A comparative study of the systems of review of administrative action by courts and tribunals in australia and vietnam what vietnam can learn from australian experience (excerpt

The granting of administrative jurisdiction to the people’s courts in 1996 marked the establishment of a channel for judicial review of administrative action in Vietnam where, previously

A COMPARATIVE STUDY OF THE SYSTEMS OF REVIEW OF ADMINISTRATIVE ACTION BY COURTS AND TRIBUNALS

IN AUSTRALIA AND VIETNAM

WHAT VIETNAM CAN LEARN FROM AUSTRALIAN EXPERIENCE

Author: Nguyen Van Quang obtained his PhD in Law from La Trobe University,

Melbourne, Australia in 2007 and currently is Deputy Head of International Cooperation Department and Chair of Administrative Law (Postgraduate Studies) at Hanoi Law

University, Vietnam He can be contacted at nguyenvanquang@hlu.edu.vn

ABSTRACT

This thesis is a critical comparative study of the systems of review of administrative

action by courts and tribunals in the Australian and Vietnamese jurisdictions Its purpose

is to determine the feasibility and desirability of applying Australian legal experience in Vietnamese conditions It examines the law and legal institutions of both countries with regard to the subject matter of administrative law in order to make comparisons and, more importantly, to draw on Australian experiences which may be relevant to Vietnam’s legal reform It focuses on four related themes, namely, the models of adjudicative bodies, the scope of judicially reviewable administrative actions, the grounds for review and the powers of courts in the Australian and Vietnamese jurisdictions This comparative analysis establishes the basis for a number of proposals for improvements in the judicial review mechanism and for the adoption of a model of administrative tribunals

in Vietnam The thesis argues that the key to a sensitive and accurate comparative law study is the ‘law in context’ approach, based on which proposals can be made that are feasible and desirable in the Vietnamese conditions It then concludes that while

Australian experience may offer Vietnam some ideas about how to reform its administrative law system, if the reform is to be effective it needs to be carried out gradually, consistent with the Vietnamese context

CHAPTER SEVEN

TOWARDS A WELL-FUNCTIONING ADMINISTRATIVE REVIEW SYSTEM

IN VIETNAM: PROPOSED REFORM

Introduction

Over the last fifteen years, in pursuing the establishment of a socialist law-based state (nha nuoc phap quyen xa hoi chu nghia),1 Vietnam has done much to construct and develop its laws and legal institutions, the present task being judicial reform (cai cach tu phap).2The current reforms of Vietnam’s laws and legal institutions have in part been a

response to the requirements of regional and international integration.3 The reform of

Vietnam’s administrative review system in this context is aimed at the construction of a

system that can serve the objectives of judicial reform and meet to meet the goal of accession to the WTO,4 which was achieved on 11 January 2007.5

1 The goal of the establishment of a law-based state was officially launched at the Seventh National Congress of Delegates of the Communist Party of Vietnam in 1991 This goal was then reaffirmed in Van kien Dai hoi Dang toan quoc [Trans: Documents of the National Congress of Delegates] in 1996, 2001 and

2006 It is also affirmed by the Constitution 1992 (amended in 2001)

2

Judicial reform is mentioned in the two recent documents of the Communist Party of Vietnam, that are Nghi quyet so 08-NQ/TW cua Bo Chinh tri ve mot so nhiem vu trong tam cua cong tac tu phap trong thoi gian toi [Trans: Resolution of the Political Bureau No 08-NQ/TW on Some Judicial Principal Tasks for the Forthcoming Period], and Nghi quyet so 49-NQ/TW ngay 02-6-2005 cua Bo Chinh tri ve ‘‘Chien luoc cai cach tu phap den nam 2020’’ [Trans: Resolution of the Political Bureau No 49-NQ/TW on ‘‘Strategy on

for Judicial Reform by the Year 2020’’] For a summary of these Resolutions in the English language, see

'Strategy for Judicial Reform to 2020' (2006) 12(139) Vietnam Law & Legal Forum 2 and Cao Mai Phuong, 'Party Resolutions on Judicial Reform' (2006) 12(139) Law & Legal Forum 6 For a discussion of Vietnam’s judicial reform reflected in Resolution of the Political Bureau No 08-NQ/TW on some judicial principal tasks for the forthcoming period, see Pip Nicholson, 'Vietnamese Jurisprudence: Informing Court Reform' in Pip Nicholson and John Gillespie (eds), Asian Socialism and Legal Change: the Dynamics of Vietnamese and Chinese Reform (2005) 159, 160-70

3 Amongst the aims for the development of Vietnam’s legal system to the year 2010, one is to build a legal system which ‘should not only reflect the specific features of this country, but also must meet international standards in order to be able to help Vietnam perform her international commitments based on the principles of national independence, self- determination and socialist orientation’ See Inter-Agency Steering Committee for Vietnam’s Legal System Development, Report on Comprehensive Needs

Assessment for the Development of Vietnam’s Legal System to the Year 2010 (2001), 25-6

< www.undp.org.vn/projects/vie01002/lnafinalrep.pdf > at 20 may 2006

4 See Submission Paper to the National Assembly (To trinh Quoc hoi) No 15/CP-XDPL dated 21 October

2005 on the draft of the amended Law on Complaints and Denunciations (Luat Khieu nai, To cao) (unpublished material, on file with author)

The granting of administrative jurisdiction to the people’s courts in 1996 marked the

establishment of a channel for judicial review of administrative action in Vietnam where, previously, complaints about administrative actions could usually be resolved only via the internal review system Since then there have been continued debates about how to

improve the quality of the administrative adjudication of the people’s courts While the

judicial review of administrative action is becoming an increasingly recognised channel for resolving administrative disputes,6 much work needs to be done to enhance its effectiveness One of the obvious examples is that although the administrative jurisdiction of the courts has been gradually extended,7 the courts lack the capacity to cope with the increasing number of administrative disputes between administrators and the administered.8

The public is also concerned about the inadequacies of the internal review mechanism

in the administrative system There is a widespread belief that administrators do not usually correct their wrong decisions, and as a result the internal review system does not seem to be trusted.9 In fact, for several reasons, as a high ranking state official has claimed, a large percentage of internal review decisions have been concluded to be wrong.10 However, as opportunities to use external review mechanisms are limited, people still have to rely heavily on the internal review system

Several solutions to the above problems have been proposed On the one hand, having proposed and implemented several reforms, Vietnam has committed itself to the strengthening of the capacity of the current court system to resolve administrative

7 For more details see section II of Chapter Four and section I.B.2.a of this Chapter of the thesis

8 Se e Nghia Nhan, ‘Nganh toa an kho kham noi viec xu ly tranh chap dat dai [Trans: Courts Are Unendurable to Resolve Land Disputes]’ (2003) < http://vnexpress.net/Vietnam/Phap- luat/2003/07/3B9C9DE9/ >at 22 July 2003; Hong Phuc, ‘Toa an chua du suc giai quyet khieu kien ve dat dai [Trans: Courts’ Capacity Is Not Enough for Resolving Land Complaints]’ (2003)

<http://www.vnn.vn/422/2003/7/21466/> at 22 July 2003

9See Anh Thu, ‘Giai quyet khieu nai khong the ‘vua da bong vua thoi coi’ [Trans: Resolving Complaints

Cannot Be ‘Playing and Refereeing at the Same Time’]’ (2005) < luat/2005/08/3B9E14C4/?q=1 > at 6 March 2006 See also Van Tien, ‘Nen thanh lap co quan tai phan hanh chinh? [Trans: Should Administrative Tribunals Be Established?]’ (2005)

http://vnexpress.net/Vietnam/Phap-< http://www.vnn.vn/chinhtri/doinoi/2005/04/410050/ > at 20 March 2006

10 For more details, see below at n 24

cases.11 On the other hand, the debate about whether Vietnam should establish external

administrative tribunals along the lines of those found in some Western countries is

currently at the centre of attention.12 The idea of establishing administrative tribunals in

Vietnam is well supported, on the basis that administrative tribunals could not only

overcome the inadequacies of internal review, but the resolution of administrative

complaints by these administrative tribunals could also be more effective than that

achieved by the courts.13 Although some people are still concerned about the justification

for the establishment of such tribunals in the conditions of Vietnam,14 the recent proposal

of the Ministry of Natural Resources and Environment (Bo Tai nguyen va Moi truong) to

set up land tribunals indicates support for the efforts of reformers to adopt a new

mechanism for resolving administrative complaints

Whether those proposals would be promising in the Vietnamese context? To what

extent the Australian experience could suggest to Vietnamese legal reformers how they

should reform their system? What would be potential challenges for Vietnamese legal

reformers in the course of adopting those proposals? All these questions are the main

concerns of this Chapter

This Chapter is divided into three Parts It begins with a discussion of the

shortcomings of the current system of resolution for administrative disputes in Vietnam

It is followed by an analysis of several proposed reforms of the Vietnamese

administrative review system in which it is contended that the Australian legal

experience and institutions may offer Vietnam some ideas about how to reform its

administrative law system To support this argument, the current Vietnamese debates

about the establishment of administrative tribunals, and several related suggestions drawn

from the Australian experience are specifically discussed This Chapter emphasises that

if the reform of the administrative review system is to be effective, it needs to be carried

out gradually, consistent with Vietnamese conditions Given that reforming the

administrative review system in a country in transition like Vietnam is not an easy task,

this Chapter also points out several potential challenges, both theoretical and practical,

which Vietnam would face in the course of reform

11

For more details Part II of this Chapter

12

See Van Tien, above n 9

13 See ‘Can co co quan tai phan hanh chinh [Trans: The Need for Establishing Administrative Tribunals]’

(2005) < http://www.nhandan.com.vn/print/?Article=37079 > (2005) at 06 March 2006

14 See Anh Thu, ‘Chua the thi diem mo hinh co quan tai phan hanh chinh [Trans: The Model of

Administrative Tribunals Could Not Be Piloted Yet]’ (2005) <

http://vnexpress.net/Vietnam/Phap-luat/2005/07/3B9E09D8/?q=1 > at 10 March 2006

I CURRENT CHANNELS OF RESOLUTIONS FOR ADMINISTRATIVE DISPUTES IN VIETNAM: REVEALING THE SHORTCOMINGS

As in many other countries, several review channels have been set up in Vietnam to ensure the fairness, lawfulness and transparency of government decision-making, the accountability of decision-makers and above all, to protect the legitimate rights and interests of individuals and organisations These include channels which are not directly concerned with the resolution of particular administrative disputes They have also been set up for the purposes of supervision and investigation of administrative decision-making institutions in order to detect administrators’ errors and devise mechanisms for

reducing their incidence The three channels that exist for this purpose, which were

discussed to some extent in Chapter Two, are:

 supervision (giam sat) by the National Assembly and the local people’s councils;

 inspection (thanh tra) by the inspection bodies system;

 audit (kiem toan) by the state auditing bodies

This Chapter focuses not on these system-oriented institutions but on those concerned with disputes about the legality and correctness of particular administrative decisions (acts).15 These administrative disputes are currently settled through two channels: resolving complaints and denunciations (giai quyet khieu nai, to cao) or internal review and judicial review of administrative action Some general points with regard to these two channels were made in Chapter Two of the thesis, but their shortcomings in resolving administrative disputes in the legal practice of Vietnam will be the main theme

of this section

A Resolving Complaints and Denunciations: the Question of Reliability

‘Internal review’ in the Vietnamese legal context is a formal review process regulated

by the Law on Complaints and Denunciations It firstly refers to a process by which primary decision-makers whose administrative decisions (acts)16 are the subject of complaints or denunciations are themselves responsible for resolving these complaints

15 It should be noted that supervision (giam sat), inspection (thanh tra) and audit (kiem toan) are, surely, in some ways concerned with legality of administration However, the main purpose of these systems is not to deal with particular administrative disputes

16 `For a definition of an administrative decision (act) which is subject to complaints and denunciations or judicial review see Law on Complaints and Denunciations (Luat Khieu nai, To cao) 1998 (latest amended

in 2005) and the Ordinance on Procedures for Resolving Administrative Cases (Phap lenh Thu tuc giai quyet cac vu an hanh chinh) 1996 (latest amended in 2006), see Chapter Four of the thesis

and denunciations.17 ‘Internal review’ also refers to cases where complaints about

decisions (acts) are resolved by officials who are not primary decision-makers but who work in the same agency or the same system with them.18 In this regard, internal review

in Vietnam is very similar to that in the Australian legal context.19

In the period before Vietnamese people’s courts were granted administrative

jurisdiction, resolving complaints and denunciations was almost the only channel which was available for resolving administrative disputes Even after the Vietnamese courts acquired administrative jurisdiction in 1996, this channel has continued to play a pivotal role in resolving administrative disputes, partly due to the limitations of the judicial review channel But while the significant role of the internal review channel is undeniable, much has been discussed about its shortcomings as a justification for the need to reform the current review system

It should be noted that the advantages and disadvantages of the internal review system appear to be common in most administrative law systems.20 Through internally

17 In accordance with the Vietnamese law, complaints about decisions (acts) of heads of state administrative agencies or those of other officials in the agency are resolved by the heads of agencies at first instance (giai quyet khieu nai lan dau) (Articles from 19 to 26 of Law on Complaints and Denunciations)

18

Under the law of Vietnam, if the complainant is not happy with the decision to resolve complaints at the first instance, the complaint can be resolved at the second instance (giai quyet khieu nai lan hai) where officials at higher levels are responsible for resolving complaints about decisions (acts) of officials at lower levels in the same system It should be noted that, according to the Law on Complaints and Denunciations, the state inspection bodies are also granted powers to resolve complaints and denunciations about state administrative agencies’ decisions (acts) in some special cases However, in terms of organisation, the state inspection bodies are part of the system of state administrative agencies, and therefore resolving complaints

in these cases is also r eferred to as ‘internal review’ For more details see articles from 19 to 28 of Law on Complaints and Denunciations

19 Internal review in the Australian legal context is defined as ‘a process of review on the merits of an agency’s primary decision’ which is ‘undertaken by another officer within the same agency, usually a more senior officer’ (see ARC, Internal Review of Agency Decision Making - Report to Attorney General Report

No 44 (2000), [7.13]) However, it should be noted that, while ‘internal review’ in the Vietnamese legal context is always a formal review process, ‘internal review’ in the Australian legal context is both formal and informal Internal review is formal in the Australian legal context in the sense that it has become institutionalised For example, under the Social Security (Administration) Act 1999 (Cth), there is provision for internal review by the Secretary, the Chief Executive Officer and Authorised Review Officers, depending on the decision ‘Internal review’ in the Australian legal context may be also relatively informal

in the sense that there is no statutory basis for conducting internal review, and applicants obtain internal review through communication (possibly coupled with negotiation) with relevant officials

20 For a summary of advantages and disadvantages of internal review in the Australian administrative law context, see Matt Minogue, 'Internal Review of Administrative Decisions' (2001) Issue No 54 Admin Review 54, 55-6

reviewing administrative decisions, decision-makers will have the opportunity to review, self-judge, and self-correct their questioned decisions if they see fit to do so Moreover, internal review can be quick and cheap in comparison with external review channels However, internal reviewers are generally believed to be reluctant to overturn

self-their own, self-their colleagues’ or self-their subordinates’ decisions In any case, people, usually

doubt the impartiality of internal review decisions, and this has become a barrier, discouraging them from actively using the internal review process The disadvantages of internal review can be clearly seen in the legal practice of Vietnam

First, there is a widespread belief that as reviewers are authors of the decisions (acts)

in question, or are working in the same agency or system, appellants will find it hard to gain truly impartial review decisions through internal review One of the barriers to the effectiveness of internal review, as many high-ranking Vietnamese officials admit, is that officials in charge of reviewing their own decisions (acts) are often reluctant to change ones which are claimed to be incorrect.21 In cases where officials internally review decisions (acts) made by their staff, errors in making decisions are sometimes covered up

in order to protect local interests.22 Another factor affecting the quality of the internal review process is the attitude of officialdom and imperiousness, which is reflected in a lack of a sense of responsibility found in a number of officials who are responsible for resolving complaints.23 It is claimed that in the course of resolving complaints and

21

See Anh Thu, above n 9 In this newspaper article, Anh Thu quoted the words of Mr Nguyen Dinh Loc (the Depute to the National Assembly and the former Minister of Justice) who claimed ‘no administrator wants to confess his or her errors If he or she was not put under hard pressure, his or her decisions would never be corrected’ In Vietnam, although there are no official statistics relating to results of resolving complaints and denunciations at the first instance, it is believed that the number of cases where state officials altered their incorrect decisions (acts) after being internally reviewed at first instance is very small For example, the Deputy to the National Assembly Mr Nguyen Dinh Xuan has even revealed that the number of cases where state officials uphold their decisions (acts) after internal review at first instance made up 99% of the total number of received complaint cases See Nhu Trang, ‘Co the kien neu khieu nai khong duoc giai quyet [Trans: If Complaints Are Not Properly Resolved, Complainants Can Initiate Their Cases at Court]’ (2005) < http://vnexpress.net/Vietnam/Xa-hoi/2005/11/3B9E3C54 > at 01 March 2006

22 This problem is mentioned in official state documents of the Government of Vietnam, for example, in Report No 1567/CP-V.II of the Government to the National Assembly presented at the Sixth Session of the National Assembly XI on tasks to resolve complaints and denunciations in the year 2004 See ‘Cong tac giai quyet khieu nai, to cao nam 2004 [Trans: Resolving Complaints and Denunciations in the Year 2004] (2004)

denunciations, state officials rarely communicate directly with the complainants whose rights and interests are allegedly affected by their decisions (acts).24 To make decisions for resolving complaints and denunciations, senior state officials generally rely on proposals by their staff and give little personal attention to the complaint.25 As some officials with responsibility to help more senior officials to deal with complaints and denunciations are open to corruption, biased decisions are likely to be made.26

Second, although the reliability of the internal review mechanism is usually questioned, it could be improved if these decisions were to be potentially reviewed externally by other channels, for example, by the judicial review mechanism This is because, if internal reviewers faced the risk of being externally reviewed, they would have to be careful with their decisions if they did not want to ‘lose face’ in public

However, this would require that there be a real possibility both that decisions are externally reviewed, and that they are found to be defective

As noted, before 1 July 1996 when Vietnamese courts were not granted administrative jurisdiction, complainants did not have the right to lodge applications for judicial review of administrative action Almost all complaints about administrative decisions (acts) were settled within the administrative system The exclusive reliance on internal review created a bureaucratic ‘monopoly’ in resolving administrative disputes

and administrators did not have to worry about the risks of being sued at court The quality of internal review, therefore, was not improved An example reflecting this

24 Although the latest amended Law on Complaints and Denunciations requires that officials in charge must directly communicate with complainants prior to making the decision resolving complaints, until recently, this procedure was optional This is a reason why officials in charge rarely meet complainants to discuss the decision (act) in question Due to the lack of communication with complainants prior to making decisions, most complainants are not happy with decisions for resolving complaints Mr Nguyen Dang Dai, the Vice Director of the B oard of People’s Aspirations of the National Assembly, revealed that cases

in which complainants were happy with internal review decisions made up only roughly 30% while 70% of internal review decisions were concluded to be wrong See Van Tien, ibid

25 Under the law of Vietnam, to deal with complaints and denunciations, each administrative state organ usually sets up a section or appoints one or more officials that are responsible for receiving letters of complaints and denunciations, considering all related matters and submitting resolutions for complaints and denunciations to competent officials who will make decisions to resolve complaints and denunciations

26 See Nhu Trang, ‘Khieu kien keo dai do co quan cong quyen thieu trach nhiem [Trans: Complaints Are Prolonged Due to the Irresponsibility of State Authorities]’ (2004) < http://vnexpress.net/Vietnam/Phap- luat/2004/04/3B9D1E5C > at 1 March 2006 Nhu Trang referred to the words of Mr Nguyen Dang Dai, the Vice Director of the Board of People’s Aspirations of the National Assembly (Ban Dan nguyen cua Quoc Hoi) and Mr Bui Ngoc Thanh, the Vice Chairperson of the Committee for Social Issues of the National Assembly, who pointed out that there were many negative influences by state official in charge, especially with their assistant staff, which was one of reasons why many internal review decisions remain biased

practice is that annually there was a large backlog of cases of complaints.27 Also, there were frequently cases where complaints could not be finalised for a long time.28

Since the judicial review of administrative action became available in Vietnam, it appears that the situation has not changed very much The main reason for this is the fact that the judicial review of administrative action in Vietnam has limitations, and that complainants still have to rely heavily on the internal review mechanism.29 Recently, Vietnam has made some amendments to laws relating to resolving complaints, which, to some extent, gives people more opportunities to initiate administrative cases at court.30Theoretically speaking, this could become a reminder that state officials have to be careful with their internal review decisions otherwise they could potentially be judicially reviewed However, the current limited capacity of administrative adjudication of Vietnamese courts does not allow them to judicially review all kinds of administrative decisions (acts).31 Internal review, therefore, continues to be the main review channel in

Vietnam

B Judicial Review of Administrative Action in Vietnam: Continuing Limitations

On the basis of their experiences, legal experts, scholars, administrators and the public in general have started raising many questions relating to the exercise of administrative jurisdiction in Vietnam.32 Their common concerns are the limitations of

27

For more details see Chapter Two of the thesis which discussed the Summation Report for the resolution

of administrative complaints in Vietnam in the 1991-1996 period compiled by the State Inspectorate (Thanh tra Nha nuoc)

28 See Vu Thu, 'Thu tuc to tung hanh chinh [Trans: Administrative Procedure]' in Dao Tri Uc (ed), He thong tu phap va cai cach tu phap o Viet Nam hien nay [Trans: Judicial System and Judicial Reform in Vietnam at Present] (2002) 340, 344

29 For a detailed account of the limitations of the judicial review of administrative action in Vietnam, see section I.B of this Chapter

30 There have been two important amendments First, the Vietnamese courts have jurisdiction to hear administrative cases falling within 22 categories and therefore, in comparison with the primary administrative jurisdiction that was conferred on the Vietnamese courts in 1996, the administrative jurisdiction is considerably extended Second, in accordance with the old Law on Complaints and Denunciations, after complaining about administrative decisions (acts) at first instance, if the complainant chooses to further complain at second instance, he or she was not allowed to initiate an administrative case

at court Now the latest amended Law on Complaints and Denunciations does not put this restriction on a complainant who has already complained at the second instance

31

For more details, see section I.B.1.a of this Chapter

32 See for example, Nguyen Anh Tuan, 'Giai quyet khieu kien hanh chinh - Nhung vuong mac va giai phap [Trans: Resolving Administrative Cases - Difficulties and Solutions]' (2001) Issue No 8 Tap chi Quan ly Nha nuoc (State Management Review) 15; Vu Thu, 'Mot so khia canh cua viec nang cao hieu suat hoat dong cua toa hanh chinh trong viec giai quyet cac khieu kien hanh chinh [Trans: Some Issues on Promoting the Efficiency of Administrative Courts Regarding Hearing Administrative Cases]' (2003) Issue No 8 Nha

resolving administrative disputes by the courts and the necessary reforms needed to make judicial review more effective

On the surface, the limited capacity of judicial review of administrative actions is reflected in the modest number of administrative cases heard by Vietnamese courts over the last ten years since they were granted administrative jurisdiction Annually, the

Supreme People’s Court of Vietnam issues a Summation Report on the operation of the

entire court system, including administrative divisions Although the statistics in the table below show an upward trend in the hearing of administrative cases,33 they also indicate the paucity of administrative cases accepted and resolved by the courts (see Table 7.1 below) Comparing this modest number of administrative cases with the huge number of applications lodged in the internal review system,34 one can clearly see the limited exercise of administrative jurisdiction of the courts According to the Report of the State Inspector General, from 1999 to the end of the first quarter of the year 2004, the administrative system received 1,360,000 visits from citizens who came to lodge their complaints, denunciations or petitions and 459,243 out of 639,590 accepted complaints were adjudicated.35

Table 7(1): Hearing Administrative Cases at First Instance by

Vietnamese Courts from 1996 to 2004

33 The table is drawn up on the basis of data summarised from the Annual Summation Reports of the

Su preme People’s Court in the period from 1996 to 2004 These Reports are internal documents which are

on file with the Supreme People’s Court in Hanoi

34 See Nhu Trang above n 26; Dang Vy and Van Tien, ‘60% don thu khieu nai lien quan den dat dai [Trans: 60% of complaints relate to land issues ]’ (2004)

< http://www.vnn.vn/chinhtri/doinoi/2004/05/136226/ > at 20 May 2004 See also Chapter Two of the thesis for the detailed number of complaints received annually by the administrative system in Vietnam from 1991 to 1996

35 See Dang Vy and Van Tien, above n 34

2002 1064 770

Source: Annual Reports of the Supreme People’s Court of Vietnam (on file with author)

The limitations of judicial review of administrative action in Vietnam are explained

by various factors, as analysed below

1 Public Awareness of Judicial Review of Administrative Action

One reason for the limited exercise of administrative jurisdiction by the courts lies in the lack of public awareness, which means both the awareness of individuals and of organisations, and in the attitudes of government departments and state officials towards such judicial review.36

As recent empirical research by the United Nations Development Programme (UNDP) suggests, the general awareness of judicial institutions is still low in Vietnam,37

so it should not be surprising that people know even less about the administrative law jurisdiction of the courts This becomes more understandable in that, while the courts have been recently given administrative law jurisdiction, the education and dissemination

of related legal information appears to be inadequate.38 Moreover, as the rules and procedures in relation to the judicial review of administrative actions are complicated, the limited availability of legal services provided by lawyers or even free services provided

by legal aid centres also explains why awareness of administrative law jurisdiction is low.39 Because of the lack of the necessary legal knowledge, many people fail to initiate

36 See Tran Nho Thin, 'Mot vai y kien ve hoan thien to chuc va hoat dong cua toa hanh chinh o Viet Nam [Trans: Some Opinions on the Improvement of Organisation and Operation of Administrative Courts in Vietnam]' (2001) (So dac biet ve Toa hanh chinh va viec giai quyet khieu kien hanh chinh cua cong dan, to chuc [Trans: Special Issue on Administrative Court and Resolution of Administrative Complaints of Citizens and Organisations]) Dan chu & Phap luat (Democracy & Law Review) 65, 70; Nguyen Anh Tuan above n 32, 17; Vu Thu, above n 32, 31

37 This research, assessing the access of Vietnamese people to justice, was recently conducted by means of

a sample survey by the UNDP in Vietnam According to the survey, only 14% of one thousand interviewees were said to have a high familiarity with the court system and 29% reported that they had no familiarity with the court See the United Nations Development Programme, Access to Justice in Vietnam: Survey from a People's Perspective (2004), 7 < http://www.undp.org.vn/undp/docs/2004/a2je.pdf > at 30 March 2006

38 See Thin, above n 36, 70

39 The recent survey conducted by the UNDP in Vietnam (see above n 37, 11-2) indicates that only 6% of one thousand interviewees were said to use lawyers’ services and only 4% of them were said to use free legal services provided by legal aid centres

administrative cases.40 This fact is different from the legal practice of Australia, where people are quite familiar with how to gain access to legal services Australians may know little about administrative review procedures, but they often access lawyers or legal advisers who are able to guide them about what to do with their cases A number of traditional socio-psychological barriers existing in the community, such as not wanting to

be involved in judicial matters41, or believing that challenging government decisions at

court is like ‘throwing an egg against a stone’ (trung choi voi da), or being in fear of

retaliation in case of winning,42 also discourage individuals and organisations from initiating administrative cases Instead of bringing an action against government departments (or their staff) at court, for example, many Vietnamese enterprises agree to

‘negotiate’ resolutions for their disputes as they want to keep ‘good relationships’ (quan

he tot) with government departments for the smooth running of their business.43

In recent years, more and more people, especially those living in urban areas, have become aware that ordinary people could challenge decisions of state departments and their officials and win the case.44 However, in general, the level of confidence of

40 See Toa an nhan dan toi cao (Supreme People’s Court), Nhung giai phap nang cao hieu qua cong tac giai quyet cac vu an hanh chinh tai Toa an nhan dan theo tinh than cai cach tu phap [Trans: Solutions for Promoting the Effectiveness of Resolving Administrative Cases at Court in Accordance with Judicial Reform] De tai khoa hoc cap Bo (the Ministerial level Project) (2006) (unpublished material on file with author), 48 In this project, the research team pointed out a typical example, that applicants often initiated their administrative cases without knowing the rules of time limits on applications for judicial review Therefore, in many cases the courts had to refuse applications for judicial review as such applications did not meet the requirements of time limits

41 As many Western and Vietnamese scholars have commented, Vietnam like most East Asian nations, is traditionally influenced by the philosophy of Confucianism, which regarded litigation as ‘‘damaging to a harmonious society based on consensus’’ (see, for example, Karin Buhmann, 'Reforms of Administrative Law in the PRC and Vietnam: The Possible Role of the Legal Tradition' (2003) 72 Nordic Journal of International Law 253, 264 and 285) To handle disputes, people usually prefer informal resolutions such

as negotiations and do not want to open their disputes to the public

42 See N.N, ‘Toa hanh chinh chua du do tin cap [Trans: People Have Not Trusted Administrative Courts Yet]’ (2001) < http://vnexpress.net/Vietnam/Phap-luat/2001/05/3B9B0877/ > at 7 March 2006; ‘Thanh pho

Ho Chi Minh: chi hai vu kien cho toa hanh chinh trong 3 thang [Trans: Ho Chi Minh City: Only Two Administrative Cases in 3 Months]’ (2001) < http://vnexpress.net/Vietnam/Phap- luat/2001/04/3B9AFC4D/ > at 7 March 2006 Similar socio-psychological barriers can be also observed in the case of China For details, see for example, Susan Finder, 'Like Throwing an Egg against a Stone? Administrative Litigation in the People's Republic of China' (1989) 3 Journal of Chinese Law 1, 10

43

See N.N above n 42; see also Brian J.M Quinn, 'Legal Reform and Its Context in Vietnam' (2001-2002)

15 Columbia Journal of Asian Law 219, 265

44 See, eg, ‘Dan kien co quan cong quyen: Chuyen khong con hiem’ [Trans: Ordinary People Bring Action

Against Public Authorities: It Is No Longer a Rare Story)’ (2004) < luat/2004/02/3BCF889/>at 7 June 2004; Doan Trang, ‘Khi ‘‘dan’’ kien ‘‘quan’’ [When ‘Ordinary People’

http://vnexpress.net/Vietnam/Phap-Sue ‘Mandarins’]’

Vietnamese people in courts is still relatively low;45 the number of administrative cases accepted and finalised by Vietnamese courts, therefore, is not as large as one might expect The low confidence of people in courts does not, of course, result from only traditional socio-psychological barriers as mentioned above The degree of impartiality of judgments and the effectiveness of enforcement of legally effective judgments greatly affect the level of public confidence in courts Delays or failure to enforce administrative judgments by Vietnamese courts are also responsible of this.46

Negative attitudes towards the mechanism of judicial review of administrative actions are also reflected in the behaviour of government departments and officials They dislike being defendants in administrative cases and are often uncooperative in providing the documents and evidence needed for the effective hearing of administrative cases.47 The tension between courts and government departments is also one of the reasons why judges often reluctantly accept administrative cases.48 Government departments and their officials, as defendants, usually are unwilling to accept that they are equal to ordinary people as plaintiffs in their administrative cases.49 Such behaviour by these departments and their officials lowers public confidence in government departments in general, and in the quality of administrative adjudication This therefore also negatively affects the

initiation of administrative cases by individuals

2 Legal Constraints

a Limited Scope of Judicially Reviewable Administrative Actions

Another reason why the courts have received such a limited number of cases over the years is the narrow scope of judicially reviewable administrative decisions (acts) under the law of Vietnam In the first year after the introduction of administrative law jurisdiction, tens of thousands of petitions were lodged against the government, but the

people’s courts had to reject most of them.50

This was mainly because, at that time, judicially reviewable administrative decisions (acts) were confined to only nine

(2003)< http://www.tuoitre.com.vn/Tianyon/Index.aspx?ArticleID=9014&ChannelID=119 > at 7 March

See a detailed discussion at section I.B 4 below

47 See Toa an nhan dan toi cao (Supreme People’s Court), above n 40, 48

48 Ibid

49 Nguyen Anh Tuan, above n 32, 17

50 Ibid, 15-16

categories.51 Since then the scope of judicially reviewable decisions (acts) has been gradually extended by several subsequent statutes in order to better protect the legitimate rights and interests of individuals and organisations in general, and to meet the requirements of the US-Vietnam Bilateral Trade Agreement and the WTO in particular.52Although currently twenty-two categories of administrative decisions (acts) are covered,53 there still seems to be room for debate about whether it would be desirable to expand the scope beyond these In fact, there is a considerable range of administrative decisions (acts) which have not been available for judicial review, yet which should be One of the important categories to fall outside the administrative jurisdiction, for example, is administrative decisions resolving land disputes

According to the law of Vietnam, land belongs to the entire people, with the State as the representative landowner; individuals and organisations enjoy only so-called land use rights.54 Land users who meet certain requirements set down by the Land Law can be granted Land Use Certificates.55 Land disputes in the Vietnamese legal context mainly relate to disputes arising between land users about the right to use land As land is a valuable property, land disputes are always regarded as the most ‘sensitive’ and

53

Article 11 of the latest amended Ordinance on Procedures for Resolving Administrative Cases 1996 that came into force on 01 June 2006 lists categories of judicially reviewable administrative actions In comparison with the list provided in the Ordinance on Procedures for Resolving Administrative Cases 1996 amended in 1998, there are many newly added categories, for example:

 administrative decisions (acts) involving determination of industrial property rights, administrative decisions (acts) to grant certificates of copyright, administrative decisions (acts) to approve technology transfer contracts;

 administrative decisions (acts) of customs offices or customs officers;

 administrative decisions (acts) relating to state management on investment;

 administrative decisions (acts) relating to domestic and international financial transfer, services and providing services;

 administrative decisions (acts) relating to international and domestic trade in goods

 administrative decisions resolving complaints about decisions resolving competition cases

54 Article 5 of the Land Law (Luat Dat dai) 2003; for background of land use rights under the Vietnamese law, see The Australian Government’s Overseas Aid Program (AusAID), Vietnam: Land Administration (2000), Working Paper 4, 15-6

complicated All land disputes, as required by law, should first be settled through the negotiation process;56 if the negotiation is unsuccessful, in some cases the competent government departments will make administrative decisions settling the disputes.57 Statistics show that complaints about administrative decisions resolving land disputes accounted for more than 30% of all administrative complaints in the period from 1991 to

1998.58 In the period from 1999 to the first quarter of 2004, approximately 60% of all complaints related to land issues, many of which were complaints about decisions resolving land disputes.59 Administrative decisions resolving land disputes, however, do not fall within the current scope of judicial review under the law of Vietnam Although individuals and organisations involved in such disputes might be unhappy with the resolutions of the government departments, they have to accept the administrative decisions of these departments as final, and have no chance to bring their cases to the courts

b Lack of Detailed Rules for Judicial Review of Administrative Actions

Besides the limited scope of judicially reviewable administrative actions, the lack of detailed rules for judicial review of administrative actions also limits the resolution of administrative cases by courts In Vietnam, the Ordinance on Procedures for Resolving Administrative Cases is the principal basis for the conduct of the judicial review of administrative actions This Ordinance was first introduced in 1996 and was then amended in 1998 and 2006.60 Essentially, the Ordinance sets up basic legal rules relating

to jurisdiction and procedures for Vietnamese people’s courts to resolve administrative

disputes Together with the Ordinance, several related legal normative documents (mainly enacted by the Supreme People’s Court) are also legal bases for judicial review

of administrative actions in Vietnam

Having experienced the resolution of administrative cases by courts, Vietnamese judges, legal experts and scholars have made many comments on the inadequacies of the

56 Article 135 of the Land Law 2003

57 In accordance with Article 136 (2) of the Land Law 2003, disputes about a land use right where the parties concerned do not have Land Use Certificates or other documents certifying the land use right will

be settled by the government departments If a party concerned has a Land Use Certificate or other documents certifying the land use right, the dispute will be settled by a people’s court

58

See Thanh Tra Nha nuoc (the State Inspectorate), Bao cao tong ket thuc hien Phap lenh khieu nai to cao cua cong dan nam 1991 [Trans: Summation Report on the implementation of the Ordinance on Complaints and Denunciations 1991] (1997) (unpublished material, on file with author)

59 See Nhu Trang, above n 26; Dang Vy and Van Tien, above n 34

60 The Ordinance was last amended on 18 April 2006 and the amended Ordinance came into force on 1 June 2006

Vietnamese administrative law in general, and those of the Ordinance on Procedures for Resolving Administrative Cases in particular In particular, the lack of detailed rules stating grounds for the judicial review of administrative actions and orders issued by courts makes it difficult for the courts to resolve administrative cases, and certainly lowers the quality of their administrative adjudication Chapter Five and Chapter Six of the thesis discussed the issue in question and to some extent suggested several ways as to what should be done for improving Vietnamese legal rules in these aspects

c Procedural Rules Constraints

When applicants decide to initiate administrative cases under the Ordinance on Procedures for Resolving Administrative Cases, they have to confront several procedures which arguably are obstacles to individuals and organisations on the road to achieving

administrative justice

(i) Pre-Trial Procedure

The pre-trial procedure (tien to tung hanh chinh) requires that anyone who wants to initiate an administrative case against government departments or their officials has first

to complain about the administrative decisions (acts) via the internal review mechanism.61 This is justified on the grounds that the pre-trial procedure allows government departments and officials a good opportunity to correct their administrative decisions Also, if administrative disputes can be finalised at this stage, it reduces the caseload of the court system and saves money and time.62

It should be noted that, according to the Law on Complaints and Denunciations 1998,

if complainants are not happy with the decision resolving administrative complaints at first instance, or the relevant government department or its official does not respond within 30 days of a complaint being filed, they have two avenues of redress: either to initiate administrative cases in administrative courts, or to complain about administrative decisions (acts) at the second instance.63 The Ordinance on Procedures for Resolving Administrative Cases 1996 (amended in 1998) required that if the applicant chose to

61

See Article 2 of the Ordinance on Procedure for Resolving Administrative Cases

62 See Thuyet minh Du an Luat To chuc Toa an Hanh chinh ngay 28/3/1993 [Trans: the Interpretation Paper on the Draft of Law on the Organisation of Administrative Courts dated 28 March 1993] of the Drafting Committee for the Law on Organisation of Administrative Courts, State Inspection See also Nguyen The Quyen and Dinh Van Minh, Hoi - Dap ve phap luat to tung hanh chinh [Trans: Q & A about the Administrative Procedure Law] (1996), 115

63 See Article 39 of the Law on Complaints and Denunciations 1998

complain at the second instance, they would have no chance to initiate an administrative case in the courts.64 It also stated that, in some cases, the applicant could initiate administrative cases only after formally receiving the decision resolving the administrative complaint at the first instance.65 These procedural complexities became a hurdle to the exercise of the rights of complainants to access courts.66 To some extent, the problem, however, is solved by the latest amended Law on Complaints and Denunciations passed in late 2005.67

While admitting that there are advantages to the pre-trial procedure, many people currently argue that the procedure should not however be compulsory.68 Those who hold this opinion point out that this compulsory procedure is a hindrance to the freedom of individuals and organisations to choose a legal resolution for their administrative disputes As primary administrative decisions (acts) normally are not changed through internal review,69 many applicants would prefer to directly initiate their cases at court rather than experience further delays by pursuing the procedure pre-trial

(ii) Time Limits

The right of individuals or organisations in Vietnam to bring actions against government departments or officials has strict prescription provisions According to Article 39 of the Law on Complaints and Denunciations, individuals or organisations have to initiate administrative cases within 30 days (or a maximum of 45 days for people living in remote areas) from the day they receive the decision resolving administrative complaints at the first instance, or the due date for resolving administrative complaints at the first instance in the case of administrative complaints that have not been resolved yet

66 See Nguyen Van Quang, 'Giai Doan Tien to Tung Hanh Chinh Va Van De Bao Dam Thuc Hien Quyen Khoi Kien Vu An Hanh Chinh Cua Ca Nhan, To Chuc Tai Toa An Nhan Dan [Trans: Administrative pre- trial and the issue of ensuring the rights of individuals and organisations to initiate action]' (2002) Issue No

5 Luat hoc (Jurisprudence Review) 53, 56

69 See Nhu Trang, above n 26

The above provision is justified on the ground that, to protect the efficiency and the smoothness of the administrative process, the law needs to set time limits within which the application for judicial review of administrative decisions (acts) must be commenced.70 This justification appears to be common in most administrative legal systems where the imposition of time limits for the application of judicial review of administrative action is recognised For example, rules in relation to time limits for an application for the judicial review of administrative action can be seen in most Australian jurisdictions and the time limitations are also justified on the ground of the protection of the efficiency of the administrative process.71 However, what is more important is how to determine a reasonable length of time In fact, the strict provision of relatively short time limits in the law of Vietnam, as many administrative judges admit, has deprived many individuals and organisations of the chance to bring actions against government departments 72 Consequently, many unlawful administrative actions may not be challenged.73

Vu Thu has argued that it is very hard for people to consider whether they should initiate administrative cases within such a short time, as they have to take into account factors such as money, time, legal information, and the possibility of winning the case, before proceeding against the government.74 Additionally, ordinary people are often unaware of the due date for resolving their administrative complaints at the first instance,

as they usually do not receive a clear notice regarding that date from the government departments or officials It is therefore hard for them to initiate their administrative cases within the time required by the legal provisions.75

3 Enforcement of Administrative Judgments

70 See Nguyen The Quyen and Dinh Van Minh, above n 62, 116

71 For a discussion of rules of time limits set out by the Australian law on judicial review of administrative action see Enid Campbell and Mathews Groves, 'Time Limitations on Applications for Judicial Review' (2004) 32 Federal Law Review 29

72 See Nguyen Anh Tuan, above n 32, 16

73 There are also similar comments on rules of time limits for applying judicial review of administrative action prescribed by English administrative law See Lee Bridges, George Meszaros and Maurice Sunkin, Judicial Review in Perspective (1995) 112

74

See Vu Thu, 'Mot so khia canh cua viec nang cao hieu suat hoat dong cua toa hanh chinh trong viec giai quyet cac khieu kien hanh chinh [Trans: Some Issues on Promoting the Efficiency of Administrative Courts Regarding Hearing Administrative Cases]' (2003) Issue No 8 Nha nuoc va Phap luat (State and Law) 25, 28

75 See Nguyen Van Quang, above n 66, 57

Another problem limiting the judicial review of administrative action in Vietnam is ineffective enforcement of administrative judgments To resolve administrative cases, Vietnamese courts can issue orders quashing the decision in question and directing the defendant government departments (or officials) to make a new one where needed, but the courts cannot substitute a new decision for the one in question.76 Whether a judgment favourable to the applicant is effectively enforced, therefore largely depends on the willingness of the defendant government (official) As a result, there is likely to be a delay or failure in execution of such administrative judgments This, of course, adversely affects the legitimate rights and interests of individuals and organisations, and lowers the pubic confidence in the courts A similar problem, albeit on a lesser scale, can also be seen in Australia Recent empirical research on the judicial review of administrative action in the period from 1984-1994 in Australia suggests that although in general court orders were observed by defendant agencies, Australian applicants for judicial review of administrative action were still concerned with the delay in implementing court orders, or

in some cases the nullification of the import of court orders.77

In fact, the Vietnamese law sets forth some general provisions for the enforcement of administrative judgments 78 Basically, the main responsibility for executing administrative judgments is entrusted to the administrative agencies In particular, the law claims that the responsibility for supervising and monitoring the execution of administrative judgments of the defendant belongs to the head of the next higher government department, and where needed, he or she can force the defendant government department (official) to execute administrative judgments.79 The law also provides that that part of an administrative judgment which is concerned with the award

of damages must be enforced by Local Enforcement of Civil Judgments Offices (co quan thi hanh an dan su dia phuong) in accordance with the Ordinance on Enforcement of Civil Judgments (Phap lenh thi hanh an dan su).80 Such general provisions, however, do

76 See Chapter Six of the thesis in relation to Vietnamese courts’ orders awarding damages in resolving administrative cases

77 See Robin Creyke and John McMillan, 'The Operation of Judicial Review in Australia' in Marc Hertogh and Simon Halliday (eds), Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (2004) 161, 169, 173-4 and 187 It however should be noted that the degree of delay in implementing court order is minor and the non-compliance with court orders is rare in Australian jurisdictions

78 Article 74 of the Ordinance on Procedures for Resolving Administrative Cases 1996 (amended 2006)

79 Article 74.2 of the Ordinance on Procedures for Resolving Administrative Cases 1996 (amended 2006)

80 Article 74.3 of the Ordinance on Procedures for Resolving Administrative Cases 1996 (amended 2006) For details in relation to the structure, powers and procedures of enforcement of civil judgment offices see the Ordinance on Enforcement of Civil Judgments (Phap lenh thi hanh an dan su) (2004) This Ordinance

not seem to be sufficient for effectively executing the administrative judgments of Vietnamese courts

Firstly, except for some general provisions as mentioned above, there are no detailed procedural rules to enforce administrative judgments set out in any Vietnamese statute Without such detailed rules, the enforcement of administrative judgments hardly occurs

in practice There was a call for the incorporation of a formal mechanism to enforce administrative judgments in Vietnamese law.81 However, there has been no response to this call so far

Secondly, although there is a rule setting out a statutory mechanism for monitoring, supervising and ensuring the execution of administrative judgments, there are no measures to guarantee that this mechanism is effectively operated.82 So far, there has been no official report by competent government departments in Vietnam on the execution of administrative judgments.83 Notwithstanding that the current law includes a provision introducing several strict sanctions, such as disciplinary measures or penal punishments, applied to officials who neglect to execute administrative judgments, or

replaces the Ordinance on Enforcement of Civil Judgment 1993 See also Quinn, above n 43, 246-50 for a discussion of some recent problems in relation to enforcement of civil judgments in Vietnam

81 See Uong Chung Luu, 'Tang cuong hieu luc cua toa hanh chinh, gop phan bao dam quyen dan chu cua cong dan [Enhancing the Effectiveness of Administrative Courts for Contributing to the Ensuring the Right

to Democracy of Citizens]' (2001) Dan chu & Phap Luat (Democracy & Law), So chuyen de ve Toa hanh chinh va viec giai quyet khieu kien cua to chuc, cong dan (Special Issue on Administrative Courts and Resolving Complaints of Organisations and Citizens) 7, 12

82 See Nguyen Anh Tuan, above n 32, 17; Vu Thu above n 28, 380 See also ‘Toa hanh chinh ‘‘ngoi choi

xoi nuoc’’ vi thieu quyen [Trans: Administrative Courts ‘‘Idle’’ Due to the Lack of Powers]’ (2001)

<http://vnexpress.net/Vietnam/Phap- luat/2001/05/3B9B0289/> at 4 May 2005; Chi Mai, ‘Khieu kien hanh

chinh: Gian nan, vat va nhung ket qua…bang khong [Trans: Challenging Administrative Decisions at

Court: It Is Strenuous but…Ineffective]’

(2004) < http://www.tuoitre.com.vn/Tianyon/Index.aspx?ArticleID=47149&ChannelID=6 > at 4 May 2005 The authors of this newspaper article quoted the words of administrative judges who claimed that the enforcement of administrative judgments totally relies on the willingness of defendant government departments and there was no way to force them to execute administrative judgments

83 Creyke and McMillan point out a common problem in most legal systems, which is the lack of statutory procedures for reporting the execution of administrative judgments or the lack of officials who are responsible for monitoring and supervising the execution of administrative judgments (see Robin Creyke and John McMillan, above n 77, 163-4) On the surface, although some rules set out by the law of Vietnam, indicate to some extent the responsibility of competent state officials for the execution of administrative judgments, such rules do not specify clearly enough procedures that competent state officials need to follow in the course of fulfilling their responsibility And what is more important is that such rules are rarely observed in the legal practice of Vietnam

who delay the execution of administrative judgments,84 these sanctions have rarely if ever been imposed in practice so far

Thirdly, there are also hurdles in enforcing administrative judgments in relation to the award of damages, created by the ‘close relationships’ between the local office for the

enforcement of civil judgments, and the defendant government department (official).85 One significant feature of a rule of law state is to ensure that court orders are respected and carried out To pursue the goal of the rule of law, Vietnam needs to build

up effective mechanisms to enforce court judgments, including administrative judgments Although courts cannot interfere in the decision-making of administrative agencies, they need to be granted powers to ensure that their orders are being complied with It should

be noted that, in the course of preparation for the establishment of administrative jurisdiction in Vietnam (more than ten years ago), draftsmen included in the drafts of the Ordinance for Resolving Administrative Cases several provisions conferring powers to enforce administrative judgments on the courts.86 It is unclear whether these provisions could have operated effectively in practice However, theoretically speaking, more strictly defined measures to guarantee the execution of judgments provided by law (which could include press reports) could serve as effective reminders that bureaucrats need to strictly comply with court orders Therefore, it would be worthwhile to include

such measures in future Vietnamese statutes

84 See Article 74.2 of the Ordinance on Procedures for Resolving Administrative Cases Article 305 of the Vietnamese Criminal Code claims that officials who are in charge of executing judgments but fail to perform their duties could be sentenced to maximum of 7 years imprisonment

85 See Toa hanh chinh ‘‘ngoi choi xoi nuoc’’ vi thieu quyen [Trans: Administrative Courts ‘‘Idle’’ Due to

the Lack o f Powers’, above n 82 The author of this newspaper article also quoted the words of Mr Luong Vinh Phuc, Acting Head of Ho Chi Minh City Enforcement of Civil Judgments Office who pointed out a range of difficulties in relation to the enforcement of that part of administrative judgments awarding damages to plaintiffs

86 For example, Article 14 of the 8th draft of the Ordinance on Procedures for Resolving Administrative Cases (unpublished material, on file with author), reads as follows:

In cases of delay in executing administrative judgments caused by defendant government departments (officials), administrative courts have the following powers:

(i) To request the next higher government department of the defendant to force the defendant to execute administrative judgments or apply disciplinary measures to officials who are responsible for executing judgments;

(ii) To fine the defendant The State Treasurer or the defendant’s bank will deduct the fine from the defendant’s account;

(iii) To request to take criminal proceedings against officials who denied the execution of judgments in cases of need; to publicly announce in the mass media the delay of execution of judgments caused government departments (officials)

4 Dependence of Local Courts on Local Governments: the Question of Judicial Independence

The lack of independence of Vietnam’s courts, especially of local courts, in hearing

administrative cases has been widely criticised.87 Judicial independence, as one of the most important characteristics of the rule of law, has been institutionalized since 1946, when the first constitution of the Democratic Republic of Vietnam was enacted The current constitution of Vietnam clearly states that ‘[j]udges and people’s assessors

independently hear cases and shall only obey the law’.88

However, in reality, it is not an easy task to comply with this principle, and Vietnam has found it hard to guarantee the independence of its judiciary.89

First, as discussed in Chapter Two of the thesis, the leadership of the CPV is one of the constitutional principles underpinning the organisation and operation of the state machinery, including the court system Complying with this principle also requires a separation of the Party from the day-to-day running of the State However, although there has been a call from the CPV and the public for non-intervention of the Party organisations in the resolution of routine cases by the courts in order to maintain judicial independence, cases where the local Party organisations interfere in daily court activities still remain current Recently, much public attention was paid to the Do Son case.90 In this case, some Party-State officials of Do Son Town, Hai Phong City, committed crimes relating to their abuse of power in land state management In accordance with the Vietnamese Criminal Code, the punishment of up to three years re-education without detention or the punishment of imprisonment of one year to five years or the punishment

of imprisonment of five years to ten years in cases of seriousness should have been

87 This issue is mentioned in many debates amongst Vietnamese legal scholars about the organisation and operation of Vietnamese courts in relation to the exercise of administrative law jurisdiction See, eg, Vu Thu, above n 32, 29, Le Hong Son, above n 68, 14, and Nguyen Hoang Anh 'Hoat dong xet xu hanh chinh

o nuoc ta [Trans: Administrative Adjudication in Our Country]' (2006) Nghien cuu lap phap (Legislative Studies) < http://www.nclp.org.vn/News/nghiencuuchinhsach/2006/02/1033.aspx > at 20 May 2006

88 See Article 131 of the Constitution 1992 (amended 2001)

89 See Bui Ngoc Son, 'Su doc lap cua toa an trong nha nuoc phap quyen [Trans: Judicial Independence in the Rule of Law]' (2003) Issue No 4 Nghien cuu lap phap (Legislative Studies) 43, 43 For a detailed discussion about judicial independence in Vietnam, see Luu Tien Dung, Judicial Independence in Transitional Countries (2003) < www.undp.org/oslocentre/docsjuly03/DungTienLuu-v2.pdf > at 20 May

2006, 30-41

90 See Quoc Hung, ‘Bi thu Hai Phong xin xu nhe toi cho cac quan chuc nhung cham [Trans: The Sectary of the Party Committee of Hai Phong City Requests the Lightening of the Punishments Imposed on Party- State Officials Who Commit Crimes]’ (2006) < http://vnexpress.net/Vietnam/Phap- luat/2006/09/3B9EDF0C/ > at 7 October 2006

imposed on those who commit these crimes.91 However, due to the interference of the

Party Committee and the People’s Committee of Hai Phong City, the People’s Court of

Hai Phong City as a court of first instance decided to impose the punishment of a warning on these Party-State officials of Do Son Town The public expressed its protest against the decision of the Court and this decision then was set aside by the Supreme

People’s Court This case indicates the difficulties of local courts in resolving cases

involving local governments

Second, as discussed in Chapter Two of the thesis, the entire state machinery of Vietnam is organised and operates on the basis of the principle of concentration of powers.92To comply with this principle, the law requires that local people’s courts are

accountable, and that they report their activities to local people’s councils at the

corresponding level.93 In terms of organisation, although local judges are no longer directly elected (bau) by local people’s councils at corresponding levels, 94

the dependence of local courts upon local government is still clearly seen In a recent interview conducted by a correspondent for a popular electronic newspaper in Vietnam, the Vietnam Net, the former Inspector General, Mr Quach Le Thanh admitted the difficulties regarding the organisation of local courts, which can influence their judicial independence in resoling administrative cases.95 The most important reason for these difficulties, Mr Thanh pointed out, is the dependence of local courts upon the local governments with respect to organisation, personnel, and budget.96

91

Article 281 of the Vietnamese Criminal Code

92 See Chapter Two of the thesis for a detailed account of this principle

93 See Article 135 of the Constitution 1992 (amended 2001) and Article16 of the Law on organisation of the people’s courts (2002)

94 Before the 1992 Constitution of Vietnam was passed, local judges were elected (or dismissed) by people’s councils at the corresponding levels and local judges enjoyed the same tenure as that of deputies

to local people’s councils With the passage of the 1992 Constitution, judges then were appointed (or remove d) by the State President Currently only judges of the Supreme People’s Court and the Central Military Tribunal are appointed by the State President Local judges are appointed (or removed) by the Chief Justice of the Supreme People’s Court For a more detailed discussion of the recent changes in selection, appointment and removal of Vietnamese judges see Brian J.M Quinn, 'Vietnam's Continuing Legal Reform: Gaining Control over the Courts' (2003) 4 Asian-Pacific Law & Policy Journal 432, 452-4

< http://www.hawaii.edu/aplpj/pdfs/v4-quinn.pdf > at 20 May 2006

95 See Le Tho Binh, ‘Toa an tinh co the xu chu tich tinh? [Trans: Can Provincial Courts Challenge Chairmen of Provincial People’s Committees?]’ (2004) < http://www.vnn.vn/chinhtri/2004/02/52994/ >at 03 April 2004

96 For more details in regard to this dependence, see Article 17 of the Law on Organisation of the People’s Courts and Artic le 2 of the Regulation on the Supreme People’s Court’s Cooperation with local people councils in administering the organisation of local people’s courts (enacted with the Resolution No 132/2002/NQ-UBTVQH11 dated 04 April 2002 of the Standing Committee of the National Assembly)

As discussed in Chapter Three of the thesis, Vietnamese judges enjoy tenure of five years, and expect generally to be reappointed Currently judges, including administrative judges of local courts, are appointed (or removed) by the Chief Justice of the Supreme

People’s Court on the recommendation of councils for selecting local judges (CSLJ) The

CSLJ is an ad hoc institution consisting of the Chairman or Vice Chairman of the

Provincial People’s Council as the Head of the CSLJ, the Chief Judge of the Provincial People’s Court, representatives of the Provincial Personnel Department, of the Provincial

Vietnam Fatherland Front, and of the Executive Board of the Provincial Vietnam Jurist Association as members.97 The presence of local government officials in CSLJs, explains

to some extent the pressure placed on local judges in hearing administrative cases in which local officials are defendants

Moreover, although the Supreme People’s Court has recently been granted the jurisdiction to manage the local people’s court system with respect to organisation, the

current law of Vietnam requires its close coordination with the local government in local court administration regarding the following main functions:

 assigning duties to local judges;

 personnel programming for local courts;

 building new local court offices or upgrading facilities of local court offices.98

Such legal provisions obviously make local courts dependent on the local government, which can easily lead to a breach of judicial independence In fact, interference usually manifests itself in the uncooperativeness, unwillingness or opposition of the government officials (especially of the high ranking ones) to local courts in hearing administrative cases involving those officials, which to some extent influences the judgements of the judges 99

5 Administrative Judges: the Question of Expertise

97 See Articles 26, 27 of the Ordinance on Judges and Jurors of the People Courts 2002

98 See Article 17 of the Law on Organisation of the People’s Courts and Article 2 of the Regulation on the Supreme People’s Court’s Cooperation with local people councils in administering the organisation of local people’s courts

99 See Le Tho Binh, above n 95 See also ‘Nganh toa an kho kham noi viec xu ly tranh chap dat dai [Trans:

It Is Very Tough for Courts to Resolve Land Disputes]’ (2003) < luat/2003/07/3B9C9DE9/ > at 22 May 2004 In this newspaper article, the author quoted Mr Nguyen Van Thuan, the Vice President of the Law Committee of the National Assembly who described the difficulties

http://vnexpess.net/Vietnam/Phap-of local courts in hearing administrative cases involving local government http://vnexpess.net/Vietnam/Phap-officials

Comments on the exercise of administrative law jurisdiction of Vietnamese courts also focus on the lack of expertise of administrative judges as one of many reasons for the ineffectiveness of the resolution of administrative cases by the courts.100 As discussed

in Chapter Three of the thesis, the professionalism of Vietnamese judges becomes a common concern of many people who argue for a strong judiciary in Vietnam In the case of administrative judges, this concern seems to be more apparent

Having observed that administrative disputes possess a number of specific characteristics, 101 Vietnamese legal experts have emphasised the need to have administrative judges with expertise in administrative law and state management Suggestions to this effect have also been made in Australia For example, in the proposal

to establish ‘a Commonwealth Administrative Court’ in Australia, the Kerr Committee

suggested that ‘[c]onsideration could be given to the appointment to the Court of a lawyer, […], who has wide administrative experience’.102

In fact, the draft Law on the Organisation of Administrative Courts (1995) required administrative judges to have not only legal knowledge (especially knowledge of administrative law) but also appropriate expertise in state management.103 In Vietnam, also, in the initial proposal for administrative courts under the Government (Vien tai phan hanh chinh thuoc Chinh phu)

it was expected that judges of these courts would be selected from judges and relevant experts, and trained at the National Academy of Public Administration of the Government.104 However, as discussed in Chapter Three, the model of administrative courts under the Government was then rejected, and administrative jurisdiction was

conferred on the people’s courts, whose administrative judges are mainly selected from

amongst their existing judges

For this reason, administrative judges may be experienced in resolving criminal and civil cases, but usually lack appropriate professional knowledge and skills relating to the

100 See for example Nguyen Anh Tuan, above n 32, 17; Le Xuan Than, above n 32, 35; Toa an nhan dan to cao (Supreme Pe ople’s Court), above n 40, 48-9

101 See Submission Paper to the National Assembly (To trinh Quoc hoi) of the Government No.1650/PC dated 30 March 1995 about the Draft Law on Organisation of Administrative Courts (unpublished paper,

on file with author) In this Paper, the Government pointed out specific characteristics of resolving administrative cases that could suggest models of organisation of administrative courts, criteria for selection of administrative judges, jurisdiction, procedures and other related issues

102

See Commonwealth Administrative Review Committee, Report PP No 144 of 1971 (1971) (‘the Kerr Report ’) para 246

103 See Article 10 of the Draft Law on Organisation of Administrative Courts 1994 (unpublished material,

on file with author)

104 For more details of this model, see Chapter Three of the thesis

resolution of administrative cases In recent years the Judicial Academy (Hoc vien Tu phap) under the Ministry of Justice of Vietnam has been assigned the task of training candidates who will be considered for appointment as judges in the near future Some newly appointed judges who graduate from the Judicial Academy are provided with professional knowledge relating to the resolution of administrative cases However, the majority of administrative judges do not have such knowledge.105 This means that administrative judges often find it difficult to resolve administrative cases because of their lack of related legal knowledge of and expertise in administrative law and state management.106 This directly affects the quality of administrative adjudication of Vietnamese courts, especially of courts at the district level Tables 7(2) and 7(3) below show the results of hearing administrative cases appeals by provincial courts and the

Supreme People’s Court from 2000-2002 The considerable numbers of cases where the

higher courts correct, quash or dismiss decisions of the lower courts may, to some extent, indicate the low quality of resolution of administrative cases by local courts

Table 7 (2): Hearing Administrative Cases Appeals by Provincial Courts

Correcting primary decisions

Quashing primary decisions

Dismissing cases

Suspending cases

2000 123 (cases) 73 (cases)

(59%)

25 (cases) (20%)

25 (cases) (20%)

9 (cases) (1%)

0 (cases) (0%)

Correcting primary decisions

Quashing primary decisions

Dismissing cases

Suspending cases

105

See Toa an nhan dan toi cao, above n 40, 49

106See Dinh Van Minh, ‘Co quan tai phan hanh chinh – Nhan thuc moi, giai phap moi cho mot van de

khong moi [Trans: Administrative Tribunals – New Perception, New Solution to an Old Problem]’ (2006)

< http://www.giri.ac.vn/modules.php?name=News&opcase=detailsnews&mid=314&mcid=216 > at 20 May

2006

2000 76 (cases) 44 (cases)

(58%)

13 (cases) (17%)

19 (cases) (25%)

0 (cases) (0%)

0 (cases) (0%)

2001 85 53 (62%) 13 (15%) 19 (23%) 0 (0%) 0 (0%)

2002 64 42 (66%) 11 (26%) 11 (8%) 0 (0%) 0 (0%)

Notes for tables:

1 These tables are drawn from the annual reports of the Supreme People’s Courts

2 In accordance with the law of Vietnam, provincial people’s courts hear appeals from district people’s courts; the Supreme People’s Court hears appeals from provincial people’s courts

ADJUDICATION OF VIETNAMESE COURTS: SEVERAL PROPOSALS

Overcoming these problems requires a range of reforms in related laws and legal institutions This appears to be particularly significant in the current context of judicial reform initiated by the Communist Party of Vietnam, where reforming the court system with respect to the organisational model, operation, and reallocation of jurisdiction has been given the highest priority.107 The goal of this reform is to promote the quality of adjudication and to effectively protect the legitimate rights and interests of individuals and organisations In particular, the current reform has set out several tasks to enhance the effectiveness of the judicial review of administrative actions in Vietnam such as:

To expand the jurisdiction of the court over administrative claims filed with the courts; to create favourable conditions for the people to participate in court proceedings, ensuring equality between citizens and public authorities.108

There also is the need to reform laws and legal institutions in relation to the judicial review of administrative actions in order to meet the requirements of international integration, particularly the requirements of transparency under the US-Vietnam Bilateral Trade Agreement (BTA) or the requirements of transparency within the framework of the WTO In fact, many legal experts and scholars have proposed reforms of laws and legal

107 See Cao Mai Phuong, above n 1, 6

108 See Strategy for Judicial Reform to 2020, above n 1, 3

institutions in relation to the resolution of administrative cases by courts,109 several of which have so far been put into practice

A Restructuring Vietnam’s Court System: the Model of Regional Courts

1 Initial Ideas of the Model

Some years ago many Vietnamese legal experts and scholars, concerned about the problem of the lack of independence of local courts in hearing administrative cases, started raising the issue of restructuring the court system, with several suggested models

of administrative adjudication bodies.110 These models were based on the important principle that local courts should be independent of local governments in terms of

organisation, personnel and budget allocation to prevent their interference in courts’

decisions.111

In brief, there are three models of administrative courts which were suggested for the above purpose: (i) the model of a semi-independent administrative court system in which

the central administrative court would belong to the Supreme People’s Court and other

administrative courts would be under the control of the central administrative court and

independent of the local people’s courts; (ii) the model of an administrative court system which would be independent from the people’s court system and under the control of the

Government; (iii) the model of regional administrative courts in which administrative courts would not be organised in administrative units for which there are corresponding local governments.112 However, theoretical and practical grounds for supporting such models were not exhaustively discussed and the proposed models were described in very general terms

109 In recent years, reforming the Vietnamese administrative adjudication system has interested many legal experts, administrators, scholars and the public in general So far, there have been a number of suggested reforms This thesis has referred to many of these works, amongst which is recent comprehensive research conducted by the Supreme People’s Court entitled ‘Nhung giai phap nang cao hieu qua cong tac giai quyet cac vu an hanh chinh tai toa an nhan dan theo tinh than cai cach tu phap ’ [Trans: Solutions for Promoting the Effectiveness of Resolving Administrative Cases at Courts in Accordance with Judicial Reform], above

n 40

110 For a detailed discussion of this issue see Nguyen Quang, 'The Organisation and Operation of Administrative Courts in Vietnam' in R Cribb (ed), Asia Examined: Proceedings of the Biennial Conference of the ASAA, 2004, Canberra, Australia (2004)

< http://coombs.anu.edu.au/ASAA/conference/proceedings/Nguyen-Q-ASAA2004.pdf > at 20 May 2006

111 Ibid

112 Ibid

The recent Strategy for Judicial Reform to 2020 of Vietnam (the Strategy) proposed

by the CPV sets out the goal of court restructuring, according to which a based court system will replace the current administrative unit-based court system.113 In terms of structure, the jurisdiction-based court system, as proposed in the Strategy, will consist of the following courts:

jurisdiction- regional courts of first instance (toa so tham khu vuc) with jurisdiction to hear

cases at first instance;114

 appellate courts (toa phuc tham) with key jurisdiction to hear appeals from

regional courts of first instance and jurisdiction to hear some cases at first instance;115

 high courts (toa thuong tham) with jurisdiction to hear appeals from appellate

courts;116

 the Supreme People’s Court (toa toi cao) with the jurisdiction to sum up court

practices, instruct inferior courts on how to apply the law, publish selected court decisions, and review and supervise the decisions of inferior courts (giam doc tham, tai tham)

In accordance with the Strategy, court divisions which specialise in hearing certain types of cases including administrative law cases will be maintained in this new model Together with the proposed structure of a jurisdiction-based court system, the Strategy also initiates the issue of reforming the regime of judicial appointment in order to secure judicial independence Although the Strategy does not mention detailed proposals in regard to this issue, a long term appointment seems to be likely the case for Vietnamese judges in the future.117

113 See Strategy for Judicial Reform to 2020, above n 1, 3

114 Regional courts are expected to be set up in geographical areas of one or more districts

115 Appellate courts are expected to be set up in geographical areas of each province

116 High courts are expected to be set up in five regions of Vietnam (the North, the Centre, the Central Highlands, the South and the Mekong River Delta) See Se thanh lap toa an khu vuc [Trans: Regional Courts Will Be Established] (2005) < http://vnexpress.net/Vietnam/Phap-luat/2005/11/3B9E4282/ > at 20 May 2005 This newspaper article is an interview conducted by Phap luat Thanh pho Ho Chi Minh (the law Ho Chi Minh City) newspaper with Depute Chief Justice Dang Quang Phuong about the model of regional courts in Vietnam

117 This viewpoint gains much support from Vietnamese legal scholars See for example, Bui Ngoc Son, above n 89, 50, Nguyen Hoang Anh, above n 87 Depute Chief Justice Dang Quang Phuong also has suggested that quasi-lifelong appointment should be applied for Vietnamese judges (see Se thanh lap toa

an khu vuc [Trans: Regional Courts Will Be Established], above n 116)

2 Dilemma

Although the suggested model of jurisdiction-based courts has not been implemented

in practice and there is a lack of many details as to how this system will work, the desire for the establishment of a jurisdiction-based court system indicates Vietnam’s

commitment to strengthening the judicial capacity of the court system in its move towards a law-based state In particular, this suggested model, as Deputy Chief Justice Dang Quang Phuong has commented, could overcome several inadequacies of the current court system, one of which is the administrative dependence of local courts on local governments.118 Thus, it seems to be a promising model that could potentially solve the problem of the lack of independence facing local courts Restructuring the court system, however, is a difficult task, especially for Vietnam, a country in transition A few years ago, Nga pointed out several potential difficulties that would arise from the process

of setting up regional courts,119 and her concerns remain current

One of the difficulties lies in the question of compliance with the two constitutional principles relating to the organisation and operation of Vietnam’s state apparatus: the

principle of the leadership of the Communist Party of Vietnam and that of the concentration of powers.120 As many people argue, since regional courts would not be organised on the basis of administrative units, it would be hard to maintain the leading role of executive committees of the Communist Party of Vietnam in court activities and the accountability of the courts to local state representative organs.121

It seems that it is not very difficult to suggest solutions for maintaining compliance with the above constitutional principles in the case of the model of jurisdiction-based

118

See Se thanh lap toa an khu vuc [Trans: Regional courts will be established], above n 116

119 See Le Thi Nga, 'To Chuc Toa an Nhan Dan Khu Vuc - Nhung Van De Ly Luan Va Thuc Tien [Trans: Organising Regional People's Courts - Theoretical and Practical Issues]' (2003) Issue No 4 Nghien cuu lap phap (Legislative Studies) 51, 51-7

120 For a discussion of these principles, see Chapter Two of the thesis

121 See for example, Duong Thi Thanh Mai, 'May suy nghi ve doi moi to chuc va hoat dong cua toa an nhan dan [Trans: Some Thoughts on Reforms of the Organisation and Operation of People's Courts]' in Le Minh Thong (ed), Mot so van de ve hoan thien to chuc va hoat dong cua bo may nha nuoc nuoc cong hoa xa hoi chu nghia Viet Nam [Trans: Some Issues on the Improvement of the Organisation and Operation of the State Apparatus of the Socialist Republic of Vietnam] (2001) 403, 416-7 (Duong Thi Thanh Mai is Deputy

C hief Justice of the Supreme People’s Court of Vietnam); Dinh Van Que, 'Xung quanh van de doi moi to chuc va hoat dong cua toa an nhan dan [Trans: On the Issue of Reforming the Organisation and Operation

of People's Courts]' in Le Minh Thong (ed), Mot so van de ve hoan thien to chuc va hoat dong cua bo may nha nuoc nuoc Cong hoa Xa hoi chu nghia Viet Nam [Trans: Some Issues on the Improvement of the Organisation and Operation of the State Apparatus of the Socialist Republic of Vietnam] (2001) 418, 421-4 (Din h Van Que is Depute Head of the Criminal Division of the Supreme People’s Court)