Vietnamlawmagazine

Nguyen Thi Hoang Bach Yen

Deputy Chief Judge of the Administrative Tribunal

Supreme People’s Court

The 1992 Constitution reasserts the right of citizens to complain as a fundamental right. Article 74 stipulates: “... Complaints and denunciations must be considered and settled by state agencies within a time limit prescribed by law.”

To apply appropriate measures and systems for settling citizen complaints, the National Assembly passed an amended Law on Organization of the People’s Courts in October 1995, assigning People’s Courts to try administrative cases and forming administrative tribunals within the Supreme People’s Court and provincial-level People’s Courts, in addition to criminal, civil, commercial and labor tribunals. On May 21, 1996, the National Assembly Standing Committee adopted the Ordinance on Procedures for Handling of Administrative Cases (effective on July 1, 1996). Under the above documents, People’s Courts have the jurisdiction to settle administrative cases while state administrative agencies have the competence to settle complaints. Citizens disagreeing with complaint settlement decisions of agencies may initiate administrative actions in court. This process has formed a dual complaint settlement mechanism: settlement of complaints under administrative procedures and settlement of complaints under legal proceedings in court (judicial procedures).

To conform with the Law on Complaints and Denunciations and settle arising problems, the Ordinance on Procedures for Handling of Administrative Cases was revised in 1998 and again in 2006, giving courts the jurisdiction to settle administrative cases involving 22 classes of cases, including:

· Administrative sanctioning decisions;

· Decisions applying measures to prevent, or ensure the handling of, administrative violations;

· Administrative decisions or acts applying coercive measures to enforce administrative sanctions;

· Administrative decisions or acts applying or enforcing administrative measures to re-educate violators in communes, wards or townships; confining violators to reformatories, educational institutions or healthcare establishments; or placing them under administrative probation;

· Administrative decisions or acts to coerce the dismantlement of houses, works or other architectural objects;

· Administrative decisions or acts revoking construction or business licenses, business registration certificates or professional practice certificates, or about other administrative decisions or acts related to business or financial activities;

· Administrative decisions or acts related to trade in international or domestic goods;

· Administrative decisions or acts related to domestic and international financial transfer, services or service provision;

· Administrative decisions or acts in property requisition, compulsory purchase or confiscation;

· Administrative decisions or acts in tax imposition or collection;

· Administrative decisions or acts in charge and fee imposition or collection and land use levy collection;

· Administrative decisions or acts in the state administration of intellectual property and technology transfer;

· Administrative decisions or acts in state administration of investment;

· Administrative decisions or acts of customs offices or officers;

· Administrative decisions or acts related to civil status management;

· Administrative decisions or acts related to refusal to provide notarization or certification;

· Administrative decisions or acts related to land management in case of land allocation, lease, recovery or requisition; permission for change of land use purposes; compensation, support, ground clearance and resettlement; grant or revocation of land use right certificates; or extension of land use duration;

· Lists of voters eligible to elect National Assembly deputies or People’s Council deputies;

· Decisions dismissing holders of the position of director or equivalent or lower position;

· Provincial-level People’s Committee chairpersons’ decisions to settle complaints about decisions of management boards;

· Decisions to settle complaints in competition cases; and,

· Other lawsuits provided for by Vietnamese law and treaties to which Vietnam is a party.

Provincial-level People’s Courts have reported that, after the Law on Organization of People’s Courts was passed in October 1992, and revised in December 1993, and the 1996 Ordinance on Procedures for Handling of Administrative Cases took effect in July 1996, they established specialized administrative tribunals to settle administrative cases under their jurisdiction. Some established administrative-commercial-labor tribunals or civil-marriage and family-administrative-commercial-labor tribunals due to a small number of cases (e.g., the People’s Court of Lai Chau province).

Most people’s courts have full-time judges and clerks in their administrative tribunals. The number of full-time judges dealing with administrative cases depends on the payroll of such courts and the annual number of cases. Specifically, the People’s Court of Ho Chi Minh City has 10 judges, including one chief judge, two deputy chief judges and 13 professional clerks.

However, administrative tribunals of some provincial-level People’s Courts have the posts of chief judges or deputy chief judges held by the presidents of such courts, such as the People’s Courts of Ba Ria-Vung Tau and Ninh Thuan provinces.

Administrative cases received and handled by People’s Courts

Though the year-on-year increase has been significant, the number of administrative cases remains modest compared to actual administrative complaints which are dealt with by state administrative agencies.

A report on the observance of the Law on Complaints and Denunciations during 2006-08, made by the National Assembly Standing Committee’s supervisory delegation, showed that citizens’ complaints tended to be submitted directly to central agencies, but not to designated lower-level authorities, particularly complaints in provinces and cities with a high level of urbanization and concerning development projects and the construction of urban areas, industrial zones and golf courses. Citizens mainly lodged their complaints with administrative agencies instead of initiating administrative cases in court (only 310 out of settled 56,788 cases were initiated in court, according to the reports of 28 provinces).

At the same time, reports of 62 out of 63 provinces and centrally run cities and 24 out of 26 ministries and central branches, reviewing the implementation of the law on complaints and denunciations from 2005 to June 2009, said that central and local state administrative agencies had received 628,305 complaints in a total of 442,433 cases, including 316,626 cases falling within their jurisdiction.

Fifty per cent of cases were against administrative decisions or acts in land administration; 10% were against administrative sanctioning decisions in other state administration domains. Other lawsuits were against tax-related administrative decisions or acts; grant or revocation of licenses or business registration certificates; state administration of investment or intellectual property; customs; civil status management; refusal to provide notarization or certification; and dismissal of cadres and civil servants. Worthy of note, most administrative lawsuits focused on administrative decisions; and very few were against administrative acts. Individuals, but not agencies or organizations, tended to initiate administrative cases in court and most administrative cases were initiated against district-level administrative agencies that issued administrative decisions affecting the lawful rights and interests of individuals and organizations.

The nature of administrative lawsuits had become increasingly complex, especially those against administrative decisions on compensation, support and resettlement upon land recovery by the State. These lawsuits are not only large in number but also complicated by groups of entities subject to lawsuit and they have been seen in most localities nationwide.

To help People’s Courts improve their capacity to settle administrative cases, it is necessary to draft a complete and comprehensive law on complaints and settlement of complaints (through both administrative and judicial procedures), especially those related to land administration. The revision of relevant documents should pay attention to settling problems in the trial of administrative cases and increasing courts’ jurisdiction to settle lawsuits. A longer statute of limitations for initiating an administrative case should be provided in order to create more favorable conditions for initiators. More conditions should also be created for citizens, agencies or organizations to initiate administrative cases against administrative decisions or acts, allowing them to initiate lawsuits without having to receive first-time complaint settlement decisions or allowing them to do so even after receiving second-time complaint settlement decisions. It is necessary to uniformly apply statutes of limitations for lodging complaints or initiating administrative cases and time limits for the first-time settlement of complaints. The Law on Complaints and Denunciations, the Land Law, the Ordinance on Procedures for Handling of Administrative Cases, and the Ordinance on the Handling of Administrative Violations should be revised in the near future.

To effectively settle lawsuits of citizens, it is necessary to expand the scope of and right to complaint of citizens and increase entities subject to complaint. The current Law on Complaints and Denunciations regulates only complaints against state administrative agencies. In reality, other state bodies (e.g., People’s Courts, People’s Procuracies and the National Assembly Office) and mass organizations (trade unions, Fatherland Front Committees, women’s unions) also issue administrative decisions or take administrative acts related to the lawful rights and interests of citizens which may give rise to administrative complaints. The current Law on Complaints and Denunciations should be divided into two separate laws. The new Law on Complaints should be drafted into a framework law as a basis for settling complaints of citizens in all domains.

The Ordinance on Procedures for Handling of Administrative Cases should be elevated into a law on administrative procedures which fully and comprehensively covers legal formalities related to the settlement of administrative cases and expanded court jurisdiction to handle lawsuits against all administrative decisions and acts.

According to the Government Inspectorate’ report reviewing the implementation of the Law on Complaints and Denunciations from 2005 to June 2009, land administration and use-related complaints were estimated to account for 80% of 442,433 cases. To reduce overload on complaint settlement agencies while administrative tribunals “have nothing to do”, it is necessary to remove the wall separating administrative complaints from judicial complaints. To this end, provisions allowing complainants to pursue administrative complaints till they are completely settled or switch at any time to initiate a lawsuit in court are needed.

An immediate solution proposed and being applied is that the Supreme People’s Court conducts an annual review and assessment, drawing experience and proposing solutions to problems and providing regular guidance and professional training for People’s Courts at all levels in the settlement of administrative lawsuits. During 2008-09, the Supreme People’s Court reviewed 12 years of handling of administrative cases. Its Administrative Tribunal has assessed difficulties and problems and, together with the Trial Science Institute, studied and submitted proposals to the Drafting Board of the Law on Administrative Procedures for consideration.

With a view to expanding citizens’ right to file administrative lawsuits, the Supreme People’s Court, the Supreme People’s Procuracy and concerned agencies have requested the National Assembly Legal Committee to submit to the National Assembly amendments to the Land Law in accordance with the Law on Complaints and Denunciations regarding assurance of complainants’ right to initiate administrative cases after they receive second-time complaint settlement decisions.

In addition, courts’ current jurisdiction to settle administrative lawsuits is only to reject lawsuits or cancel part or the whole of the administrative decision concerned or force state administrative agencies or competent persons of these agencies to terminate legal acts so that they re-perform their public duties in accordance with law. This has created a mentality that, although lawsuits are accepted by courts, the rights and interests of lawsuit filers are not settled. This matter should also be taken into account when drafting the Law on Administrative Procedures. At the same time, there should be a provision forcing a competent person to revise an administrative decision or act as well as specific provisions on cases in which the courts may pronounce cancellation, revision or preservation of an administrative decision subject to lawsuit or pronounce rejection of lawsuits or termination of an administrative act subject to lawsuit, for the purpose of avoiding errors, casualness or contradictory opinions of courts at different levels when considering the same matter.

Based on Vietnam’s practical situation, the renewal of complaint settlement mechanisms must satisfy the following requirements:

- Complainants and lawsuit filers should feel more secure that these mechanisms are objective;

- Complaint settlers must be trained in specialized state administration domains;

- The operation of complaint settlement bodies is more impartial and objective in settling administrative complaints;

- Complaints have been carefully settled by a specialized agency before cases are initiated in court; and,

- Complaint settlement facilitates the implementation of the Vietnam-US Bilateral Trade Agreement, which is also a requirement for Vietnam as a member of the World Trade Organization.-