Vietnamlawmagazine

Dr. Ha Hung Cuong

Minister of Justice

The Judicial Reform Strategy to 2020: the main achievements and shortcomings after eight years of implementation

Resolution No. 49-NQ/TW on the Strategy for Judicial reforms to 2020 (the Strategy) was adopted by the Political Bureau on June 2, 2005 in line with the policies of the IX^th Vietnam’s Communist Party’s National Congress on the development of a socialist-oriented market economy and building of a socialist rule of law state, and international integration. Since early 21^st century, along with the establishment of the principle “the state powers shall be unified and delegated to state agencies which must cooperate with one another in the exercise of the legislative, executive and judicial powers” in the 1992 Constitution (as amended and supplemented in 2001), the judicial reforms have been undertaken step by step in synchrony with the legal reforms and public administration reforms[1] with a view to comprehensively renovating the state apparatus under the rule of law principles and promoting political reforms to catch up with and better respond to the demands of the economic reforms.

The goal of the judicial reforms in the period of national industrialization and modernization is to build a clean, strong, democratic and strict rule-based judicial system which protects justice, and is gradually modernized to serve the people and the socialist Vietnam Fatherland, with the reform of courts and adjudication activities being the center of the reforms where further expansion of the fair adversary in court proceedings shall be the breakthrough.

To that end, the Strategy sets forth five orientations and seven groups of solutions, which focus on reforming substantive laws (criminal, civil, administrative...) and procedural laws; reforming the organization of judicial agencies and judicial assistance institutions; building and improving the quality of judicial staffs and legal professionals, especially those who have judicial titles; promoting the supervision by people-elected agencies and the public, and renovating the leadership by the Party over judicial activities and agencies.

Defendant Nguyen Dong Ha, a former land use right registry officer

in Kien Giang province, is tried for deceit __Photo: Le Sen/VNA

Over the past eight years, the judicial reforms under the Strategy have produced certain initial important achievements and shortcomings and limitations which deter the pace and quality of judicial reforms.

Firstly, under the Strategy, the organization and operation of the judicial system have been directed toward incorporating many universal values of democratic justice regimes in a modern rule of law state.

Criminal, civil and procedural laws have been improved[2] in line with the objectives and orientations of the Strategy, such as increased benevolence and humanity of the penal policy; establishment of civil, economic and commercial legal mechanisms and institutions which are more in line with and respond better to the requirements of the development of a socialist-oriented market economy; initial reforms of the judicial procedural laws by combining the inquisitorial and adversarial elements to enhance democracy and transparency in judicial activities and facilitate access to justice for individuals and organizations.

The organization and operation of courts and other agencies and organizations taking part in the exercise of judicial powers (investigating agencies, procuracy, judgment enforcement agencies, lawyers, forensic experts, etc.) have been reformed step by step to be in line with the universal principles of democratic justice regimes in a rule of law state, such as two levels of court proceedings (trial and appellate), independence of trial and open trial…, and the special principles for specific judicial proceedings, such as the right to defense of the accused and defendants and presumption of innocence in criminal procedure; and the autonomy and self-determination of involved parties in civil procedure.

The Supreme People’s Court has drawn up a scheme on reorganization of the court system to be based on the adjudication competence without being confined to the established administrative geographic boundaries, introducing a four level court hierarchy model in accordance with Resolution No. 49-NQ/TW. The People’s Procuracies exercise the prosecutorial power and supervision over the judicial activities and are currently being reorganized in alignment with the People’s Courts’ organization. The investigating agencies have been initially streamlined. The enforcement of criminal, civil, and administrative judgments has been improved and now governed by different laws. It has been organized under the unified top down systems: the Ministry of Public Security administering the enforcement of criminal judgments and the Ministry of Justice managing the enforcement of civil and administrative judgments.

The organization and operation of judicial assistance institutions (lawyers, legal consultancy, legal aid, forensic examination, etc.) have been improving and developing quantitatively and qualitatively. The policy on socialization of judicial assistance activities (such as notary, forensic examination and civil judgment enforcement) has been vigorously implemented and brought practical benefits to the people.[3] The private bailiff service has been successfully piloted in Ho Chi Minh City and is now expanded to 13 other provinces and cities nationwide.

The development, standardization and improvement of the quality of judicial officers and judicial professionals and judicial assistance title holders have recorded initial achievements and the law education and legal professional training of judicial title holders has been intensified. The Scheme on making the Hanoi Law University and Ho Chi Minh City Law University become the key educational schools for law study, and the Scheme on making the Judicial Academy become a major center for training of judicial professionals have been approved by the Prime Minister.

The equipments and facilities, including work offices and equipments, technical devices, etc., in courts, procuracies, investigative agencies, and criminal and civil judgment enforcement agencies have been modernized, contributing to these agencies’ better performance.

Secondly, the content and method of leadership by the Party over judicial works, and supervision by people-elected agencies and socio-political organizations of the operation of judicial agencies have been improved step by step in the judicial reform process in line with the special features and characteristics of our political system.

The adoption of the Strategy and the development of five-year programs and annual plans of the Central Steering Committee for Judicial reforms for the implementation of the Strategy have marked an important change in the content and method of the Party’s leadership over judicial organization and activities. The Party has focused more on laying out, and leading the implementation of, political lines, policies and solutions to achieve the reform objectives; leading the planning, training, appointment and use of personnel in judicial agencies, especially the making available those who are members of the Party’s executive organs and having sufficient qualifications, reputation and determination, for appointment of chief judges and chief procurators; strengthening its advisory bodies in charge of legal affairs for the Party; and intensifying education, management, inspection and punishment of officials and party members who commit wrongdoings.

The supervision by the National Assembly, People’s Councils and socio-political organizations over the judicial activities has become more substantial and effective. The National Assembly’s Judicial Affairs Committee, which was established by the XII^th National Assembly, has examined draft laws and ordinances on judicial organization and activities to ensure their compliance with the spirit of the judicial reforms and performed the specialized supervision of a number of judicial reform activities. The question-answer sessions held by National Assembly and People’s Council deputies on work reports from judicial agencies have enhanced the publicity and transparency of judicial activities.

The Vietnam Fatherland Front and its member organizations, especially the Vietnam Lawyers’ Association and the Vietnam Bar Federation, have directly involved in developing judicial policies and laws and performed social supervision and appraisal roles for judicial agencies’ activities, contributing to the better legal knowledge and understanding of the people and improving their access to justice.

The above mentioned achievements of the reforms have contributed to the stricter, fairer and more democratic arrest, detention and rehabilitation activities in the investigation, prosecution, adjudication and judgment enforcement works. Civil, economic and commercial relations and the rules on contracts, compensation and indemnity institutions have been more and more improved, contributing to boosting the socio-economic development, national defense and international integration.

Thirdly, nevertheless, the implementation of the judicial reforms still shows many shortcomings and limitations as follows:

- The implementations of many tasks and schemes on judicial reforms, including some key schemes on reform of organization of courts, procuracies and investigating agencies, and models of criminal procedure and civil procedure, have been implemented slowly and asynchronously and lack broad-based support.

- Some principles of organization and operation of courts and court proceedings are not substantively clear and being without effective measures for implementation, such as the independence of trial, the two level of adjudication principles. The principle of adversarial trial has not yet been institutionalized, causing low efficiency, failing to become the breakthrough in the judicial reforms in accordance with the spirit of Resolution No. 49.

- The quality of operation of judicial agencies remains with shortcomings; the level of pending cases waiting for trial and the wrongful judgments have not been eliminated. The judicial officers and judicial title holders, especially judges, are insufficient in number and a portion of them are short of professional qualifications, ability and ethics. Mechanisms to control the exercise of judicial power remain insufficient and ineffective. The abuse, wrongdoings, bribery and violations of law still occur in the exercise of judicial power, leading to imposition of disciplinary measures, administrative and even criminal punishments; this, in turn, has prevented the judicial reforms from meeting the requirements of daily life, made the objectives of safeguarding justice, human rights and rights and legitimate interests of individuals and organizations fail to be fully and properly implemented, and has reduced the people confidence and trust in the legal institutions.

These shortcomings and limitations are attributable to many reasons, including the insufficient awareness and inconsistent views of a part of the staffs and Party members in judicial agencies with regard to the objectives and requirements of, and their responsibilities for, the judicial reforms due to the lack of high determination and failure to get away from the habits and sectoral interests. The theories on the principles for organization and operation, and the power delegation, coordination and control of the power exercise between judicial, legislative and executive agencies in a socialist rule of law state have not yet been timely and thoroughly studied. Therefore, many works of the judicial reforms have been done to respond to specific single cases without a solid political, legal and social foundation.

New provisions in the 2013 Constitution on judicial power, principles of exercising judicial power and safeguarding human rights and citizen’s rights in judicial affairs

The 2013 Constitution was adopted by the 13^th National Assembly in its 6^th session and has entered into force on 1^st January. As the basic law of the country, the 2013 Constitution dialectically reflects the steps forward in the theoretical perception and practical results of the state apparatus reform and democratization of the political-legal life in general and of the judicial reforms which is full of difficulties and challenges in particular over the past years in the country.

The new Constitution, for the first time after the 1946 Constitution, clearly delegates the National Assembly to exercise the legislative power, the Government to exercise the executive power and people’s courts to exercise the judicial power. It also for the first time affirms the noble mission of the court “to safeguard justice, human rights, citizens’ rights, the socialist regime, the interests of the State, the rights and legitimate interests of organizations and individuals” (Article 102). These provisions, theoretically and practically, necessitate a more accurate perception and a more reasonable definition of the roles and functions of the commonly called judicial agencies (investigating agency, and procuracy and judgment enforcement agencies) in relation to courts in exercising state powers in general and judicial powers in particular.

Article 103 of the 2013 Constitution establishes the principles of organization and operation of the courts. All seven clauses of this Article have new provisions of breakthrough nature. The fundamental principles enshrined in the previous Constitutions are now supplemented and developed in line with the Strategy’s orientations. For example, the ‘independence of trial’ principle is supplemented with the provision which reads “Agencies, organizations or individuals are prohibited from interfering trial by judges and people’s assessors” (Clause 2). This is reminiscent of a provision of the 1946 Constitution: “During a trial, judges abide by law only and other agencies may not interfere therein” (Article 69). The ‘open trial’ principle is supplemented with the provision which provides that “in a special circumstance which requires protection of state secrets, conformity with fine customs and traditions of the nation, protection of minors or protection of private life at the legitimate request of an involved party”, the court may hold a closed hearing (Clause 3, Article 103), while the verdict must still be publicly pronounced (Clause 2, Article 31). The “collective trial and decision by majority” principle is added with an exception: “except in the case of trial by summary procedure” (Clause 4, Article 103). This provision serves as a basis for procedural laws to specify summary procedure, an urgent practical issue which has been identified in the Strategy but not yet thoroughly addressed due to lack of a constitutional ground. The “participation in trial by assessors” principle also has some major modifications such as the people’s representatives participating in trials are called assessors (instead of being separately defined as people’s assessors and military assessors in the 1992 and 1980 Constitutions) and assessors participate only in first-instance trials except cases of trial according to summary procedure (Clause 1, Article 103). On the other hand, the new Constitution no longer provides that assessors have equal authority as judges as prescribed in the 1992, 1980 and 1959 Constitutions, which creates a ground for the study and reform of the participation of people’s representatives in trials to be more realistic and effective.

The 2013 Constitution also provides constitutional grounds for the breakthroughs identified in the Strategy in the organization and adjudicating activities of courts by adding new principles, the ”two levels of adjudication” (Clause 6, Article 103) and the ‘adversarial’ principles (Clause 5, Article 103). More importantly, to ensure the enforcement of the adversarial principle, the new Constitution reforms substantially the provisions on the right of the accused or defendants to a defense and the right of organizations and individuals to protect their lawful rights and legitimate in court proceedings (Clause 7, Article 103). These provisions not only recognize that human rights must be respected, safeguarded and guaranteed in judicial procedure but also uphold the method to ensure the adversarial principle in trial. Moreover, the right to defense and the methods of exercising this right throughout the criminal procedure are also specified in Clause 4, Article 31: “A person who is arrested, held in custody, temporarily detained, accused of a criminal offense, investigated, prosecuted, or brought to trial has the right to defend himself or herself or have a defense counsel or another person to defend him or her.” While the adversarial principle and the right of the accused and defendants to defense are established and extended (right from the time of being arrested where a decision to institute a criminal case has not been made), the presumption of innocence principle in the criminal procedure is also revised with more accurate, transparent and law-ruled provisions: “A person accused of a criminal offense shall be presumed innocent until proven guilty according to a legally established procedure and the sentence of the court takes legal effect” (Clause 1, Article 31); and “A person accused of a criminal offense shall be promptly tried within a statutory time limit in a fair and public manner by a court” (Clause 2, Article 31). The rights to compensation for physical and mental damages and to restoration of honor harmed by illegal acts committed by law enforcement agencies and persons are also specified and extended to persons who are arrested, held in custody, temporarily detained and in all the stages of criminal proceedings, investigation, prosecution, trial and enforcement of judgments (Clause 5, Article 31).

Implementing the 2013 Constitution and pushing the judicial reforms in accordance with the spirit of Resolution No. 49-NQ/TW on the Strategy for Judicial reforms to 2020

In order to implement the provisions of the 2013 Constitution in daily life, ensure the supremacy of the Constitution and enhance the effectiveness and efficiency of the judicial reforms, it is important now to focus on how to amend and improve the legal framework on judiciary in accordance with the spirit and content of the new Constitution as well as the orientations set out by the Strategy.

Given the new important provisions on the judicial powers and the exercise of the judicial powers linked with the safeguarding of human rights in judicial affairs, under the National Assembly Standing Committee’s and the Government’s plans on the implementation of the 2013 Constitution, from now to 2016, a series of laws and codes concerning the organization and operation of courts and agencies involved in the exercise of the judicial power will be comprehensively revised or promulgated. They include the laws on the organization of courts, procuracies and investigative agencies, the Criminal Code, the Civil Code, laws and codes on criminal procedure, civil procedure and administrative procedure, and laws directly relating to the guarantee and protection of human rights in judicial activities, such as the Law on Holding of Persons in Custody and Temporary Detention, and the Law on Legal Aid, etc.

The policies in the above-mentioned laws should demonstrate adequately and more clearly the guidelines and orientations of the Strategy and concretize the fundamental principles of the exercise of the judicial power provided in the 2013 Constitution. For instance, the improvement of criminal law must aim to increase humanness, benevolence and protection of human rights in the handling of offenders and to improve the effectiveness of crime prevention activities under the new socio-economic conditions. The use of capital punishment should be further restricted; imprisonment penalties should be reduced, and non-custodial rehabilitation penalty should be extended to certain other crimes. Socially dangerous acts that have recently emerged in the socio-economic, scientific and technological development and international integration process should be established as crimes. Besides, the criminalization of economic and civil relations should be resolutely eliminated and this should be regarded as a political commitment of the State, as said by Prime Minister Nguyen Tan Dung at a conference with businesses held in 2014. All these are to make the judicial reforms go side by side with and truly facilitate, promote and protect the trust and confidence in socio-economic development.

In order to realize the 2013 Constitution’s provision “the adversarial principle in trial is guaranteed”, it is necessary to incorporate this principle in the laws and codes on criminal, civil and administrative procedures, and the laws on organization of courts, procuracies and investigating agencies by defining the legal responsibilities and establishing processes and procedures to compel these agencies to ensure a democratic and open adversarial process in all stages in the exercise of the judicial powers.

At the same time, new policies and laws should be promulgated soon to mobilize social resources for the quantitative and qualitative development by leaps and bounds of the lawyers and legal aid staffs to help the arrestees, detainees, accused and defendants exercise their right to defense and to help involved parties in civil and administrative cases protect their rights and legitimate interests. Law firms, lawyers’ socio-professional organizations, the Vietnam Bar Federation and the Vietnam Lawyers’ Association should better play their roles in mobilizing and encouraging lawyers and jurists to heighten their social responsibility and take part in providing defense and pro-bono legal aid for the poor, policy beneficiaries and disadvantaged persons to enjoy protection and fair trial, striving to early achieve the Strategy’s goal that all citizens in need are provided with legal aid and defense during criminal trial to guarantee justice and social equality.

The failure or success of every reform depends on human factors. Likewise, the shortcomings revealed over the past eight years of judicial reforms are contributable to the weaknesses in the awareness and the professional capabilities, determination and ethics of the judicial title holders, including the judges, procurators, investigators and lawyers. Thus, in order to properly implement the constitutional principles of “independent and solely law-abiding trial” and “guaranteed adversarial process in trial” - the fundamental principles of the exercise of the judicial power and the key requirements of the judicial reforms, in the coming time, substantial improvements should be made in both institution building and implementation mechanisms in all stages of professional development, from training, recruitment, appointment, career promotion, commendation and disciplining of judicial title holders, especially judges - the central player in the exercise of the judicial power, and procurators and lawyers - two parties to the adversarial process.

A new Ordinance on training of a number of judicial title holders being drafted is expected to institutionalize the policy of joint training of judges, procurators and lawyers, which will expand the source of candidates for judges and procurators to include not only officers of judicial agencies but also qualified lawyers and jurists, as set out by the Strategy. This will also allow a shift in the judge selection mechanism, from dossier-based selection to exam-based selection. Those who pass the national examination and meet all statutory requirements will be considered to be appointed as national judges by the President, regardless of their locality.

Besides reforming the court system’s organization in accordance with the principle of two levels of adjudication, great importance must be attached to reforming the administrative management of courts to ensure the independence between court levels. This is the most important issue in the exercise of the judicial powers addressed in the draft revised Law on Organization of People’s Courts which is attracting a lot of attention by the public.

The above-mentioned reforms relating to the administrative management of courts, and the training, examination and appointment of judges must be carried out simultaneously with the reforms of other policies and regulations, such as prolonging the term of office of judges and eventually adopting lifetime term of judges, formulating salary policies to fit the characteristics of judges’ profession, developing a Code of Professional Ethics for Judges to establish a transparent and objective framework of discipline and commendation for judges, and creating a legal mechanism for the protection of life, honor and dignity of judges. All these solutions would be the important guarantees for the building of an independent, clean, strong, strict, democratic judicial system which protects the justice and serve the people and Fatherland, as set forth in the Strategy.-