After the birth of the Constitution 2013, courts have obtained more favourable conditions to play such role as shown in the principle on control of state powers, court’s mandate on pro[r]
Trang 1CONSTITUTION: CHALLENGES AND PROSPECTS1
A/Prof To Van Hoa, Hanoi University of Law Dau Cong Hiep, LLM., Hanoi University of Law
Dr Le Thi Thu Mai, Ho Chi Minh National Academy of Politics
Abstract
The paper emphasizes constructively the role of courts in ensuring the rule of law by pointing out challenges and prospects courts are facing in the current context After the birth of the Constitution
2013, courts have obtained more favourable conditions to play such role as shown in the principle
on control of state powers, court’s mandate on protection of justice, the principle of respect for human rights, and the birth of case laws These elements not only set forth prospects, but they are also challenges to the judicial and legal system for more effective protection of the rule of law.
Key words: Courts, the rule of law, control of powers.
Introduction
In Vietnam, the rule of law is not only the target, but also an important dynamic for institutional
construction and development Being mentioned for the first time by the Party in 1994, the rule of law issue, as incorporated in the concept of ‘socialist rule of law’, has been studied, researched, absorbed and realized into laws Generally talking about the rule of law, courts have been emphasized as the
‘goal keepers’ against abuse of power which undermines the supremacy of the laws In the current context when the Constitution 2013 and the Law on Organization of People’s Courts have been put in operation for a few years, it is very necessary to identify and clarify the challenges and prospects that the system of People’s Courts in Vietnam will face in its contribution to the assurance of the rule of law The paper is structured on the basis of each new legal component in the judiciary
1 Assurance of the rule of law via control of state powers – role of courts
Theoretically speaking, assurance of the rule of law via control of powers is one of the essential issues If the rule of law has been recognized as a principle, then the first thing to be ensured is that the exercise of state powers shall not exceed the limits permitted by laws It could be seen as the
1 “This research is funded by Vietnam National Foundation for Science and Technology Development (NAFOSTED) under grant number 505.01-2018.03”.
Trang 2most basic requirement since it directly protects the supremacy of laws because even the State itself
cannot go beyond this boundary1 To meet this requirement, most of the research on the rule of law
focus on the courts in the role of the adjudicative body This is easily understandable because the
judicial power of the courts has been imposed not only on organizations’ or individuals’ activities in
the society, but it directly impacts state agencies when they excessively exercise their powers beyond
the limits Hence, Joseph Raz emphasized the need to “ensure that the law enforcement mechanism
shall not deprive the conduct-oriented, ability of laws by a bad law enforcement mechanism, and that
such mechanism must be able to control the compliance with the rule of law state principle, and to
set up effective sanctions if the violations are found”2 The focus on the court’s role in controlling
state powers becomes more meaningful if we compare it with internal control tools or the control
among state agencies In more detail, in some countries, the President, as the Head of the executive
branch, can ask the Parliament to reconsider a code, or vice versa, the Parliament can impeach the
President under an impeachment procedure3 However, those mechanisms are of a political nature
and not law protection oriented like court adjudication, because courts only exercise their power if
the plaintiff takes action and court decisions that declare a legislative or executive action wrongful
shall be based on the constitution, laws and actual damage of the litigant Therefore, in theory, it is
possible to confirm that courts play the most prominent role in ensuring the rule of law When talking
about the rule of law, the most basic thing is to talk about the power of laws – the supremacy of the
Constitution, values and validity of laws Courts play the role of protecting laws – the basic value of
the rule of law states
From a practical point of view in Vietnam, control of state powers is an important, new and
prominent point in the Constitution 20134 Being seen as the solidification of the Party’s policies
from XI Congress (2011), the control of state powers gradually becomes a widespread spirit and
an indispensable requirement in ensuring the rule of law This is an important movement while
the Constitution 1992, revised and supplemented in 2001, only provided for “assignment and
collabouration among agencies in exercising the legislative, executive and judicial powers”, the
Constitution 2013 not only added the word ‘control’, but also clearly identified courts as the bodies
exercising judicial powers It could be clearly seen that the Constitution 2013 paved the way for
bringing into play the role of courts in controlling state powers and consequently, ensuring the rule
of law The Constitution 2013 enhances the constitutional status of courts – an important basis for the
courts to carry out the task of controlling state powers In reinforcing said ideology, legal normative
documents, both substantive and procedural, have been enacted to further facilitate the court system
to better play its role as follows:
- With respect to the control of administrative agencies by courts, the most salient manifestation
could be found in the Law on Administrative Procedure 2015 This Law contains provisions to increase
1 Robert S Summers, “The Ideal Socio-Legal Order Its “rule of law” Dimension”, Ratio Juris, Vol.1, No.2, 2/7/1988,
tr 158-159.
2 Joseph Raz, “The Authority of Law: Essays on Law and Morality”, Clarendon Press – Oxford (1979), tr 218.
3 For example, in US See further, Vũ Văn Nhiêm, “Mechanism for Supervising Constitution and Assurance of Human
Rights”, [“Cơ chế giám sát Hiến pháp với việc bảo đảm quyền con người”], Hồng Đức Publisher, Hanoi, 2013, p 53.
4 Hoàng Thế Liên, Hoàng Thế Liên, “About the Political Regime in the Constitution 2013 of the Socialist Republic
of Vietnam” [“Về chế độ chính trị trong Hiến pháp năm 2013 của nước Cộng hòa xã hội chủ nghĩa Việt Nam”],
Materials for In-depth Training Course on the Constitution of the Socialist Republic of Vietnam, Hanoi, 10/2014, p 4.
Trang 3the efficiency and effectiveness of such work Typically, claims against administrative decisions or activities conducted by the People’s Councils of Districts or Chairmen of the People’s Councils of Districts fall into the jurisdiction of the People’s Courts of Provinces, instead of People’s Courts of Districts as previously provided for in the old Law1 This provision is evaluated as better ensuring the court’s independence in adjudicating cases related to local authorities2
- With respect to the control of the legislature by courts, one salient feature is that if Article 2.7 of the Law on Organization of People’s Courts 2014 is employed, the courts may make recommendations to the competent agency to consider the revision, supplementation or abolishment
of laws or National Assembly’s resolutions if such documents contradict the Constitution The above mentioned “competent agency”, with reference to the provisions in the Constitution, can only be the National Assembly itself To reinforce this provision, procedural laws are mostly given the power to make recommendations to the Chief Judges of courts3 Although in practice, there has been no case where a Chief Judge makes a recommendation to the National Assembly regarding a document issued
by the latter that is contrary to the Constitution; such provision creates a mechanism, not yet to be rigid, but sufficient for usage, to help courts in controlling the legislature
Although there exist some signs showing that the role of courts in controlling other state-power exercising agencies are being brought into play and this can be seen as a prospect for the control of power to ensure the rule of law, there are a lot of challenges for this issue:
- First, although the Law on Administrative Procedure contains provisions enhancing the role
of courts in resolving administrative claims at the district level, but at the provincial level, it is kept intact If the provincial courts are vested the jurisdiction to resolve administrative claims against the administrative decisions issued by the People’s Councils at provincial level, some difficulties remain because the local courts are under the leadership of the local Party committees4 In practices, the lack of independence leads to low quality of judgments In 2017, 7,6% of the first-instance administrative judgments of the provincial People’s Courts were set aside or amended in appeal, and 24.3% were appealed under cassation procedure5 The problem is that although vesting jurisdiction over administrative claims relevant to the district authorities on the provincial courts partly ensures independence, it is impossible to design a similar mechanism for administrative claims relating to the provincial People’s Councils due to the fact that the People’s High Courts do not have first-instance jurisdiction This reminds us to reconsider the direction set up in the Resolution 49-NQ/TW, dated
1 See, Article 32 the Law on Administrative Procedure 2015 and Article 30, the Law on Administrative Procedure 2010.
2 Nguyễn Thị Hà, “A Discussion About the Current First-Instance Jurisdiction Over Administrative Cases of the
People’s Courts in Our Country” [Bàn về thẩm quyền xét xử sơ thẩm vụ án hành chính của Tòa án nhân dân ở nước
ta hiện nay”], Journal of Law Profession, no 03/2017.
3 See, Article 47.1 the Code of Civil Procedure 2015; Article 38.13 of the Law on Administrative Procedure 2015 The Code of Criminal Procedure 2015 contains no similar provision.
4 Đặng Minh Tuấn, Hoàng Thị Ái Quỳnh, ““Improvement of Mechanism for Control of State Powers in Localities in
Vietnam: Approach from Decentralization of Power Aspect” [“Hoàn thiện cơ chế kiểm soát quyền lực nhà nước ở địa phương tại Việt Nam: Tiếp cận dưới góc độ phân quyền”], Journal of Science, Hanoi National University, Special
Issue on Jurisprudence, no 2/2018.
5 Thân Quốc Hùng, “The Quality of Current Judgments on Administrative Cases in the People’s Courts of Provinces”
[“Chất lượng xét xử các vụ án hành chính của Tòa án nhân dân cấp tỉnh ở Việt Nam hiện nay”], PhD Dissertation,
Ho Chi Minh National Political Institute, 2018, p.84.
Trang 42 June 2005 of the Politburo on Judicial Reform Strategy, vision 2020, that “The court system shall
be structured on the basis of adjudicative jurisdiction, not dependent on the administrative units,
including: regional first-instance court established for one or more administrative districts; courts of
appeal with the main jurisdiction over appellate cases and some kinds of first-instance cases;
region-based high courts with appellate jurisdiction.” The Law on Organization of People’s Courts 2014
fails to do this and it in part affects the quality of control of executive power by the judiciary
- Second, the role of courts in controlling legislative power is actually limited One problem found
long time ago about the control of legislative power is the ‘self-check mechanism’ of the National
Assembly1 Despite the fact that the power of courts, more specifically of Chief Judges, to make
recommendations to the National Assembly itself if a law or Resolution contrary to the Constitution is
found was realized, this inherent problem is not solved It is more noteworthy to say that the legislative
power itself does not solely belong to the National Assembly but may be authorized to many other
state agencies2 Hence, the total of legal normative documents, i.e., those that establish rights and
obligations for popular groups of subjects, is numerous, leading to a higher potential of abuse of
power contained in those documents Although the recommendation to vest the power to assess the
constitutionality and legality of legal normative documents to the courts was spoken out since a long
time ago3, it has not become true yet In Vietnam, when an independent constitutional mechanism on
constitutional review jurisdiction is still absent, it is advisable to think about the enhancement of court
jurisdiction to control the legislative power
In short, to facilitate the courts’ more effective control of state powers, more effort, including
not only strengthening the independence but also supplementing necessary powers, is required In
the Vietnamese political context, from 2011 up to now, the Chief Justice of the Supreme People’s
Court has gained the highest position in the Party as Party’s Secretary Such political position does
not really correspond to the status of a branch of power and that, to some extent, makes the courts’
role in controlling state powers not being at the right level However, the development of a modern
society usually needs courts to be in the role of the judicial bodies This is an optimal prospect for the
judiciary to strive for a more meritorious position
2 Assurance of the rule of law via implementing court mandates on protection of justice
In theory, justice is a relatively complicated concept and to understand it, one must refer to different intellectual topics, such as philosophy, ethics, etc According to Raymond Wack, justice is
usually ranked as equivalent to law, but sometimes, law deviates from justice4 About the relationship
between laws and justice, Hegel explains it from substantive and formality perspectives According to
1 Lê Văn Cảm, Dương Bá Thành, Current Mechanism for Legislative Power Control in Our Country: Status Quo and
Solution for Improvement in the Development of Rule of Law State in Vietnam” [“Cơ chế kiểm soát quyền lập pháp
ở nước ta hiện nay: Thực trạng và giải pháp hoàn thiện trong giai đoạn xây dựng nhà nước pháp quyền Việt Nam”],
Journal of Science, Hanoi National University, Special Issue on Jurisprudence, no.25/2009.
2 Tô Văn Hòa, Nguyễn Hải Ninh, “Authorization of Legislative Power – Theoretical and Practical Problems” [“Ủy
quyền lập pháp – những vấn đề lý luận và thực tiễn””, The Truth – National Political Publisher, Hanoi, 2017.
3 Phạm Hồng Thái, “Outcome-based Justice, Procedural Justice and Relation to Vietnamese Judicial System” [“Công
lý theo kết quả, công lý theo thủ tục và liên hệ với nền tư pháp Việt Nam], State and Laws Journal, no 4/2016.
4 Raymond Wack, “Philosophy of Laws” [“Triết học pháp luật”], Phạm Kiều Tùng translated, Intellectual Publisher,
2011, p 112.
Trang 5him, “When the substance is converged into its simplest form, it has obtained its final normativeness
Only when the justice becomes law, something righteous could be put on its typical form”1 Hegel’s view helps us better imagine laws as the way of existence and transmission of justice Justice is the inside essence, and if the law, as its outside formality, fails to reflect this, then the law becomes
irrational From a long time ago, the Latin proverb “Lex iniusta non est lex!” (Unjust law is no law)
has been reflecting it Hence, when talking about the protection of justice, it means something loftier than protection of the laws Especially in the context of assuring the rule of law, laws are dedicated
to the supremacy status only if they are close to the just and sound things in human nature It is true
that one of the grounds of the power of law is when ‘it absorbs the force of natural law”2 Hence, when talking about protection of justice, it is something closely-related, if not say identical, to the rule
of law Among state agencies, courts play a very special role in the protection of justice because the subjects to court adjudication are activities that violate not only laws, but also justice The founder of the rule of law theory, A.V Dicey points out that one of two pillars of the rule of law, is that anyone, including the state, is subject to court adjudication3 The symbol for courts, therefore, the Goddess of Justice, with the sword as symbol of force, and the scale as symbol of justice
In practice, the fact that the Constitution 2013 has for the first time given the task of protection of justice to courts creates a new context for the court system Protection of justice raises court status to
a higher level because justice is a sacred symbol and the essence of the laws Talking about People’s Court mandates under the Constitution 2013, the matter is not simply that the mandate of protection
of justice has been newly recognized, but also the court mandates were split clearly with those of the People’s Procuracies as compared with Article 126 of the Constitution 1992 It could be seen as the
manifestation of the “prominent mandate” of the courts that make them a place where “anyone come
for a reason, come for the truth”4 In order to do so, one issue that has usually been mentioned is court standards of justice In the debates on this matter about the concepts of “procedural justice” and
“substantive justice” 5, normally, legal procedures are seen as symbol ic for the delivery of justice by the courts In Vietnam, although “procedural justice” has not been talked about in a detailed and clear manner, the Constitution 2013 and subsequent Codes partly show this spirit In more details:
- First, the Constitution 2013 supplements a very important right that is “the accused shall be
fairly and publicly tried by the courts” (Article 31.2) This provision partly mirrors the spirit shown
in Article 14 of the International Covenant on Civil and Political Rights 1996 (ICCPR) about the right
to a fair trial in that the fairness in adjudication means “essentially a set of procedures in order to
ensure that the adjudicative process if fair”6 Hence, courts must consider their adjudicative activities
1 G.W.F Hegel, “Principles of Rule of Law Philosophy” [Các nguyên lý của triết học pháp quyền”], Bùi Văn Nam Sơn
translated and explained, Intellectual Publisher, 2010, p.579.
2 Bùi Ngọc Sơn, “Ho Chi Minh’s Constitutionalism Ideology” [“Tư tưởng lập hiến Hồ Chí Minh”], Political Theory
Publisher, Hanoi, 2004, p 26.
3 A V Dicey, Introduction to the Study of the Law of the Constitution, 9th ed., MacMillan and Co., Limited, London
(1950), tr 193.
4 Hoàng Thế Liên, “The Constitution 2013 – Break-Through New Points” [“Những điểm mới mang tính đột phá”],
Justice Publisher, Hanoi, 2015.,p 212.
5 Trần Quyết Thắng, “Outcome-based Justice, Procedural Justice and Relation to Vietnamese Judicial System” [“Công
lý theo kết quả, công lý theo thủ tục và liên hệ với nền tư pháp Việt Nam], State and Laws Journal, no 4/2016.
6 Human Rights and Citizen’s Rights Research Institute, “An Introduction to the International Covenants on Civil and
Political Rights (ICCPR 1996)” [“Giới thiệu Công ước quốc tế về các quyền dân sự và chính trị (ICCPR, 1996)”],
Trang 6in the fairest manner because this right is recognized for citizens This paving-way provision not only
creates a duty of the courts, but it is also a prospect for the courts in adjudicating cases because in the
light of publicity, the courts cannot accept any intervention that “bends” justice
- Next, the assurance of the principle of adversary in adjudication under Article 103 the
Constitution 2013 is the best condition of the courts in bringing into play their role of protection
of justice The modification of the inquisitorial model where there is a close connection between
agencies conducting litigation by partly application of the adversarial model with the competition
and monitoring between the prosecution and the accused makes legal procedure more respected Professor Nguyen Dang Dung indicated that the centralization of power usually leads to the abuse of
power.1 In the legal field, the lack of external control over agencies conducting litigation may easily
lead to extortion, corporal punishment and the phenomenon of “judgment in dossier” (“án tại hồ sơ”)
Due to the lack of a monitoring mechanism over the legal process, it is vulnerable to violation and
consequently, injustices exist With the provision on adversarial principle concretised in Article 26,
the Code of Criminal Procedure 2015, “Court decisions and judgments shall be based on the results
of evidence examination, evaluation and argumentation at the trials”, the phenomenon of ‘pocket
judgments” is terminated because the panel cannot ‘innovate’ a judgment prior to the trial since it is
impossible to predict the outcomes of argumentation at the trial
3 Assurance of rights via human rights – the role of courts
In theory, human rights and the rule of law have a mutual close connection The purpose of the
development of the rule of law is to ensure the fairness of laws and prevent abuse of power by the
state In such a regime, state and laws play the role reconciling the interests of all subjects in the
society The harmonization of interest is the way to protect human rights It is possible to say that
in order to best protect human rights, the rule of law shall be built up “Freedom, equality, human
dignity and other different manifestations of human rights protection are the traditional features of
the rule of law”2 Human rights protection is the target and also the responsibility of the state The
founding of the state is not for any other purpose, but human rights protection The US Declaration
of Independence 1776 affirmed that “all men are equally born Creators gave them inviolable rights
Among those are the right to life, the right to freedom and the right to happiness That to ensure those
rights, Governments are established within the population and are given the proper powers based
on people’s consensus”3 Hence, human rights and the rule of law are closely connected To protect
human rights, there must be the rule of law, or in other words, only when the rule of law exists called
human rights be protected for people As Latin author Marcus Tullius Cicero (106 - 43 BC) said,
““We are in bondage to the law so that we might be free”4 So, what is the role of courts in protecting
Hồng Đức Publisher, Hanoi, 2012, p 202.
1 Nguyễn Đăng Dung, ”Courts shall deliver justice” [”Tòa án phải đem lại công lý”],
https://plo.vn/ban-doc/toa-an-phai-dem-lai-cong-ly-592601.html, last visit on 05/04/2019.
2 Konrad - Adenauer - Siftung, “Rule of Law State” [“Nhà nước pháp quyền”], National Political Publisher, Hanoi,
2002, p 51.
3 The author uses the translated version published on the website of the US Embassy in Vietnam Available at http://
vietnamese.vietnam.usembassy.gov/dec_independence.html Last visit on 05/4/2019.
4 Theo Nathalie Montreuil, “Everyday quotes”, 2008, p 170 Original text: “We are in bondage to the law so that we
might be free”.
Trang 7human rights and by doing so, protecting the rule of laws? The answer could be outlined as follows: (1) Courts have jurisdiction over activities violating human rights; and (2) Courts are sole agencies which have the power to impose punishment – the harshest form of human right deprivation In detail,
by the adjudication of the violation of human rights, not only does the victim reclaim justice, but the strictness and clearness of the judgment also warn the public and prevents the repetition of such activities Next, because the courts are the sole agencies with jurisdiction to impose punishments, the courts are structured in a way so as to ensure maximum impartiality and minimize the abuse of punishments
In practice, the importance of human rights issue has been better recognized since the Constitution 2013 contains many changes, not only in its formality (the change in the order of relevant Chapters), but also in substance (the term of ‘human rights’ is recognized)1 Giving the courts the mandate of “human right protection” is also a new point, showing the perfect connection between the rule of law, human rights and the courts In Vietnam, courts’ role in human right protection is shown in many different aspects and levels At a normal levels, such role is found in some points: (1) Courts protect human rights in all aspects of social life, with jurisdiction over many types of cases and disputes; (2) Courts protect human rights by a legal mechanism where the enforcement
of court decisions is ensured by state powers2 At such levels, protection of human rights is seen as outcomes of adjudication This is also the most basic and salient feature of the court activities, with the above-mentioned substances However, at a higher level, protection of human rights is recognized and connected with the protection of the Constitution From this angle, we may see the prospects and challenges to the courts in protecting human rights combined with the protection of rule of laws as follows:
- The Constitution 2013, for the first time, provides on the “protection of Constitution mechanism”, and although there are still some lacunae, it is expected to be the orientation for human rights protection After all, the protection of the Constitution means the protection of Constitutional rights3 and it is reflected in the fact that most legal cases of Constitutional Courts all over the world are relevant to human rights In Vietnam, during the development of the Constitution 2013, some recommendations on the establishment of an independent model for the protection of the constitution were raised4 However, they have not been realized yet, and Article 119 of the Constitution 2013 leaves pendent a provision that the protection of constitution mechanism shall be established by laws after having confirmed that the responsibility to protect the Constitution is vested on the entirety of state agencies and the people This is both prospect and challenge to the Vietnamese courts in the
1 Nguyễn Đăng Dung, Trịnh Quốc Toản, Đặng Minh Tuấn, “Scientific Commentaries on the Constitution of the Socialist
Republic of Vietnam 2013’ [“Bình luận khoa học Hiến pháp nước Cộng hòa xã hội chủ nghĩa Việt Nam năm 2013”],
National Political Publisher, Hanoi, 2016, p 108.
2 Đinh Thế Hưng, Trần Xuân Thái, “Mechanism on Human Right Protection by the Courts” [“ Cơ chế bảo vệ quyền
con người bằng tòa án”], State and Laws Journal, no 6/2011.
3 Vũ Công Giao, “New and Progressive Points on Human Rights, Citizen Rights in the Constitution 2013 and Their
Implementation” [“Những điểm mới tiến bộ về quyền con người, quyền công dân trong Hiến pháp năm 2013 và việc thực thi”], Journal of Science, Hanoi National University, Special Issue on Jurisprudence, no 3/2014.
4 Nguyễn Đức Lam, “Protection of Constitution Models in the World and the Choices for Vietnam” [“Các mô hình bảo
hiến trên thế giới và khả năng lựa chọn của Việt Nam””], Memoires of the Workshop on Protection of Constitution
Models to Serve the Constitution 992 Revision, Legislative Research Institute, 7/2011.
Trang 8protection of human rights The prospect is that the Constitution has not established a specialized
agency for the protection of the Constitution, yet (and therefore, this idea will face many difficulties
if it is subsequently implemented), so that the judiciary still has the possibility to take such a role In
reality, there exists in the world the decentralized model of protection of the Constitution, which is
very typical in the US, where the Court has constitutional jurisdiction since the appearance of a very
famous case of Marbury versus Madison in 18031 In Vietnam, together with the increased legal status
of courts and the compatibility between the mandate of protection of human rights and that of the
Constitution, it is possible to think about supplementing this task to the courts From a political aspect,
the instrument of X Party’s Congress in 2006 affirms the target to “develop an adjudicative mechanism
over the violations of the Constitution in legislative, executive and judicial activities” This has been
usually explained towards the creation of a mechanism independent from the said three branches
of power But in the current context, it could be explained towards the incorporation of the task of
protection of the Constitution into courts because it is the sole agency with the power to adjudicate
After all, it is now hard to discuss more about the necessity of protection of the Constitution, the
matter is that as long as an independent model of protection of the Constitution has not been accepted
yet, the use of an available agency the status of which has been increasing to carry out the task of
protecting of the Constitution is well based
- Protection of the Constitution, on the other hand, is also a challenge to the Vietnamese judiciary
since it has some certain limits in its independence and capacity Before talking about the internal
shortages of the judiciary, it is necessary to mention the external influences In detail, vesting the
protection of the Constitution to the judiciary may not be compatible with the centralized model
of Vietnam Among three basic components of the state power, the judiciary seems to the weakest
branch In Treatises of the Federation, Hamilton mentioned it as follows: “Judiciary, compared with
other branches of powers, is the weakest branch of powers among those three, that the judiciary
cannot invade the jurisdictions of the executive and the legislature, and we need to find out the way
to help the judiciary to protect itself from the invasion of such to other branches”2 In the Vietnamese
context, when the principle of socialist centralization of powers puts emphasis on the role and power
of the system of representative organs, they seem to be the centre of state power If the jurisdiction
of the courts is expanded, whether the supremacy of the National Assembly is violated or not is
a big question If the courts are given the jurisdiction to adjudicate a document of the National Assembly, it may affect the status of the latter Moreover, in nature, there is a big difference between
the judiciary and the National Assembly, namely, when the National Assembly exists on the basis of
majoritarianism, the courts are the symbol of justice and independence3
1 Đặng Minh Tuấn, “Protection of Constitution and Human Rights Protection Under Decentralized Model of Protection
of Constitution – Case Study on US” [“Bảo hiến với việc bảo vệ quyền con người theo mô hình bảo hiến phi tập trung
– Nghiên cứu trường hợp Hoa Kỳ”], Journal of Science, Hanoi National University, Special Issue on Jurisprudence,
no 4/2015.
2 Cited: Nguyễn Đăng Dung, Phạm Hồng Thái, Vũ Công Giao (co-editors), “About the Rule of Law and Constitutionalism
(Some Thesis of Foreign Academics)” [“Về pháp quyền và chủ nghĩa hợp hiến (Một số tiểu luận của các học giả nước
ngoài)”], Labour-Society Publisher, Hanoi, 2012, p 182.
3 Nguyễn Đăng Dung, Đậu Công Hiệp, “Judicial Activism: Concepts, Expressions and Debates” [“Thuyết tư pháp tích
cực: khái niệm, biểu hiện và những điều tranh cãi”], Journal of Science, Hanoi National University, Special Issue on
Jurisprudence, no.4/2015.
Trang 9Generally, protection of human rights and to a higher degree, protection of the Constitution requires a special power In the context where human rights are becoming a big interest in Vietnam, it
is required that the courts shall spend more effort on it However, giving the courts a stronger tool, i.e., protection of the Constitution, will face many difficulties During the development of the Constitution
2013, the idea of a Constitutional Council was given priority over the solution of a Constitutional Court because the Council does not have the adjudicative nature
4 Assurance the rule of law through case law and interpretation of laws
Theoretically speaking, case law is seen as a source of law that arises from the resolution of detailed cases by the courts However, going deeper in theory, we have to recognize that first and foremost, case law and justice have a very close relation Justice is the human aspiration that everyone expects to be implemented in the reality In order to meet such expectation, the courts, at the role of a body with the competence to protect justice, will exercise their power to help the litigants understand the reasoning in their cases Through application of case law in disposing actual cases, an important
standard of justice must be ensured, namely, all similar cases shall be judged similarly (stare decisis)1 When talking about case law, it is impossible to ignore an important issue, namely, legal interpretation
In Vietnamese jurisprudence, the concept of legal interpretation is usually conceived as “to clarify the
idea, substance and significance of legal norms, ensuring awareness and the consistent and serious implementation of laws”2 This is an understanding in a very broad scene and hence, to narrow it,
in this paper, we understand legal interpretation as judicial interpretation in actual cases Therefore,
judicial interpretation by courts is essential to create the values of a judgment The interpretation given by the court itself creates the precedent that allows such judgment to be applied subsequently
as a case law In other words, case laws usually contain judicial interpretation3 It is possible to say the law interpretative text is the most basic part of a case law, it is a specific precedent to be applied
by the courts Judicial interpretation is only raised when a legal question exists In reality, besides
the issues on the facts to be clarified for accuracy of conviction, there exist some legal issues that
have not been previously resolved yet and “in adjudicating, the judge finds out the answers to legal
questions in the case”4 Generally speaking, it could be confirmed that the value of a case law lies
in its judicial interpretation and a judgment that contains no judicial interpretation never becomes a case law Hence, it could be said that case law is the product of judicial interpretation Next, talking about case law and judicial interpretation in relation to the rule of law, we must recognize their significance as follows: (1) case law contributes to the improvement of laws; (2) case law contributes
1 Đậu Công Hiệp, Hà Thị Phương Trà, “Provisions on Case Law in the Law on Organization of People’s Courts 2014
– A View From the Nature of Case Law” [Quy định về án lệ trong Luật Tổ chức Tòa án nhân dân năm 2014 - nhìn từ góc độ bản chất của án lệ”], State and Law Journal, no 4/2016.
2 Hanoi Law University, Textbook on State and Law Theories, [Giáo trình lý luận nhà nước và pháp luật], People’s
Pubic Security Publisher, Hanoi, 2008, p 486.
3 Reference: Barbara Bardes, Mack Shelley, Steffen Schmidt, American Government and Politics Today: The Essentials
2009 - 2010 Edition, Cengage Learning, p 444 Original text: “Case law includes judicial interpretations of common-law principles and doctrines” (In Vietnamese: Án lệ bao gồm những giải thích của tòa án về những học thuyết và
nguyên lý của thông luật).
4 According to Nguyễn Văn Nam, A Comparative Research on Case Laws as a Source of Laws in Legal System of
England, [Nghiên cứu so sánh nguồn luật án lệ trong hệ thống pháp luật nước Anh], State and Laws Journal, no
5/2007.
Trang 10to the principle of consistent application of laws and assurance of equality before the law; (3) case
law contributes to bringing about the role of courts in interpreting laws: (4) case law contributes to
the enhancement of judges’ judicial capacity and independence; and (5) case law contributes to the
assurance of people’s predictability and the development of the market economy1
In practice, despite the fact that Vietnam is a state following the civil law tradition, case law have
been carefully considered since the enactment of the Judicial Reform Strategy, vision 2020 Case law
has officially been incorporated in our legal system since the enactment of the Law on Organization
of People’s Court in 2014 and up to now (June 2019), 25 case law has been promulgated Both the practical conditions and the legal provisions said above show the ideological reform and the adaptability of the development of the legal system in Vietnam Specifically, the current Civil Code
and the Code of Civil Procedure contain provisions that are of an “enlightened” nature relating to
this issue In more detail, Article 6.2 Civil Code 2015 says: “If it is not possible to apply laws mutatis
as provided for in paragraph 1 of this Article, the basic principles of civil legislation as provided
for in Article 3 of this Law, case law and equity shall be applied”, and Article 4.2 of the Code of
Civil Procedure 2015 reads: “Courts shall not deny resolution of civil cases for the reason that there
has been no applicable legal provision” Hence, it could be inferred that when a case is brought to
the court, but there is no written legal provisions to directly apply, then the court may apply equity
However, “equity” is a vague concept, we can only understand that the court shall clarify and justify its
solution to the case, based on reasoning and argument, instead of only on the mechanical application
of legal provisions written on paper Clearly, those two Articles are of high importance and they open
a prospect in the future, when the first judge delivers his judgment based on equity However, in this
context, we need to recognize some problems surrounding case law and judicial interpretation:
- In considering Article 22.2.c of the Law on Organization of People’s Courts, it could be observed
that this provision basically violates the principle of stare decisis Concretely, according to this provision, the Justices’ Committee of the Supreme People’s Court will “select the cassation decisions
of the Justices’ Committee of the Supreme People’s Court, enforceable and standard judgments and
decisions of courts to synthesize and develop them to be case laws…” Hence, it could be imagined
that to be referred to as a case law, a judgment must be approved for incorporation into a specific
set of certain judgments, and such a set certainly does not contain all of the judgments delivered
(and therefore, enforceable) in reality This is entirely contradictory to the said principle In practice,
lawyers and prosecutors may refer to different case laws to support their defence or accusation;
case laws are selected by the lawyers, depending on the purpose of citation Hence, with the above
mentioned provision, there could exist a judgment in which the facts, nature and circumstances are
entirely similar to those of the case before the court, but is absent from the set of judgments approved
by the Justices’ Committee, and consequently, the precedent in such judgment could not be referred
to In reality, the number of cases resolved is huge and their substance is diverse, so that if only one
organ is given the task to gather and select them, it would take a long time and sufficiency cannot be
ensured because it is difficult to predict which case will happen and which precedents will be applied
1 Bùi Tiến Đạt, “Application of Case Laws – An Inevitable Need in the Context of Judicial Reform and the Rule of Law
State Development in Vietnam” [“Áp dụng án lệ - Nhu cầu tất yếu trong điều kiện cải cách tư pháp và xây dựng nhà
nước pháp quyền ở Việt Nam”], Journal of Science, Hanoi National University, Special Issue on Jurisprudence, no
25/2009.