Implementing the judicial reform strategy with the protection of human rights in Vietnam

1. The issues of justice and human rights protection in the Judicial Reform Strategy

The 1948 Universal Declaration of Human Rights asserted that human rights are rights as nature, inherence and inalienability of individuals. The content of the Declaration asserted fundamental human rights as the political rights and economic rights including the right against unjust discrimination of race, religion or gender, the right to equal pay for equal work without any discrimination of economic relations, the right to adequate standard of living. The value of the Declaration opens a door of thinking about a humanist state with a statement that states should “recognize inherent dignity and equal and inalienable rights of all members of the human family”⁽²⁾. Thus, human rights having universal values with basic characteristics of universality⁽³⁾, inalienability⁽⁴⁾, indivisibility⁽⁵⁾, interrelation and interdependence⁽⁶⁾have created values of faith and the urge to execute them in every part of the earth.

In the law-ruled state, the definition of judicial rights and control over judicial rights in Vietnam is not an exception in the process of building socialist democracy and protecting human rights. The 2013 Constitution states: “The State shall guarantee and promote the people’s right to mastery; recognise, respect, protect and guarantee human rights and citizen’s rights and pursue the goal of prosperous people and a strong, democratic, equitable and civilised nation, in which all people enjoy an abundant, free and happy life and are given conditions for their comprehensive development” (Article 3). The Judicial Reform Strategy sets the goal of “building clean, strong, democratic and strict judiciary, protecting justice, gradually modernizing justice to serve the people and serve the socialist nation of Vietnam; judicial affairs with the focus of hearings are implemented in a highly effective and efficient manner”⁽⁷⁾. In order to realize these goals, the Judicial Reform Strategy sets 8 missions, in which the task of protecting human rights and citizen’s rights is put in the first and foremost mission where great importance is attached to perfecting criminal policies and judicial proceedings, and the efficiency of prevention and good inclination in handling people committing crime is highlighted. Imprisonment is decreased while application of fine and rehabilitation punishment is expanded towards certain types of crime. Death penalty is limited towards application of only few types of special felonies. Too high maximum punishment frame is reduced for some types of crime. Criminalization of economic relations and civil relations as well as missing criminals out is overcome... “Civil law is completed while legitimate rights and interests of individuals and organizations who take part in transactions are ensured and the development of civil relations is promoted in a healthy way”... “The implementation and development of state services is studied to facilitate concerned people to pro-actively collect evidence for proving and protecting their legitimate rights and interests. Administrative procedures are renovated in judicial agencies to create favourable conditions for people to get access to justice; the people submit their petition to the court and the court assumes the responsibility for receiving and accepting them”... “Favourable conditions are created for people to take part in procedures to ensure the equality between the people and authorised agencies before the court”. In order to properly implement this task, it is specified in the Judicial Reform Strategy that the organization of hearing courts is renovated, in which position, obligations and responsibilities of proceeding-conducting persons and proceeding participants are more clearly identified towards guarantee of publicity, democracy and strictness; the quality of adversarial process at hearing courts is enhanced and considered  as a breakthrough of judicial affairs. At the same time, the people’s right to mastery is ensured towards judicial affairs... The Fatherland Front and member organizations focus on encouraging the people to detect limitations and weaknesses in judicial affairs and propose judicial agencies to overcome and correct them.

2. Remarkable outcomes of judicial reform in protecting human rights

Firstly, judicial reform always meets the requirement of being under the tight leadership of the Party, ensuring political stability and the nature of Vietnam’s socialist law-ruled state of the people, by the people and for the people. The State powers are unified with the distribution and coordination among state bodies in the exercise of the legislative, executive and judiciary powers.

The Party leadership is thoroughly grasped in judicial reform in terms of building the Constitution, the constitutional achievement of which is the Court and Procuracy structure is respectively specified in two different articles of the 2013 Constitution but with the aim of protecting justice, human rights and citizen’s rights⁽⁸⁾. The 2013 Constitution continues affirming the legal position of the people’s Procuracy as an organ of implementing prosecution rights and inspecting judicial affairs to continue promoting ongoing achievements of the people’s Procuracy in the construction and completion of the law-ruled state as well as guarantee of human rights.

Secondly, the judicial apparatus is built in the spirit of judicial reform where rule of law is ensured towards the operation of judicial officers ensured not to be influenced or ruled by administrative elements.

The 2014 Law on the organization of the People’s Court is issued with a grasp of the judicial reform’s spirit: “organizing the court system by hearing jurisdictions with no dependence on administrative units”. Therefore, it specifies that the People’s Court is organized into 4 levels by hearing jurisdictions with the supplementation of Supreme People’s Court⁽⁹⁾ in the system of People’s Court. The People’s Procuracy is organized into 4 levels in line with the system of the People’s Court. There are many new regulations such as: the court has the right to request investigators and procurators to present issues concerning criminal cases at the court; judgement of the case is based on the result of the adversarial process. This is a breakthrough of judicial reform aimed at better ensuring the people’s legitimate rights and interests before the court. Attention is paid to the reform of judicial administrative procedures to creat favourable conditions for the people to get access to justice⁽¹⁰⁾… The role and responsibility of prosecuting agencies in investigative operations is more clearly specified; the execution of prosecution rights starts from the time when denunciations and criminal information are settled.

Thirdly, many contents of human rights and citizens’ rights stipulated in the Constitution, laws and acts are in accordance with regulations of the International Human Rights Law and the UN Convention is domestically optimized into the national law.

The 2013 Constitution is amended and supplemented to more clearly and fully manifest human rights, which are: the right to equality before law (Article 16), the right not to be subjected to torture, violence, coercion and corporal punishment (Clause 1, Article 20), the right to inviolability to private secrets and fair procedures (Article 21 and 22). The 2015 Criminal Code stipulates on a larger scale with adjustment and protection not only limited to “crimes violating the citizens’ right to freedom and democracy” but also expanded to “crime violating the human right to freedom”. The 2015 Civil Code stipulates the right to request the court to protect legitimate rights and interests; the court is not allowed to deny the request of settling civil cases for the reason of having no applicable provisions of law (Article 4). The 2015 Criminal Procedure Code stipulates: “Criminal procedure is conducted on the principle under which all people are subject to the same laws of justice, regardless of race, gender, belief, religion, social class and status. Any person committing crime is treated under the law (Article 9). The principle of innocent presumption is the most classical principle of protecting human rights stipulated in the 2015 Criminal Procedure Code, which recognizes the value of the Universal Declaration of Human Rights (Article 11 Clause 1) and the 1966 International Convenant on Civil and Political Rights (Clause 2 Article 14). The Criminal Procedure Code have many supplemented provisions in order to domestically optimize the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment that Vietnam signed in 2013. These provisions are clearer and wider in terms of prohibited behaviours, subjects protected from torture, coercion and corporal punishment as well as responsibilities of competent state agencies and individuals in order to prevent and fight against violations from them, in which provisions are added in terms of the rights of defendants and advocates summoned as well as witnesses and examiners in order to better ensure the effectiveness of adversarial process at court. Accused persons and defendants have the right to ask witnesses, examiners and victims about details concerning the case; the Law on Notarization, the Law on Lawyers, the Law on Civil Judgement Enforcement, the Law on Criminal Judgement Enforcement, the Law on Pardon, the Law on Judicial Expert Examination and the Law on Judicial Records are also promulgated with fuller and tighter guarantee of human rights and citizens’ rights.

Fourthly, the policy of socializing some judicial activities and judicial support (notarization, legal assistance, piloting the bailiff institution) is institutionalized consistently to meet the people’s demand in the context of market economy development and international integration.

The role of bailiff is promoted, making contribution to saving time and cost of the people and state agencies⁽¹¹⁾. The organization of expert examination and the contingent of judicial experts are rectification⁽¹²⁾. Some branches and localities⁽¹³⁾ issued decisions and announced the list of expert examination organizations and judicial experts on web portals of the ministry, their branches and localities in order to creat favourable conditions for agencies requisitioning for expert examinations and those asking for expert examinations. The transformation from Notarial Bureaus into Notarial Offices facilitates the strong socialization of notarial activities, satisfying the people’s demand. Notary’s occupational associations are established in many provinces and cities to ensure the policy of socialization and increase notarization’s quality as well as guarantee the legal safety of contracts and transactions and save the society and people’s time and cost. Socialization of egal assistance is strengthened according to the loadmap in accordance with characteristics of each region and area, support subjects of policy’s preferential treatment and poor people in accessing justice⁽¹⁴⁾. The Law on Judicial Support stipulates the responsibility of the State in bringing forward policies of attracting resources of legal assistance to encourage the more participation of all social forces

Fifthly, investigation, prosecution, adjudication, judgement enforcement and arrest, detainment, detention and rehabilitation are conducted in a stricter, more democratic and more equitable manner, reducing injustice, wrongful acts and missing out of criminals, contributing to promoting socio-economic development and international integration.

Nearly 5,500 courts have been held to draw experiences in the spirit of judicial reform. The People’s Court, the People’s Procuracy and investigation agencies have paid attention to the duty of fighting against injustice and wrongful acts, grasping information on cases of injustice and wrongful convictions while focusing on inspecting and examining cases with complaints and petitionss of injustice and wrongful acts within the internal branch to clarify the reasons and responsibilities and strictly handle individuals doing wrongful acts. Thanks to that, cases of injustice and wrongful convictions in criminal procedures have been dramatically reduced⁽¹⁶⁾.

Sixthly, the right to judicial control is increased to protect human rights to the maximum

The National Assembly’s Judicial Committee has conducted the supervision of injustice and wrongful acts in investigation, prosecution and adjudication; conducted a questioning session towards the Chief Justice of the Supreme People’s Court, the Chief Procurator of the Supreme People’s Procuracy and Minister of the Ministry of Public Security on judicial affairs, building the people’s faith in justice and efficiency of judicial reform. The Fatherland Front has organized many delegations to supervise and collect opinions and recommendations of voters in investigation, prosecution and adjudication in order to enhance social supervision and criticism over judicial affairs.

In addition to achieved outcomes, there remain some limitations in implementing the Judicial Reform Strategy as follows: “The deployment of some tasks of judicial reform is still slow; the situation of harassment, negativeness, injustice, wrongful acts and missing criminals out still exist 917). Despite many renovations, the judicial supervision of the National Assembly and the People’s Council has not been widespread and routinely implemented but still in a formalistic way; attention is not adequately paid to the socialization policy. The above-mentioned limitations are due to the difficult and complicated task of judicial reform and a huge amount of judicial reform work which requires simultaneous implementation (in terms of theoretical research, practice summary, construction and completion of law system, ensurance of officers and physical facilities’ requirements) while the economic condition of the country is still difficult. On the other hand, the conservative thought and slow renewal in thinking in the fields of justice and judicial reform still exist in a proportion of cadres and public servants.

3. Solutions to enhance the implementation of Judicial Reform Strategy in order to protect human rights in Vietnam in the coming time

Firstly, attach great importance to communicating and disseminating content and purpose of the Judicial Reform Strategy as well as standpoints of the Party, policies of the State on judicial affairs.

Secondly, the court sector should intensify the process to overcome the tardy settlement of cases due to subjective mistakes and enhance the adjudication quality, ensuring the right person, the right crime, the right law and justice as well as protecting human rights and citizens’ rights; do well the conciliation work in dealing with civil cases and have good dialogues in dealing with administrative cases; pay attention to educating skills for the contingent of judges; prevent and fight against negativeness, corruption while applying information technology and enhancing professional training. Continue rectifying the organization of investigation agencies, streamlining focal points and implementing regulations of voice and image recording to overcome deposition extortion, corporal punishment, ensuring human rights during custody, detainment and detention.

Thirdly, enhance the quality of promulgating circulars and inter-circulars, concretizing the 2015 Criminal Procedure Code and amending the Law on Judicial Expert Examination and the Law against Corruption.

Fourthly, strengthen studying and clarifying models and methods of perfecting the leadership regime of the Party as follows: no intervention in the adjudication process of the court, ensurance of fundamental principles in judicial activities such as independence in adjudication, adversarial and advocative process as well as the right to information and justice accessibility of the people when participating in relations of procedure law.

Fifthly, renew methods and forms of supervising judicial activities, paying attention to the supervision of the people and agencies directly voted by the people in connection with enhancement of supervision capacity and political spirit of the supervising subject. Enhance the quality of inspection and judicial activities of the People’s Procuracy for justice and human rights to be protected and executed to the maximum in reality.

Therefore, judicial reform in the coming time should be more practical and more drastic from renewal of awareness to renewal of actions, in which priorities should be paid to increasing capacity of party members and cadres of judicial agencies, renewing methods of operation, ensuring objectivity and transparency in judicial activities, and at the same time regulating specific responsibilities of agencies, organizations and individuals conducting the right to supervision over judicial affairs.

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(1) “Universal Declaration of Human Rights” was rectified on December 10, 1948. The Declaration is the foundation of the two fundamental conventions on human rights which were passed in 1966 (ICCPR and ICESCR – which Vietnam joined in 1982). Like other international documents of human rights passed afterthat, many documents of inter-governmental organizations in many regions also fell under its influence in content and referred to this Declaration. With 30 short articles, the Declaration is very usefull and convenient for the purpose of educating human rights.

(2) Preamble of the Universal Declaration of Human Rights

(3) Is innate and inherent nature of human beings and applied equally without any discrimination for any reason.

(4) Is the comfirmation that neither individuals nor organizations can deprive or limit in an arbitrary manner, except for some cases of that person’s commiting crime

(5) Rights have equal value with no rights having more value than other rights

(6) Rights have inter-relations, rights of this individual relate to the entitlement to the right of another other individual or the entire community.

(7) The Party Central Committee: Resolution No. 49-NQ/TW of the Politburo on Judicial Reform Strategy until 2020, Hanoi, dated June 2nd, 2015.

(8) The only difference is for the court branch, the task of protecting justice, human rights and citizens’ rights is put before the task of protecting the socialist regime, protecting the State’s interests, rights and interests of other individuals and organizations as stipulated in Article 102, Clause 3; the People’s Procuracy emphasizes the first and foremost role is to protect the law and then protect human rights and citizens’ rights, and followed by the protection of the socialist regime as stipulated in Article 107, Clause 3.

(9) The High-level People’s Court is established in 3 areas: the North in Hanoi, the Central in Da Nang and the South in Ho Chi Minh City.

(10) With focus on renewing procedures and process of receiving and handling the work, especially on applying information technology into the court’s activities through the upgrading of information technology infrastructure and completion of online television system throughout the whole system, deploying the new application software in order to strictly implement legal regulations of procedures, creating favourable conditions for agencies and the people to get access to and supervise the court’s activities.

(11) Report No. 352/BC-CP by the Government sumitted to the Standing Committee of the National Assembly dated August 26th, 2017 on judgment enforcement work in 2017: Civil judgement enforcement agencies coordinated with bailiffs to notify 66,390 documents and conduct judgement execution of 73 cases.

(12) At central level, there are 4 judicial expert examination organizations which are the National Institute for Forensic Science, the Central Institute for Forensic Mental Health under the Ministry of Health, the Military Institute for Forensic Science under the Ministry of National Defense and the Institute for Criminal Science under the Ministry of Public Security. At municipal level, there are 56 medical examination centres, 5 regional forensic mental health centres. The function of criminal techniques at provincial police departments is adjusted toward within the limit of performing autopsy on corpses but not on injuries, and at the same time experts are allowed to establish non-public expert examination organizations (in the fields of banking, finance and culture)

(13) The Vietnam State Bank, the Ministry of Information and Communication, the Ministry of Finance, the Ministry of Planning and Investment, People’s Committees of Ho Chi Minh City, Binh Duong, Bac Giang, Quang Nam, Kon tum, Phu Yen...

(14) Legal aid is a policy to ensure human rights and a part of the overall policies on hunger elimination, poverty reduction and attitude-showing, national policies and social preferencies of the Party and the State. This task is assigned onto the Justice sector which started from 1997 pursuant to Decision No. 734/QD-TTg by the Government Prime Minister. The Law on Legal Aid was promulgated for the first time by the National Assembly in 2006 and after 10 years of implementation, remarkable achievements have been obtained in protecting legitimate rights and interests of poor people, subjects of policy’s preferential treatment and the vulnerable.

(15) According to the annual report of 2017 by the Chief Justice of the Supreme People’s Court, in 2017, at least each judge had to register to conduct one court to draw general experiences within his/her agency or unit.

(16) According to the annual report of 2017 by the Chief Procurator of the Supreme People’s Procuracy submitted to the National Assembly, the number of suspects suspended due to no guilty decreased by 57.4%, the number of defendants at first-instance trial court declared not guilty decreased by 30.7%, the number of first-instance judgements cancelled for re-investigation and re-adjudication decreased by 4.9%. The court’s judgements and decisions having violations and shortcomings have been promptly detected with the issuance of 2,701 appallate, cassation and re-opening appeals in criminal, civil and administrative fields. The number of appeals accepted by the hearing court passed the target of Resolution No. 37 of the National Assembly.

Assoc. Prof., Dr. Truong Thi Hong Ha

Office of the Central Steering Committee for Judicial Reform