Pham Diem
State and Law Research Institute
At present, in Vietnam the judiciary bodies are understood to constitute a system comprising the following agencies:
- The People’s Courts.
- The People’s Procuracies.
- The investigation bodies.
- The lawyers’ organizations.
- The public notary offices.
- The judiciary expertise agencies.
Formerly, under the feudal regime where all State powers were concentrated into the kings’ hands, the judiciary branch was not separated from the executive branch, hence the absence of judiciary bodies. When Vietnam became a French colony, there appeared for the first time in the country judiciary bodies, namely the courts for trial of French people in Vietnam and the Nguyen dynasty’s feudal courts for the trial of indigenous people.
The August 1945 Revolution overthrew the feudal-colonial regime whose judiciary bodies were disbanded consequently and replaced by the new ones organized by the Democratic Republic of Vietnam Government though only key and urgent judiciary agencies of the above-mentioned types were set up due to the then circumstance of prolonged and fierce war.
1. The courts
Pending the promulgation of the country’s Constitution following the victorious August Revolution, with a view to promptly suppressing the reactionary elements, contributing to the fight against the enemies at home and abroad as well as the maintenance of social order, stability and security, President Ho Chi Minh signed a series of Government decrees on the establishment of courts, including:
a/ The military courts which were set up by the September 8, 1945 Decree and the February 4, 1946 Decree, and based in important provinces and cities such as Hanoi, Hai Phong, Thai Nguyen, Ninh Binh, Vinh, Hue, Quang Ngai, Saigon and My Tho. The military courts were empowered to “adjudicate all those who have committed any acts detrimental to the independence of the Democratic Republic of Vietnam, regardless of whether they were committed before or after August 19, 1945” (when the August Revolution ended in victory). They were competent to hand down judgments on, or to set free defendants, to jail from one to ten years, to impose hard labor for between 5 and 20 years, to pass capital punishment, to confiscate part or whole of property.
The judgments handed down by the military courts would be executed right away without leaving dependants the right to appeal, except for case of death sentence where defendants might ask for commutation by the State President.
Under the above-said decrees, a military court, when in trial, was composed of a chief judge and two judges, with the chief judge being the military member and one judge being the political member, who were both appointed by the Justice Minister after reaching agreement with the Minister of the Interior, and the remaining judge being a professional, who was appointed by the attorney general of the Court of Appeal under the authorization by the Justice Minister who was also authorized by the presidents of the local Administrative Committees. Besides, the court session also included a military personnel or a member of the Espionage Board acting as the prosecutor. The military courts conducted trials in open, except for some special cases. The defendants might defend themselves or ask other to defend them. The military courts were placed under the joint direction of the Ministry of Defense and the Ministry of the Interior.
So, it can be seen that the then military courts functioned to adjudicate political cases directly related to national security and national independence. The operation of the military courts then actively contributed to preventing and promptly punishing acts of opposing and sabotaging the new regime.
b) Civilian courts which were set up by the January 24, 1946 Decree with the general competence to adjudicate common criminal offenses and civilian cases. They were placed under the Justice Ministry’s direction and organized at three levels:
- The first-grade courts which were established at the district level. Such a court was composed of a judge, a barrister and a clerk. The first-grade courts might conduct first-instance and final-instance trials of criminal offenses and minor civil cases right at their offices or on mobility.
- The second-grade courts which were set up and the provincial/municipal level. They were competent to try with final jurisdiction the protested judgments of petty offenses by the first-grade courts, to conduct first-instance trials of serious and petty criminal cases and civil cases with punishment of between 6 days and 5 years of imprisonment.
The trial of civil cases required only the chief judge while the trial of petty criminal cases required the chief judge and two people’s assessors and for serious criminal cases, there had to be the chief judge, two judges, two people’s assessors and one prosecutor. The people’s assessors were nominated by the local Administrative Committees among the members of the People’s Councils of the same level. According to the then regulations, in order to ensure the objectivity of the trials, members of the Administrative Committee, judges, lawyers or relatives of the involved persons were not nominated to be people’s assessors.
- Courts of Appeal which were set up at regional level in three regions of Vietnam then: The Tonkin (northern Vietnam), the Central Vietnam and the Cochinchina (southern Vietnam).
The courts of appeal were competent to conduct appellate trials of first-instance sentences which were handed down by the second-grade courts and protested against. When conducting the appellate trials of petty or serious criminal cases, a court of appeal was composed of the chief judge, two judges, two people’s assessors and two prosecutors. If defendants had no one to defend them, the chief judge would appoint a lawyer to perform such task.
The above-said decree also specified the regime of recruitment of judges who had to be virtuous and fully capable, had to take examinations or had to be selected by a selection council set up by the Minister of Justice. The people’s assessors only had competence to contribute their opinions to judges but not to participate in deciding on the judgments.
- A provisional court martial, which was set up by the August 23, 1946 Decree, based in Hanoi and attached to the Ministry of Defense. It was competent to adjudicate army men and persons working in military agencies, who violated laws, causing harms to the army.
- A special court which was set up by the November 7, 1946 Decree, based in Hanoi and placed under the Government’s direction. It was empowered to adjudicate cases of bribery, embezzlement of public funds.
Following the August Revolution, the Democratic Republic of Vietnam State could not promptly formulate a new law system. Therefore, on October 10, 1945, President Ho Chi Minh signed for promulgation an order permitting the temporary use of a number of laws of the former French-ruled regime on the principle that “such laws do not run counter to the principle of national independence of Vietnam and the Republic”. In that spirit, the criminal procedures code, the civil procedures code, the penal code and the civil code of the French-rule regime continued to be applied to certain extents, while the Democratic Republic of Vietnam State quickly promulgated a number of new legal documents which more or less contained legal proceedings. In addition to the decrees on organization of courts, the July 19, 1946 Decree prescribed the judgment- executing procedures.
In the first Constitution of the Democratic Republic of Vietnam, which was passed by the National Assembly on November 9, 1946, the courts were prescribed in a whole chapter titled “The Judiciary Bodies.” According to its Article 63, the court system of the Democratic Republic of Vietnam was structured to include the following courts at different levels:
- The Supreme Court at the central level.
- The Courts of Appeal at regional level.
- The second-grade courts at the provincial/municipal level.
- The first-grade courts at the district level.
All judges were nominated by the Government (Article 64). The people’s procurators could give their opinions (in the adjudication of petty criminal cases) or joined the judges in making decisions (for serious criminal cases), as provided for in Article 65 of the Constitution.
Particularly, for the first time, the Constitution set forth a number of basic principles on the organization and operation of courts:
- Ethnic minority people may use their own languages at court sessions.
- All court sessions must be conducted openly, except for some special cases.
- The defendants could defend themselves or ask lawyers to defend them.
- Torture, beating or maltreatment of defendants and prisoners are forbidden.
- When conducting trials, the judges shall only comply with law and nobody is allowed to intervene therein.
It is realized that the 1946 Constitution only prescribed one type of courts, namely the civilian courts, but not courts of special type such as courts martial, military courts.
Due to war conditions, the National Assembly voted not to promulgate the Constitution; hence, the State President did not sign the order on the promulgation of the 1946 Constitution.
However, during the anti-French war of resistance, the courts operated according to the principles and spirit of the Constitution but flexibly and suitably to the war conditions. During this period, there existed courts of the following types:
a/ The civilian courts: After the resistance war broke out on December 19, 1946, the regions were cancelled and the whole country was divided into 16 war zones which were later merged into 10 inter-zones. Consequently, three Courts of Appeal in three regions were dissolved and their function of appellate trial was assigned to the Council of Appeal set up in inter-zones (under the January 1, 1947 Decree and the April 12, 1947 Decree). Meanwhile, the second-grade courts were established at the provincial level and the first-grade courts at the district level.
On the basis of the principles set forth by the 1946 Constitution, the May 22, 1950 Decree on reform of the judiciary apparatus and the procedural legislation provided:
- The second-grade courts were renamed the provincial people’s courts.
- The first-grade courts were renamed the district people’s courts.
- The Councils of Appeal were renamed the Courts of Appeal.
- The people’s assessors were called the people’s procurators being equal in rights with the judges.
So, with the above-said decree, the Supreme Court could not be set up due to war conditions, the civilian courts were called the people’s courts.
b/ The battlefield courts martial: Right in the first days of the resistance war, many battlefield courts martial were set up in various localities where combat was going on. Regarding the competence of the battlefield courts martial, the December 26, 1946 joint-circular of the Ministry of Defense and the Ministry of Justice clearly prescribed: “To bring to trial persons who are caught in the act of committing treason, espionage or robbery of people’s property in areas where combat is going on.”
The courts martial were placed under the direction of the Ministry of Defense and the Ministry of Justice.
c/ The military courts: Under the February 16, 1947 Decree, the military courts were based in inter-zones, having competence to try army men who committed offenses. They were administratively managed by the Inter-zone Resistance-Administrative Committees and professionally managed by the Army Law Department of the Ministry of Defense. The July 5, 1947 Decree set up the Central Military Court which was competent to bring to trial offenders in the central offices of the Ministry of Defense and the General Command and army officers of the regiment commander’s rank or higher.
d/ People’s courts in enemy-occupied areas, which were set up under the November 17, 1950 Decree. Such a court was established in each area embracing communes temporarily occupied by the enemy in the same province or the same district. These courts were tasked to punish wicked officials and army men of the adversary administration and army, to protect the local people with a view to deterring the enemy and inciting people to rise up in struggle.
In order to suit the war conditions and their operation within the areas still held by the enemy, this Decree provided that the people’s courts in enemy-occupied areas had the competence of the district people’s courts, the provincial people’s courts and the military courts, might conduct trials according to simple procedures, but not casually nor contrarily to the Government’s undertakings. The judgments handed down by these courts were executed immediately.
e/ The special people’s courts: In the flush of the victory of the resistance war, the Democratic Republic of Vietnam Government started a land reform in 1953 and special people’s courts were set up in service of the land reform. Under the April 12, 1953 Decree, the special people’s courts were set up in localities where the land reform was carried out with the tasks of punishing counter-revolutionaries, village tyrants, opponents of the land reform policy and bringing to trial disputes over determination of social classes. These courts would dissolve upon the fulfillment of their tasks.
The composition of these courts was rather particular. Each court was composed of the chief judge and between 6 and 10 judges who were largely poor peasants. Half of the number of such judges had to be elected by the local Peasants’ Associations or Conferences of representatives of the local peasants.
The special people’s courts were competent to pass judgments on, or set free, defendants, to decide on damage compensations, confiscation of property, deprivation of citizen’s rights, probation in localities, termed imprisonment, life sentence, capital punishment. With such particular composition and with too much powers as mentioned above, many of these courts committed serious mistakes, having infringed upon the lawful rights of citizens.
Panoramically, the 1945-1954 period was the period of establishing and building up the new system of courts, the courts of the democratic republic regime. During this period, the courts were organized in a flexible manner with simple procedures in order to ensure the democratic rights under the then circumstance. Their practical activities were almost concentrated on criminal cases with a view to promptly performing the central and urgent task of the resistance war, namely to maintain order and security in the liberated areas and suppress reactionary elements.
2. The investigation bodies:
Following the victory of the August Resolution, besides the courts, the investigation bodies were also set up soon.
On February 21, 1946, President Ho Chi Minh signed for promulgation a decree consolidating the National Security Department and the National Police Department into one agency called “Vietnam Police Department.”
Later, the July 20, 1946 Decree prescribed the judiciary police officers, stating: “The judiciary police officers are tasked to detect all law offenses (serious and petty criminal offenses), collect evidences and arrest offenders and hand them to courts for trial in accordance with law.”
The Ministry of the Interior was competent to nominate a number of people in the police service to hold the title of judiciary police officers, who had full power to investigate cases of law offense. Besides, a number of administrative personnel such as controllers of the ranger, railways, customs... services were also considered judiciary police officers when conducting investigation of law violations in their respective services.
So, the investigation of cases of law violation was then assigned to individuals holding the title of judiciary police officer as the investigation bodies were not yet established. The force of judiciary police officers was organized and operating under the direction and control of the attorneys general and prosecutors of the courts. So, in their activities of judiciary investigation, the judiciary police officers were not procedurally independent. If the secret investigation (espionage) within the police service was not carried out in the police judiciary order, it would be not legally valid for being brought to courts.
The February 16, 1953 Decree marked a step of substantial development in the organization and activities of judiciary investigation in Vietnam, under which the Ministry of Police was set up in replace-ment of the Vietnam Police Department, which was structured particularly with the Executive Department tasked to investi-gate, compile dossiers on, and propose the prosecution of counter-revolutionary cases and other criminal cases. The inter-zone police departments were organized with Executive Sections and the provincial police departments with the Executive Boards.
So, for the first time, a system of judiciary investigation bodies was formed at three levels (central, inter-zone and provincial) and belonged to the police service. Also for the first time, the judiciary investigation was professionalized.
3. The lawyers’ organizations
Immediately after the victorious August Revolution, on October 10, 1945 President Ho Chi Minh signed for promulgation a decree on organization of Bar Associations. Yet, as the then conditions did not permit the immediate establishment of Bar Associations, the Decree provided that the former Bar Associations in the old regime would be maintained but with changes in their organizations and operation to suit the new regime and the new situation.
The then maintenance of former Bar Associations aimed to timely ensure the defendants’ right to defense in criminal cases. In reality, during the first years after the Revolution, Bar Associations only existed in big cities and operated only at the provincial-level courts. When the national resistance war broke out, the lawyers’ organizations could no longer operate.
Under the June 18, 1947 Decree, besides lawyers who were entitled to partake in the defense at the people’s courts of the provincial and higher levels as well as military courts, persons who were not lawyers, but carried the Vietnamese nationality, had good virtue and no criminal records were entitled to act as defenders before courts. Defendants or involved persons had the right to choose citizens with such qualifications or lawyers to defend them at courts, but with the consents of the chief judges. If they could not find any one to defend them, the chief judges might nominate the defenders.
4. The public notary offices
Under the French rule, there existed a number of public notary offices in Hanoi and Saigon. After the August 1945 Revolution, on October 1, 1945, the Minister of Justice signed a decree, dismissing French public notaries and appointing Vietnamese public notaries to take the former’s place. Under this Decree, the former regime’s regulations on public notary still applied, except for provisions which were not suitable to Vietnam’s independence and democratic republic regime. It can be considered the first legal document of the Democratic Republic of Vietnam on public notary.
Yet, due to war conditions, the above-said public notary offices could hardly operate. Therefore, a decree prescribing the procedures for certification of papers, including contracts, the transfer of ownership of immovable property, was issued on November 15, 1945, under which the power to give certification was delegated to the local Administrative Committees.
In short, during the 1945-1954 period, the judiciary bodies in Vietnam could not be set up adequately and perfected immediately, but only most important and urgent judiciary bodies, namely courts, were organized. Though still young, the judiciary bodies in this period contributed an important part to the success of the resistance war and the building of the people’s democratic republic in Vietnam.-