Dinh Thanh Phuong, LL.M
Nguyen Thi Hang Diem Mi
Law Faculty, Can Tho University
The Politburo’s Resolution No. 49/NQ-TW of June 2, 2005, on the Judicial Reform Strategy through 2020, affirms that adjudication is central to judicial activities. The efficiency and effectiveness of adjudication are the most convincing reflection of those of judicial activities. Judges assume the central role in adjudication. The Law on Organization of People’s Courts is currently under revision to be compliant with the new Constitution and to meet the requirements of the judicial reform. Improving the quality of adjudication activities of judges is now an issue of high concern. To achieve this goal, in addition to upholding professional qualification requirements, the improvement of legal provisions on judges is quite necessary. Along with selection and appointment criteria, current regulations on judges’ term of office have a significant impact on the quality of their adjudication activities.
Current role, position and term of office of judges
According to Article 3 of the 2002 Law on Organization of People’s Courts and Article 1 of the 2002 Ordinance on Judges and Assessors of People’s Courts (amended in 2011), judges are those appointed in accordance with law to conduct adjudication and perform other jobs under court jurisdiction.
Judges hold a central and irreplaceable position in adjudication activities. Presiding over court hearings, judges are always the central actor in the adjudicative process. All proceedings at a court hearing are started and ended by judges. Whether the steps of the adjudicative process are taken in due course or are closely interconnected depends on judges’ skills of administering a court hearing. As the conductor of a court hearing, a judge would ensure that procedure participants properly comply with regulations on their rights and obligations in finding the truth of the case.
Judges and assessors make up a trial panel, which is competent to make the final ruling over a case. However, unlike assessors, judges’ role in a trial panel is irreplaceable. For example, in the criminal procedure, the presence of assessors is compulsory only at first-instance court hearings[1]. At appellate court hearings, assessors would be present only when necessary[2]. In the civil procedure, assessors attend only first-instance court hearings, while appellate court hearings are conducted by judges only[3].
Pursuant to current law, the term of office of a judge is five years from the date of his appointment[4]. This provision has a positive significance to judges’ competence and performance. The limited term of office of judges is a key motivation that drives them to keep learning and improving their professional qualifications and capabilities, improving and preserving their moral qualities, and fulfilling their adjudicative mandate in order to be reappointed for another term[5]. Given such short term, the opportunity for reappointment would not be guaranteed if a judge fails to train himself and gain more practical experiences. The term of office of judges is therefore in place to remind them of focusing on their adjudication quality and limiting mistakes. In the meantime, it also serves as a basis for removing incompetent and irresponsible judges.
Necessity to extend judges’ term of office
Beside its advantages as mentioned above, judges’ fixed term of office also shows irrationalities and causes negative consequences to individual judges and adjudication activities of courts. In revising the Law on Organization of People’s Courts, the National Assembly should take into consideration the extension of judges’ term of office and a possible step further toward lifetime appointment. The extension would help address the limitations of the current five-year limit and, with some reasonable adjustments, make judges able to serve better. Furthermore, longer or life terms of office for judges would bring about positive changes in adjudication activities.
Rationale for extension of judges’ term of office
Firstly, under current law, when their term of office expires judges would be reappointed if selected by the Judge Selection Council. On the contrary, if not selected, they would not be reappointed and have to transfer to other positions or other professions. In fact, judges would be automatically reappointed as long as they make no professional mistakes. The Supreme People’s Court’s Department of Organization and Personnel has so far based itself on the percentage of judgments quashed and corrected as an important criterion for review and consideration of judge reappointment[6]. Generally, judges would not be reappointed only when they are physically unfit for their job, fail to fulfill their duty, morally and politically unqualified, professionally incompetent, and especially have an excessive percentage of their judgments quashed or corrected. Otherwise, judges would remain in office for the rest of their working life.
In case life terms apply, a judge is still subject to removal from office if he “is physically unfit for the job, fails to fulfill the duty, morally and politically unqualified, professionally incompetent, and has an excessive percentage of judgments quashed or corrected”.
Either way, as the reasons for a judge to continue his/her job do not differ, the selection of judges for reappointment is exactly the same as the consideration and evaluation for removal from office of judges.
Secondly, adjudication is a unique job in the procedural process. In the name of the State, a judge tells right from wrong and rules a person guilty or not. This job thus requires high competence and firm experience and skills. To prepare themselves for the job, judges need time to accumulate practical experience, improve their professional capabilities and moral qualities. Therefore, definite terms of office for judges are not needed.
In addition, based on relevant regulations and taking into consideration their professional title, it can be asserted that judges are civil servants rather than cadres. According to Clause 1, Article 4 of the 2008 Law on Cadres and Civil Servants, a cadre is a person elected, approved or appointed to hold a post or title for a definite term of office. The Law does not specify any terms of office for civil servants. Article 7 of Government Decree No. 06/2010/ND-CP of January 25, 2010, defines judges as civil servants in the system of people’s courts and holders of a professional title rather than a termed post. A regulation on definite terms of office for civil servants who are judges would lead to an unequal treatment among civil servants. Why can other civil servants, for instance, experts of People’s Committees’ offices, be sure of their seats for life, while judges cannot?
The above analysis has demonstrated that the regulation on a definite term of office for judges does not make any sense because term-based appointments and lifetime appointments are the same, and the application of a definite term of office to judges as civil servants is incompliant with the law on cadres and civil servants.
The regulation on a definite term of office for judges has even in some cases had negative consequences that seriously affect the objective and fair adjudication by courts.
Independence of judges
Independent trial is a principle of utmost importance that decides whether or not a judgment is objective, against a right person and for a right crime. An independent judge is expected to conduct trial in an objective and impartial manner without being influenced, induced, coerced, threatened or intervened by any entity. The current application of a definite term of office makes judges very difficult to stick to this principle. Specifically, the five-year term is resulting in a reality that judges are not fully dedicated to ensuring the objectivity and independence of courts. In fact, judges would do anything, especially “lobbying” among persons from other organizations who are members of the Judge Selection Council, for their reappointment. This means that judges are influenced by those persons who vote to select them and cannot maintain their independence in trial under such influence. This is the reason for the current provision that judges must be subject to appointment instead of election as previously provided in Article 129 of the 1980 Constitution. The appointment of judges is made by an individual rather than a collective. Specifically, the President appoints judges of the Supreme People’s Court and the Chief Justice of the Supreme People’s Court appoints judges of local courts. However, the present term-based appointment of judges has created “a dependency of judges on members of the Judge Selection Council, especially at the times of appointment and reappointment. Many legal experts and judges have pointed out that the five-year term is too short to ensure the independence of judges because rather than adjudicating justly and obeying the law only a judge might behave in a way that is most favorable for his reappointment.
Problem of bribery
As analyzed above, when a judge’s five-year term comes to an end with no mistake recorded, he will be reappointed. This creates an opportunity for persons with the competence to reappoint judges to ask for bribes. This reality has resulted in serious consequences such as consolidation of personal power, offering of bribes for the purpose of getting reappointed, and likelihood of judges to become professionally weaker and morally degraded.
Benefits of extended term of office
We find it necessary to extend the term of office of judges to 10 or 20 years, or even lifetime. The extension would at the same time help address shortcomings and bring about positive changes such as more independent judges, fewer bribes, better use of judges’ adjudicative experience, time and money saved from less frequent reappointments.
With extended terms or life term, judges can avoid the concern of whether they would get reappointed and get rid of influence from outside, and would be able to conduct trial in an impartial and objective manner and obey the law only. Moreover, even when enjoying life terms, judges could be removed if they make mistakes. Therefore, judges need only to continue developing their professional capabilities, skills and moral qualities to live up to their title. An extended term of office would ensure independent trial and provide a solution to the present situation that certain judgments should be reported for approval.
Bribery will be inhibited once reappointment of judges is no longer necessary.
Taking advantage of judges’ adjudicative experience is another great benefit of a longer or life term of judges. Adjudication requires high professional qualifications but experience also matters. The more experienced a judge is, the better he is[7]. As social relations have become increasingly complicated and laws cannot anticipate all possible circumstances, judges need experience more than ever to make the fairest judgments. Adjudication sometimes requires judges to be flexible and innovative rather than sticking to the letter of the law. Longer practice of adjudication brings more experience and therefore, a longer term of office would take better advantage of judges’ experience.
Some have argued that the extension of judges’ term of office might discourage judges from looking for further training and improving their qualifications. At the same time, it might close opportunities for younger and talent persons to pursue this career. A change in the term-based appointment of judges may solve the problem of time pressure but it is necessary to introduce a mechanism to force judges to keep learning and improving themselves. Because there are three ranks of judge title, namely Supreme People’s Court judge, intermediate judge, and primary judge, judges should be required to satisfy some certain conditions in order to move up to higher ranks within a given period of time. This would be a motivation that drives judges to continue learning and improving themselves.
The extension of judges’ term of office will also save time and money spent on complicated steps in the reappointment decision-making process, including assessing the satisfaction of standards, moral and political qualities, professional capabilities of judges, and review the quality of their adjudication reflected by the number of cases settled, number of judgments quashed, number of cases in which suspended sentence has been improperly applied, etc...[8].-
[1] The 2003 Criminal Procedure Code, Article 185.
[2] The 2003 Criminal Procedure Code, Article 244. This provision is now applicable only to provincial-level people’s courts, it is impossible for assessors to be present at appellate court hearings held by the Supreme People’s Court because Clause 3, Article 18 of the 2002 Law on Organization of People’s Courts prescribes that the Supreme People’s Court has no assessors.
[3] The 2004 Civil Procedure Code (revised in 2011), Articles 52 and 53.
[4] The 2002 Law on Organization of People’s Courts, Article 40, and the 2002 Ordinance on Judges and Assessors of People’s Courts.
[5] Pham Quy Ty, Reforming the organization and operation of people’s courts, Review of Legislative Studies, issue 7, 2005, pp. 22-27.
[6] Nguyen Quang Loc, discussing the application of percentages of judgments quashed and corrected in the emulation and commendation work of people’s courts, the Supreme People’s Court, https://www.toaan.gov.vn/.
[7] This is the reason why the Supreme People’s Court has suggested a longer period of time in service for judges in Article 64 of the draft amended Law on Organization of People’s Courts.
[8] The Supreme People’s Court’s Official Letter No. 71/TCCB of February 25, 2014, on requests for appointment and reappointment of intermediate and primary judges.
