construction, development, management and protection of the Capital but has not been specifically stipulated in that law or resolution, the Standing Committee of the National Assembly shall decide on the application at the request of the Government based on the proposal of the Hanoi People's Committee.
Clause 4, Article 4 stipulates: In case there are different provisions on the same issue between the document detailing the assigned contents or the legal document issued by the competent state agency to exercise the assigned authority in the Law on the Capital and the document of the superior state agency, the document detailing the assigned contents or the legal document shall apply to exercise the assigned authority in the Law on the Capital.
Regarding the conditions for applying the law in Article 4, I strongly agree that if the provisions of other laws are contrary to the Capital Law, the Capital Law must be applied. If in the future, when new laws are promulgated, if there are contents in those laws that require the Capital to comply, they must be specifically stated in the new law, otherwise we will still apply the Capital Law.
National Assembly Delegate Hoang Van Cuong (Hanoi Delegation)
Article 51 of the Draft Law on the Capital (amended) stipulates the responsibilities of ministries, ministerial-level agencies, and government agencies: (1) To preside over and coordinate with the Hanoi city government in developing sectoral development strategies, sectoral planning, and drafting legal documents related to the construction, development, management, and protection of the Capital; to decide on decentralization and authorization for the Hanoi city government to perform tasks and powers other than those prescribed in this Law.
(2) When drafting a Law or a draft Resolution of the National Assembly, ministries and ministerial-level agencies are responsible for reviewing and comparing it with the provisions of the Law on the Capital, specifically determining the content to be implemented according to the provisions of the Law on the Capital or the content that needs to be implemented according to that law or resolution. The agency appraising and examining the document is responsible for reviewing and commenting on this content in the project or draft.
Priority is given to applying the Capital Law in the legal system.
On March 13, 2024, the Law Committee of the National Assembly reported on a number of major issues in explaining, accepting and revising the Draft Law on the Capital (amended). Accordingly, on the principle of law application (Article 4 of the Draft Law on the Capital): Based on research and reference to the provisions of a number of laws and Resolution No. 98/2023/QH15 of the National Assembly, the draft Law has added 2 new contents in the principle of law application in the direction of:
(1) Clearly define that in cases where laws and resolutions of the National Assembly issued after the effective date of the Capital Law have provisions different from the Capital Law on the same issue and the process of implementing and applying these provisions will be more convenient for the construction, development, management and protection of the Capital, but the application is not specifically regulated in such laws and resolutions, the National Assembly Standing Committee shall decide on the application upon the Government's proposal (Clause 3).
(2) To overcome difficulties in the practical application of the 2012 Law on the Capital and a number of resolutions of the National Assembly piloting specific mechanisms and policies for a number of localities currently being implemented, the draft Law stipulates: in case there is a difference between a detailed regulation document or a document issued to exercise the authority assigned under the provisions of the Law on the Capital and a legal document of a higher-level state agency on the same issue, the detailed regulation document or legal document to exercise the authority assigned in the Law on the Capital shall apply (Clause 4).
Commenting on this provision in the Draft Law on the Capital (amended), National Assembly deputies pointed out that Hanoi is not a province or a locality but the capital of the whole country, a representative image of the whole country, a model, playing a leading role and having the power to spread to promote the development of the whole country. Hanoi must go ahead and develop beyond the general requirements of the country. Therefore, the Draft Law on the Capital (amended) needs to have truly unique and specific mechanisms and policies to create the capital's own attraction to attract resources for development.
According to the representative of the Hanoi Department of Justice, it is very necessary to have a provision regulating the application of the Capital Law (amended) in relation to other laws, including laws issued before or after the Capital Law, in order to overcome the shortcomings in the actual effectiveness and enforceability of the provisions of the Capital Law.
The representative of the Ministry of Justice also said that the Draft Law on the Capital (amended) has stipulated an article on the application of law with the view of ensuring consistency and continuity in the application of the Law on the Capital in the current legal system, both promoting the value and effectiveness of the Law on the Capital, while ensuring the principle of the effectiveness of legal documents according to the provisions of the Law on Promulgation of Legal Documents, not breaking the stability and unity of the legal system...
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