Drafting Vietnam Border Law – Many points are not appropriate with international commitments

Customs authority detected and seized more than 9 tonnes of ivory at Tien Sa port – Da Nang (on March 27, 2019)

According to reports published on November 6, General Department of Vietnam Customs continued to send Document 7139/TCHQ-ĐTCBL to Chairman of the National Assembly of Vietnam Nguyen Thi Kim Ngan; Vice Chairman of the National Assembly Do Ba Ty; Chairman of the Committee for National Defence and Security Vo Trong Viet; the committee: National Defence and Security; Law; justice for a petition on the draft of Vietnam Border Law.

In the document, the General Department of Vietnam Customs pointed out many inconsistencies of the draft of the Vietnam Border Law with international commitments that Vietnam has signed, as well as current domestic laws.

Regarding the draft content inconsistent with the commitments in international treaties to which Vietnam has signed and acceded to, according to the General Department of Vietnam Customs, the standard 6.1, Chapter 6 of the International Convention on Simplification and Harmonisation Customs Procedures 1999 stipulates that “All goods, including vehicles, enter or leave the territory of Customs, regardless of whether they are subject to customs duties and other taxes or not, are subject to Customs inspection”.

Appendix 8 of the agreement between the governments of Cambodia, China, Laos, Myanmar, Thailand and Vietnam on facilitating transportation of goods and people across borders stated that: “When the vehicle is temporarily imported to the host country, they must submit documents of temporary import of vehicles to the customs authority to carry out the procedures for vehicle inspection and supervision, it is not mentioned about the competence of the Border Guard".

For all countries, the Customs is the authority performing the inspection, supervision and control of vehicles, baggage of people on entry and exit, import and export goods.

The draft's provisions are also inconsistent with the policies of the Party, the State, and the Government on trade facilitation and reform, organisational structure of the political system.

In Resolution No. 18-NQ/TW of the Politburo dated October 25, 2017 on continuing to innovate and arrange the organisational apparatus of a streamlined political system, operating effectively and productivity, emphasised the solution of “reviewing, supplementing and completing functions, tasks, powers, working relationships among organisations in the political system, overcoming the overlapping situation for an organisation and individual can take on many things, but one thing is chaired by only one organisation, one person chairs and takes main responsibility”.

Besides that, according to Article 1, Article 2, Article 7, Article 12, Article 35 and Article 88 of the Law on Customs in the customs operation areas, the customs authority is assigned the task of inspecting and supervising goods, means of transport; implementing of tax laws applicable to import and export goods; chairing to perform the task of preventing and combating smuggling and illegal transport of goods across border.

Within areas of customs operation, the customs authority is assigned by the Customs Law to take main responsibility, lead in handling acts of smuggling, illegal transport of goods across border, other authorities detect smuggling and illegally transporting goods across the border within the customs operation areas must immediately notify customs authority for inspection and handling.

"The provisions of the Customs Law were consistent with international treaties and international practices," stressed the General Department of Vietnam Customs.

Notably, provisions in the draft of Vietnam Border Law also did not facilitate cross-border import and export activities, leading to arising administrative procedures, prolonging clearance time and causing troubles for businesses, arising additional costs (because customs has completed customs procedure, collected fees and taxes and the border guard carried out the procedure and check again). Additionally, it would arise a case that customs authority allowed to clear goods for import and export, and vehicles for entry or exit but the border guard has not checked, so it would not allow to clear.

This is not consistent with international practices, the direction of the Politburo or the Government on the reform of apparatus and administrative procedures, and support for import-export enterprises (Resolution No. 19-2017/NQ- CP dated February 6, 2017 of the Government stipulating the implementation of solutions and tasks to enhance the national competitiveness and improve the business environment).

In fact, the Ministry of Defence had to abolish regulations on import and export inspection when promulgating Circular No. 09/2016/TT-BQP detailing and guiding the implementation of articles of Decree No. 112/2014/ND-CP dated Novemeber 21, 2014 regulating the management of the land border gate and the Government issued Resolution No. 19-2017/NQ-CP dated February 6, 2017 directing the Ministry of National Defence to research for amending Article 9 of the Ordinance on Border Guard on competence to inspect and control vehicles.

To ensure compliance with international treaties, international practices, customs laws; ensure consistency and transparency in the law; ensure assignment, not overlapping in the organisation and operation; matching with the orientation of reforming apparatus and administrative procedures set by the Party, State and Government, the General Department of Vietnam Customs proposed amending the above provisions as follows:

In Clause 5, Article 14 of the draft laws stipulated that, “Immigration control at border gates managed by the Ministry of National Defence” is changed to “Control of people entering and leaving coutry at border gates is under the management and control of the Ministry of National Defence in accordance with the law”.

The General Department of Customs analysed that Clause 6, Article 2 of the Law on exit and entry of Vietnamese citizens in 2019 stipulated that: “Immigration control is the inspection, supervision and verification of people and immigration documents in accordance with the provisions of this Law”. At the same time, Clause 6 Article 3 of the 2014 Law on entry, exit, transit and residence of foreigners in Vietnam stipulated that: “the unit control immigration is a specialised unit in charge of controlling foreigners' entry, exit and transit at border gates”.

It can be seen that immigration control only applies to "people".

Regarding Clause 2, Article 15 of the draft law, stipulating on "inspection, control and handling of vehicles when having signs of law violation in border areas and border gates in accordance with provisions of law", the General Department of Vietnam Customs proposed to changed to "Checking, controlling and handling vehicles when having signs of a security violation in border areas or border gates in accordance with the provisions of law". Removing the word "border gate" to avoid overlapping with functions and duties of the customs authority (because according to Customs Law 2014, the border gate area belongs to ​​customs operation area) while ensuring duties and powers of the Border Guard in the border area.