>>Vietnam’s judiciary bodies during anti-US war (1954–1975)
>>Vietnam's judiciary bodies during the anti-French war (1945-1954)
Pham Diem
State and Law Research Institute
Following the victorious war of resistance against the US imperialists, the peaceful and reunified Vietnam has embarked on national reconstruction under new socio-economic conditions. During the post-war and pre- “doi moi” (renewal) period from 1975 to 1986, the system of judicial bodies witnessed substantial changes.
First, after the national reunification, the judicial system of the Socialist Republic of Vietnam has existed nationwide while, previously, the judicial system of the Democratic Republic of Vietnam existed only in the North.
Second, as the State apparatus was organized and operated under the mechanism of bureaucratic centralism with State subsidies, the judicial system did not undergo a basic and comprehensive renewal.
Before the official reunification of the country in terms of its State in July 1976 at a session of the National Assembly of the whole country, in the newly liberated South Vietnam, the Council of the Provisional Revolutionary Government of the Republic of South Vietnam issued Decree No.01-SL of March 15, 1976, establishing the people’s courts and the people’s procuracies at all levels. Meanwhile, many judicial officials were mobilized from the North to reinforce the judicial bodies in the South.
Upon the official reunification of Vietnam in terms of its State, the judicial system was also officially unified with the judicial bodies being organized and operating on the basis of the 1959 Constitution during the 1976-1980 period when a new constitution was not yet elaborated. Since the enactment of a new constitution in 1980 by the National Assembly of the Socialist Republic of Vietnam, the judicial bodies were organized and operating under the 1980 Constitution as well as other important legal documents such as the Law on Organization of the People’s Courts, the Law on Organization of the People’s Procuracies, which were both passed in 1981 by the National Assembly; the Ordinance on Organization of the Military Courts, passed in 1985 by the State Council; the Ordinance on Application for Commutation of Death Sentences and the Approval of Death Sentences, adopted in 1978 by the National Assembly Standing Committee; the Ordinance on Examination and Settlement of Complaints and Denunciations of Citizens, adopted in 1981 by the State Council.
I. The People’s Courts
As compared with the previous period, the court system in Vietnam during the 1975-1986 period still basically followed the court system model prescribed in the 1959 Constitution, but was improved one step. The court’s structure was more rational and the functions, competence as well tasks of courts were defined more clearly than before. The principles for the courts’ operation were further perfected along the direction of increasing the courts’ independence within the system of State bodies, and increasing the legislation.
Under the 1980 Constitution, the 1981 Law on Organization of the People’s Courts, the 1985 Ordinance on Organization of the Military Courts, the system of courts of the Socialist Republic of Vietnam was composed of:
- The Supreme People’s Court;
- The People’s Courts in the provinces and centrally-run cities;
- The People’s Courts in districts, provincial capitals or towns;
- The military courts, including the high-level military court, the military courts of military region or equivalent levels, the regional military courts.
Organizationally, the Supreme People’s Court was composed of the chairman, vice-chairmen, the Judges’ Council, the Judges’ Committee, the criminal court, the civil court and possibly other specialized courts which, if necessary, could by set up by the State Council at the proposal of the president of the Supreme People’s Court.
The provincial/municipal People’s Courts were composed each of the chairman, the vice-chairmen, the Judges’ Committee, the criminal court and the civil court.
The People’s Courts of districts, provincial capitals or towns were composed each of the chairman, one or two vice-chairmen. The Judges’ Committees and specialized courts were not set up for the district-level People’s Courts.
The high-level military court, which belonged to the Supreme People’s Court, was composed of the chairman, vice-chairmen, the Judges’ Committee, but no specialized courts. The military courts of military zone or equivalent level were composed each of the chairman, vice-chairmen, the Judges’ Committee, but no specialized courts. The regional military courts were composed each of the chairman, vice-chairmen, but no Judges’ Committee and specialized courts.
Under the 1980 Constitution, in special situations or in circumstances where special cases needed to be adjudicated, the National Assembly or the State Council might decide to set up special courts.
The chairman, vice-chairmen, judges and people’s jurors of courts were elected by the people-elected bodies of the same level (the National Assembly, the People’s Councils) and their terms of office corresponded to the terms of the bodies which had elected them.
Article 127 of the 1980 Constitution clearly defined the general tasks of the People’s Courts and the People’s Procuracies: “The People’s Courts and the People’s Procuracies of the Socialist Republic of Vietnam shall, within the scope of their respective functions, have the tasks to protect the socialist legislation, protect the socialist regime and the working people’s collective mastery, protect the socialist property and ensure the respect for the citizens’ life and property, freedom, honor and dignity. All acts of infringing upon the interests of the State, the collectives and the legitimate interests of citizens must be handled according to law.”
The 1980 Constitution and the 1981 Law on Organization of the People’s Courts saw important amendments and supplements as compared to the 1959 Constitution and the 1960 Law on Organization of the People’s Courts. For instance, the provision of Article 100 of the 1959 Constitution that “Upon trials, the People’s Courts have the right to be independent and only abide by law” was amended in Article 131 of the 1980 Constitution as follows: “Upon trials, the judges and people’s procurors are independent and only abide by law”. Such change aimed to increase the independence of the persons who directly conducted the adjudication (judges and people’s procurors).
The 1981 Law on Organization of the People’s Courts contained two new provisions as compared to the old one, though the regime of election of judges was still maintained therein.
First, it set forth principal criteria for people to be elected judges: “Vietnamese citizens who are loyal to the Fatherland and socialism, have necessary legal knowledge, have the spirit to resolutely protect the socialist legislation can be elected judges”.
Second, it provided that the judges’ terms of office corresponded to the terms of the agencies which had elected them (the National Assembly, People’ Councils) while the old law said such term was only one year. Such change aimed to render more time for judges to gain experiences and to raise their capabilities and qualifications.
According to the 1981 Law, the courts’ judgments and decisions, which took already legal effect, could be subject to cassation trial or reopening trials if errors and mistakes were detected therein. Death sentences would be executed if there were no protests according to cassation procedures or if the State Council rejected the convicts’ applications for commutation. These new procedures aimed to avoid errors in the course of adjudication.
To preclude and minimize law violations, the 1981 Law (Article 13) stipulated: “All court judgments and decisions, which have already taken legal effect, must be observed by the State bodies, social organizations and citizens” while “the police offices, detention camps and executioners must strictly abide by the court judgments and decisions,” and “the courts might issue decisions requesting State bodies, enterprises, cooperatives and people’s armed force units to redress shortcomings in their managerial activities so as to remove causes of criminal offenses” and “these organizations are obliged to answer the courts,”...
II. Other judicial bodies
1. The procuracies
Under the 1980 Constitution and the 1981 Law on Organization of the People’s Procuracies, the system of procuracies remained basically the same as that in the previous period, which included:
- The Supreme People’s Procuracy.
- The local People’s Procuracies, including the provincial/municipal People’s Procuracies and the district-level People’s Procuracies.
- The military procuracies, including the high-level military procuracy; the military procuracies of military zone or equivalent level; and regional military procuracies.
As before, the procuracy system was still organized hierarchically with the procuracies at all levels having submitted to the unified leadership of the Supreme People’s Procuracy and the subordinate procuracies having submitted to the superior procuracies. The Supreme People’s Procuracy consisted of the chairman, vice-chairmen, the procurators and the Procurators’ Committee. The chairman of the Supreme People’s Procuracy was elected and dismissed by the National Assembly while his/her deputies, procurators and members of the Procurators’ Committee were appointed and dismissed by the State Council at the proposal of the State Council President. The provincial/municipal People’s Procuracies and the high-level military procuracy had their respective chiefs, deputy chiefs, procurators and Procurators’ Committees. The district-level People’s Procuracies and the military procuracies of military zone or equivalent levels as well as the regional military procuracies consisted of their chiefs, deputy chiefs, procurators, but no Procurators’ Committees. The heads, deputy heads, procurators and members of the Procurators’ Committees of the local People’s Procuracies as well as military procuracies were appointed and dismissed by the chairman of the Supreme People’s Procuracy.
The chairman of the Supreme People’s Procuracy was responsible for, and reported on, his/her and his/her office’s activities before the National Assembly, or to the State Council when the National Assembly was in recess.
As compared with the previous period, the tasks, functions and powers of the People’s Procuracies, which were defined in the 1980 Constitution, saw important supplements, particularly the function of prosecution. Article 138 of the 1980 Constitution stipulated: “The Supreme People’s Procuracy of the Socialist Republic of Vietnam controls the law observance by the ministries and other agencies of the Council of Ministers, the local administrations, social organizations, people’s armed force units, State employees and citizens, exercise its right to prosecution, ensure the strict and uniform observance of law. The local People’s Procuracies and the military procuracies control the law observance and exercise the right to prosecution.”
So, under the 1980 Constitution, the procuracies simultaneously performed two functions: controlling the law observance and exercising the right to prosecution.
2. The investigating agencies
On June 12, 1981, the Government Council issued a decree defining the organization, tasks and powers of the Ministry of the Interior, under which the Executive Department of the Ministry of the Interior was divided into two: The Security Investigation Department and the Police Investigation Department. Similarly, the Executive Offices of the Police Departments of provinces or centrally-run cities were also splitted up into two: The Security Investigation Offices and the Police Investigation Offices.
Regarding their functions and tasks, the Security Investigation Department or Offices conducted investigation of cases of infringing upon the national security while the Police Investigation Department or Offices investigated other criminal cases. The criminal and economic scout units in the police force no longer conducted public investigation according to criminal procedures, but only focussed on secret espionage in service of crime prevention and combat.
So, in this period, the function of investigation was assigned to the investigating bodies.
3. The lawyers’ organizations
The 1959 Constitution only prescribed “The defendants’ rights to defense are guaranteed” while the 1980 Constitution defined more concretely and more adequately: “The defendants’ rights to defense are guaranteed and lawyers’ organizations are set up to legally assist the defendants and other involved persons.”
In fact, during the previous period, the lawyers’ organizations almost did not exist and lawyers only appeared in important criminal court sessions and the defense counsels operated under the direction of the courts and received remuneration from courts; therefore, they could not be independent from courts.
Yet, during the 1975-1986 period, a number of bar associations were restored in localities, which operated under the direction of the Ministry of Justice, provincial Services of Justice and were independent from courts. However, lawyers’ operation at court sessions was not a common phenomenon and sometimes merely ceremonial.
Panoramically, the striking achievement of the judicial system during the 1975-1986 period in Vietnam was that it had been built up and organizationally consolidated throughout reunified Vietnam and its operation contributed an important part to the maintenance of political security as well as social order and safety. However, Vietnam’s judicial system then, which laid within the mechanism of bureaucratic centralism with State subsidies, contained in itself many mishaps and shortcomings. The judicial bodies lacked many professionally qualified and legally knowledgeable officials. Such situation led to the inefficiency in investigation, prosecution, adjudication..., or even, in not a few cases, law violations or infringement upon citizens’ legitimate rights and interests. The organizational structures and operations of judicial bodies depended too much on the Party Committees and the administration. That reduced the independence of judicial bodies in investigation, prosecution, adjudication and judgment execution. The procedural legislation, including such important ones as the criminal procedure code, the civil procedure code, were absent. Therefore, many legal proceedings were stipulated only by legal documents of executive agencies, the Supreme People’s Court, the Supreme People’s Procuracy, the Ministry of the Interior (the Ministry of Public Security). Many domains of jurisdiction such as economic, trade, labor, administrative jurisdiction, remained inadequate, thus citizens’ demands for protection were met to a limited extent.-