Ha Quynh Nga
Department of Legal Affairs and Scientific Management Supreme People’s Court
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| A court hearing of the Superior People’s Court in Hanoi__Photo: VNA |
The socialist law-ruled state of Vietnam is the state of the people, by the people and for the people where the whole state power belongs to the people. The state power is exercised in a unified manner, with the assignment, coordination and control among state agencies in exercising legislative, executive and judicial powers, while upholding the people’s right to mastery, and protecting justice, human rights and citizen rights. The State is organized and operates in accordance with law and manages society by law to serve the interests of the people; it is led by the Communist Party of Vietnam and answerable to the people and subject to the people’s supervision.
As an integral part of the state power, people’s courts should demonstrate their role within the socialist law-ruled state of Vietnam, ensuring supremacy of the Constitution and law. They should function as a mechanism to effectively check and supervise compliance with law, resolve disputes, and promptly, fairly, equitably and democratically address violations and crimes. People’s courts must also serve as an effective instrument to protect the socialist regime, the interests of the State, and the lawful rights and interests of organizations and individuals, thus ensuring the effectiveness and efficiency of the state apparatus.
Role of people’s courts in building and improving the socialist law-ruled state of Vietnam in the new period
Protecting justice, human rights and citizen rights
Politburo Resolution 49-NQ/TW dated June 2, 2005, on the Judicial Reform Strategy through 2020, affirmed: “Judicial agencies must truly be the people’s support in protecting justice, human rights...”; “to build a clean, strong, democratic, stringent and gradually modern judicial system that protects justice and serves the people and the socialist Vietnam Fatherland...”.
The Documents of the 11th National Party Congress in 2011 continued to assert: “To promote the implementation of the Judicial Reform Strategy through 2020, build a clean and strong judicial system that protects justice, and respects and protects human rights.”
Later, in the Documents of the 12th National Party Congress in 2016, the Party continued to emphasize the strategic goals of building a clean, strong, democratic, stringent and gradually modern judicial system that protects law, justice, human rights and citizen rights, and protects the socialist regime, the interests of the State, and the lawful rights and interests of organizations, agencies and individuals.
To institutionalize the above Documents, for the first time in the history of Vietnam’s constitutional building, the 2013 Constitution acknowledged: “People’s courts have the tasks of protecting justice, protecting human rights and citizen rights, protecting the socialist regime, and protecting the interests of the State and the lawful rights and interests of organizations and individuals.”[1] Thus, protecting justice, human rights and citizen rights is one of the fundamental and important tasks associated with people’s courts - the bodies that exercise the judicial power.
Courts have the authority, in the name of the State, to adjudicate violations of law, resolve disputes, and protect justice, human rights and citizen rights in all areas of social life. The protection of these rights is carried out by courts through conducting proceedings and legal mechanisms in adherence to such fundamental principles as the principle of independent and law-abiding trial; the principle of open, fair and timely trial; the principle of ensuring equal rights before the court; and the principle of ensuring the right to defense, etc.
Protecting the Constitution and law and ensuring legal uniformity in adjudication
Protecting the Constitution and law is an inevitable factor inherent in a law-ruled state. The Party has emphasized the necessity of constitution protection mechanism in Politburo Resolution 48-NQ/TW dated May 24, 2005, on the Strategy for building and completing Vietnam’s legal system through 2010, with orientations toward 2020: “To improve the law on the supreme oversight by the National Assembly and the mechanism to protect law and the Constitution.”
The Resolution of the 10th National Party Congress also stated the need for a “judgment mechanism for violations of the Constitution in legislative, executive and judicial activities.” According to the 2013 Constitution, people’s courts have the responsibility to protect the Constitution[2] and law through adjudication activities.
The Law on Organization of People’s Courts stipulates that the Supreme People’s Court has the tasks of summarizing the practical trial activities of subordinate courts, ensuring the uniform application of law in trial[3], while the Council of Judges of the Supreme People’s Court is tasked to select its cassation decisions, and legal judgments and court rulings that are standard and have taken effect, summarize and develop them into precedents, and announce the precedents for subordinate courts to study and apply in trial activities[4].
Thus, courts play a crucial role in building institutions, and guiding and ensuring the uniform application of law. This role is clearly demonstrated through the issuance of resolutions by the Council of Judges of the Supreme People’s Court, precedents, and interpretation of legal issues, online responses to queries, etc. Through these activities, courts also interpret the Constitution and laws concerning trial activities, which is considered a function of people’s courts in protecting the Constitution and law.
Controlling the state power
The 2013 Constitution stipulates: “The state power is unified, with assignment, coordination and control among state agencies in the exercise of legislative, executive and judicial powers.”[5] In the capacity as the agency exercising the judicial power, when participating in controlling powers among state agencies in exercising legislative, executive and judicial powers, courts have been empowered to detect, and propose to competent authorities to revise or annul legal documents which are contrary to the Constitution, laws or resolutions of the National Assembly, or ordinances or resolutions of the National Assembly Standing Committee, so as to guarantee the lawful rights and interests of individuals, agencies and organizations[6]. This is also specified in various procedural codes and laws[7].
The 2014 Law on the Organization of People’s Courts states: “The courts shall, in the name of the Socialist Republic of Vietnam, try criminal, civil, marriage and family, business, commercial, labor and administrative cases, and settle other matters in accordance with law; fully, objectively and comprehensively consider the documents and evidences collected during the process of conducting proceedings; and, based on the adversarial results, issue judgments or rulings whether someone is guilty or innocent, apply or not apply penalties or judicial measures, and decide on property rights and obligations and personal rights.”[8]
Accordingly, the mechanism for controlling the powers of the bodies exercising the judicial power (courts) over other state agencies is implemented through courts’ crucial activities in trying criminal, civil, marriage and family, business, commercial, labor and administrative cases, especially when trying administrative cases, and ensuring that judgments and rulings that have taken effect are enforced.
Achievements and shortcomings in the court sector
In recent years, people’s courts have continuously implemented numerous innovative and breakthrough measures in adversarial activities toward substantiality, ensuring democracy and raising the quality of trial activities. These efforts have marked new developments with outstanding achievements, gradually elevating the position and prestige of courts.
The trial of criminal cases is stringent, ensuring the quality of adversarial activities. courts have carried out trials for many economic and corruption cases involving persons holding positions and powers that caused particularly huge damage and attracted public attention. The coordination with proceeding-conducting bodies complies with procedural laws.
At the same time, the resolution of civil, marriage and family, business, commercial and labor cases complies with law, timely protecting the legitimate rights and interests of involved parties. Attention has been paid to effective implementation of mediation work, improvement of the quality and effectiveness of mutual legal assistance, increased collaboration with related authorities, and effective guidance for litigants to provide evidences and documents.
For administrative cases, the Supreme People’s Court has instructed lower-level courts to focus on organizing dialogues between plaintiffs and defendants, effectively coordinating with related agencies, and strictly implementing Directive 03/2018/CT-CA of December 5, 2018, of the Supreme People’s Court, on raising the quality and effectiveness of settlement of administrative cases, limiting cases settled beyond the law-prescribed deadlines due to subjective reasons.
In the application of administrative measures, the courts have applied administrative measures with a rate exceeding 95 percent. Meanwhile, the execution of criminal judgments is carried out within the law-prescribed time limits; the postponement or suspension of judgment execution and reduction of imprisonment terms have been applied in a grounded manner.
The quality of handling requests for cassation, appellate trial, complaints and denunciations in recent years has been improved, ensuring adherence to procedures, deadlines and regulations.
Regarding institutional building work, since 2014, the Council of Judges of the Supreme People’s Court has issued 30 resolutions and 14 circulars and, together with related agencies, issued joint circulars. This has contributed to resolving many difficulties in the process of handling various cases, gradually improving the quality of trial activities of courts. In addition, the Supreme People’s Court has taken charge of formulating and submitting four draft laws to the National Assembly for passage[9].
As of October 1, 2023, the Chief Justice of the Supreme People’s Court has selected and published 70 precedents in criminal, civil, business, commercial, administrative and labor cases for subordinate courts to apply. Moreover, it has organized meetings to review five years’ implementation of the 2013 Constitution, the 2014 Law on Organization of People’s Courts, etc., thereby drawing experience in trial activities, and creating positive changes in the quality of resolution and trial of cases.
Furthermore, court hearings have been organized in the spirit of judicial reform toward ensuring compliance with law and adversarial principles. Judges have made judgments based on adversarial results. Courts’ recommendations have helped not only rectify mistakes of proceeding-conducting bodies but also address shortcomings in macroeconomic management and law enforcement of state agencies. Through trial activities, courts’ contributions to the country’s management and administration have become increasingly practical and evident.
To ensure the implementation of National Assembly Resolution 33/2021/QH15 of 2021 on organization of online court hearings, the Supreme People’s Court has directed subordinate people’s courts to organize online court hearings, ensuring prompt trials, guaranteeing the lawful rights and interests of defendants, the accused, litigants, and related organizations and individuals, thereby saving social costs and improving courts’ operational capacity.
Courts have also intensified the application of information technology to their operations. The Portal of the Supreme People’s Court was officially launched in 2010 and linked with the ASEAN Portal, and the Case Law Website was introduced in 2016. In 2018, 66 new websites were established (including those of three superior people’s courts and 63 provincial-level people’s courts). A system for submission and receipt of lawsuit petitions, documents and evidences and issuance and service of procedural documents by electronic means was established.
These activities have significantly contributed to improving the effectiveness of the direction and management of leaders of people’s courts at all levels, increasing transparency and publicity in court proceedings, strongly innovating administrative and judicial procedures, and creating favorable conditions for citizens, agencies and organizations to work with the courts.
Over the recent years, the Supreme People’s Court has also paid special attention to mutual legal assistance and international cooperation on judicial matters with other countries so as to speed up the settlement of cases and matters involving foreign elements. It has joined the Council of ASEAN Chief Justices to exchange and share information experiences in trial activities. At the global level, the Supreme People’s Court has proactively participated in the Conference of Chief Justices of Asia and the Pacific, the International Legal Forum of the Asia-Pacific Region, and the Hague Conference to affirm the position of Vietnam courts on the international arena.
Nevertheless, the role of courts in building a socialist rule-of-law state still sees certain limitations, failing to meet the requirements and expectations of citizens.
The authority of people’s courts in examining and deciding on the application of measures restricting human rights and citizen rights in various stages of litigation, especially in the stages of investigation, prosecution, and execution of criminal, civil and administrative judgments, is not proportionate to their duties. Additionally, that the procuracies have the right to supervise trial activities of courts somewhat affects the independence of courts.
There also exist inadequacies in judicial proceedings, thus reducing the effectiveness of courts’ trial activities. Meanwhile, courts’ personnel are insufficient, and the regime and policies are not commensurate with the task requirements. There are no clear protection mechanism and compensation policy for judges and judicial title holders who suffer harms and risks while performing their duties.
At the same time, budget and physical foundations are not enough for courts to perform their functions and tasks. That the allocation of budgets to the courts depends on the Government also affects courts’ independence. In some cases, the application of information technology in courts’ activities has not met the work requirements. There are still limitations in international cooperation in judicial matters, causing delay in resolving cases, thus negatively affecting the lawful rights and interests of Vietnamese citizens.
Solutions to raise the role and responsibility of courts in building and improving the socialist rule-of-law state of Vietnam in the new period
The Party’s viewpoints on enhancing the role and responsibility of courts
In recent years, the Party and the State have always paid attention to building and improving the socialist rule-of-law state of Vietnam in general and raising the role and responsibility of courts in particular. This is evidenced by numerous documents.
Politburo Resolution 08-NQ/TW of 2002 outlines eight key tasks for judicial work, including: (i) improving the quality of activities and raising the responsibility of judicial agencies and officers; (ii) continuing to concretize and implement guidelines for reform, organization and innovation of the operation of judicial bodies; (iii) building a strong and clean contingent of judicial personnel; (iv) increasing investment in physical facilities for judicial agencies to fulfill their tasks, as well as adopting reasonable policies for judicial officials; (v) involving the active participation of the people in judicial work, and enhancing the oversight effectiveness of the National Assembly, People’s Councils, social organizations and the people over judicial agencies; (vi) promoting the formulation, interpretation, guidance and dissemination of laws and research into judicial work; (vii) strengthening international cooperation in judicial matters; and (viii) enhancing the Party’s leadership over judicial work.
Moreover, Politburo Resolution 48-NQ/TW of 2005 on the Strategy for building and improving Vietnam’s legal system through 2010, with orientations toward 2020, states: “Building and improving the law on organization and operation of judicial agencies in conformity with the goals and orientations of the Judicial Reform Strategy; correctly and fully determining the powers and legal responsibilities for each judicial agency and judicial title holder, with a focus on completing the law on organization and operation of people’s courts, ensuring that courts conduct independent, lawful, timely and stringent trials; and clearly defining the trial jurisdiction of first-instance courts and appellate courts in adherence to the principle of two-tier trial.”
Politburo Resolution 49-NQ/TW of 2005 on the Strategy for judicial reform through 2020 sets the goals of “Building a clean, strong, democratic, stringent and gradually modern judicial system that protects justice, serves the people and the socialist Vietnam Fatherland; and carrying out judicial activities, with a focus on trial activities, in an effective and efficient manner.”
In the course of implementing Resolution 49-NQ/TW, the Politburo issued Conclusion 79-KL/TW of 2010 on the Scheme to innovate the organization and operation of courts, procuracies and investigation bodies. The Conclusions sets the goals of “Clearly defining the functions, tasks and organizational model of courts, procuracies and investigation bodies in line with the Party’s guideline on judicial reform; upholding the independence, objectivity and law compliance of each judicial agency and judicial title holder during the proceedings; improving the quality, effectiveness and efficiency of investigation, prosecution and trial activities, contributing to building the socialist law-ruled state of the people, by the people, for the people.”
Moreover, the Political Report of the 12th Party Central Committee which was presented at the 13th National Party Congress explicitly states: “To continue to build a professional, modern, fair, stringent and upright judicial system of Vietnam that serves the Fatherland and the people. Judicial activities must protect justice, human rights, citizen rights, the socialist regime, the interests of the State, and the lawful and legitimate rights and interests of organizations and individuals. To issue a Strategy for building and improving the socialist law-ruled state of Vietnam through 2030, with orientations toward 2045, including legal and judicial reform strategies.”
Meanwhile, the Resolution of the 13th National Party Congress outlines the central tasks of “building a clean, strong socialist law-ruled state of Vietnam; carrying out judicial reform, strengthening legal mechanisms, and ensuring social discipline.”
The 13th Party Central Committee’s Resolution 27-NQ/TW of 2022 on further building and improving the socialist law-ruled state of Vietnam in the new period, sets the tasks of “promoting judicial reform, ensuring independence of courts in accordance with the trial jurisdiction; judges and jurors are independent and only abide by law”. The Resolution also puts forth several solutions such as completing judicial policies and laws, ensuring respect for and protection of human rights and citizen rights; improving the mechanism for preventing, stopping, and handling illegal intervention into judicial activities; clearly defining the tasks of first-instance trial, appellate trial, review of judgments, and making decisions according to cassation and appellate trial procedures; building e-courts; clarifying the authority and responsibility of the executive bodies in controlling agencies that exercise legislative and judicial powers, and the authority and responsibility of the judicial bodies in controlling agencies that exercise executive and legislative powers.”
Solutions to enhance the role and responsibility of courts
To uphold the role of courts in protecting justice, human rights and citizen rights, it is necessary to improve the quality of trial activities, protect justice, human rights and citizen rights, enhance the people’s trust in a democratic, fair and stringent judicial system.
It is also required to expand the jurisdiction of courts in considering and deciding on measures restricting human rights and citizen rights during proceedings, especially in the stages of investigation, prosecution, and execution of criminal, civil and administrative judgments.
At the same time, cassation and appellate trial procedures should be completed toward strictly regulating the grounds and conditions for appeal, and the responsibility of the persons who have issued the appeals for the judgements or court rulings that have taken effect.
It is a must to increase the accessibility of individuals, agencies and organizations to justice; complete the judicial proceeding mechanism for protecting human rights; guarantee the adversarial right of involved parties as well as their self-decision and self-agreement rights while abolishing procuracies’ involvement in civil proceedings.
In addition, it is proposed to finalize regulations on the jurisdiction and operation of courts for them to fully and properly exercise judicial powers; clearly distinguish the tasks of first-instance, appellate and cassation trials by trial tiers without being dependent on administrative units; and clarify the jurisdiction and procedures for resolving requests related to human rights.
It is also suggested to establish a trial-centered procedural rules and improve litigation procedures; publicize and transparentize activities of courts, including publicization of judgments and court rulings while raising the efficiency of the mechanism whereby the people take part in trial activities at court.
With respect to the role of courts in protecting the Constitution and laws and ensuring the consistency of laws in trial activities, the author proposes granting courts the right to review the constitutionality and legality of legal documents and the official authority to interpret laws. It is also a need to develop precedents and timely issue documents guiding the uniform application of laws in trial activities of courts.
With a view to enhancing the role of courts in controlling the state power, it is recommended to clearly define entities responsible for exercising judicial powers as a basis for establishing mechanisms for task assignment and coordination to enhance control over the exercise of the state power, meeting the requirements of building the socialist law-ruled state of Vietnam. It is necessary to expand the jurisdiction of courts in the trial of administrative cases; and establish a specialized administrative tribunal to be professional, thereby improving the quality of power control by courts.
Other solutions include improving the quality of human resources of courts, especially judges, through renovating the recruitment and appointment of judges; increasing training activities; formulating appropriate policies for judges; and adopting effective mechanisms to protect judges for maintaining judicial independence.
It is required to intensify the application of information technology in courts’ activities to conduct some electronic proceeding procedures such as receiving petitions; serving documents and papers; notifying the results of petition resolution; checking evidences; conducting online trials; and building electronic case files to facilitate the people’s participation in court proceedings. This aims to build e-courts for connection with other digital platforms in order to share resources and serve the process of building a digital society and economy and improving the effectiveness of national governance.
At the same time, international cooperation should be intensified in the resolution and trial of civil, criminal and administrative cases involving foreign elements while consolidating the legal system on international cooperation. The country should increase negotiations and sign bilateral and multilateral international agreements in judicial matters, first of all with neighboring countries, regional countries, countries with traditional relations, as well as countries with a developed and modern judicial system.-
[1] Article 102.3 of the 2013 Constitution.
[2] Article 119.2 of the 2013 Constitution.
[3] Article 20.3 of the 2014 Law on Organization of People’s Courts.
[4] Article 22.2.c of the 2014 Law on Organization of People’s Courts.
[5] Article 2.3 of the 2013 Constitution.
[6] Article 2.7 of the 2014 Law on Organization of People’s Courts.
[7] Article 265 of the 2015 Criminal Procedure Code, Article 221 of the 2015 Civil Procedure Code, and Chapter VIII of the 2015 Administrative Procedure Law.
[8] Article 2.2 of the 2014 Law on Organization of People’s Courts.
[9] The 2014 Law on Organization of People’s Courts; the 2015 Civil Law.
