Regulations on tasks of Border Guard should not overlap with Customs

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The Customs Law stipulates that Vietnam Customs is responsible for inspection and supervision of goods and means of transport. In the photo: Ta Lung International Border Gate. Photo: T.B

Unspecific regulations in the fifth draft

According to the General Department of Vietnam Customs (GDVC), the fifth draft of Vietnam Border Guard Law does not specify the subjects of inspection and supervision by the Border Guard. Is the Border Guard responsible for immigration control for “people” or “people” and “means of transport”?

Besides, the provisions on duties of the Border Guard force in the draft law overlaps with the functions and tasks of the Customs authority stipulated in the Customs Law.

Specifically, Clause 4 Article 14 of the draft law stipulates the duties of the Border Guard “immigration control at border gates managed by the Ministry of National Defence in accordance with the law” and Clause 3, Article 15 of the draft law stipulates powers of the Border Guard “Applying methods … to inspect, supervise and handle vehicles when there are signs of law violations in border areas and border gates according to the provisions of law”.

However, per the Customs law, in the areas of customs operations, the Customs authority is responsible for the inspection, supervision and control of means of transport on entry, exit, in transit and import-export goods.

The GDVC said Article 1, Article 2, Article 12, Article 35 and Article 88 of the Customs law stipulate Customs is responsible for State management for import-export goods, means of transport on entry, exit and in transit.

For areas of customs operations, Article 7 of the Customs law stipulates in the areas of customs operations, Customs shall take responsibility to inspect, supervise and control goods and means of transport and handle violations of laws on customs.

The scope of areas is specified in Decree 01/2015/ND-CP (amended and supplemented in Decree No.12/2018/ND-CP).

For Customs procedures, customs inspection and supervision for goods and means of transport, Article 16 of the Customs law provides goods and means of transport shall be placed under customs procedures, and be subject to customs inspection and supervision.

The GDVC said the regulation that two authorities perform the same task does not meet the requirements of the Party and the State in Resolution No.18-NQ/TW dated October 25, 2017 of the Politburo on continuing to reform the apparatus of the political system in a streamlined, effective and efficient manner.

Notably, the resolution emphasises the solution “Reviewing, supplementing and perfecting the functions, tasks, powers and working relationships among organisations in the political system, overcoming the situation of overlapping so that in an organisation, a person can take responsibility on many tasks, but one task is led and taken responsibility by only one organisation and one person”.

Along with that in Government Resolution 19-2017/NQ-CP dated February 6, 2017 regulating implementation of solutions and tasks to enhance national competitiveness and improve the business environment, the Government directs the Ministry of Defence to “abolish regulations that the Border Guard shall inspect and supervise dossiers and imported goods in Article 12 of Circular 9/2016/TT-BQP, ensuring compliance the Customs law; and to study and propose the amendment of Article 9 of the Border Guard Ordinance. "

Avoid Border Guard also performing import-export procedures

In addition to these provisions, the GDVC continues to analyse irrationalities of the draft Vietnam Border Law in management practice. Accordingly, for import and export activities, goods are transported on vehicles, so, vehicles and goods must go through customs procedures and customs inspection, supervision and control.

“The draft law does not specify subjects of inspection and supervision by the Border Guard, when performing tasks; it will lead to two authorities performing the same task (carrying out procedures for a mean of transport). This will increase administrative procedures and prolong customs clearance, causing troubles for businesses, increasing costs and be inconsistent with directions of the Politburo and the Government on apparatus and administrative procedure reform,” the GDVC’s dispatch said.

Notably, the Ministry of Defence had to abolish regulations on inspection for import and export goods in Circular No.09/2016/TT-BQP under direction of the Government in Resolution No. 19-2017/NQ-CP dated February 6, 2017.

Besides, under provisions in the draft, if smuggling and trade fraud happen, the responsibility of lead agencies and units before the Government and the State cannot be determined.

The GDVC proposes amending and supplementing the draft Vietnam Border Guard Law as follows:

Clause 4, Article 14 of the draft Law should be amended as "controlling people on exit and entry at border gates under the management of the Ministry of Defence according to provisions of law; controlling means of entry and exit in the border areas outside the areas of customs operation according to the provisions of law”.

Clause 3, Article 15 of the Draft Law that stipulate the powers of the Border Guard on "inspection, control and handling of vehicles with signs of law violations in border areas outside customs areas" or this regulation should be abolished because Clause 2, Article 15, defines the powers of the Border Guard on "Patrol, inspection, control, management and protection of the national border, detection, fight, prevention and handling of violations of laws at the border and border gates; fight in defence areas” to avoid confusion and overlaps with the powers of Customs.