Revised 26 November 2003

Vietnamese Court Reform: Constancyand Change in the Contemporary Period

Paper presented at

Mapping Vietnam’s Legal Culture:Where is Vietnam going to?

Conference in Victoria, B.C. CanadaMarch 27-29, 2003

Dr. Pip NicholsonAssociate Director (Vietnam), Asian Law Centre,

The University of Melbourne, Australia.

This is a draft paper and not for circulation.Comments are welcomed at p.nicholson@unimelb.edu.au

I thank Nguyen Hien Quan and Kerstin Steiner, both doctoral candidates at the University of Melbourne’s School of Law and Quang Chuc Tran, Masters student at the University of Melbourne’s

School of Law for research assistance with this paper.

Abbreviations

LOOPC Law on the Organization of People’s Courts

OOJJPC Ordinance on Judges and Jurors of the People’s Courts

SCNA Standing Committee of the National Assembly

SPC Supreme People’s Court

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Introduction

In 2002 the Vietnam Communist party (VCP), the National Assembly and various other state institutions passed policies and laws to reform the Vietnamese court system.1 At first blush these initiatives reflect a wide-ranging and ambitious reform agenda. Changes include: increasing the role of the Supreme People’s Court (toa an nhan dan toi cao) in the management and budgets of courts; empowering the Chief Justice to appoint, remove or dismiss judges at the provincial and district level (albeit in consultation with various representative bodies); setting higher qualifications for judges; enabling courts to dismiss people’s assessors; and explicitly recognising the need to give priority to court-based information technology reforms. On greater analysis, however, the apparently radical nature of these reforms is at least partly undercut by pre-existing work practices and the details of implementing legislation

This paper argues that Vietnamese court reform is dynamic, but also challenged by the existing practice and culture within courts. In particular, taking the reforms relating to the appointment and dismissal of judges and peoples assessors and the role and function of courts as examples, the paper suggests that while some of the reforms appear radical, their effects are moderated by existing practices. More particularly, it will be suggested that although the relevant laws map a significantly more self-managed court system, it cannot be described as independent. The on-going application of prior practices affecting the appointment of court staff undermines the radicalism of the appointment reforms. Therefore while courts have been actively included in Vietnam’s legal reform process, they remain very firmly within the existing stable of Party-led and Party-dominated institutions.2

Paradoxically it will be demonstrated that while the functions and responsibilities of courts have remained largely unchanged over the last twenty years, the implementation of these functions has changed. An analysis of the Supreme People’s Court’s promulgation of legal instruments, advice to lower courts and propagandist functions demonstrates that the court has been much more active in the recent past.

The paper commences with a brief introduction of the northern Vietnamese court system between 1945 and 1976 (part one) and a summary of the criticisms leading up to the reform of the national court system in 2002 (part two). The reforms are introduced (part three) and the particular reforms relating to the appointment and dismissal of its personnel and the work of the courts are analysed (part four). In conclusion, the paper notes that the court system is increasingly self-managed, while at the same time the Party’s leadership role remains.

1 The Vietnam Communist Party (VCP) finalised a policy paper, Resolution of the Political Bureau on Forthcoming Principal Judiciary Tasks (‘Resolution 8’) in January 2002. This was followed by: Law on the Organisation of People’s Courts dated 19 April 2002; Ordinance on Judges and People’s Assessors of the People’s Courts dated 11 October 2002; and Resolution 131/2002/NQ- UBTVQH11 of the Standing Committee of the National Assembly, dated 4 November 2002, On Judges, People’s Assessors and Prosecutors (Resolution 131).2 Throughout this paper there will be many references to the Communist Party of Vietnam (the Party). This is not to be taken as implying that the Party has a uniform view of policy matters. Many aspects of reform generally, and law reform in particular, are hotly contested in Vietnam. Thus where references are made to Party policies, they are references to the official policies adopted by the State, and should not be read as reflecting unanimity within the Party.

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It is not my intention to pass judgment on whether legal institutions in transitional nations should follow the Western-inspired liberal model of the rule of law.3 It is clear that Vietnam, as a socialist state, does not aspire to give effect to the Western liberal democratic ideal.4 Instead, the aim of the paper is to explore how Vietnamese court reform affects the shape and role of courts in contemporary Vietnam

1. The Socialist Vietnamese Courts Introduced

Shortly after the Declaration of Independence by Ho Chi Minh in 1946, the revolutionary government introduced a court system in the north of the country.5 Established during a period of war and with the country divided in military zones, this was a period of ad hoc court administration (Nicholson 2000: Chapter 4). In these early years of the new regime, the main policy priority for the courts was the eradication of political dissidents and the implementation of particular state policies. An example of the latter was the establishment of Special Courts (toa an dac biet) for the implementation of the Land Reform Campaign (Nicholson 2000: 82 – 86, White 1981). Generally speaking, courts throughout the period 1946 to 1959 were tools of the state established on an ad hoc basis and staffed by revolutionaries (Nicholson 2000, Fall 1956).

There was very little central oversight of these early socialist courts. Attempts at centralising courts were frustrated by the war (Nicholson 2000: Chap. 3). For example, although theoretically a central system of appeals existed, it was not possible to give effect to it. The land reform campaign also illustrates the frustration of the new regime in establishing and implementing a radical decision-making tribunal. The Vietnamese land reforms of 1953 – 1956 had as their aim the redistribution of property from elites to the peasant and working classes and the political indoctrination of the community (White 1981). However, the arbitrary and brutal nature of the Special Courts ultimately required the party to abandon the policy, issue an apology and oversee the resignation of the Communist Party Secretary, Truong Chinh (White 1957, Gittenger 1977, Burchett 1955).

In the early period, judges (tham phan) were theoretically appointed to office in the primary courts (now known as district courts) by the Ministry of Justice. In the case of secondary courts (now known as provincial courts), the President held the power to

3 This was assumed in the law and development literature of the 1960s (Watson 1996, 1976 Merillat 1966). More recently, an emerging literature argues transitional states ought to be analysed and engaged with while recognising national/cultural features (In the case of Vietnam: Gillespie 2003, 2002, 2002 (2), 1999, Nicholson 2000). This latter literature does not argue the benefits of socialism. Nor does it make value judgements about the types of legal systems reflecting socialist and liberal ideals.4 This position is most recently articulated in 2001amendments to the 1992 Constitution. See also, Resolution No 8 of the Communist Party of Vietnam dated 2 January 2002 and also the Communist Party Statute dated 22 April 2001. There are also damning critiques of Western liberal legal system by Vietnam commentators see for example, Nguyen Van Tai 1996.5In 1946 Ho Chi Minh established the first court, the Military Court. At this time the Military Court had jurisdiction to hear offences against the State by any Vietnamese citizen: whether military personnel or not. Military Courts were set up to deal exclusively with military personnel in 1959 and new courts established to deal with civilians (Nicholson, 2000: 131). The Military Courts are technically a part of the Vietnamese court hierarchy and appeals from them are heard by the Supreme People’s Courts (Nicholson, 2000: 131).

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appoint.6 ‘Political dignity and professional skill’ were the criteria upon which appointments were based (Barrister A, 1999). Although the legislation stipulated that judges were to have law degrees and have completed judge-specific training,7 these requirements were not enforced, with the State introducing temporary provisions requiring only that judges have finished school or worked as a clerk or middle bureaucrat.8

People’s assessors (hoi tham nhan dan more recently translated as jurors) were drawn from a list made up in the first instance by the Administrative Committee (uy ban hanh chinh) of the relevant level of government. Over time this duty was transferred to the War Administration Committees (uy ban khang chien hanh chinh). The revolutionary government’s introduction of people’s assessors to courts was stressed as a reform evidencing the government’s commitment to popular and not elite justice (Nicholson 2000: 94). In other words, people’s assessors were seen as important to the popularising of courts and a sign of the essential differences between colonial and post-colonial justice systems.

From 1959 Vietnamese legal officials talk of a central court system (Nicholson 2000: Chap. 5). Closely modelled on its Soviet parent, the state introduced a three-tier court hierarchy in 1959 and laws to regulate the newly formalised institution. At this time Military Courts and Civilian courts were officially separated and it became more possible to exercise appeal and review rights. There is also evidence of an emerging legal debate on the meaning of legal terms and the role of law in the Democratic Republic (Sidel 1997 (2)).

Part of the package of court-related reforms introduced in 1959 included that judges would no longer be appointed to office, but instead most would be elected (Nicholson 2000: 141). Under the changes the National Assembly was to elect the Chief Judge of the Supreme People’s Court (SPC) and its Standing Committee appointed the remainder of the SPC judges. Within local (a reference to both provincial and district institutions) courts the People’s Councils were to elect all judges to the relevant level of court. For example, Provincial People’s Councils elected judges to the Provincial People’s Courts within their area. Commentary suggests that the quality of judges varied widely (Le Kim Que 1961: 14) and that the Supreme People’s Court tried to educate local councils in how to appoint appropriate personnel (Le Kim Que 1961: 14).

People’s assessors were also elected to office after the 1959 amendments, except for Supreme People’s Court’s people’s assessors who were appointed by the Standing Committee of the National Assembly.9 Given the same power as judges to determine disputes, the role of people’s assessors was widely circulated with the official paper Nhan Dan reporting that ‘people’s jurymen would now have the same power as people’s justices’ (Nhan Dan 18 May 1961:4).

Despite the many reforms, the courts did not effectively come within central control. War escalated in Vietnam after 1959 and one of its lasting effects on the courts was regionalism. For example, it was very difficult to give effect to the educational requirement of judges and to institute judge-specific education (Nicholson 2000: 152 -

9 Ordinance on the Oganization of the People’s Supreme Court and Local Courts, dated 23 March 1961, Articles 16 & 17.

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155). At this time, most judges were lucky to receive on-the-spot training by educators from the USSR or by those trained in train-the-trainer programs in the USSR (Nicholson 2000: 203 – 205). The major focus of judicial training lay in political and socialist moral indoctrination (Nicholson 2000: 98). Legal training, as it is known today in Vietnam, was entirely foreign.

After unification of Vietnam in 1976, the existing court system of the DRVN was exported to the old Republic of Vietnam.10 Following the introduction of the doi moi or renovation policies in 1986 the state passed additional laws with national application in the early 1990s to clarify and modernise the role of the courts (Nicholson 2001, Quinn 2003). It is beyond the purview of this article to trace those changes in great detail, although the elements of the 1990s legislation are set out when it is compared with the recent reforms in part three of this paper. Perhaps the best way of describing the changes of the early nineties is to see them as introducing new courts, particularly those needed by a socialist-oriented market economy (kinh te thi truong theo dinh xa hoi chu nghia). Thus the Economic Court and Administrative Courts were introduced in 1994 and 1996 respectively, but no constitutional court was introduced.

2. Calls for Reform Vietnamese criticisms of courts have not been confined to the contemporary period (Nicholson 2000: 53-54, Sidel 1997(2), Boudarel 1990). In particular, there were outspoken criticisms of the Special Courts during the land reform era and during the Nhan Van (Humanity) Gia Pham (Beautiful Literary Work/Masterpiece) affairs of 1956 (Boudarel 1990).11

In the last decade criticisms of the Vietnamese court system have been widespread. The international investment community is a loud critic,12 as are local lawyers.13 The Party has noted the shortcomings of the existing court system.14 The Chief Justice of the Supreme People’s Court has also commented on the need for reform.15 Donors have been anxious to assist with the establishment of an ‘independent’ court system as evidenced by the number of programs oriented towards strengthening the independence and enhancing the capacity of the court system.16

It is not only local and international lawyers, jurists and donors who have commented on the need for court reform. The local press have reported on some Vietnamese court corruption scandals (Nicholson 2002), thereby publicising the issue, although usually positioning corrupt behaviour as aberrant rather than widespread.17

11 This is a reference to the publication in the mid 1950s of two journals critical of the new state. The journals were closed down. Trials resulted in the jailing of the major players (Boudarel 1990: 165 – 166).7 Order 13, On the Organization of Courts and the Status of Judges in the DRVN, dated 1 January 1946, Articles 54 &55.8 Order 13, On the Organization of Courts and the Status of Judges in the DRVN, dated 1 January 1946, Articles 58 – 64.6 Prosecutors were appointed from within the pool of people appointed as judges. Thus there was no substantive difference in the skills sought of those prosecuting and those determining cases (Nicholson 2000: 92).10 Decree of the Council of Ministers On the Organization of the People’s Courts and the People’s Procuracies, dated 15 March 1976

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Criticisms of the courts have focussed on their ‘lack of independence’, the corruption of court personnel, the lack of technical competence of judges and people’s assessors, the lack of infrastructure and technology within courts, the need for detailed legislation to give effect to general legal reforms and the lack of a uniform management structure for courts (Resolution 8, 2002). As we will see, the 2002 reforms attempt to respond to most of these criticisms.

3 - Court Reform in the New Millenium

The phrase the ‘new millenium’ has been much overused: all too often, in the Australian context, ‘millenium hype’ overstates rather mundane changes. However, in the Vietnamese context, both the VCP and state institutions have produced documents potentially heralding wide-ranging reforms. The court ‘reform package’ commenced with changes to the 1992 constitution made in late 2001 with effect from January 2002. In the same month, the VCP issued Resolution No 8 of the Political Bureau On Forthcoming Principal Judiciary Tasks (Resolution 8). In April 2002 the President passed the new Law on the Organisation of Peoples Courts and in October of the same year the Ordinance on Judges and Peoples Assessors came into effect. Taken together the Party restated its leading role generally (Sidel 2002: 74) and with respect to courts (Resolution No. 8), and at the same time stipulated that courts ought to judge cases independently (Resolution No. 8, II B (1) (c)).18

Taking each of these propositions in turn, it is first important generally to note the restatement of the Party’s leading role in policy development and state building. As Mark Sidel explains in his excellent analysis of the 2001 constitutional reforms, the CPV has not abandoned the 1992 formulation of its role set out in Article 4 of the Constitution (Sidel 2002: 74):

The Communist Party of Vietnam, the vanguard of the Vietnamese working class, the faithful representative of the rights and interests of the working class, the toiling people, and the whole nation, acting upon the Marxist-Leninist doctrine and Ho Chi Minh’s thought, is the force leading the state and society.All Party organizations operate within the framework of the Constitution and the law.

[Author’s italics]In short, although the reforms set out below are significant they have been introduced while the Party remains the leading force.

The significance of the Party issuing a policy statement on law reform should not be overlooked. Issued in 2002, Resolution 8 is the first high-level Party statement on legal reform since the introduction of doi-moi. While not a blue print for court reform (Nguyen Chi Dzung 2003), at the very least, it demonstrates a commitment by the Party-State to evaluate the position of law and identify practical steps to remedy existing weaknesses within the legal system generally and the court system in particular.

The tension between the Party leading the state and the courts being independent is very much in evidence in the Party’s Resolution No. 8. Part Two of the policy paper 18 For a more detailed critique of Resolution 8 see Pip Nicholson ‘Vietnamese Jurisprudence: Informing Court Reform?’ Paper presented at the conference on ‘Law and Governance: Socialist Transforming Vietnam’ 12-13 June, 2003, Melbourne, Australia (forthcoming).

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sets out ‘Steering Opinions’ (Quan diem chi dao) and ‘Several Forthcoming Important Judicial Responsibilities’ (Mot so nhiem vu trong tam cua cong tac tu phap trong thoi gian toi). In the general section entitled ‘Steering Opinions’ the courts are clearly charged to follow:

the orientations and policies of the Party, pursue and effectively serve the political tasks in each period, ensure the united power of the State […] securely keep the nature of our state which is the socialist state under the rule of laws of the people, from the people and for the people.

On the next page, in the context of a discussion of how to enhance the role and capacity of judges the Resolution provides that ‘judges and assessors shall be independent and only obey the law’.

In effect, Resolution No 8, while not confined to an analysis of courts, concurrently charges the courts only to obey the law and to give effect to the orientations and policies of the Party and serve its political ends. To a Western commentator these are inconsistent objectives. A contextual interpretation of these maxims suggests that either VCP policy will be located in laws (the ideal situation) or, where policy is not in law, policy will be defined as law or relevant to the interpretation of law for the purposes of the court. It is possible technically to reconcile these statements, but the fact remains that the courts are described in terms that require them to be both subservient to Party leadership and independent. John Gillespie insightfully reconciles these principles by explaining that courts remain under the Party’s leadership, but must be free from Party interference (Gillespie 2002: 26). As Gillespie notes, the line between these remains unclear. Resolution No. 8 captures the ongoing tension for court-based law reform in Vietnam.

The following are the core features of the court reform package affecting people’s (but not military) courts introduced in the Law on the Organisation of Peoples Courts in April 2002:

1. Judges must have a bachelor of law degree, have attended adjudication training and must also have legal experience. (Article 37)

2. With the exception of the Chief Justice and judges of the Supreme People’s Court (SPC), all judicial appointments, removals and dismissals to provincial and district courts will be made by the Chief Justice of the SPC on the advice of especially constituted Judicial Selection Councils. Appointment, removal and dismissal of Chief Justices and Deputy-Chief Justices of provincial and district courts will be by the Chief Justice of the SPC, acting on the advice of the relevant People’s Council (Articles 25 & 40).

3. There will no longer be a Supreme People’s Court Justice Committee (Article 24)

4. People’s assessors will be elected by Local People’s Councils on the recommendation of the relevant Fatherland Front organization (Article 41)

5. People’s Assessors can be dismissed by the Chief Justice of the court to which they have been elected with the agreement of the relevant Fatherland Front committee (Article 41)

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6. The Standing Committee of the National Assembly will determine court budgets acting on the advice of the Chief Justice of the Supreme People’s Court (Article 44)

7. The number of judges and people’s assessors will be determined by the Standing Committee of the National Assembly on the advice of the Chief Justice (Art. 42(1))

8. The SPC in conjunction with local people’s councils will be responsible for the management of local people’s courts (Article 17)

9. The need to develop information technology to assist the courts to do their work is explicitly recognised (Article 46)

The table below sets out how these reforms change the 1993 Law on the Organisation of People’s Courts. It deals only with those changes affecting people’s courts and does not deal with the changes as they affect military courts.19

Table 1 2002 Legislative Reforms to People’s Courts (excluding Military Courts)

Issue 1993 2002Judicial Legal Qualifications

‘legal knowledge’ [LOOPC, Art. 37)

Bachelor of Law degree, training in adjudication and legal work experience [LOOPC Art. 37]

Appointment, removal and dismissal of Judges

Chief Justice of the SPC to be appointed, removed, dismissed by the National Assembly on the advice of the President [Constitution Art. 103 (3) and LOOPC Art. 38].

President to appoint, remove or dismiss all other judges [LOOPC Art. 38]

Chief Justice of the SPC to be elected, removed, dismissed by the National Assembly on the advice of the President [Constitution 103(3) and LOOPC 40 (1)].

President, acting on advice of the SPC Chief Justice to appoint, remove or dismiss Deputy Chief Justices of the SPC [Constitution Art. 103 (3) and OOJPA Art. 31]

Judicial Selection Council acting on the advice of the SPC Chief Justice to recommend to the President to appoint, remove or dismiss SPC judges [Constitution Art. 103 (8) and OOJPA Art. 26]

SPC Chief Justice acting on the advice of the relevant Judicial Selection Council to appoint, remove or dismiss provincial and district judges

19 As noted in footnote 5 (above) in 1946 there were no separate civilian and military courts, this changed in 1959.

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[LOOPC Art. 25(6) and OOJPA 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 People’s Council [LOOPC, Arts. 25(7) and 40 ]

Appointment and removal of people’s assessors

Appointment of SPC people’s assessors to be made by Standing Committee of the National Assembly [SCNA] on the advice of the Central Presidium of the Vietnam Fatherland Front. Removed by the SCNA.Appointment of local people’s assessors to be by People’s Committee of the relevant level on the recommendation of the Vietnamese Fatherland Front of the relevant level, removal to be by the relevant People’s Committee [LOOPC Art. 39].

No people’s assessors at SPC.Local People’s Council of the relevant level to elect people’s assessors on the recommendation of the Vietnam Fatherland Front and to be dismissed by the Chief Justice of the relevant court level after agreement reached with the relevant Vietnam Fatherland Front organization [LOOPC Art. 41 (1)]

SPC Justice Committee SPC Justice Committee established as the standing executive committee of the Council of Judges [LOOPC Art. 22]

Removed

Number of judges and people’s assessors

Number of judges and peoples assessors to be determined by the Standing Committee of the National Assembly on the advice of the Minister of Justice following consultation with the Chief Justice of the Supreme People’s Court [LOOPC Art. 40]

The number of judges and people’s assessors will be determined by the Standing Committee of the National Assembly on the advice of the Chief Justice [LOOPC Art. 42(1)]

Determining budgets: rates, payroll, operational budgets

Rate of pay to court staff to be determined by SCNA [LOOPC Art. 42]Minister of Justice to cooperate with Chief Justice on determining staff for courts [LOOPC Art. 43]Government to submit budget for court operations to

Rate of pay to court staff to be determined by SCNA [LOOPC Art. 44]Payroll to be determined by SCNA on the advice of the Chief Justice of the SPC [LOOPC Art. 45(1)]Funds for court operations to be sought from the

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National Assembly [LOOPC Art. 44]

government by the SPC [LOOPC Art. 46]

Court Duties Appellate, review function and enforcement where applicable [LOOPC Art. 11]

Courts can advise agencies of strategies to minimise crimes [LOOPC Art. 12]

Courts to collaborate to promote educational role of court and for enforcement [LOOPC Art. 13]

Court working collaboratively work to introduce policies that minimise crimes and other violations [LOOPC Art. 14]

Chief Judge of SPC to report to National Assembly and chief judges of lower courts to report to relevant People’s Committees [LOOPC Art. 15]

Court to implement the two-level trial regime (hear appeals) and exercise a review function [LOOPC Art. 11]

Agencies charged with enforcing judgments must do so strictly [LOOPC Art. 12]

Court has power to recommend that agencies apply measures to reduce commission of crimes or offences [LOOPC Art. 13]

Courts to collaborate to promote the educational role of the court and for enforcement [LOOPC Art. 14]

Courts shall join procuracy, police, inspectorates, VFF and army to implement measures to reduce the commission of crimes [LOOPC Art. 15]

Chief Judge of SPC to report to NA and chef judges of local reports to report to local People’s Council’s [LOOPC Art. 16]

SPC Assessors SPC shall have assessors Art. [LOOPC 17 (3)]

No assessors [LOOPC Art. 18]

Renaming of composition of local court

Local courts have a judges council [LOOPC Art. 27]

Local courts have a judges committee [LOOPC Art. 27]

Court Management Ministry of Justice to manage local courts with the close cooperation of the Chief Justice of the SPC [LOOPC Art. 10]

The SPC to manage local courts with close cooperation with local people’s councils [LOOPC Art. 17(1)]

Technology Reforms Nil State to prioritize investment in information technology and other means to ensure performance of courts’ work [LOOPC Art. 46 (4)]

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To summarise, the changes include: the appointment of most judges by the Chief Justice of the Supreme People’s Court, albeit in consultation with other representative bodies; an increase in the legal qualifications required of judges; powers for judges to dismiss people’s assessors in consultation with local bodies; reduction of the role of the Ministry of Justice, and enhancement of the role of the Supreme People’s Court over the court system in terms of staffing, budgets and court management; and ‘modernisation’ of the courts in particular with respect to their use of information technology.

Significantly, the reforms reduce the central control of the President and the National Assembly in the appointment and dismissal of judges and people’s assessors. Not only has the power to appoint, remove and dismiss20 judges (bo nhiem, mien nhiem va bai nhiem tham phan) shifted to the Chief Justice, the Chief Justice is asked to exercise the power in consultation with relevant bodies at the local level.

Court reform is not only a story about what has been changed but also a story about what remains the same. With the exception of the increased management role of the courts (LOOPC 2002: Articles 44 – 46) not taken up in this study, the official functions and tasks of the various courts have not substantially changed over the period 1993 – 2002. The 1993 Law on the Organisation of People’s Court establishes that courts have appellate and review functions (Article 11) and that they may also make recommendations about how to reduce crime or improve compliance with laws to other agencies (Article 12). Courts are expected to advise on the development of laws, both in respect of how to improve on the implementation of laws and where they identify the need for changes to existing laws (Article 13). Courts also have a duty to educate the broader population about law and the court’s role in its implementation and may introduce policies to give effect to their views (Article 14). Finally, the SPC is to report to the National Assembly, drawing together reports from lower courts in this process (Article 15). These general provisions setting out the work of courts echo similar, albeit more detailed and specific, provisions located in the 2002 law.

However, the 2002 Law provides one new article dealing with enforcement. It stipulates that agencies charged with enforcing judgments must do so strictly (Article 12). While a general duty to enforce existed in the 1993 Law (See Articles 11 and 13), it was not the subject of a separate provision. This specific placing of the power as a separate responsibility in 2002 suggests a greater emphasis on the need for work in this area.

20 The word ‘remove’ is used in the official translations of the appointment power, but for the foreign researcher there can be confusion about the distinction remove and dismiss. This is clarified in Vietnam in Decision Number 27/2003/QD-TTg, Article 17 which elaborates on the distinction between removal and dismissal. Dismissal entails the termination of a particular office (dismissal from a managerial position) and most often the relocation to a new position. In contrast, removal is the more serious penalty and as a matter of practice results in ‘decision to remove’ compared with a decision to transfer which is the usual result of a dismissal (Interview D, 2003).

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The Law on the Organisation of People’s Courts also provides more detailed statements of the duties of the Supreme People’s Court and local courts. The provisions relating to the work of the Supreme People’s Court, while expressed a little differently and slightly reordered, have not altered in any substantive respect (LOOPC, 2002: Articles 11 – 15). The 2002 law relating to Provincial People’s Courts has introduced a Judges’ Committee to replace what was previously known as the Judges’ Council and varied its composition enabling the Chief Justice of the Supreme People’s Court to appoint some members (Article 27). Article 27 of the 2002 law also stipulates a quorum of 66% attendance for a validly constituted Committee. There are no substantive differences between the 2002 and 1993 laws on the roles and functions of district level courts.

Finally, the Ordinance on Judges and Jurors of the People’s Court is much more explicit about what judges must not do.21 More particularly, the 1993 Ordinance provided that judges ‘should not carry out any other business activities or other services’ while the 2002 Ordinance stipulates five things that judges must not do. These are: contravene existing laws affecting officials and public employees; provide consultancy to parties to cases; illegally intervene in the settlement of cases or attempt to influence others settling cases; take dossiers out of their offices except for appropriate purposes; and meet with defendants or parties to cases except in ‘prescribed places’. This is a much clearer statement of the need for judges not to deal with parties or attempt to influence their colleagues’ determination of cases.

People’s assessors’ functions are not clearly enunciated in either the 1993 or 2002 Ordinance. In general terms, both ordinances provide that people’s assessors can assist with the review work of the courts and also perform adjudicating tasks. But neither ordinance makes clear how the duties of judges and people’s assessors have been divided.

4. Implementation: Feeling the Affects of Change

For current purposes, several issues arise from the preceding analysis of the court reform package of 2002:

To what extent do the changes affecting the criteria and process for the appointment and dismissal of court staff alter existing practice?Has the courts’ role and function remained as constant as the legislation suggests?How are the management changes to the Vietnamese court system to be implemented? And, finallyHow will the proposed information technology changes take effect?

As explained at the outset, this paper focuses on the first two questions. It asks how apparently fundamental reforms to the appointment and dismissal of court personnel are given effect. Further, it explores whether the nature of court work is changing even though the role and function of courts as detailed in the legislation has not altered. In an attempt to answer these two questions the reforms are grouped as

21 Article 15 of the 2002 Ordinance is a much more detailed version of Article 11 of the 1993 Ordinance.

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follows: appointment of judges (criteria and process); people’s assessor reforms; work of the courts; and corruption and courts.

It could be argued that this analysis is premature, that the court reforms have barely been introduced, let alone had time to take hold. But, as will be demonstrated there are already indications that the role and function of courts has been changing over time. Paradoxically, as we shall see, most change occurs where the legislation has remained broadly constant. In fact, many commentators on Vietnamese legal and economic reform have noted that earlier reforms may have heralded change, but also confirmed a prior policy shift or existing practices (Fforde 1986).

Appointment and removal of judges

As we have seen the changes introduced in both the Law on the Organization of People’s Courts (LOOPC 2002) and the Ordinance on Judges and Jurors of the Peoples Courts (OOJJPC 2002) essentially remove the power to appoint provincial and district judges from the National Assembly and President confer it on the Chief Justice of the Supreme People’s Court, acting together with various local bodies. In the case of appointment of judges of local courts the Chief Justice of the Supreme People’s Court has to act on the advice of the relevant Judicial Selection Council (LOOPC, 2002: Art 25 (6) and OOJJPC, 2002: Art 27). In the case of Chief Justices and Deputy Chief Justices of local courts the Chief Justice of the Supreme People’s Court acts after securing the agreement of the Standing Committee of the relevant People’s Councils (LOOPC, 2002, Art. 25 (7)). Ostensibly this places considerable power in the hands of the nation’s Chief Justice, with the only forces tempering his authority to appoint being local input.

When appointing local court Chief Justices and Deputy Chief Justices, the SPC Chief Justice does not have to negotiate with a specially constituted Judicial Selection Council (as s/he does with the appointment of judges generally at the local level), but has only to obtain the agreement of the Standing Committee of the local People’s Council. The difference in the manner of the Chief Justice’s appointment of local judges appears to reflect the differences in the nature and role of the judge s/he is to appoint. Local court Chief Justices and Deputy Chief Justices have administrative as well as professional or legal functions. In effect, the reforms give the Chief Justice more say in the appointment of senior local judges than others, presumably because they will be working together. For example, People’s Courts of all levels contribute to the Chief Justice’s Annual Report to the National Assembly.

However despite these changes affecting who appoints judges, the reality is that the relevant implementing circular22 and resolution23 continue to give effect to pre-reform practices and, as a result, processes and criteria established before the passage of the new legislation remain largely in use.24

The process for judicial appointment is largely detailed in Circular 01 of 2003. This circular requires that appointees prepare an application dossier. The dossier must include a letter of support from the ‘collective leadership of the provincial-level People’s Court’ and the Head of the Organization and Personnel Section of the Provincial-level People’s Court (Circular 01, Chapter III, Article 2, Step 3) of the institution to which an applicant seeks appointment. The result is that in addition to

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needing the support of the relevant Judicial Selection Council in the case of provincial judges and the relevant People’s Council in the case of district level judges, candidates must have secured support from the institution for which they hope to work.25 Further, Circular 01 also stipulates that the application dossier must contain ‘political theory diplomas’. In the prior circular on these issues, Circular 05 of 1993, provision of a Political Knowledge Certificate (chung chi trinh do ly luan chinh tri) was compulsory. These certificates were generally issued by a political training school, in turn usually run by the Communist Party of Vietnam (Circular 05, 1993: Item III, Item 1). While the latter circular addresses the issue of demonstrating political credentials more generally, local lawyers believe the practice will remain the same.

As a result, the Chief Justice’s powers to appoint are mediated not only by the need to consult with and act on the recommendations of other bodies, but also by the fact that a successful applicant must have been endorsed by the local and central levels of the Party. Local level endorsement is ensured by the need for support from the cell of the institution to which the applicant seeks appointment (Circular 01, Part III, Article 2, Step 3). Central level endorsement is retained through the requirement of political theory diplomas.

The call for political credentials for judges is not confined to the implementing circular. The current Chief Justice has unequivocally warned against employing judges not trained in politics.26 It is therefore not surprising that it is estimated that at least 90% of all judges are members of the Communist Party of Vietnam.27 It seems that the current reforms will do little if anything to change this.

The new legislation appears radically to change the qualifications required of judges. In particular, whereas ‘legal knowledge’ was previously a sufficient criterion, the 2002 reforms stipulate that judges must be both graduates of a Bachelor of Laws degree and have benefited from judicial training (LOOPC, 2002: OOJJPC, 2002: Arts. 20 – 22). Further, the 2002 Law establishes that judges also ought to have had some practical legal experience (LOOPC, 2002: Art. 37).

However, Resolution 131 dated 4 November 2002 has subsequently been passed, acknowledging that it is not possible to find sufficient personnel who already have a Bachelor of Laws Degree to be judges and that appointments should be made on the basis that appointees will subsequently obtain the requisite degrees. In effect people can apply to be judges on the basis that they are happy to assume a ‘legal knowledge debt’ (no kien thuc phap ly) and then pursue legal studies whilst employed as judges. In fact, at the current time, it is estimated that 70% of judges do not have a Bachelor of Law Degree (Tran Van Tu 2003: 34 – 39). This means that what is heralded as a fundamental reform may be fundamental reform over time, but is not one with immediate effect.

Further, questions remain about the nature of the legal studies undertaken by working judges. Anecdotally it appears that not all judges undertake Bachelor of Laws

26 See Pip Nicholson and Nguyen Hung Quang (forthcoming) on file with authors.27 Le Thi Thu Ba (2001) ‘Cong tac quan ly toa an nhan dan dia phuon va van de nang cao trinh do van hoa xet cu cua cac toa an’ (Local People’s Court Management and Judging Enhance People’s Courts), Jurisprudence Information Review, No. 7, p. 156

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Degrees, instead studying to graduate from professional training institutions or assuming part-time study in evening law courses. The latter are run by recognized law schools, but traditionally do not result in Bachelor of Laws Degrees (Sidel 1993).

People’s assessors reforms

The reform package of 2002 ended the use of people’s assessors in the Supreme People’s Court. Thus whenever a case comes before the Supreme People’s Court it is now heard by a judge or judges alone. This no doubt reflects the increasingly more technical work of the State’s highest courts and the fact that people’s assessors were not used in SPC-level appeals prior to the reforms in any event.

Arguably, the single biggest change in the 2002 reforms affecting people’s assessors (where they have been retained) is that the Chief Justice, in consultation with the local Vietnam Fatherland Front, has the power to remove or dismiss people’s assessors from office. As we have seen, prior to the 2002 reforms people’s assessors were removed from office by the relevant People’s Committee, without any reference to the views of the court. In the last decade various Vietnamese lawyers have queried the ability of people’s assessors to handle complex cases and this reform ought to enable the courts better to judge and ensure the capability of those elected (Phan Huu Thu 1999). The reform should serve to strengthen the capacity of people’s assessors.

This is not to say that the process will enable judges to remove people’s assessors solely on the basis of their legal capacities (or otherwise). Clearly the reform has indicated that removal should be a consultative process, where the court liaises with and works through issues of poor performance by local people’s assessors with local committees. However, at the very least, the reform indicates that assessment of the capacity of local people’s assessors to contribute to the work of the court can be made by the court and that this assessment may have practical implications.

In addition, the 2002 reforms give the local People’s Council the power to elect people’s assessors on the recommendation of the Vietnam Fatherland Front. Since 1993 people’s assessors have been appointed by the Standing Committee of the National Assembly on the advice of the Central Presidium of the Vietnam Fatherland Front (VFF). Although the reforms now enable election of people’s assessors, the main body informing who will be elected remains the VFF. More significantly the body selecting people’s assessors (whether by election or appointment) has shifted from the central level to the local level.

Functions of Courts

As noted in part three, the area of least legislative change is the role and function of the courts. There is remarkable consistency in the responsibilities set out for courts in the Law on the Organisation of People’s Courts over time, and in particular if the relevant provisions included in the 2002 law are compared with those in 1993. However, while the official position may be constant it is argued that the courts are undertaking more diverse work and positioning the work of the court differently over this period.

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In general terms the role of the highest court, on which this paper focuses, is to determine reviews and appeals of cases, produce enabling legislation for court-related functions and improve relevant existing laws, educate lower courts on how best to make decisions, inform the broader public about law and the role of courts, and report to the National Assembly annually. In short, the role of the Supreme People’s Court is to guide lower courts via appeals and reviews, propagate understandings of law among the community, resolve questions of law and report to parliament (LOOPC, 2002: Arts. 11 – 15). If we take up these functions in turn we see that the way in which the court exercises its responsibilities has changed over time, despite the fact that the description of its duties has remained constant.

It must be remembered that the nature of the courts’ work has changed a great deal over the last ten years. In 1994, the Economic Court was introduced and in 1996 the Administrative Court was introduced. The last decade has also seen the debate and passage of many laws relevant to jurisdictional and procedural issues. In this fundamental way the work of the courts has obviously changed. But here the discussion focuses on the role and functions of Supreme Peoples’ Court judges reflected in the relevant legislation, rather than the jurisdictional limits of the court.

Responsibility for Implementing LegislationOne of the Supreme People’s Court’s major responsibilities is to generate the necessary implementing legislation to give effect to the State’s laws and ordinances.28 Appendix One depicts the volume of implementing legislation generated by the Supreme People’s Court since the introduction of courts in 1946. Before proceeding to analyse this data a few preliminary notes on methodology are needed.

LAWDATA was used as the source for Appendix One. This is a database of Vietnamese laws originally developed by the Centre for Research, Library and Information of the Vietnamese National Assembly. It dates back to 1945. Launched as a database in 1994, this source of laws is now a commercial joint venture and rights to use it can be purchased and accessed via the internet at http://www.vietlaw.gov.vn/.29 While it may not be a complete set of all legislation generated by the State since 1945, it is widely considered an excellent resource and certainly likely to be as near to a complete record of law relating to and generated by courts as exists.30

To obtain a record of the legislative activity of the Supreme People’s Court, a search was undertaken of LAWDATA for all legal documents issued by the Supreme People’s Court.31 This means decisions (quyet dinh), circulars (thong tu), official letters (cong van) and resolutions (nghi quyet) issued by the Chief Justice, by the Council of Justices or from the Institute of Juridical Science were located in the search.

28 All state agencies have the authority to introduce implementing legislation. This Supreme People’s Court power is specifically set out in LOOPC, 19 April 2002, Article 19.29 Vietnam Software Development Company (a division of Vietnam Posts and Telecom Corporation) has developed the National Assembly resource commercially. Current subscription rates are 60,000 dong/month.30 The only database that rivals it would be that of the Ministry of Justices, which is not available to outside users.31 In particular, this is a record of the Inter-ministerial Circulars, Decisions of the Chief Justice and Resolutions of the Council of Justices.

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Not all ‘official letters’ issued by the court are listed on LAWDATA. In particular, it appears that some ‘official letters’ responding to questions from lower courts on specific cases have not been included. For example, there is a disparity in the numbers reported by the courts for this type of advice and the instruments on LAWDATA.32However, the data forming the bases of Appendices One and Two is drawn from LAWDATA as it is this that enables a comparison over time.

Appendix One tracks the legislative activity of the Supreme People’s Court since 1945. It becomes clear that although the Supreme People’s Court has always been charged with issuing documents to give effect to general legal principles affecting courts, it has become much more active in this function in the recent past. Not surprisingly no documents were issued in the period 1945 to 1958. There was no Supreme People’s Court at this time, but rather an Appeals Court (toa thuong tam) within an ad hoc court system that did not have a responsibility for the passage of implementing legislation.33

With the introduction of the formal court system in 1958/1959 the Supreme People’s Court issued several implementing documents and this is captured on the graph. In the recent past, the Supreme People’s Court’s most active period of legislative activity was during the mid-1990s; for example in 1996 17 documents were generated. If we recall that the new economic court and administrative court were introduced in 1994 and 1996 respectively and that the labour court was also reconfigured during this time, the activity in the mid-1990s is explained. For example, in 1996 three of the official letters issued relate to economic cases, two to administrative cases and one to labour issues.

Appendix One suggests several further points. Although court reform was on the agenda in 2002 and in the early 1990s the graph suggests that the court has been more legislatively active since the mid 1990s, that is shortly after constitutional changes of 1992 and the court reforms of the early 1990s were first introduced. With the exception of 1999, the court has been quite regularly active since the early 1990s.34

The same general trend is evident even when the definition of ‘official letters’ is interpreted to exclude those letters issued in response to queries raised by specific courts (Appendix Two). The major difference shown between the data in Appendix One and Appendix Two is that in 1997 and 2000 half of the judicial legislative activity recorded on LAWDATA was a response to a specific query of one court. But the overall trend is the same and it is clear that letters to specific courts do not account for it.

Guiding the Work of Lower CourtsAs we have seen, the Supreme People’s Court is charged with guiding the work of lower courts (LOOPC 2002: Article 19). This is generally considered to be a very significant function of the Supreme People’s Court as there is an increasing demand for the work of the courts to be consistent.35 Recent criticism of lower court decision-34 Interestingly the increases in Supreme People’s Court’s legislative activity might be expected to increase even further given the additional powers given to the Chief Justice of the Supreme People’s Court under 2002-changes to the Law on the Promulgation of Legal Documents. Articles 17, 69 and 70 of the Law on the Promulgation of Legal Documents now empowers the Chief Justice of the Supreme People’s Court to make decisions, directives and circulars with respect to administration of the organisation and jurisdiction of lower courts and the Military Court.

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making has made this issue all the more pressing.36 An insight into the way in which this function has changed over time is apparent via both general statements of the interrelationship between senior and junior courts and also by close examination of the work of the Supreme People’s Court in settling points of law. Each will be considered in turn.

While the Supreme People’s Court has a statutory duty to guide the work of lower courts, this duty is to be given effect within the context of an increasingly autonomous local court system. In 1977 the Supreme People’s Court report to the National Assembly noted that local courts should be guided in their decision-making via consultations with ‘relevant authorities’. In particular, it is reported that it was appropriate for local courts to seek counsel from the Vietnam Communist Party Committee at the relevant level, the Supreme People’s Court and the Procuracy (Annual Report of the SPC to the NA 1977: 50 - 51). In more recent Supreme People’s Court Annual Reports there is no equivalent statement of the need for local courts to seek guidance in the interpretation of law from the VCP and the Procuracy. Instead, courts are advised to seek counsel on legal issues from the Supreme People’s Court (Annual Report of the SPC to the NA 1999, 2000, 2001). This indicates a substantial change in how local courts seek advice on points of law.

In addition, the Supreme People’s Court has been increasingly active in both drafting documents (such as guidelines) and settling the interpretation of points of law. This is generally made clear at Appendix One (see discussion above). More particularly the Supreme Court has become increasingly active in issuing official letters in response to inquiries from local courts on the adjudication of specific cases. In 2001, 43 such letters were produced (Annual Report of the SPC to the NA 2001). In 2000, ‘various’ official letters were produced.37 Other areas of Supreme People’s Court activity have included issuing joint circulars and resolutions assisting with the implementation of particular enactments.

Educational Work of the CourtsIt is possible to gain some insight into the educational work of the courts by looking at the court’s publications in this area and media reporting of court work. Traditionally there was little reporting of court work either by the court itself or the media. Trials and legislative changes were largely unreported in the period 1945 to 1976 (Nicholson 2000:100). The exception was spy trials which were widely reported during the war years. Major changes affecting courts in the late 1950s also received some media coverage (Nicholson 2000: 159).

Traditionally, another important way in which the court publicised its work was by taking the court on circuit (Nicholson 2000: 159). Thus some courts were convened in factories and local organisations so that trials could be conducted in front of the

37 While at this stage the SPC varies the manner in which it reports its activities, a comparison of the SPC reports to the National Assembly suggests it generated more official letters in 2001 than in 2000 or 1999.33 Order No. 13 On the Organisation of Courts and the Status of Judges, dated 24 January 194635 The Supreme People’s Court reports in the extent to which it is hearing appeals and makes the point that the high appeal rate is indicative of poor original decision making. Annual Reports of the Supreme People’s Court to the National Assembly for 1999, 2000, 2001. It should be noted that the appeal rate is high in some jurisdictions. For example in 2000 46,946 criminal cases were resolved and 15,399 were then appealed. This means 33% of resolved criminal cases went on appeal.

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community. This practice was frequent and was thought likely to educate particular groups of people about the nature of court work (Nicholson 2000:159). For example in 1964, the courts held over 600 mobile or circuit hearings (Nicholson 2000:159).

In addition to circuit hearings, the court in more recent times has fostered greater media reporting (see below), but also circulated its work via two publications. The People’s Court Journal (Tap chi Toa an Nhan dan) produced by the Supreme People’s Court can today be bought at any decent sized bookstall. In the past, while technically available publicly, the People’s Court Journal tended to circulate within courts and go to public libraries, but not be read by the wider population (Nicholson 2000: 156). Anecdotally it is suggested that it is not widely read by the broader population today, although law students reportedly consult it while studying.38 It remains a publication produced for judges and the emerging legal profession on how the law will be interpreted and applied. It also canvasses legal issues facing the courts.

On 1 February 2002 the Supreme People’s Court published its first edition of Cong Ly (Justice). This was a relaunched version of the court’s journal The Defender of Justice (Nguoi Bao Ve Cong Ly), the 2002 publication adopting a more colloquial style. It was hoped that this publication would reach a broader audience. According to the 2001 Annual Report to the National Assembly the Chief Justice hopes that this publication will serve to educate the broader public on legal issues, but also serve as a forum for public opinion and questions about the legal system (Annual Report of the SPC to the NA 2001: 47). In particular, the Chief Justice expresses the hope that opinions about “social evils” will circulate as a result of the publication (Annual Report of the SPC to the NA 2001: 47).

There are two routes by which a story makes it into the paper. Journalists can be asked to report on cases by the court or can cover stories as a result of their paper’s or their own initiative. This neat divide is immediately undermined because reports of court work, whether at the court’s request or otherwise, are still vetted by the State and more particularly if photos are sought, for example, the explicit permission of the court is required (Interview B, 2002). Therefore if a story catches the media’s attention, it negotiates with the court to obtain information. Heng points out that while the press is State controlled, it is too simplistic to conceive of the State as ‘totally commanding’ the media (Heng 2001: 227). Thus while there is great scope for independent reporting of the work of courts, and there is an increasing trend among papers to report as a result of their own initiative, such reporting still usually has the permission either explicitly or implicitly from the court (Interview D: December 2002). Thus while court are open to the public, reporting of their work is negotiated (Sidel 1998).

There is no doubt that the reporting of the work of the courts has increased radically over time, particularly in the last decade. If you pick up almost any Vietnamese major daily you find that it covers trials and court stories.39 Thus in broad terms the media is assisting the court with its educational function by spreading news of the work of courts. For example, the official daily newspaper People’s Daily (Nhan Dan) carries

38 Interview with Nguyen Hien Quan, doctoral student from the SRVN located at the University of Melbourne, 10 March 2003.39 Examples of newspaper where court work is regularly reported include: Nhan Dan, Saigon Daily Times, Lao Dong, Cong An Nhan Dan, Quan Doi Nhan Dan, Saigon Giai Phong.

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not infrequent reports of court decisions. Other publications more regularly report court work. In particular, the police newspaper (Cong an Nhan dan) reports on criminal trials while the Saigon Daily Times reports on economic cases and on developments within the courts. Both these publications regularly carry a court story and in the case of Cong an Nhan dan reporting criminal trials is a major feature of the publication.40

The content of the stories included has also changed, with papers tending to report the work of the court differently in the contemporary period. For example, the media reports on corruption within courts today, which was not a feature of early court reporting (Nicholson 2002). Corruption reporting today almost invariably describes the court moving to eradicate corruption from within its ranks (Nicholson 2002). Stories about allegations of court corruption do not find their way into the press. Despite this bias in the reporting, there has been a shift from closed courts only disseminating their work via their own publications and radio broadcasts to a more symbiotic relationship with the press.

A recent conference serves as an example of the delicate balance between increasing reporting of developments in the law and the work of the courts via the press and the Party’s wish to control reporting. In 2002, at a conference entitled ‘Journalist’s Responsibility and Citizens’ Duty in Fighting Wrongdoings’, the Politburo member and Head of the Central Ideology and Culture Board, Nguyen Khoa Diem, warned journalists not to be too ‘negative’ in their reporting (Unknown Author 2002: 1). More particularly, he is reported as advising journalists ‘not excessively to publish wrongdoings that may concern the public’ (People’s Army 16 December 2002:1). This type of warning highlights that courts and the press have a role to promote information about laws and legal institutions (Hoang Xuan Dong and Vu Kha Lien 1998). However, this power remains at least partly controlled by the Party.

Corruption and Courts

Finally, as mentioned in part three, Article 15 of the 2002 Ordinance stipulates what judges ought not do. However, Article 15 does not go on to set out what sanctions will apply for breaches.

The State punishes judges involved in the taking of bribes and those that attempt to influence other judges (Nicholson 2002).In particular, in the late 1990s Bui Van Tham, a judge of the Hanoi Supreme People’s Court, was charged under Article 228 of the Criminal Code with inappropriate influence. The Hanoi People’s Court convicted him and ordered a two-year sentence. In another case, Nguyen Dien Khoi, a court evaluator, was charged and convicted of appropriating another’s property through swindling. He received a ten-month sentence. Since these two cases there have been several further instances of corruption publicly alleged against Vietnamese court officials.41 40 This is not an exhaustive analysis of court reporting. Other publications also carry court-based features. For example, Lao Dong (the labour newspaper) is a regular commentator on court work and the law more generally. However, it serves to highlight that there is a range of reporting of court work today that was not present during the years when the court was established.41 See for example Unknown Author (2001) ‘Pervasive Courtroom Corruption Exposed in Vietnam’ Deutsche Presse-Agentur, 16 April, Monday BC Cycle, circulated on vnnews-1 on 16 April 2001. This article reports that at least one (and possibly more) District Court judges had obtained 75 signed verdict

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In 2003 the CPV expelled Nguyen Duc Binh, a senior Ho Chi Minh City judge, from the Party for allegedly being linked to mafia ringleader Nam Cam (Thanh Nien 2003: 5). The judge failed to deliver judgments in four cases, although the people’s assessors who had sat on the same cases had reached their decisions. At the time of writing it remains unclear whether Nguyen Duc Binh has in fact been sacked as a judge.42 Further, at this time, it is unclear whether he will be charged with any offences.

These cases indicate that the Party will expel judges and bureaucrats in courts found to have acted inappropriately. Further, that the Party will prosecute, convict and sentence judges. While not suggesting that all judicial corruption is pursued, authorities would seem prepared to have public trials for at least some judicial corruption. Further, the Vietnamese press reports action taken against court ‘cardres’

sheets from people’s assessors enabling the judge(s) solely to determine the outcome of cases.42 Newspaper reports indicate that Binh was likely to be sacked as a judge. See for example, HCMC Youth, 13 February 2003 ‘Southern Judge Expelled From Party for “forgetting” Issue Sentence Documents’, p.1, circulated on Vietnam News Briefs, 13 February 2003.12 Interviews by the author with foreign lawyers in private practice over the period 1998 – 2001. See also Catherine McKinley (2002) ‘Inside Indochina: In Vietnam, Laws are Made To Be Broken’ A Dow Jones Newswires Column, 29 October.13 Interviews by the author with local lawyers over the period 1998 – 2002. See also Ho Chi Minh City Law (2002) ‘Miscellaneous Lawyers Advocate Increased Role in Courts’ 19 March, p. 4 circulated on vnnews-1 10 April 200214 Resolution No. 08/NQ-TW of the CPV, Resolution of the Political Bureau on Forthcoming Principal Judiciary Tasks (Resolution 8), dated 2 January 2002. 15 See for example, VNA (2002) ‘Chief Justice says People’s Courts need overhaul’ 18 March circulated on vnnews-1 on 20 March 200216 See http://www.undp.org.vn/themes/governance/matrix.htm. For an example of the manner in which donors celebrate legal change see UNDP Media Release dated 5 March 2003, ‘Building the Rule of Law in Viet Nam’ circulated on [governance-vn] on 5 March 2003.17 For example consider the case of Nguyen Duc Binh who was expelled from the Communist Party of Vietnam for ‘damaging the interests of the state and its citizens’ in February 2003. Reports vary as to whether Binh had already lost his job or would do so soon. See 12 February 2003 Thanh Nien paper, p. 5 and AFP, 13 February 2003 circulated on vnnews-1 on 17 February 2003.22 Inter-circular No. 05/TTLN, Guidelines on the Ordinance on Judges and People’s Assessors, dated 15 October 1993 of the Ministry of Justice and Supreme Court (Circular 05) has been replaced by joint Circular No. 01/2003/ TTLT/TANDTC-BOP-BMV/UBTWMTTQVN Guiding the Implementation of a Number of Provisions of the Ordinance on Judges and Jurors of the Supreme People’s Court, The Ministry of Defence, The Ministry of Justice, The Ministry of the Interior and The Vietnam Fatherland Front Central Committee dated 1 April 2003 (‘Circular 01’).23 Resolution 131/2002/NQ- UBTVQH11 of the Standing Committee of the National Assembly, dated 4 November 2002, On Judges, People’s Assessors and Prosecutors (‘Resolution 131’)24 For a detailed discussion of the appointment of Vietnamese judges see Pip Nicholson and Nguyen Hung Quang (forthcoming), draft on file with authors.25 In the previous relevant circular, Circular 05 of 1993 candidates had top produce a letter of support from the Communist party cell of the court to which they applied for a post. While Circular, 01 does not express the requirement in these terms its effect is very similar. A high level court functionary, who will inevitably also be a Party functionary has to endorse the appointment.32 The data for 1997 and 2000 show that the number of judicial legislative instruments dropped by 6 and 8 respectively. In each case this meant that half the judicial legislative instruments were case and court specific.36 The National Assembly in 2002 refused to endorse a proposed reform that would have seen the criminal jurisdiction of district courts radically expanded. The reason given was that judges at this level were insufficiently competent to handle more complex cases. See AFP (2001) ‘Vietnam MPs vote down bill boosting powers of district courts’ 12 June, circulated on vnnews-1 on 14 June 2001.

22

(can bo toa an: a reference to judges and court secretaries) (Phap Luat 2003). For example, in October 2003 it was reported that 30 ‘court cadres’, including 22 judges had been disciplined (Phap Luat 2003). While the report was vague on detail, merely noting that serious cases would be prosecuted under the criminal law and less serious cases were dealt with by the courts administratively, it suggests the Party is keen to publicise its intolerance of judicial corruption publicly.

5. Reforms Taken Together

This paper asks how some of the recent reforms to the Vietnamese court system take shape. There is little doubt that contemporary Vietnamese courts are more self-managed than their predecessors. In particular, they are established so that the Ministry of Justice and other state organs have less affect on their work. This has been demonstrated by the Supreme People’s Court’s greater control over appointment and dismissal of judges and people’s assessors and its increased production of guiding and implementing legal documents. Further, the recent reforms give the Supreme People’s Court tighter control of management, budgetary and personnel issues, although this has not been taken up in any detail in this paper.

However, the extent of self-management is variously affected by the Party. The courts are increasingly active in terms of guiding lower courts and producing implementing legislation. Arguably courts also have a higher profile within the broader community and may over time come to be associated with the effective resolution of disputes about legal entitlements. Thus an increasing level of guidance stems from the Supreme People’s Court on the development of laws and how they are best interpreted. This reflects the general policy position outlined in CPV Resolution 8 that the courts are intended to be an active player in the transition to a law-based state.

As we have seen the Party effectively holds the power to veto judicial appointments as a result of the requirement to endorse candidates for judicial office. We saw in part four that an application for judicial office is incomplete until the Party officials within the organization to which a person seeks appointment support the application. We also saw that nominees must produce political diplomas, in other words a central Party endorsement of a candidate’s political suitability for office. Currently the State reserves the right to block non-Party-endorsed judicial appointments. As it stands no private lawyer has been appointed to the courts. Instead, all of Vietnam’s 3,466 judges were public servants prior to their appointment (Tran Van Tu 2003).

In conclusion, the 2002 reforms construct a strengthened institutional framework for the resolution of disputes, while retaining the Party’s control. The reforms highlight the differences between rule of law and law-based state (nha nuoc phap quyen). The latter explicitly retains the leading role of the Party and positions courts as increasingly autonomous from political institutions (such as ministries) and other organs (such as the procuracy) existing to give effect to the policies and laws of the Party-led State. It is that model, rather than Western-style rule of law, to which Vietnam currently aspires.

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Appendix One43

Legislation by the Judicial Branch of the State – [“Official Letters” (Cong Van) to all courts including specific courts]

43 Generated by Nguyen Hien Quan, PhD candidate and research assistant, Asian Law Centre, University of Melbourne, Australia

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Legislation by the Judicial Branch of the State – [“Official Letters” (Cong Van): Less letters to specific courts]

Thanh Nien newspaper (2003) ‘Party expels senior judge for mafia links’, 12 February, p.5. Also circulated on Intellasia News Highlights 13 February 2003.

Tran Van Tu, Head of Personnel Department of Supreme People’s Court, (2003) ‘Doi moi to chuc va hoat dong cua toa an nhan dan’, (‘Reforming the Organization and Operation of People’s Courts’) Legislative Studies Magazine 1, pp. 34-39.

UNDP Media (2003) ‘Building the Rule of Law in Viet Nam’ 5 March, circulated on [governance-vn] on 5 March 2003

Unknown Author (1961) Nhan Dan 18 May

Unknown Author (2001) ‘Pervasive Courtroom Corruption Exposed in Vietnam’ Deutsche Presse-Agentur, 16 April, Monday BC Cycle, circulated on vnnews-1 on 16 April 2001.

Unknown Author (2002) ‘Social and Cultural Issues: Ideology Chief Warns Press Not to Overstep the Mark in Negative Reporting’ People’s Army, 16 December, p. 1 circulated on vnnews-1 on 16 December 2002.

VNA (2002) ‘Chief Justice says People’s Courts need overhaul’ 18 March circulated on vnnews-1 on 20 March 2002

Watson, Alan (1996) ‘Aspects of the Reception of Law’ The American Journal of Comparative Law 44, pp. 335-351

Watson, Alan (1976) ‘Legal Transplants and Law Reform’ The Law Quarterly Review (92), pp. 79-84

White, Christine (1981) ‘Agrarian Reform and National Liberation in the Vietnamese Revolution: 1920-157’, Thesis Faculty of the Graduate School, Cornell University

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ReportsSPC, Annual Report to the National Assembly, 2001SPC, Annual Report to the National Assembly, 2000SPC, Annual Report to the National Assembly, 1999SPC, Annual Report to the National Assembly, 1977

Interviews by the author Interview A, (Barrister) Hanoi, September 1999Interviews B, (Lawyer and advocate) over period 2000 and 2001Interview with C, (Legal Academic) Hanoi, 1999Interview D, (Law Graduate) Melbourne, December 2002Interview D, (Law Graduate) Melbourne, March 2003Interview Nguyen Hien Quan, Melbourne, March 2003Interview with Nguyen Chi Dzung (National Assembly), June 2003

Legislation Relevant to Court Reform in Vietnam since 1993

ConstitutionNational Assembly18.04.1992Law

National Assembly10.10.1992On the Organization of People’s CourtsOrdinance Standing Committee of N/A26.04.1993On the Organization of Military CourtsDecision No. 204 TTg Prime Minister28/4/1993On the establishment of the Vietnam International Arbitration CentreResolution 37 NQ/UBTVQH9

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Standing Committee of N/A14.05.1993To explain some issues on the implementation of Ordinance on Judges and People’s Assessors OrdinanceStanding Committee of N/A26.05.1993Ordinance on Judges and People’s AssessorsJoint Circular No. 4 TTLNMinistry of Justice, Supreme Court, Supreme Prosecution Bureau24/7/1993On the implementation of some provisions of the Ordinance on recognition and enforcement of foreign courts’ judgement and civil decisions in VietnamInter-circular No. 05/TTLN Ministry of Justice and Supreme Court15/10/1993Guidelines on the Ordinance on Judges and People’s AssessorsLaw

National Assembly10.01.1994To amend the Law on the Organization of People’s Courts 1992 [First Amendments]Resolution No. 155/NQ/UBTVQHStanding Committee of N/A02.02.1994On Implementation of the law to amend and supplement articles on the Law on the Organisation of people’s CourtsOrdinance Standing Committee of N/A16.03.1994On procedure for the settlement of economic disputesDirective No. 136 – TTgPrime Minister01.04.1994On the implementation of the law to amend and supplement the Law on the Organisation of People’s CourtsLawNational Assembly05.07.1994On the election of members of People’s CouncilsLawNational Assembly05.07.1994On the organization of People’s CouncilsOrder No. 35-L/CTNPresident05.07.1994To promulgate the law on the organization of people’s councils and people’s committees (amended)Decision 355-TTG

Prime Minister11.07.1994To transfer staff and accommodation of State Economic Arbitration to the People’s Courts and the State Committee for PlanningDecision 94-TCCBChief Justice of the Supreme Court11.08.1994On the Organisation and Operation of the Economic Court of the Supreme CourtDecree No. 116/CPGovernment05.09.1994On the organization and activities of economic arbitrationCircular No. 02/PLDSKTMinistry of Justice03.01.1995Guiding the implementation of some articles of Decree No. 116/CP dated 5/9/1994 on the organization and operation of economic arbitrationDirective No. 410 – TTg Prime Minister15.07.1995On the training and refresher training of judges for administrative courts at all levelsDecision 453/QD-CTN

President 28.07.1995On the ratification of the United Nation Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention)OrdinanceStanding Committee of N/A27.09.1995On the Recognition and Enforcement of Foreign Arbitral Awards in VietnamLawNational Assembly09.11.1995To amend the Law on the Organization of People’s Courts 1992 [Second Amendments]Decision No. 114 TTg Prime Minister16/2/1996On expanding the competence of the Vietnam International Arbitration Centre in settling disputesCircular 45/TCCP –

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BCTLMinister for Governmental Personnel11/3/1996Guidelines of annual salary increments for civil servants in administration, Party organizations and other socio-political organizationsDecision No. 154 – TTg Prime Minister12/3/1996On implementing the regime of alllowances to legal workers, including judges, people’s procurators, court secretaries etc. participating in a trial sessionDecision No. 160 – TTg Prime Minister15.03.1996On implementing the regime of allowances for the juridical expert witnessOrdinanceStanding Committee of N/A03.06.1996On the procedures for the settlement of administrative casesOrdinanceStanding Committee of N/A03.07.1996On the concrete tasks and powers of the People’s Councils and People’s Committees at each levelDecision 744/TTg

Prime Minister08.10.1996On the Establishment of provincial Labor Arbitration CouncilsCircular 02/LDTBXH-TT

Ministry of Labor-Invalid-Welfare08.01.1997Guidance on Implementation of Decision 744/TTg on the Establishment of provincial Arbitration CouncilsDecree No. 70-CPGovernment12/6/1997On court charges and fessOrdinanceStanding Committee of N/A1998Ordinance on Civil ServantsDecision No. 57/1998 QD – TTg of 5/3/1998 Prime Minister5/3/1998On the regime of allowances for juridical expert witnessesJoint Circular No. 4/1998/TTLT-TCCP-TC –TPMinister for Governmental Personnel23/7/1998Guiding the implementation of the Decision No. 57/1998 QD – TTg of 5/3/1998 of the prime Minister on the regime of allowances for juridical expert witnessesJoint Circular No. 187/1998 TTLT-TCCP-TC –TPMinister for Governmental Personnel30/3/1998Guiding the regime of allowances for collaborators engaged in legal assistance activitiesDecree 95/ND-CP Government2/12/1998On recruitment, use and management of civil servantsDecision No. 11/1998QD-TCCP-CCVC Minister for Governmental Personnel5/12/1998On the annual assessment of civil servantsDecision 150/1999/QD-TCCPMinister for Governmental personnel12/2/1999Regulation on civil servants up-grading examinationOrdinanceStanding Committee of N/A01.08.2000To amend Article 18 of the Ordinance on Military Court on 14.09.1993Decree 77/2000/ND-CPGovernment15.12.2000On the adjustment of the basic salary, subsidies and living expenses for the persons who receive salary, subsidies and living expenses22/4/2001Statute of the Vietnam Communist PartyResolution No. 51/2001 QH10National Assembly25/12/2001On adding to and amending some articles of the Constitution of 1992Resolution No. 08/NQ-TW of the CPVPolitburo of CPV2/1/2002On Forthcoming Principal Judiciary TasksResolution No. 19- QD/TW of the PolitburoPolitburo of CPV3/1/2002On banned works for Party membersResolution No. 287-2002-NQ-UBTVQH10Standing Committee of N/A29.01.2002Guidelines for the implementation of a number of recent constitutional

amendmentsInstruction 10/2002/CT-TTgPrime Minister19/3/2002To implement resolution no. 8 of the CPV dated 2/1/2002LawNational Assembly19.04.2002On the Organization of People’s CourtsOrdinance 02/2002/PL-UBTVQH11Standing Committee of N/A11.10.2002On judges and people’s assessors of the People’s CourtsResolution 132/2002/NQ-UBTVQH11

Standing Committee of N/A04.10.2002On the protocol of co-operation between the Supreme Court and local People’s Councils in Administration of Organization of local People’s CourtsOrdinance 03/2002/PL-UBTVQH11 Standing Committee of N/A04.10.2002On prosecutorsResolution 131/2002/NQ- UBTVQH11Standing Committee of N/A04.11.2002On judges, peoples assessors and prosecutorsOrdinance Standing Committee of N/A15.11.2002On the organization of Military CourtsLaw 02/2002/QH11National Assembly16.12.2002On the Promulgation of Legal Documents Circular 01/2003 TTLT/TANDTC-BOP-BMV/ UBTWMTTQVN Supreme People’s Court, The Ministry of Defence, The Ministry of Justice, The Ministry of the Interior and The Vietnam Fatherland Front Central Committee 1 April 2003 Guiding the Implementation of a Number of Provisions of the Ordinance on Judges and Jurors Notes The following sources provide the legislation listed above:

The National Assembly Databas, LAWDATA

Tong Thuat Chung Ket Qua Chinh Nghien Cuu de Tai, (General Abstract of the Principal Research), unpublished, Hanoi,1996

Cong Bao, (Official Gazette)

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