De-jure JI in Vietnam

The 1992 Constitution guarantees JI in Vietnam

If the court system is anchored in the constitution, argue Feld and Voigt (2003) that is a positive indicator for the de jure JI. If the constitution does not have general provisions stipulating for the organization and the operation of the courts, they may be easier to be stripped of jurisdiction; their basic structure and organization more likely to be altered; or they may even be destroyed by external forces. These pressures obviously may affect individual judges’ activities. In Vietnam, the 1992 Constitution has one chapter (Chapter 10) providing for the organization and operation of judicial organs, including the court system.

The Constitution also states that final decisions of the courts must be respected by all state organs, institutions, organizations and citizens, and seriously implemented by concerned parties (Article 136).

Additionally, the principle of independence of judges and assessors during a trial is also provided for in constitution. The 1992 constitution provides that “during a trial, the judges and assessors are independent and shall only obey the laws” (Article 130). This principle is also reaffirmed in the OJPA 2002 (Article 4). Article 38 of the Law on Organization of the People’s Courts (2002) provides that “interference with the work of judges and people assessors is strictly forbidden”. However, according to Sugiura Maski - a Japanese judge, these provisions can be understood that judges are independent only when they attend a trial.

Rather, judges should be independent in all their works before and after the hearing. In recent years, as mentioned above, the most important policy document of the CPV regarding judicial reform - the Resolution No. 8 (section II, B, 1) provides for more autonomy of the People courts system. Currently the Supreme People’ Court (hereafter SPC) has a higher degree of influence on administration of the court system. For example, the Supreme Court is vested more power in the activities concerning budget preparation for the whole judicial system, recruitment of court officials, appointment of judges and provisions of training for court staffs, etc.

Appointment procedure of judges

According to Feld and Voigt (2003), the appointment procedure of judges plays a very

by professionals (other judges or jurists). The least independent method is appointment by one powerful politician. In a study of the Asian Development Bank (ADB) regarding JI in 2003, the ADB remarks that countries with career judiciaries specifically, with the selection, appointment, and promotion of judges from within a judicial career system or civil service tend to promote the institutional independence of courts (p. 15). They have also found that most countries in South and Southeast Asia employ some form of career judiciary or mixed career and non-career mechanisms for judicial selection and appointment. However, in Cambodia, Lao PDR, and Viet Nam, the executive, legislature and political parties determine the selection, appointment, and promotion of judges. In these countries, the legal training, standards, and qualifications of judges tend to be lower than in countries with career judicial systems.

In Vietnam, with the judicial reform, the judiciary is also increasingly more independent of the executive in terms of appointment procedure. Before the reform, the system of appointing judges and lay assessors contributed to executive control over the judiciary. Based on the recommendations of a selection committee, the State President directly appoints the judges at all court levels. The recent judicial reform transfers the administration of the local courts from the Ministry of Justice to the Supreme Court. The Supreme Court therefore has a higher degree of influence on appointment of judges at all court levels. This is an initial step towards the enhancement of judicial autonomy. The table below shows how the reform provided for in the 1992 Constitution (revised in 2001) and Law on Organization of People’s Court (LOPC) in 1993 and 2002 change the procedure of judges’ appointment.

Table 6.1: Judicial reform concerning judges appointment procedures

Before 2002 Since 2002

Chief Justice of the SPC to be appointed, removed, dismissed by the National Assembly on the advice of the President (Constitution 1992, Art. 103; LOPC 1993 Art. 38).

President, on the advice of relevant especially constituted Judicial Selection Committee, appoint, remove or dismiss all other judges (LOPC 1993 Art. 38)

Chief Justice of the SPC to be elected, removed, dismissed by the National Assembly on the advice of the President (Constitution 1992 revised in 2001 Art.103; LOPC 2002, Art. 40).

Judicial Selection Committee coordinates with the SPC Chief Justice recommend to the President to appoint, remove or dismiss SPC judges

[Constitution 1992 revised in 2001, Art. 103; OJPA Art. 26]

SPC Chief Justice acting on the advice of the relevant especially constituted Judicial Selection Committee to appoint, remove or dismiss

provincial and district judges (LOPC 2002 Art. 25;

OJPA 2002 Art. 27)

SPC Chief Justice to appoint, remove or dismiss chief justices and deputy-chief justices of provinces and districts after receiving agreement from the Standing Committee of the relevant Local People’s Council (LOPC 2002, Arts. 25 and 40)

According to the 1992 Constitution, the President presents a nomination (from among National Assembly members) for a position of the Chief justice of the Supreme People's Court to the NAV for approval. Then judges of the Supreme People’s Court are appointed by the President from among a list originally prepared by the Chief Justice of Supreme Court and the especially constituted Judicial Selection Committee which consists of representations from the Ministry of Home Affairs, the Viet Nam Central Father Front, and the Viet Nam Lawyers Association. Twice a year, the Chief Justice presents his reports on judicial tasks recently carried out by the judiciary before the National Assembly, and answers questions

raised by the NAV members concerning general judicial matters or particular cases. The Chief justices of local courts do the same before the local People’s Councils.

According to Article 37 of the LOPC 2002, the criteria of judicial candidates include: (i) to be a holder of Vietnamese citizenship; (ii) to be loyal to the Fatherland and the Constitution; (iii) to have good qualifications and ethics, integrity and faithfulness, a strong sense of protection of the socialist rule of law; (iv) to have a Bachelor of Law degree and Certificate of Training in Professional Adjudication, and practical experience in accordance with provisions of laws and capacity to perform judicial works; and (v) to have good health so that the candidate can accomplish assigned tasks. Judges at the local level (province and district people’s courts) are appointed by the Chief Justice of the Supreme Court from a list prepared by a Chief justice of the Court of the Province and the local judicial selection committee, headed by the Chairman or Vice Chairman of the Provincial People’s Council with the participation of the Chief justice of the Provincial Court and representatives from a local Lawyers Association and Father Front at the provincial level.

Although the current appointment procedure is aimed at ensuring independence of judiciary from the executive, it may vest a great deal of control in the chief justice and judicial commission, which in turn may constrain the independence of individual judges. According to Luu Tien Dung (2003), with the current appointment procedure, the role of the Chief justice is very considerable. The nomination system thus depends on the will of court’s leadership and possibly on personal relationships between judges, clerks and their leaders. It is also possible that Chief justices and higher court judges may abuse their power to influence the outcome of individual cases tried in lower courts. Furthermore, some international observers (e.g. ADB project 2003, Huifeldt 2002) suggest that the short terms of appointment for judges and lay assessors and the strong representation of provincial officials on their judicial selection commission frequently made judges and lay assessors subject to political pressures.

Unfavourable Judicial tenure

The tenure of judges and mechanisms of removal are important for securing judicial independence. There will be the most JI if judges are assured of life-time tenure. The independence of judges will be less if their term is renewable due to judge’s incentive to please those who can reappoint them (Feld and Voigt 2003). In Vietnam, the term of judges at all levels, including Deputy Chief justices and Judges of the Supreme People’s Court, and Chief justices, Deputy Chief justices and judges of the local courts, is five years and can be

renewable. The tenure of the Chief Justice of the Supreme People’s Court depends on the term of the National Assembly (The 1992 Constitution, Article 128). In my judgment, the judicial tenure of 5 years is too short for assuring JI. The possible consequence is that instead of making impartial judgment according to the laws, judges will try to maintain good relations with local bodies so as to be reappointed.

As stipulated in the current laws of Vietnam (Article 29 and 30 of OJPA 2002), judges can be removed in several ways as follows:

(i) Judges will be automatically released from duty when they retire

(ii) Judges can be released from duty because of the reasons of health, family situation or other reasons which cause judges not to fulfil their duties.

(iii) Judges can be dismissed if they have wrongful acts violating the laws or moral virtue.

In my judgment, the regulation that “judges can be removed due to other reasons which cause judges not to fulfil their duties” can be seen as a “hidden sanction” which threatens JI. In addition, as indicated by Luu Tien Dung (2003), there are three shortcomings of OJPA 2002 that influence negatively JI. First, the grounds for dismissal seem vague to some extent, for example, how is “a wrongful act” defined? Second, there is no provision allowing a removed judge to appeal. And third, there is no transparent procedure to determine justifications for removal within the judiciary before the matter is sent to a disciplinary committee for decision (p. 36).

Inadequate Judge’s remuneration

In order to have impartial and independent judgments, judge’s remuneration must be adequate and competitive. If salaries are not adequate in comparison with other jobs, there will be a problem with the quality of the judges because no well-skilled person wants to be a judge. As a result, the status of courts and judges is low or diminished and lacking in prestige. In turn, the rule of law is not held in high public regard. In Vietnam, although judges enjoy higher salaries than other public servants, this does not mean that judges are adequately paid. In fact, judges are still underpaid. The judicial salaries range from US$40 per month for a district judge to US$100 per month for a judges at Supreme Court (Luu Tien Dung 2003). The ADB report on JI (2003) also shows that in some countries, like those in Cambodia, Lao PDR, and

Viet Nam, remuneration is so low that judges often work second jobs in order to support their families. Lower court judges’ salaries in most of the countries participating in this study fail to meet the minimally respectable standard of living.

Before 2002, the judicial budget at central and local levels in Vietnam was a part of the administrative budget proposed by government at the respective levels. Therefore, all benefits for judges, ranging from salary to the houses/apartments were subsidized by the executive.

This leads to less JI because if members of one of the other government branches enjoy discretion in determining the judges’ salaries, this raises incentives to take the preferences of these members explicitly into account. In 2002, the government transferred administrative authority over local courts including budget issues from the Ministry of Justice to the Supreme People’s Court, in an effort to increase judicial independence. The SPC, however, should also cooperate with local people’s councils for the management of local people’s courts (LOPC 2002, Article 17)

Lack of Constitutional review

As mentioned in the previous chapter, there is no constitutional court and constitutional review mechanism in Vietnam. The Supreme Peoples’ court is not granted the powers to interpret the constitution. The 1992 constitution gives the Standing Committee of the National Assembly the mandate to interpret constitution and laws. Therefore, what the court can do is to “apply the laws without interpretation of how the law should be understood” (Luu Tien Dung 2003, p.31). More importantly, the legislation made by the NAV cannot be nullified if they are not in accordance with the constitution.

In recent years, the leaders of Vietnam have been particularly interested in establishing a constitutional review mechanism. The judicial reform strategy 2006 – 2020 mentions the possibility of establishing a constitutional court in Vietnam. However, as pointed out by Mr.

Tran Duc Luong, the state president of Vietnam, the strategy is long-term (during 15 years), thus does not clearly define the competence of constitutional court. The establishment of a constitutional court needs to be considered carefully so as being compatible with the reality of the future of Vietnam⁴⁸.

To summarize, it is evident that by carrying out judicial reform in recent years, the degree of de jure JI in Vietnam has been improved considerably, for example: (i) the principle of JI is

48 See more detail in Labour newspapers, HoChiMinh Legal newspapers, 20^th Oct. 2004.

guaranteed in the constitution and the laws, (ii) the executive branch has less control over the judicial system, and (iii) the Supreme People’s Court has greater autonomy over appointment and dismissal of judges and people’s assessors. However, through analysing various aspects of de jure JI, it is obvious that the domestic delegation of powers to independent courts in Vietnam is still inadequate. For example, some de jure JI indicators such as the indicators regarding judge’s remuneration and constitutional review show that de jure JI in Vietnam is rather low.