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Official Gazette

Tuesday, June 15, 2021

Draft Constitution Revision: Adversary arguments throughout the trial process guaranteed

Updated: 10:08’ - 27/06/2013

The National Assembly debated this month the draft revised 1992 Constitution, which is the outcome of the careful consideration and assimilation of over 26 million comments contributed by individuals and organizations at home and abroad. Vietnam Law & Legal Forum would like to introduce the new provisions concerning the court system in comparison with the draft revision first made public five months ago.

In the draft published in January for public feedback, Chapter VIII on People’s Courts and People’s Procuracies has five articles on people’s courts as follows:

Article 107. (revising Articles 126 and 127 of the 1992 Constitution)

1. People’s courts are adjudicating bodies of the Social Republic of Vietnam and exercise the judicial rights.

People’s courts include the Supreme People’s Court and other courts defined by law.

2. People’s courts have the duty to protect justice, human rights and civic rights, interests of the State, rights and legitimate interests of organizations and individuals.

3. In special circumstances, the National Assembly may decide to establish a special tribunal.

Article 108. (revising Articles 129, 130, 131, 132 and 133)

1. A trial by a people’s court is participated by people’s jurors, except in cases prescribed by law.

2. Judges and people’s jurors conduct trial independently and abide by law only.

3. People’s courts conduct trial in public, except in cases prescribed by law.

4. People’s courts conduct trial on a collegial basis and make decisions by majority, except in cases prescribed by law.

5. The principle of adversary arguments at hearings is guaranteed.

6. The regime of first-instance trial and appellate trial is guaranteed.

7. The right of the accused and defendants to defense and the right of involved parties to protect their legitimate rights are guaranteed. An accused or defendant may defend himself/herself or ask legal counsels or other persons to defend their legitimate interests.

Article 109. (revising Article 134)

1. The Supreme People’s Court is the highest adjudicating body of the Socialist Republic of Vietnam.

2. The Supreme People’s Court supervises the trial by other courts.

3. The Supreme People’s Court reviews the reality of adjudication, ensuring the uniform application of law in adjudication.

Article 110. (revising Articles 128 and 135)

1. The president of the Supreme People’s Court is elected by the National Assembly. The term of office of the president of the Supreme People’s Court is the same as that of the National Assembly. The appointment and term of office of presidents of other courts are prescribed by law.

2. The president of the Supreme People’s Court is answerable and reports his/her work to the National Assembly. When the National Assembly is in recess, he/she is answerable and reports his/her work to the National Assembly Standing Committee and the President. Presidents of other courts report their work to People’s Councils as prescribed by law.

3. The appointment, relief from office, dismissal and term of office of judges; the election and term of office of people’s jurors are prescribed by law.

Article 111. (revising Article 136)

Legally effective judgments and rulings of people’s courts must be respected by agencies, organizations and individuals and strictly executed by concerned agencies, organizations and individuals.

As reported by the Drafting Committee, some opinions suggest to divide this Chapter into two chapters separately providing for people’s courts and people’s procuracies. Some others propose to move provisions on people’s procuracies to Chapter X on independent agencies. However, the Drafting Committee maintains to keep this Chapter undivided for the reason that operations of courts and procuracies, though two independent bodies in the state apparatus, are closely related and complementary to each other in protecting justice, human rights and civic rights. In Vietnam’s constitutional history, provisions on people’s courts and people’s procuracies are always put in the same chapter.

Moreover, compared to Article 126 of the 1992 Constitution, the functions and duties of people’s courts and people’s procuracies are more clearly prescribed in two different articles (Articles 107 and 112).

Regarding suggestions on the establishment of a tribunal in the court system to try juvenile delinquents who commit serious crimes, the Drafting Committee agrees that the establishment of such tribunal is quite necessary but holds that the addition of a provision on this type of tribunal in the Constitution is unnecessary because it belongs to the group of other courts mentioned in the draft. In fact, a plan on establishment of a family and juvenile tribunal has been worked out by the Supreme People’s Court and will be submitted to the National Assembly for revision of the Law on Organization of People’s Courts. Under this plan, the family and juvenile tribunal is also a specialized tribunal in the existing court system.

Comments on specific articles

Regarding Article 107, the Committee agrees to opinions that a separate provision on special tribunals is unnecessary because the existing Law on Organization of People’s Courts can provide sufficient grounds for the establishment of a special tribunal when necessary, and takes up the suggestion on insertion of the phrase “protect the socialist regime” into the provision on the duties of courts.

Some suggested the revised Constitution specify all court types and levels, including the Supreme People’s Court, appellate courts, regional first-instance courts, military courts, etc., and use the expression “other courts” instead of “attached courts”. However, the Drafting Committee does not want to change the Article’s wording because it is “inclusive” to cover all types of court, except for the Supreme People’s Court, which may cease to exist or be established depending on social development and demand in each period.

The expression “attached courts” may lead to a misunderstanding that the court system is organized in a centralized and uniform manner. In reality, courts are independent bodies. The Supreme People’s Court only supervises trial activities of lower-level courts, provides guidance on law application and summarizes trial experience.

The Drafting Committee does not accept suggestions to define the Judges’ Council of the Supreme People’s Court and administrative unit- or jurisdiction-based court levels in this Article, saying that this should be provided in the Law on Organization of People’s Courts.

Based on contributed opinions, the Drafting Committee revises this Article as follows:

Article 107.

1. People’s courts are adjudicating bodies of the Social Republic of Vietnam and exercise the judicial rights.

2. People’s courts include the Supreme People’s Court and other courts defined by law.

3. People’s courts have the duty to protect justice, human rights, civic rights, the socialist regime, interests of the State, rights and legitimate interests of organizations and individuals.”

Regarding Article 108, the Drafting Committee agrees to the suggestions that the Article should:

 Provide in Clause 1 the guarantee for people’s jurors’ participation in trial,

 Set in Clause 3 a clearer requirement that courts conduct trial in public, except in national security-related cases,

 Specify in Clause 4 exceptions to the principle that courts conduct trial on a collegial basis and make decisions by majority, except in cases tried according to summary procedures,

 Provide in Clause 5 the guarantee for adversary arguments in the whole stage of trial instead of hearings only, and

 Remove from Clause 7 the phrase “An accused or defendant may defend himself/herself or ask legal counsels or other persons to defend his/her legitimate interests” as it is too specific.

The Drafting Committee supports the suggestion to retain the provision of Article 133 of the 1992 Constitution on the right of ethnic minority defendants to use their spoken and written languages before court to protect their rights but proposes not to add such provision to Article 108 on the ground that this right is already provided in Article 5 of the draft (in the Chapter on the Political Regime) and recognized in all social fields, not only in judicial activities.

As for the suggestions on the jury which is composed of persons randomly chosen among virtuous, skilled and law-abiding citizens, the Drafting Committee holds that the institution of jury is not yet suitable to Vietnam’s practical conditions and legal proceeding model and proposes to retain the provision on people’s jurors, who are selected by people-elected agencies, which has proved effective over the past 60 years.

After considering the contributed comments, the Drafting Committee rewrites this Article as follows:

“Article 108.

1. A trial by a people’s court is participated by people’s jurors, except in cases tried according to summary procedures.

2. Judges and people’s jurors conduct trial independently and abide by law only.

3. People’s courts conduct trial in public; they may conduct trial behind closed doors in special cases where it is necessary to keep confidential state secrets, preserve national fine traditions and custom, protect juvenile persons or keep life privacy of involved persons upon their legitimate requests.

4. People’s courts conduct trial on a collegial basis and make decisions by majority, except in cases tried according to summary procedures.

5. The principle of adversary arguments in the whole stage of trial is guaranteed.

6. The regime of first-instance trial and appellate trial is guaranteed.

7. The right of the accused and defendants to defense and the right of involved parties to protect their legitimate rights are guaranteed.”

Regarding the suggestion on addition of the Supreme People’s Court’s power to issue court precedents, the Drafting Committee recognizes the necessity of issuance and application of court precedents as stated in the Political Bureau’s Resolution No. 49 of June 2, 2005, on judicial reform through 2020, but says that this is a new and complicated issue which should be further studied before being officially provided in the Constitution.

The Drafting Committee also says that the suggestion on addition of the Supreme People’s Court’s power to interpret law is not supported by a majority of opinions. Therefore, it proposes to keep unchanged the powers of the Supreme People’s Court as stated in the draft. Domestic laws will continue to be interpreted by the National Assembly Standing Committee.

As a result, no change is made to Article 109.

As for Article 110, the Drafting Committee has removed, as suggested, the provision in Clause 1 that the president of the Supreme People’s Court is elected by the National Assembly for such is already provided in Clause 7, Article 75. Meanwhile, it rejects the suggestion to provide that the president of the Supreme People’s Court is selected by the National Assembly from National Assembly deputies, explaining that the current provision aims to ensure wider range of choice of personnel for the post and the independence of this judicial body.

The Drafting Committee also agrees to the suggestion on insertion of the words “relief from office, dismissal” after the word “appointment” in Clause 1 of the Article. As a result, Clause 1 of the Article is revised as follows:

Article 110.

1. The term of office of the president of the Supreme People’s Court is the same as that of the National Assembly. The appointment, relief from office, dismissal and terms of office of presidents of other courts are provided by law.

2...”

Regarding Article 111, the Drafting Committee proposes to keep the whole Article unchanged.-

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