Independence and Responsibility Mechanism of Judges in Vietnamese and English Law

Concept of independence of judges ...8 2.1.1 Independence and impartiality of judges...11 2.1.2 Independence of judges – individual independence and independence of the whole judiciary s

First of all, I would like to thank my family, especially my husband, for theiremotional share and care of my little daughter during the time of this course I cannotpursue the course until present without my family’s encouragement

I would like to express my deepest gratitude to my supervisors, AssistantProfessor Mai Hong Quy and Professor Michael Bogdan for their sympathy on myprivate difficulties and for their valuable directions on my thesis Assistant ProfessorMai Hong Quy has supported me a lot in deciding the topic of thesis ProfessorMichael Bogdan gave me useful advices during the time in Lund and during the time

of writing this thesis I also have learnt a lot from his way of working and teaching

My gratitude also goes to the other Vietnamese, Swedish, and Americanprofessors, particularly Assistant Professor Christopher Wong, who devotedlyprovided us with professional knowledge and research methodology during theirlectures in Vietnam and Sweden My thanks also go to Sida for funding the JointMaster’s Program that I attended

I am sincerely grateful to friends and colleagues who provide me with kind helpthrough out the time I was doing this research I thank Assistant Professor TruongDac Linh for his devoted suggestions for my thesis I thank Doctor Do Van Dai forhis support with concerned materials Last but not least, I grateful to my colleagues

at the International Law Faculty, who shared my work during the time of this course

My supervisors gave the best directions Therefore, if there are some mistakes inthis thesis, they totally belong my own responsibility Needless to say, in spite ofthese acknowledgement, I bear personal responsibility for ideas and argumentspresented in this thesis

1

Table of Content 2

Abbreviations 4

Executive Summary 5

1 Introduction 6

1.2 Rationale 6

1.3 Purposes 6

1.4 Delimitation 6

1.5 Research methods and Materials 6

1.6 Disposition 8

2 Independence of judges 8

2.1 Concept of independence of judges 8

2.1.1 Independence and impartiality of judges 11

2.1.2 Independence of judges – individual independence and independence of the whole judiciary system – institutional independence 13

2.2 International legal provisions on independence of judges 14

2.2.1 LAWASIA’s Principles on Judicial independence 14

2.2.2 The International Bar Association’s Code of Minimum Standards of Judicial Independence 16

2.2.3 Universal Declaration on the Independence of Justice 17

2.2.4 United Nations’ Basic Principles on the Independence of the Judiciary 17

2.2.5 The Universal Charter of the Judges 18

2.3 Individual independence of English judges 18

2.3.1 Categories of judges 19

2.3.2 Security of tenure 20

2.3.3 High salaries 21

2.3.4 Transparent appointment 22

2.4 Vietnamese legal provisions on principles of the independence of judges 23

2.4.1 Provisions on independence of judges in the legal documents issued before the 1992 Constitution 23

2.4.2 The substance of the concept of judges’ independence under current law 25

2.5 Independence of Vietnamese judges in reality 26

2.5.1 General remarks on the independence of Vietnamese judges 26

2.5.2 Threats to independence of Vietnamese judges 28

3 Responsibility mechanism of judges 34

3.1.2 The tension between responsibility and independence of judges 35

3.1.3 State’s responsibility and judges’ responsibility 37

3.2 International legal provisions on responsibility of judges 38

3.3 Responsibility of English judges 39

3.3.1 Overview of responsibility mechanism of English Judges 39

3.3.1 Judges’ professional discipline 42

3.3.3 Judicial immunity 43

3.4 Practice of responsibility mechanism for Vietnamese judges 44

3.4.1 General remarks on responsibility mechanism for Vietnamese judges at the moment 44

3.4.2 Problems of responsibility mechanism for Vietnamese judges 46

4 Conclusion 53

Table of Statutes and Other Legal Instrument 54

Bibliography 56

CA 1971 Court Act 1971

LAWASIA The Law Association for Asia and the Western Pacific

Improving the quality of judicial activities is a very important duty of the Vietnamesejudiciary in the coming time under the light of Resolution No.49 and ResolutionNo.08 of Political Bureau about the judicial reform strategy Judges plays the deci-sive role to achieve that purpose because the quality of the judicial activites is as-sessed on the ground of final outcomes of cases However, the current practice showsthat independence of Vietnamese judges is violated seriously by manifold threatsfrom outside and eventually from the judiciary Judges’ working conditions are notguaranteed adequately by law The salaries of judges cannot afford their daily life,the security of tenure is not ensured since it is too short and judges are pressed by thereappointment mechanism Besides, the judicial ability of judges is a big problem inpresent, and this is one of reasons leading to the dependence of judges to their lead-ers/superiors Additionally, responsibility mechanism for Vietnamses judges contains

so many unreasonable problems, especially the disciplinary procedures with twokinds of discipline, professional discipline and civil servant discipline, and the per-sonal remedial responsibility With current responsibility mechanism, judges face alot of threats which are harmful to their independence Therefore, ensuring indepen-dence of judges and setting up a reasonalble accountability mechanism for them areurgent duties of the judiciary to make the positive changes for the judicial reform Inorder to achieve the effective results, it is very useful for Vietnam to learn from theinternational legal provisions about judge’s independence and responsibility as well

as the experience from countries which have the judiciary with high independence.Experiences of the English judiciary are very useful for Vietnamese judicial reform,particularly in protecting independence of individual judges

5

1.1 Rationale

According to the content of the Resolution No 49 on 2nd June 2005 of thePolitical Bureau about judicial reform, improving the quality of judiciary activities isthe main aim of judicial reform strategy Judges play a very important role to achievethis aim because the independence of judges is a decisive factor to have objectiveand just judgments The principle “during a trial, the judges are independent andshall only obey the law” is a constitutional provision since 1946 However, in presentthe independence of judges is a topical matter in Vietnam since there are so manycases proving that the independence of judges are not ensured in judicial activities.The lack of independence of judges has affected the quality of trial so much, and as aresult, it causes many bad consequences to society, especially belief of people tojustice According to the Annual Report of the Supreme People’s Court in 2007,there are 35 judges disciplined and prosecuted criminal liability This situation iscaused by many reasons both from legal provisions and the judges themselves, forexample, the appointment of judges, the low salaries, the organization of courtsystem, the relationship between judges and their superiors…So, ensuring theindependence of judges has become very necessary matter to improve the quality ofjudicial activities

One of the factors, which cannot be separated from the independence of judges, isresponsibilities mechanism of judges, and this is considered indispensible corollary

of the independence Judges must be independence, but it does not mean that theycan do anything and have no responsibility Responsibility mechanism is veryimportant to make judges independent However, from another perspective, ifjudges’ responsibilities are not provided suitably, it will affect badly to judges’judgments As a result, it is essential to balance the independence and responsibilities

of judges Vietnamese law has also provided on judges’ responsibilities, but theprovisions are not effective in fact and there are a lot of gaps in this field Basing onthe reality mentioned above, I decide to choose the matter of independence andresponsibility mechanism of judges for my master thesis

1.2 Purposes

This thesis has the following purposes: The first purpose is examining maintheoretical aspects of independence of judges and their responsibility mechanism.With this purpose, the thesis is expected to examine the notion of independence andresponsibility mechanism of judges, and the relations of these issues with concernedmatters such as impartiality of judges, institutional independence, the relationbetween independence and responsibility, and relation between individualaccountability and State‘s responsibility, ect The second purpose is defining andanalyzing threats to independence of Vietnamese judges and problems in theiraccountability mechanism In addition, the last purpose is suggestingrecommendations for guaranteeing the independence of Vietnamese judges as well asbuilding a reasonable responsibility mechanism for them based on selective referencefrom the international instruments and English law

By setting the above purposes, the thesis will research on legal provisions of pendence and accountability of judges in international instruments, English law, andVietnamese law The thesis focuses on the analyzing the critical practice of Viet-namese judges’ independence and responsibility as well as concerned provisions In-ternational provisions and English law are considered reference sources to recom-mend solutions for Vietnamese judges

inde-Within the delimitation of master thesis, it is impossible to study all problemsrelating to independence and responsibility of Vietnamese judges The followingbasic elements impacting judges’ independence will be researched: term of office,salary, appointment mechanism, qualifications, discipline, and personal remedialresponsibility

In this thesis, the three major research methods are used: the analytical, the tive, and the descriptive

compara-The three methods are used in each chapter compara-The analytical is used to deal withtheoretical matters of independence and responsibility of judges, and to examinenegative problems both in law and in practice harmful to Vietnamese judges’independence The descriptive method is used to study on international instrumentsand provisions of English law The comparative method is used to compare the

principles guaranteeing the individual independence developed in numerousinternational instruments, and to make comparison between Vietnamese law andEnglish as well as international provisions in order to find out reasonablerecommendations for Vietnam.

Various material sources are used in this thesis consisting of international ments, national statutes, books, monographs, and articles from law journals, and ma-terials from the internet

In accordance with the purposes, the thesis are structured as follows:

Introduction includes these issues: Rationale, Purposes, Delimitation, Researchmethods and Materials, Disposition

Chapter 1“Independence of judges” will research theoretical matters of individualindependence of judges including its notion, relations with impartiality andinstitutional independence This chapter also give the readers knowledge ofconcerning international instrument and English law on ensuring independence ofjudges The central part of this chapter is research on independence of Vietnamesejudges

Chapter 2 “Responsibility Mechanism of Judges” focuses on the responsibility ofjudges as an important factor supporting the independence of judges This chapterwill also examine theoretical aspects of responsibility, international and English legalprovisions on this matter, and analyzing problems of responsibility mechanism ofVietnamese judges in present

Independence of judges is important in every area of the law For just and effectivejudgments, judges must be independent It is impossible to have an independentjudiciary without independent judges The importance of judges’ independence isrealized by all nations, all states since it is the key factor making a strong judiciary,building a democratic society and protecting human rights Being the guardian ofjustice - an elevated but dangerous duty - judges always face many threats Threats tothe individual judges are diversity They are also very dangerous because they targetdirectly at the individual judges, who exercise judicial function and therefore are

greatly potential of perverting justice The executive, an executive’s or judicialofficer may have the power to raise or to reduce the judge’s salary, to disciplinejudge or to transfer judge to another court The chief judge in a court may have thepower to assign cases to judges Beside the influence may from the other stateinstitutions and superiors, judges may also put themselves in danger of threat fromthe criminal network Impact from the press and other social and political forces mayalso be interference with making decision process of judges.1 All of these powersmay be exerted to affect the course of action of a targeted judge when deciding on acase In order to be impartial to give out just judgments, judges must not be affected

by those threats An independent judge, therefore, cannot be affected by any threat inmaking decision Independence of judge has been mentioned in a lot of documents invarious ways

Independence of individual judges are stated strongly in the Universal Declaration

on the Independence of Justice 1983 that judges “shall be free to decide mattersbefore them impartially, in accordance with their assessment of the facts and theirunderstanding of the law without any restrictions, influences, inducements, pressures,threats or interference, direct or indirect, from any quarter or for any reason In thedecision-making process, judges shall be independent vis-à-vis their judicialcolleagues and superiors”2

In the Universal Charter of the Judge 1999, independence of judge is approached

by pointing out from what and who judge must be free “The judge, as holder ofjudicial office, must be able to exercise judicial powers free from social, economicand political pressure and independently from other judges and the administrative ofthe judiciary”.3Consequently, negative external interference in judge’s professionalactivities may from not only the judicial system but also their colleagues, superiors,and administrators

Another understanding of judge’s independence is mentioned in the BangalorePrinciples of Judicial Conduct in 2002 A judge shall exercise the judicial functionindependently on the basis of the judge’s assessment of the facts and in accordancewith a conscientious understanding of the law, free of any extraneous influences,inducements, pressures, threats or interference, direct or indirect, from any quarter orfor any reason.4It is recommended clearly that judge must be free from social

1 USAID, Office of Democracy and Governance, Guidance for promoting Judicial

Independence and Impartiality- Revised Edition, (2002), available at <http:// www.ifes.org/publication/0e49c032c28f9e60a181630f281eda5a/judicial_independence.pdf>p.5

2 Universal Declaration on the Independence of Justice, II,2.02-2.03

3 The Universal Charter of the Judge, Art.2

4 Bangalore Principles of Judicial Conduct 2002, 1.1

influence, the particular parties to a dispute, which a judge has to adjudicate5,influence by the executive and legislative branches of government, and from otherjudicial colleagues6

A little bit different from the access to independence of judge of the twointernational documents above, in the book “Judicial Independence – Thecontemporary debate” by Shimon Shetreet and Jules Deschênes, independence ofjudge is categorized into individual independence and substantive independence

Independence means both personal independence and substantive independence Personal independence of judges means that they enjoy such terms of service that render them free from executive control that could be exercised through removal, suspension, non consensual transfer from locality or one office to another, salary cuts or administrative retirement… The substantive independence of judges means that in the discharge of official functions, the judge is subject to no one and nothing but the law and his conscience 7

Under this division of independence of judge, influences from executiveadministration are emphasized while the fact that independence of judges isthreatened by various external interference not the executive control only.Substantive independence of judge, actually, should be understood the impartiality ofjudges which will be mentioned in the next part

Despite of the difference of words, all the understanding about independence ofjudges presented has the same nature showing from which and who judges should befree The interference on judge’s independence, generally, can be divided into tworesources: internal and external forces External forces means the interference outside

of the judicial system such as the social and economic influence, political parties, thepress, litigants or any other forces outside of the judiciary itself that can encroach onthe autonomy of the individual judge8…Internal forces means the influences insidethe judicial system such as those from the other judges or superiors “Independence”means not be influenced, impacted by anyone or anything, and independent person isthe one carrying out his business on his own without any interference or affection.Therefore, whatever the interference, internal or external forces, duty of judges ismaking decision in accordance with the facts and laws

5 Bangalore Principles of Judicial Conduct 2002,1.3

6 Bangalore Principle of Judicial Conduct 2002,1.4

7 Shimon Shetreet, Jules Deschênes, “Judicial independence: The Contemporary Debate”,

Martinus Nijhoff Publisher, 1985, pp.172-173

8 Petter., Russell, and David M., O’Brien (eds), “Judicial Independence in The Age of

Democ-racy”, University Press of Virginia, Virginia 2001, p.11.

In short, independence of judges can be defined briefly that judges must be freefrom the undue influences causing negative pressures upon their judgments fromanyone, any institution, or any impact else inside or outside the judiciary system.

It also should be alleged that independence does not completely prevent judgesfrom using positive external information in settling the cases, for example, judgesmay share the facts of the cases and discuss specific relevant legal issues withcolleagues, including senior judges, but this consultation process must be regarded asadvisory and never as authoritarian instruction.9Judges always suffer a lot ofpressures in conducting their judicial function because there are so many interferenceand manifold resources of information relating to the cases It is really a challengefor judge to secure his independence and consider the useful information supportingfor the making just decision legally Consistency and firm professional skills areunnecessary elements helping judges to choose the right way

Respect independence of judges is responsibility of any institution and anybody.Being free from all of interference is duty and professional ethnic of judges;however, without the respect from the others, it is so difficult for judges to keepthemselves independent in order to protect justice Therefore, co-operation of theother institutions, community, and any external factors having potential influence onjudge’s independence is very essential to make judges more independent

2.1.1 Independence and impartiality of judges

It is the fact that the term “independence” and “impartiality” is often mentionedtogether Without careful studying, it is easy to confuse the two concepts and equateindependence to impartiality Impartiality is not less important than independencesince it is a compulsory requirement of a judgment The independent status accorded

to a judge carries the assumption that the judge is impartial Without the impartiality,independence of judge would be a disaster for the parties involved in the case anddestroy the rule of law

The meaning of impartiality is close to independence Nevertheless, it must benoted that independence and impartiality of judge are two distinct concepts.Impartiality requires that in the discharge of his judicial duty a judge is answerable tothe law and his conscience only10 A judge has a duty to impartially assess the facts

of the case before him and apply the relevant law without any improper influencefrom any source Dr L.M.Singhvi in his report to the United Nations has defined theimpartiality as “a freedom from bias, prejudice and partisanship, and it means not

9 Luu Tien Dung, “Judicial independence in transitional countries”, People’s Court Magazine, Vol 20 (10/2006), p.9.

10 International Bar Association Code of Minimum Standards of Judicial Independence, 1(c)

objectivity and an absence of affection or ill-will To be impartial as a judge is tohold the scales even and to adjudicate without fear or favour in order to do right.”11

The concept of impartiality is distinct from but interrelated with the concept ofindependence The concept of independence relates to the duty of outsiders not tointerfere with the judges, while the concept of impartiality is the internal duty of thejudge not to be influenced by any source The impartiality must be maintained duringthe whole process of adjudication It should not be limited only to the decision of thejudge, since an impartial process outcome would hardly be achieved without animpartial process of adjudication A judge has to make sure that his conduct isperceived by the litigants of the case and any others as impartial He must avoid anycircumstance that would lead to the undermining of his impartiality or would makethe public perceive that he might not be impartial The Bangalore Principles havelisted a number of situations when a judge should withdraw from the case to protectthe impartiality requirement, such as (i) when he has actual bias or prejudiceconcerning a party or personal knowledge of disputes on evidential facts concerningthe proceedings; (ii) when he previously served as a lawyer or was a material witness

in the matter in controversy; (iii) when he or a member of his family has a economicinterest in the outcome of the case.12

From the legal perspective, it is an objective and also a duty of judges toadminister the law impartially no matter who are involved in cases beforethem.13However, it should be realized that, in many cases judges act partially notbecause they want to do so, but since they might have suffered unexpected externalinterference, and in such cases it is not entirely their faults for the unfairness It could

be seen at this point that, the issues of independence and impartiality of judges areclosely interrelated Independence is the necessary condition for judges to getimpartiality in discharge of their judicial function In other words, impartiality is anobjective of trial process while independence is a means to achieve that objective Ajudge can be independent but not impartial, but it is impossible for judges to beimpartial without independence

11 Report of Special Rapporteur on independence of judges and lawyers, E/CN.4/ Sub.2/1995/18/Add.1.1

12 Bangalore Principles of Judicial Conduct 2002, 2.5.

13 The United nations Universal Declaration of Human Rights, Section 2.01; The European Convention for the Protection of Human Rights and Fundamental Freedom, Article 6 para 1.

2.1.2 Independence of judges – individual independence and

independence of the whole judiciary system – institutional independence

Judicial independence is generally used to imply independence of both the institution

of the judiciary and individual judges This means that judicial independenceincludes two parts: independence of an individual judge as well as that of thejudiciary as a branch of government, 14and there is an interrelation between them.The judiciary system, as a whole, is the system of state institutions which havefunction of adjudication; while the judge – officer of this institutional system - is theone carrying out that function in fact Independence of judges is independence ofspecific individual, and institutional independence is collective independence Institutional independence means that the judiciary, as an institution, must beprotected adequately from those who may avail themselves of their leverage over theformer to intervene their business.15Institutional independence may suffer thenegative influences from the other state branches: the legislature and the executive.From the institutional organization perspective, court system, or judicial institution,

is one of the state organs As a result, it is impossible to have no relations with theother state institutions.16The interference from the executive branch, for example, can

be supervision and control over judicial staff such as court clerks, bailiffs, andadministrative officers; the preparation and disbursement of courts’ budgets; of themaintenance of courts’ buildings, ect Judicial intervention from the legislativediffers from that of executive In some countries, the legislative has the power toform new court or to appoint judges,17or to approve the judiciary’s budgetbill.18Apparently, these powers will have certain leverage over the judiciary’sbusiness and interfere with the independence of the judiciary

14 American Bar Association, An Independence Judiciary: Report of the Commission on Seperation of Powers and Judicial Independence, Chicago (1997), pp.ii-iii.

15 Burbank, Stephen B.,“The Architecture of Judicial Independence”, 72 S.Cal.L.Rev 1999)315, pp.340-349

(1998-16 Comment by Assisstant professor Doctor Ha Thi Mai Hien (Institution of State and Law) at

the Seminar “Independence of Adjudication in Vietnam”, held in HoChiMinh City, 28-29 August

2008.

17 Comment by Assisstant Professor Doctor Ha Thi Mai Hien (from Institution of State and

Law) at the Seminar “Independence of Adjudication in Vietnam”, held in HoChiMinh City, 28-29

August 2008.

18 To Van Hoa, “Judicial Independence: A Legal Research on Its Theoretical Aspects,

Prac-tices from Germany, The United States of America, France, Vietnam, and Recommendations for Vietnam”, Jurisforlaget i Lund, Lund 2006, p.67.

The objective of interference with the individual independence is different fromthat of collective independence Threats target at specific person – individual judge

to make influence on their decision-making Their superiors, press, criminal forces,and even the other judges, ect, may impact judge directly or indirectly

As mentioned, there is interrelation between individual independence andinstitutional independence

Without the former (institutional judicial independence), the latter (individual judicial independence) cannot be secured and without the latter the former does not serve much purpose Therefore, the two, even if separable, must be pursued together A system which ignores one or the other can not make much progress towards, much less achieve, the

Institutional independence purports to also secure the independence of individualjudges working in the judicial system Usually, but not always, a collectiveindependent judiciary provides a strong guarantee for the independence of theirjudges However, if the judiciary, as an institution, is dependent, the independence ofeach individual judge serving therein will likely to be affected, because naturally thedependence of the whole system will lead to the dependence of each individualworking therein On the other hand, individual independence has its effect oncollective independence in that without the former, the latter would be renderedmeaning less The institutional independence would be in vain if individual judges,who eventually carry out the judicial function, were at the mercy of the legislative orthe executive Should such a case happens, neither the rule of law would bepromoted nor human rights be protected

judges

2.2.1 LAWASIA’s Principles on Judicial independence

LAWASIA (The Law Association for Asia and the Western Pacific) was established

in 1966 This is a professional association of representatives of bar councils, lawassociations, individual lawyers, law firms and corporations principally from theAsia Pacific region This association has adopted two sets of principles on judicialindependence: The Tokyo principles on judicial independence in 1982 (the Tokyo

19 Singh, M.P, “Securing the Independence of the Judiciary: the Indian Experience”, Indiana

International & Comparative Law Review (1999-2000) 245, at p.248.

principles), and the Beijing statement on principles of the independence of thejudiciary in the LAWASIA region in 1995 (the Beijing principles)

The Tokyo principles mentioned the following matters concerning toindependence of judges: appointment of judges, remuneration and workingconditions, their career, and the influence from the executive on them

Concerning the appointment of judges, it is affirmed that “there is no single model

of appointment of judges which is essential to their proper appointment”20, and “indifferent societies, different procedures and safeguards may be seen as of assistance

in ensuring the proper appointment of judges”21 A “Judicial Services Committee”,which includes representatives from the higher judicial courts as well as institutionsconcerned in the administration of justice in the process of appointing judges isrecommended to be set up However, the matters of how to set up such a commissionand how it works in the process of appointing judges are not clarified in the Tokyoprinciples

About tenure of judges, the Tokyo principles do not distinguish betweenappointed judges and elected judges Only one kind of tenure is suggested for judge –life tenure Moreover, some countries have two types of judges: professional judgesand lay judges and the life tenure is applied for professional judges only Thisdifference is not mentioned in the content of the Tokyo principles

Concerning judicial salary, working facilities, and relationship with the executive,the Tokyo principles recognized that these factors are potential threats onindependence of judges For example, if the executive has the power to transferjudges from their current office to another court with less favourable workingconditions, or if the executive can reduce the judicial salaries at will… However,solutions for such malpractices are not given

In 1995, the Beijing principles was adopted, and then they was amended in 1997.The Beijing principles inherit and support the content of the Tokyo principles, butthey are much more elaborated and prescriptive than the Tokyo principles Severalnew principles on the aspect of individual have been added The Beijing principlessuggest that the judicial selection procedures must be clearly defined and formalized,and all information about them should be public This is an effective way to selectpersons who are best qualified for judicial office To restrain judicial promotion’sadverse effects, the Beijing principles recommend that judicial promotion must bebased on an objective assessment of merit-based factors such as judicial competence,integrity, impartiality, and experience The Beijing principles also suggest that judgesmust not be transferred by the executive from one jurisdiction or function withouttheir consent

20 The Tokyo Principles, section 10.a

21 Ibid., section 10.b

2.2.2 The International Bar Association’s Code of minimum

standards of judicial independence

The International Bar Association’s Code minimum standards of judicialindependence (hereafter called the IBA Code) was officially adopted in New Delhi inOctober 1982 The IBA Code define the independence of judges including personalindependence and substantive independence 22In comparison with the LAWASIAprinciples, there are not much difference from the IBA Code, however, the IBAprinciples are more elaborated and cover more factors affecting individualindependence than LAWASIA’s statement

Concerning judicial discipline, which is not mentioned in LAWASIA principles,the IBA especially concentrate on the threats from the executive, and stronglyrecommend that the executive must not be in charge of judicial discipline A lot ofmeasures have been devised to deter the executive from the internal administrativebusiness of court Accordingly, “the Executive may participate in the discipline ofjudges, only in referring complaints against judges, or in the initiation of disciplinaryproceedings, but not the adjudication of such matters The power to discipline orremove judges must be vested in an institution which is independent from theExecutive.”23In case the legislature is vested with the power of removal of judges, it

is the judiciary or a commission set up by it who should initiate the removalprocess.24 IBA suggest that the best judicial disciplinary mechanism for the sake ofjudicial independence is one administered or represented dominantly by thejudiciary.25

About tenure of judge, similar to LAWASIA principles, the IBA Code supportsthe life tenure for all kinds of judges In addition, temporary judges as well asprobationary period for judges are recommended not to be adopted because they arepotential threats on judge’s independence

2.2.3 Universal Declaration on the Independence of Justice

The Universal Declaration on the Independence of Justice (Montreal Declaration)was adopted in Montreal in June 1983 at the First World Conference on theIndependence of Justice In this declaration, the following questions concerning

22 IBA Code, section 1.b, 1.c

23 The IBA Code, section 4.a

24 The IBA Code, section 4.b,c

25 The IBA Code, section 4, 31

independence of judges are mentioned comprehensively: forces from which judgesshould be independent, qualifications, selections and training, tenure,disqualifications, discipline and removal

Generally, the Declaration is considered the synthesized version of the standards

of judicial independence, which had been adopted before It shares major views withthe principles of LAWASIA and IBA Notwithstanding, it has a number ofpeculiarities

The Declaration does not categorize independence of judges into personalindependence and substantive independence like the IBA Code In contrast to theIBA opinion in favour of the role of judiciary in appointment of judges, theDeclaration insist on the fact that there is no single proper method of judicialselection provided it safeguards against judicial appointments for impropermotives.26According to the Declaration, participation by the executive or legislature

in appointment process might be acceptable if “the appointment is made inconsultation with members of the Judiciary and the legal profession, or by a body inwhich members of the Judiciary and the legal professional participate.”27

2.2.4 United Nations’ Basic Principles on the Independence of

the Judiciary

The United Nations’ Basic Principles on the Independence of the Judiciary (hereaftercalled the UN Basic Principles) was adopted by the Seventh United NationsCongress on the Prevention of Crime and the Treatment of Offenders in Milan inSeptember 1985 The content of the UN Basic Principles especially focus on thefactors that ensure the individual independence of judges including judicial selection,working conditions, tenure, discipline, suspension, and removal As far as theircontents are concerned, the UN Basic Principles are very similar to the principles andminimum standards on independence of judges adopted before them However, theyare much more general and seem to have political than practical value This featureshould be explained that the UN is a global organization; therefore, theirrecommendations must contain the most adaptive possibility to the diversifiedcontexts in the UN’s members’ states These principles, as a result, are very generalsubstantively

26 The Universal Declaration on Independence of Justice, section 2.14

27 The Universal Declaration on Independence of Justice, section2.14.b

2.2.5 The Universal Charter of the Judge

The Universal Charter of the Judge (hereafter called the Charter) was approved at themeeting of the Central Council of the International Association of Judges in Taipei(Taiwan) on November 17th, 1999

The Charter includes fifteen articles all of which are about the individualindependence of judges As far as their contents are concerned, the Charter’sprovisions are similar to the substance of the international documents issued beforethem Unlike the IBA’s standards or the Universal Declaration on the Independence

of Justice, the Charter does not define clearly from whom and which should judges

be independent or how to prevent the interference from the other agents About themeasures for ensuring independence of judges, the Charter recommends that “a judgecannot be transferred, suspended or removed from office unless it is provided for bylaw and then only by decision in the proper disciplinary procedure”28 In the samepoint of view with the other international documents, the Charter affirms that theappointment should be carried out according to objective and transparent criteria and

by an independent body including substantial judicial representations However, theCharter does not explain what criteria are and how to form an independent selectionbody Security of tenure as well as remuneration and retirement also mentioned inthe Charter but in general way

In a word, the provisions of the Charter is too general, they should be consideredthe most basic principles concerning individual independence of judges There is,apparently, lack of practical solutions to ensure judges’ independence

In England as well as most common law countries, judges have traditionally enjoyedmore independence and power than their counterparts in many civil code countries.29

Common law judges have greater security of tenure and more autonomy over theirbudgets and internal governance This characteristic springs from the historical role

of judges in forming the common law system Common law provisions have beenformed in adjudicative practice of judges, not by the legislative power In other word,judges are persons who make law.30 Independence of English judges are typical forthe judicial independence in common law tradition Especially, since the

28 The Universal Charter of the Judge in 1999, Art 8.

29 USAID Office of Democracy and Governance, “Guidance for promoting judicial dence and impartiality”, January 2002, p.24

indepen-30 Gillespie, Alisdair A., The English Legal System, Oxford University Press, Oxford 2007, p177.

Constitutional Reform Act 2005 has become effective in fact, a statutory protectionhas been recognized the first time in the history of English law to protectindependence of the judiciary in general and that of individual judges in particular.One of the most important changes in the Act is the abolishment of the position ofthe Lord Chancellor in the judiciary, and the post of Head of the Judiciary istransferred to the Lord Chief Justice Independence of English judges are guaranteed

by a lot of elements Free from politics, judicial immunity, high salary, security oftenure, and a transparent appointment mechanism are effective factors making judgesindependent Besides, English judges also enjoy a reasonable accountabilitymechanism (accountability matters concerning English judges will be discussed inChapter 2) Therefore, there is no considerable pressures on their individualindependence However, most obviously, general measures ensuring judge‘sindependence include a transparent and effective appointment process, high salariesand security of tenure 31

First of all, it had better to have an overview of types of judges in English legalsystem before approaching factors ensuring independence of English judges

jurisdiction is not limited specifically by the statute unless there is a statutoryprovision limits their jurisdiction.34

Inferior judges

Inferior judges are judges who do not exercise unlimited jurisdiction but instead theirpowers are defined by statute.35 Accordingly, if the statute does not prescribe anyauthority then they may not exercise any jurisdiction

2.3.2 Security of tenure

Superior judges

Superior judges enjoy higher protection than members of inferior judges do Puisnejudges and Lord Justice of Appeal hold office until retirement age (currently seventy(s11(2) SCA 1981) “during good behaviour, subject to a power of removal by HerMajesty on an address presented to her on an address presented by both House ofParliament” In other words, a superior judge cannot be removed without consent ofboth House of Parliament Only one judge has ever been removed in this way in

1830.36 And English judges prefer to assign than rather than be removed because thisdiscipline is considered the strictest penalty to their reputation

According to the SCA 1981 (s11(8), where a superior judge is incapacitated ordisability the Lord Chancellor may remove him (s11(8) To ensure that this powercannot be abused, subsection (9) requires judicial consent to this procedure Forexample, where the incapacitated judge is a Head of Division then at least two otherHeads of Division must agree, where it is a Lord Justice of Appeal the Master of theRolls must agree and where it is a puisne judge the appropriate Head of Divisionmust agree So, all of the judges who must agree are all superior judges who enjoythe similar security of tenure This is an effective way to ensure that the measure cannever be used by a Lord Chancellor in an inappropriate manner

34 Ibid, p.179.

35 Ibid, p 180.

36 Ibid, p.181.

CRA 2005 states that the removal of inferior judges must follow “prescribedprocedures” (s108(1))

Judges’ salaries are fairly high and are fixed by a non-governmental body, the SeniorSalaries Review Body (SSRB) A high salary was meant to protect them fromcorruption.37 In 2008, a High Court judge will be paid £165,900; a circuit judge

£123,200, and Lord Chief Justice £230.400.38The salaries is increase regularly by theGovernment on the recommendation of the SSBR.39 The judges can enjoy high livingstandard with their current salaries However, English judges are appointed fromsolicitors or barristers who have high remuneration In comparison with suchremuneration, salaries of judges are not high ones Most senior judges and manycircuit judges are appointed from the ranks of Queen’s Counsel, whose averageearnings are over £250,000 per year.40 Therefore, in 2005, Lord Chief Justice Woofwarned that unless High Court salaries were kept at a level that did not underminethe status of the job, there was a risk that senior barristers would turn down the offer

of a judicial post41 since the fact shows that salaries of judges are not really high incomparison with remuneration of lawyers Therefore, it is reasonable and necessary

to maintain high salaries for judges in order to attract good lawyers and ensure theindependence of judges

2.3.4 Transparent appointment

In current time, judicial appointment are regulated by statutory law The appointmentprocedure are quite explicit and impartial since the changes in CRA 2005 was made.All the relative information are public and most judicial positions are advertised in

41 Hazel Genn, Dame, The attractiveness of senior judicial appointment to highly qualified

http://www.judiciary.gov.uk/docs/re-port-sen-jud-appt.pdf >

To be appointed to judicial office, it is currently necessary to have been fullyqualified as a barrister or solicitor for a minimum time period,43 depending on theoffice in question Judicial appointment are made strictly on merit regardless of age,gender, ethnic origin, marital status, sexual orientation, political affiliation, ect.44

All judges are appointed by the Queen on the recommendation of the PrimeMinister of the Lord Chancellor In fact, the effect of the judicial appointment isdecided by the Judicial Appointments Commission (JAC) JAC is formed according

to reform of CRA 2005 in order to set up a transparent and effective appointmentprocess.45 The Commission consists of fifteen members; most of them arerepresentatives for judges and lawyers The majority of the Commission are legallyprofessional persons, and this is important and necessary to evaluate the professionalqualifications of the candidates No member can be appointed if they are in the civilservice in order to ensure the independence of the appointment process The function

of JAC is to select the best-qualified candidates for the Lord Chancellor’sconsideration The Lord Chancellor has only three options in the appointmentprocedure: (i) accept the recommendation, (ii) reject the recommendation, (iii) askthe panel to reconsider the selection The Lord Chancellor does not have any power

in stage of selecting candidates His power is limited in considering therecommendation of the JAC

There are currently four parts to the process of being selected as a candidate for ajudicial appointment: application, consultation, sift and assessment centre orinterview With respect of the candidates who are not selected, JAC always informsthem the reasons clearly In case such candidates do not satisfy with the JAC’sdecision, they may make complaint to the JAC, then the Judicial Appointments andConduct Ombudsman.46 The Ombudsman will consider the complaint only after thecomplaint was sent to the JAC

42 Lord Justice Thomas, The Position of the Judiciaries of the United Kingdom in the Constitutional

changes, 03/2008, available at <http://www.judiciary.gov

.uk/docs/speeches/ljt_address_to_scottish_sheriffs.pdf>

43 Leach, Robert & Coxal, Bill & Robins, Lynton, British Politics, Palgrave Macmillan Press,

China 2006, p.255.

44 Department for Constitutional Affairs, You be the Judge – Career Opportunities in the Judiciary

November 12 th 2008

45 Woodhouse, Diana, United Kingdom – The Constitutional Reform Act 2005 – Defending Judicial

Independence the English way, Oxford Journal Vol 5 (2007), pp 153-165, p.155.

46 Judicial Appointments and Conduct Ombudsman, Annual Report 2007-08, available at < dicialombudsman.gov.uk >, accessed on 16 th December 2008

www.ju-will sit in the courts or tribunals on a part-time basis, usually at least for fifteen days

a year The purpose of fee-paid judge stage is giving the appointees the opportunities

to decide whether they want to be salaried judges and to help them to build up thepractical experience in adjudicating.48

In a word, the judgeship of English judges are effectively guaranteed by practicalprovisions It should not insist that the working conditions of English judge are thebest model for other countries because each nation has own social, political, andeconomic conditions However, with a high salary, strict procedures of removal, atransparent and impartial appointment system, and having no pressure ofreappointment, the individual independence of English judges are much moreensured than that of their counterparts in Vietnam

independence of judges

2.4.1 Provisions on independence of judges in the legal

documents issued before the 1992 Constitution

Principle of independence of judges is one of constitutional principles in the stateapparatus in general and the court system in particular that are stated by all theconstitutions Nevertheless, the content of this principle is not provided as the sameway in all constitutions There is lack of apparent distinguish between theindependence of the whole court system and the independence of individual judges

in the constitutional provisions on this principle

In the first constitution of Vietnam – the 1946 constitution, independence ofjudges is mentioned that during the trial, judges shall obey the law only, and theother state authorities shall not intervene.49 And in the No 13th Order dated on 24th

January 1946 about the organization of court system and scales of judges, the duty ofobeying the law and justice of judges is provided once again.50The provision of 1946constitution is the prototype of the provision on independence of judges of Vietnam

It sketched out the main aspects of the concept of independence of judges that areinherited by the subsequent constitutions The most prominent feature of the two

47 Slapper, Gary & Kelly, David, Principles of the English Legal System, 3rd ed., Cavendish lishing Limited, London 1997, p.137.

Pub-48 Ibid.

49 The 1946 Constitution, Article 69.

50 No 13 th Order, dated on 24 January 1946, Article 47

23

other state authorities are not allowed to intervene In fact, these provisions reflectthe property of the concept of impartiality of judges rather than independence ofjudges It is should be noted that in the first constitution, there is no article provides

on the institutional independence of the judiciary, the provision is only relevant tothe individual judge Consequently, the emphasis on the individual independenceeasy leads to confuse that the individual independence covers the institutionalindependence

While 1946 constitution does not mention the term “independence”, in 1959constitution this term is used, however for the independence of the judiciary systembut the individual judge as in the 1946 constitution This change proves that theindependence is focused rather than the impartiality and institutional independence is

of more interest than individual independence It also might be alleged that theobjective of judicial independence is targeted at institutional independence thanindividual independence The same change is found in the provision of the 1960 Law

on Organization of People’s Courts “during trial, the people’s court has the right to

be independent and obey the law only”51 Independence of judge is not mentioned inboth legal documents Obviously, “the people’s court” covers the judges – whodirectly conduct the judicial function of the court Because of this unclear concept, itmay be understood that in this period institutional independence is more importantand paid attention than individual independence while the independence of the wholesystem and each individual are at the same level and interrelated

In the 1980 constitution and 1992 constitution, individual independence isprovided that during trial, judges are independent and obey the law only. 52The twoconstitutions continue to state the independence of the judiciary, but individualindependence rather than institutional independence is now highlighted Under theLaw on the Organization of the People’s Courts in 1981 and 2002, and Ordinance onJudges and Jurors in 2002, the same content are stated 53

In conclusion, in legal documents before the 1992 constitution, there is nodifferentiation between institutional independence and individual independence, untilthe 1982 the independence of individual judges is mentioned more clearly than theformers

51 The 1960 Law on organization of People’s Courts, Article 4.

52 See Article 131 of 1980 constitution and Article 130 of 1992 constitution.

53 See Article 7 of the 1981 Law on the Organization of the People’s Courts; Article 5 of the 2002 Law on the Organization of the People’s Courts; Article 4 of The 2002 Ordinance on Judges and Jurors.

The principle of independence of judges is briefly stated in the 1992 Constitution andalso in the 2002 Law on Organization of the People’s Courts and the 2002 Ordinance

on Judges and Jurors that during trial, judges are independent and obey the law only From the substantive aspect, independence of judges means that judges shall obey to

no one but the law In other word, the judge shall make a decision based only on hisconviction and the law There is no official interpretation of how independence ofjudges should be understood According to the supreme people’s court, independence

of judges is specified as the following content:

Firstly, during trial, judge and juror shall not be bound by opinions from the prosecutor, and from one another The judge and the juror must be responsible individually for their own opinions on the case before them Secondly, the fact that judge and juror are independent requires no institution, no one to intervene illegal in the trial of judge and juror 54

The above content defines independence of judges as a twofold obligation, thatmeans at the same time an obligation of the judge and also of other state agenciesand other individual.55 The principle of independence of judges is mentionedgenerally, it is impossible to withdraw an explicit concept from those provisions, theprinciple of independence of judges seems to focus on the impartiality of judges.This characteristic has shown the explication of this concept under Vietnamese law is

in essence centered around the ultimate end of the adjudication process: to deliverjust and impartial judgements As a result, according to Vietnamese law, there is aconceptual convergence of independence and impartiality of judges In fact, theprinciple of independence of judges in Vietnam should be named “impartiality ofjudges” And this is not suitable with the popular concept of judge’s independenceunder international law as well as other legal research in the world

Another problem arising from the content of the principle of judge’sindependence is the presence of a vague phrase “during trial”.56 Basing on themeaning of this phrase, independence of judge in Vietnam is limited in the period oftrial, that is independence of Vietnamese judges is temporally delimitated within theprocess adjudication of specific case The process includes phases taking place

54 The Supreme People’s Court, “Handbook for Judges”, June 2006, p.32

55 Phạm Quý Tỵ, Đổi mới tổ chức và hoạt động của tòa án nhân dân (Renew organization and

act=chitiet&idcat=2&idnews=1113 > accessed on October 1 st 2008

56 Lưu Tiến Dũng, Độc lập xét xử ở các nước quá độ: Một góc nhìn so sánh (Judicial independence

in transitional countries: A comparative Perspective), People’s Court Magazine Vol 21 (2006), pp.12-19, p.15.

25

delimitation, Vietnamese judges are recognized to be independent during the process

of dealing with particular case only This idea seems contrary to the prevailingconcept and requirements of independence of judge in fact, especially ensuringmeasures such as judicial appointment, disciplinary measures, ect., which go beyondthat temporal delimitation Independence of judges is not only required during theadjudication process of a certain case but the time they possess the post of judge.Judges have duty of making themselves independent from the external forces evenwhen they are not in the process of trial a specific case 57

In a word, the substance of Vietnamese judges’ independence requires judges to

be independent limitedly in the stages of solving a case before them, and it is closely

to the concept of impartiality than popular concept of independence in the world

2.5.1 General remarks on the independence of Vietnamese

judges

The role of independence of judges has been recognized in the first Constitution in

1946 Being a constitutional principle shows that independence of judges plays keyfactor for protecting justice, human rights, and ensuring the rule of law Guaranteeingindependence of judge, therefore, is focused on by the 49th Resolution of PoliticalBureau on Strategy of Legal Reform to 2020 Notwithstanding, judges are not reallyindependent in fact There are so many threats to their independence from manifoldresources After the 2002 Reform, while institutional independence has beenimproved significantly, there are still potential problems concerning to individualindependence Vietnamese judges have to work under a lot of negative pressures.First of all, with the short term of office (five years) and shortage of transparency inreappointment process, it is too difficult to reduce the critical practice that judgesacts for the purpose of reappointment but not for the justice.58 Besides, the currentinadequate salary for judges can not afford themselves and their families withmedium needs in the situation of increasing inflation These factors have encouragedfor the judicial corruption

57 Nguyen Dang Dung, “The focus of Legal Reform is ensuring the principle of judicial independence

to be effective in fact”, Democracy and Law Magazine, Vol.1, 2007, p.23.

58 Huy Nam, Đảm bảo nguyên tắc độc lập xét xử của tòa án (Ensuring the principle of

109&nid=22229 >accessed on June 30 th 2008

judges to have power relating to administrative issues such as appointment,increasing salary, assignment of cases, and disciplining judges These powers havebeen abused to intervene in the process of making judgments The practices of askingfor guidance in adjudicating, hence, have been becoming more popularly Usually,such situations are covered under the name of “professional consultancy”, but thejudges are almost impossible not to obey those directive opinions since “their fates”depend on the persons who gave opinions.59 This violates seriously the constitutionalprinciple of independence of judges Additionally, judges may suffer the influencefrom the local government, and the Party units The case of corruption in Do Son(Hai Phong) is a typical example for such situation.60

Professional qualification is one of reasons making judges rely on theirsuperiors.61 Being short of legal knowledge as well as practical experience, judgesmay not make decisions by themselves They have to base on guidance fromsuperiors in order to avoid responsibility At some trials, when the facts appear morecomplicated, the judges were unable to make the decisions themselves, they had tostopped the hearing to ask directions from leaders of the court.62It is unacceptablefor the guardian of justice Additional to those resources, the complexity ofdisciplinary mechanism as well as heavy remedial personal responsibility are alsopotential interference with judges’ independence The negative affection concerningresponsibility of judges will be discussed in Chapter 3

In short, independence of judges in Vietnam is not a new but topical problem.Within the present mechanism of working, it is hardly for judges to keep themselvesindependent Regardless the realization of important and necessary of this,independence of judges have been intervening because of various reasons from boththe substance of legal provisions and other factors from fact Because of thedelimitation of this thesis, it is impossible to study all threats to individual

59 Nguyen Minh Tuan, “The role of judges to the requirement of legal reform”, Legislative Re

search Magazine, Vol 9, 2003, p 34.

60 Thu Hà, Thẩm phán khó cãi lời người bổ nhiệm mình (It is very hard for judges to not obey the person who has competent to appoint them), 04/05/2008, available at < http://www.vtc.vn/xahoi/ 8115/index.htm > accessed on June 1 st 2008

61 Đỗ Gia Thư, Thực trạng đội ngũ thẩm phán nước ta – Những nguyên nhân và bài học kinh

nghiệm từ quá trình xây dựng (Critical facts about judges in our country – Reasons and lessons from the history), People’s Court Magazine Vol 7 (2004), pp.5-11, p.7.

62 Nguyễn Đình Hòa, Mấy vấn đề về chế độ nghe báo cáo án, hướng dẫn xét xử (Some problems of reporting cases, guidance for adjudicating), People’s Court Magazine Vol 14 (2007), pp 15-17, p.16.

27

2.5.2 Threats to individual independence of Vietnamese judges

2.5.2.1 Professional qualifications of judges

Judges can be capable of acting independently only when they are professionallyconfident about solving the cases on their hands Without adequate background,training or professional qualifications, it is more likely that judges need to refer tocolleagues or bosses.63 In Vietnam, the legal practice and a culture of beingdependent on what is said and instructed by a higher authority still exist popularly.Adequate professional qualification is crucial in the process of helping judgesbecome more proactive and independent The clearer the judges are about how thecase should be decided in both question of fact and law, the less influenced they may

be.64 In Vietnam, the former appointment before the 1993 Ordinance on Organization

of People’s Court was issued focused on the political criterion but not theprofessional qualifications Even the criterion of law degree was not required.65

Therefore, the professional knowledge of judges were not interested considerably,and the quality of adjudication as well as independence of judges were influencednegatively And the current consequence at the moment is there are a number ofjudges who do not graduate from any law university The problem of judges’professional qualifications has been mentioned in all the Annual Report of the SPC.According to the Annual Report 2007 of the SPC, there are 200 judges who lack oflaw degree In common law nations, law degree is not compulsory, for example inEngland, and professional degree is not decisive factor for the judicial ability ofjudges.66 However, in Vietnam graduating from a law university is an essentialcondition because Vietnamese judges, in fact, are not qualified lawyers as inEngland Low quality of professional knowledge and skills is one of factorsaffecting Vietnamese judges’ independence at the moment When judges don’t haveconfidence in their legal knowledge, and under the pressure of heavy personal

63 Đào Xuân Tiến, Đào tạo thẩm phán (Training Judges), Legislative Study Magazine Vol 10

(2002), pp.7-9

64 Đỗ Gia Thư, Yêu cầu nhiệm vụ của ngành tòa án và quan điểm xây dựng đội ngũ thẩm phán trong giai đoạn mới (Duties of Courts and point of view in training judges in the new stage), Peo- ple’s Court Magazine Vol 13 (2004), pp.2-8

65 Đỗ Gia Thư, Yêu cầu nhiệm vụ của ngành tòa án và quan điểm xây dựng đội ngũ thẩm phán

trong giai đoạn mới (Duties of Courts and point of view in training judges in the new stage),

Peo-ple’s Court Magazine Vol 13 (2004), pp.2-8, p.3.

66 Bogdan, Michael, Comparative Law, CE Fritzes, Goteborg 1994, translated into Vietnamese by

Le Hong Hanh & Duong Thi Hien (unknown publisher), p.104.

asking for directions from superiors

Under Article 5 of the 2002 Ordinance on Judges and Jurors, standard ofprofessional qualifications requires a person to obtain a bachelor of law degree, betrained in professional adjudication, and have practical experience in accordancewith provisions of law This is an effective requirement for professionalqualifications of judges However, in fact, the real professional quality of a number

of judges do not satisfy the requirement from their work

In brief, improving the professional qualifications of judge is very necessary notonly for the quality of adjudicative function but also the guaranteeing of individualindependence of judges

The United Nations Basic Principles on the Independence of the Judiciary in 1985recommends that the term of office of judges shall be adequately secured bylaw.68This concept requires that judges must be appointed for life or a fixed and longperiod of time as not to endanger their independence In Vietnam, judges areappointed or reappointed for a renewable term of five years Times of reappointmentare not limited until the judges reach the retirement ages Such a term of office is tooshort to judge’s independence 69Judges may disregard the duty of independence andimpartiality, and focus on the purpose of reappointment.70 This threat is especiallysevere to SPC’s and provincial judges because their reappointment – the decisiveelement of the continuance of their career – is at the mercy of their direct bosses Thequestion of judge’s tenure has been discussed and the suggestion is the term ofjudges should be extended 71

There is the argument that a short term of office increases the accountability ofjudges, while life tenure or a long term of office creates an incentive for judicial

67 Đỗ Gia Thư, Yêu cầu nhiệm vụ của ngành tòa án và quan điểm xây dựng đội ngũ thẩm phán

trong giai đoạn mới (Duties of Courts and point of view in training judges in the new stage),

Peo-ple’s Court Magazine Vol 13 (2004), pp.2-8, p.5.

68 The UN Basic Principles on the Independence of the Judiciary in 1985, 11-12.

69 Comment by Mr Iver Huifeld (a Norwegian Judge) at the Forum on The Draft of The Ordinance of Judges and Jurors, held in Ha Noi, August 2002

70 Nguyễn Minh Tuấn, Vai trò của thẩm phán trươc yêu cầu cải cách tư pháp (The role of Judges to the requirement of judicial reform), Legislative Study Magazine Vol 9 (2003), pp.32-37, p.34.

71 Nguyễn Đăng Dung, Trọng tâm của cải cách tư pháp hiện nay là làm cho nguyên tắc tòa án độc lập có hiệu lực trên thực tế (The central task of judicial reform in current is making the principle of independence of court effective in fact), Law and Democracy Magazine Vol 1 (2007), pp.23-25, p.24.

29