Article 2 of this Decision provides the National Legal Aid Agency with a broad range of duties and powers including: (1) To draft or participate in drafting legal documents on legal aid[r]
Trang 1LEGAL AID AS A CRUCIAL MEANS OF ACCESS TO JUSTICE IN
Vu Cong Giao ** - Hoang Thi Bich Ngoc ***
Abstract
Legal aid and access to justice are terms that are closely connected to democracy, human rights In the modern era, both legal aid and access to justice are strongly promoted by international organizations, especially the United Nations
However, in the Vietnamese context, there are a series of research questions that relate
to these two issues, of which: What role does legal aid play with promoting access to justice? What is the evidence in the reality of that impact? Can it be demonstrated in the case of Vietnam? From the case of Vietnam, what lessons can be learned in reforming legal aid systems to enhance the right of access to justice?
This paper tries to deal with the above mentioned research questions For that, the paper firstly analyzes the relationship between legal aid and the right of access to justice The authors show how access to justice is a basic human right while legal aid is a vital means of access to justice Legal aid plays a crucial role in enabling people to navigate the justice system, as well as to obtain justice remedies The authors also demonstrated that there is a common trend in the world in recent decades of strengthening legal aid mechanism in order to promote the right of access to justice for the people
The paper then focuses on examining legal aid system in Vietnam As argued by the authors, legal aid has been provided in Vietnam since its Independence (1945) and the State has recently showed stronger political will with ambitious goals in reforming and promoting current legal aid mechanism However, the authors reveal that despite some achievements, the Vietnamese legal aid system is still limited, which does not meet the increasing demand for access to justice of local people The other problems of the Vietnamese legal aid system that limited opportunities of access to justice analyzed by the authors include: the lack of financial recourse and practicing lawyers; the inefficiency, selection and corruption of legal aid providers‘ and the low rate of representation in legal proceedings The authors believe that in addition to the mentioned problems, there are also other challenges facing Vietnam in transforming from a ―socialist legal subsidization model‖ to a mixed one in which there is a balance between subsidization and a pro bono mechanism This includes the lack of experiences
of local lawyers and social organizations in providing legal aid services, the resilience of run legal aid institutions in keeping their state budget and payroll, and the permanent concern of the State about the competition of civil society organizations with the Communist Party Those challenges, as predicted by the authors, make the transformation of the legal aid system in Vietnam much more unpredictable and time-consuming than for other countries
state-Keywords: legal aid, access to justice, human rights, Vietnam
1 Concepts of Access to Justice and Legal Aid
** Head of Department of Constitutional and Administrative Law, School of Law, Vietnam National University, Hanoi
***
PhD Candidate, School of Law, Vietnam National University, Hanoi
Trang 2doctrines (Marx203, natural law204 and empirical law205) and from the perspective of social sciences (jurisprudence206, politics207, sociology208, psychology209…) In general, the properties of justice have been shown clearly by those studies However, no work has proposed a definition that integrates the most universal attributes of justice that are widely accepted
In Vietnam, there are several studies mentioned some theoretical issues about justice, such as concepts, characteristics, nature, from the perspective of philosophy, politics and law210 However, the range of theoretical issues mentioned and analyzed is sketchy Most research works only at presenting some relevant knowledge and information The discussions and analysis are still very limited, not yet reached a comprehensive and intensive level
Accordingly, the right of access to justice also has very few researches that are comprehensive to this issue However, the right of access to justice is integrated in some researches
as one of the attributes or sufficient conditions of justice In this direction, the research focuses on analyzing the assurance of justice in judicial proceedings In addition in Vietnam, most researches only focus on issues such as access to the judicial agency system and judicial support institutions such as lawyers, legal aid system while has not mentioned the macro issues, nature associated with the theory of justice in view of the prevailing world today
The United Nations (UN) views justice as ―an ideal of accountability and fairness in
the protection and vindication of rights and the prevention and punishment of wrongs‖. 211 As
a concept, justice is rooted in all national cultures and traditions, and its administration extends to both formal judicial mechanisms and informal dispute resolution mechanisms.212
Agnes Heller (1987) Beyond Justice, Basil Blackwell Inc, ISBN-10: 0631152067
Josef Pieper (1955) Justice, Pantheon Books
Geofrey A Flick (1984) Natural Justice, Butterworths Legal Publishers, 2nd edition, ISBN-10: 0409491233
Michael J Sandel (2010) Justice, What the right thing to do, Farrar, Straus and Giroux, Reprint edition, ISBN-10:
9780374532505
205
Hans Kelsen (1946) General Theory of Law and State, Harvard University Press
Leopold J Pospisil (1974) Anthropology of Law-A Comparative Theory, HRAF Press, ISBN-10: 0875368131
206
Adrian A.S.Zuckerman (1999) Civil Justice in Crisis: Comparative Perspectives of Civil Procedure, Oxford University
Press, ISBN-10: 0198298331
207
Hon Russell Fox (2000) Justice in the Twenty-first Century, Routledge-Cavendish, ISBN-10: 187621337X
208 John Rawls (1977) A Theory of Justice, Belknap Press
James P.Sterba (1980) Justice-Alternative Political Perspectives, Notre Dame University, Wadsworth Inc
209 John Thibaut, Laurens Walker (1975), Procedural Justice-A psychology Analysis, Lawrence Erlbaum Associates
210 Vietnam Ministry of Justice (2009-2014) Project Strengthen Access to Justice and Protection of Rights in Vietnam, United Nations Development Programme (UNDP) sponsor
Tran Thao Nguyen (2006), Economic philosophy in the Theory of Justice by John Rawls, The Gioi Publisher
Nguyen Dang Dung (2012) Vietnamese Court in the context of building a Rule of Law, Vietnam National University Publisher
United Nation Women (2015) Report ‗Access to Justice in the Plural Legal System in Viet Nam: A Case Study of Women Domestic Violence Survivors, Lao Dong Publisher
Vu Cong Giao (2009) Access to justice and Principles of Rule of Law State, Legal Studies-Science Journal Vietnam National University, ISSN 2615-9333
Dinh The Hung (2011) Access to Justice Right in Criminal Procedure, Law Journal-Judicial Academy, Seri no 1/2011, ISSN 1859-3631
Tran Thai Duong (2014) Ensuring the rights of people with disabilities to access to justice, legal aid and legal compatibility with international law, Legal Studies-Science Journal Vietnam National University, seri no 10/2014, ISSN 2615-9333
211 United Nations (2004) The rule of law and transitional justice in conflict and post conflict societies, UN Security Council, S/2004/616, para 7
212 United Nations (2004) The rule of law and transitional justice in conflict and post conflict societies, UN Security Council, S/2004/616, para 7
Trang 3There are different approaches to understanding the meaning of ‗access to justice‘, but
it was mainly being understood and analyzed in two ways
- The traditional view: Access to justice is the right to fair trial, in which the courts are
the central ‗suppliers‘ of justice To some extent that remains true Courts are ultimately the arbiters of legal issues, able to declare what the law is, what the rights and obligations of parties are and enforce those declarations In this view, access to justice is closely tied to the judicial activity of the court and the aim of access to justice is to ensure equality between subjects of the case (such as the right to counsel, the right to legal aid, and the right to appeal)
It can be seen that the emphasis is on legal provisions on subjects involved in the proceedings and their implementation, rather than the substantive equality when applying those provisions
to the resolution of the case This interpretation seems to be directed towards legislative action
in the judicial field
- The contemporary view: The traditional approach seems incomplete, therefore a
modern approach to justice has emerged According to the contemporary view, aaccess to justice is understood as the ability to seek compensation or remedy for the injustice or injury that an individual or group of individuals, especially the vulnerable groups in the social whose may suffer These injustices or losses can be caused by individuals or legal entities, and it also can occur in all areas of society, not only being limited to criminal proceedings Seeking compensation or remedy is performed through access to formal justice systems, which are generally understood as the system of judicial bodies of the state (such as, the court, the prosecution, the investigation agencies,) and informal justice system (commonly known as system of customary laws, the community-based mediation mechanisms …) This is a new approach, widely used by many international organizations, such as the United Nations Development Programme (UNDP) which concludes the meaning of ―access to justice‖ as:
‗The ability of people to seek and obtain a remedy through formal or informal institutions of
justice, and in conformity with human rights standards.‘213
The shift in the new perception of access to justice derives from the limitations of the orthodox judicial system in the resolution of various conflicts of interest In this regard, UNDP has summarized and outlined the "weaknesses" of the formal judicial system, including: (i) Cumbersome, complex, formality and delays; (ii) Large costs, in many cases and in many places beyond the capacity of vulnerable social groups; (iii) Difficult to access and lack of credibility, efficiency; (iv) Being easily influenced by the forces and power; (v) Weakness in the implementation of decisions and regulations; (vi) There are few solutions, lack of preventive, timely, equitable, appropriate and fair solutions; (vii) Contains many prejudices and obstacles to vulnerable social groups; (viii) Lack of appropriate information about procedures and procedures; (ix) Lack of mechanisms for appropriate legal assistance; and (x) Not people-friendly and a lack of public participation Thus, the new approach of access to justice is much broader than that of traditional views.214
According to the Universal Declaration of Human Rights, all human beings are born free and equal in dignity and rights.215 It means that all human beings should have equal access to justice when their dignity or their rights are infringed upon As a concept, justice is rooted in all national cultures and traditions, and its administration extends to both formal judicial mechanisms and informal dispute resolution mechanisms.216
As mentioned earlier, the traditional understanding of access to justice is closely tied
to the judicial activity of the court and the aim of access to justice is to ensure equality
215 Universal Declaration of Human Rights, 1948, Article 1
216 United Nations (2004) The rule of law and transitional justice in conflict and post conflict societies, ibid, para 7
Trang 4between subjects of the case, such as the right to counsel, the right to assistance and the right
to appeal It can be seen that the emphasis is on legal provisions on subjects involved in the proceedings and their implementation, rather than the substantive equality when applying those provisions to the resolution of the case This interpretation seems to be directed towards legislative action in the judicial field However, this view is actually incomplete
Nowadays, access to justice is understood as the ability to seek compensation or remedy for the injustice or injury that an individual or a group of individuals, especially the vulnerable groups in society, may have suffered These injustices or losses can be caused by individuals or legal entities, and they also can occur in all areas of social life, not only limited
to criminal proceedings Seeking compensation or remedy is performed through access to formal justice systems, which are generally understood as the system of judicial bodies of the state (such as the court, the prosecution, the investigation agencies) and informal justice system (commonly known as a system of customary laws, community-based mediation mechanisms etc) This is a new approach, widely used by many international organizations, such as United Nations Development Programme (UNDP) which concludes the meaning of
―access to justice‖ as: ‗The ability of people to seek and obtain a remedy through formal or
informal institutions of justice, and in conformity with human rights standards.‘217
Following the UNDP‘s definition, the foundation of access to justice is the framework
of people‘s rights and obligations UNDP calls it legal/normative protection; 218
and the institutional framework that allows everyone to apply or be assisted to obtain compensation for the injustice or damaged suffered UNDP views it as the ability to provide compensation or
capacity to provide justice remedies 219 However, these systems are not sufficient because in
order to achieve a fair solution to an injustice or harm, people need to have the knowledge and
ability to pursue the resolution process UNDP calls this dimension the capacity to demand
justice remedies 220 of the masses
1.2 Legal Aid
In countries around the world, legal aid activities for the poor and disadvantaged people begin to form and develop together with the establishment and development of the capitalist State and are considered as the social functions of the state and one of the criteria to protect the human rights in the rule-of-law state
Following the Black‘s Law Dictionary, legal aid is mentioned as a ‗free or inexpensive legal services provided to those who cannot afford to pay full price‘221
In Vietnam, the France-Vietnam Law Dictionary explained legal aid (France: Aide Juridique) as ‗helping poor people, policy beneficiaries in accessing law and suing or court proceedings‘222
Additionally, due to the various legal aid models exists, with different notions of subjects, scope, methods and costs of legal aid in the world, each country has therefore its own concept and legal aid is viewed in different angles223:
- Some countries refer to the concept of legal aid such as: Germany conceives legal aid
217 UNDP (2005) Programming for Justice: Access for All A Practitioner‘s Guide to a Human Rights-Based Approach to Access to Justice, p 5, at https://www.un.org/ruleoflaw/files/Justice_Guides_ProgrammingForJustice-AccessForAll.pdf, accessed 10th July 2019
218 UNDP (2005) Programming for Justice: Access for All A Practitioner‘s Guide to a Human Rights-Based Approach to Access to Justice, ibid, p 39
219 UNDP (2005) Programming for Justice: Access for All A Practitioner‘s Guide to a Human Rights-Based Approach to Access to Justice, ibid, p 59
220 UNDP (2005) Programming for Justice: Access for All A Practitioner‘s Guide to a Human Rights-Based Approach to Access to Justice, ibid, p 135
Trang 5as ‗partial or total financial assistance for those who cannot afford to pay for legal advice, representation and defense in court‘ Singapore Legal Aid and Advice Act 1995 defines ‗legal aid as representing a client in court to help people who cannot afford legal services‘224
;
- Some countries refer to the entities implementing legal aid such as: Article 2 of the Korea Legal aid Act 2011 stipulates the term "legal aid" in this Act means providing any person with all support concerning legal consultation, a representation of a lawsuit by an attorney-at-law or a public-service advocate as prescribed by the Public-Service Advocates Act and other legal affairs, in order to achieve the purpose prescribed in Article 1 (The purpose of this Act is to protect fundamental human rights and to further contribute to the promotion of legal welfare by providing legal aid to those in economic difficulty, or not adequately protected enough by the law due to ignorance of the law)
- Legislation in some countries refers to the free or reduced cost of legal aid activities For example, Article 1 of the Law on Legal Aid of Indonesia in 2011 stipulates that legal aid
is a service provided by the person who implements the free legal aid for person entitled to legal aid The Law on Legal aid in Finland in 2002 also stipulates that legal aid include provisions on legal consultion, necessary measures, representation in court and other competent agencies and exemption of certain expenses when settle cases according to the provision of this Act
- The concept of legal aid in some countries has mentioned the object of legal aid For example, the Dutch Law on Legal Aid in 1993 stipulates that legal aid is legal support for the object who is seeking justice for legal affairs that directly affect them following the Law on Legal aid Similarly, the Finland Law on Legal Aid in 2002 stipulates legal aid is provided to people who are experiencing legal difficulties and cannot afford to pay Funds for implementing legal aid from the state budget
In summary, it can be seen that some of the highlights of the concept of legal aid are:
(1) Cost support: Partial or total support of costs related to legal services These costs mat
include attorney‘s free, legal consultancy fees, documents preparation fees, .; (2)
Beneficiaries: Persons who cannot afford or have limited access to legal rights Restrictions
can come from economic, physical, mental or gender factors, ; (3) Purpose: To create
fairness in access to justice for everyone in society225 Thus, through the study of legal aid law
of some countries in the world, it is found that most countries determine that legal aid is the responsibility of the State for the disadvantaged people in society whoes cannot afford legal fees Through the enactment of legal aid, the State creates a legal framework to ensure the fulfillment of this responsility for society, especially the disadvantaged group in society226
Besides the experience of some countries, the content of legal aid is also explained by
other international organizations in the following direction: Legal aid is the professional legal
assistance given, either at no charge or for a nominal sum, to indigent persons in need of such help227 From another angle, legal aid is considered as a system of nonprofit organizations that provide legal services to people who cannot afford an attorney.228 UNODC defined the meaning
of ‗legal aid‘ as ‗legal advice, assistance and/or representation at little or no cost to the person designated as entitled to it…and also encompasses services provided by lawyers and paralegals in criminal as well as in civil and administrative matters to individuals who are poor, marginalized,
The Editors of Encyclopedia Britannica, Legal Aid, at https://www.britannica.com/topic/legal-aid, accessed 10th July 2019
228 West's Encyclopedia of American Law, Legal Aid, at law/law/law/legal-aid, accessed 12th July 2019
Trang 6https://www.encyclopedia.com/social-sciences-and-or otherwise in need of special legal protection, to enable them to exercise their rights‖ 229 Similarly, the term ―legal aid‖ is defined in the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems: ―…legal advice, assistance and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence and for victims and witnesses in the criminal justice process that is provided at no cost for those without sufficient means or when the interests of justice so require‖.230 Furthermore, ―legal aid‖ is intended to include the concepts of ―legal education, access to legal information ‖231
and
―legal advice, representation in courts or proceedings under other state tribunals, assistance in drafting of documents and pleadings, mediation, assistance in navigating the rules and procedures
of state administrative agencies…‘232
Legal aid is a human right The right to legal aid is derived from the right to a fair trial
or the right to effective access to court This is recognized in the Universal Declaration of Human Rights, 1948233 and other international and regional documents on human rights including the International Covenant on Civil and Political Rights 1966 and European Convention on Human Rights 1948.234
The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems are primarily concerned with the right to legal aid, as distinct from the right
to legal assistance and are intended to build on and give effect to the international norm that a person is entitled to defend himself or herself through legal assistance235
The right to legal aid is also recognized in the Constitutions or law of almost all countries in the world Constitutions around the world vary in the manner in which they guarantee the right to legal aid While some countries guarantee the right to legal aid at the State‘s expense directly in their constitution, other countries do so via development of case law or legislation In some other countries, the constitution provides the broader right to a fair trial, such as by the right to defence or the right to legal assistance of one‘s own choosing, without specifying whether the right includes access to legal aid.236
Traditionally, in many countries, as one of the public-service responsibilities attached
to the practice of law, lawyers also undertake to give legal aid in civil cases This led to the International Bar Association in 1958 to sponsor the organization of the International Legal Aid Association, the purpose of which is to: (1) compile and maintain a directory of legal aid agencies; (2) collect and distribute information concerning both the services provided by such organizations and laws and other provisions regulating legal aid in the various nations; (3) develop facilities for the referral of cases on a basis of reciprocal service among the cooperating agencies; and (4) encourage the establishment of legal aid services in all countries where they may be needed and to cooperate with bar associations, the judiciary, social welfare agencies, and other international organizations interested in extending and improving legal aid
reform/UN_principles_and_guidlines_on_access_to_legal_aid.pdf, accessed 15th July 2019
231 UNODC (2013) United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, ibid
232 UNODC (2016) Global Study on Legal Aid: Global Report, ibid, p 24
233 Article 8 of the Universal Declaration of Human Rights states ―Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law‖
234 Under Article 6(1) ECHR everyone has the general right is ‗to a fair … hearing‘ in the determination of civil rights and obligations or of any criminal charge This implies an appropriate degree of ‗equality of arms‘ In relation to criminal offences, Article 6(3)(c) everyone has the right ‗to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require‘
235 UNODC (2013) United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, ibid
236 UNODC (2016) Global Study on Legal Aid: Country Profiles, p.525, at prison-reform/LegalAid/GSLA_-_Country_Profiles.pdf, accessed 24th July 2019
Trang 7https://www.unodc.org/documents/justice-and-and defender services.237 The need for such an international organization was recognized by the League of Nations in 1924 and later by the International Red Cross and other international agencies concerned with social welfare, especially those dealing with migration.238
However, legal aid is not only provided by lawyers' associations, but also by many other organizations in society For example, in the United States, more than sixteen hundred legal aid agencies currently provide legal representation without cost or for a nominal fee to people who are unable to pay the usual amount for a lawyer's services.239 These agencies are sponsored by charitable organizations, lawyers' associations, and law schools, and by federal, state, and local governments In some states legal aid services are partially funded from the interest earned in law firm trust accounts240
In many countries, typical legal aid agencies are run by attorneys and administrative support staff They are often supplemented by law students, who participate in legal aid clinics that give students opportunities to work with indigent clients In addition, private attorneys volunteer their time to assist these agencies In some jurisdictions the court may appoint private attorneys to handle legal aid clients
In general, in the modern time, the mechanisms that States use to provide legal aid services fall into the following categories:241 (i) Public defender systemswhichinvolves government salaried lawyers dedicated to providing legal aid services organised through the State or an independent authority; (ii) Assigned counsel/panel lawyers or ex-officio systemsalso called the ―judicare‖ model in some countries, involves the assignment of legal aid cases to private lawyers on either a systematic or an ad hoc basis; (iii) Contract services systemswhich involves a contract with a lawyer, a group of lawyers, a bar association, or a non-State-affiliated organisation (such as NGOs, community-based paralegals, university legal aid clinics, etc.) which provides legal aid services in particular jursidictions and is funded by the State.242 However, more often, countries establish systems that are a combination of the abovementioned public defender system, assigned counsel system and/or contract service systems, resembling a mix of State, private and civil society providers, called
‗mixed-model‘ or ‗hybrid systems‘.243
From another angle, legal aid systems can be divided into the pro bono model and the subsidization model The pro bono model reflects the historical and traditional legal aid approach that is rooted in the right to counsel and the right to a fair trial movement in continental European countries in the 19th century.At this time, "poor man's laws" waived court fees for the poor and provided for the appointment of solicitors who would act on a pro bono basis for those who could not afford to pay for a solicitor.244 The subsidization model emerged later in response to rapid industrialisation in the late 19th century in Europe In this case, trade union and workers' parties challenged the social policies of governments and gained passage of laws to provide workers with legal rights including the right to legal aid by the early 20th century.245 The main difference between the pro bono model and the subsidization model is that while the first relies on voluntariness and therefore emphasise the importance of engaging bar associations (and later including other social civil society
Relating to legal aid models, see also Arthur L Berney and Harry A Pierce (1975), An Evaluative Framework of Legal
Aid Models, Washington University Law Review, Volume 1975, Issue 1, Symposium: Legal Services to the Poor in
Trang 8organizations) in legal aid, the second one is state-driven in which states directly provide legal aid services through hiring solicitors and officials to work for state run legal aid centers It is not difficult to see that each of two models have different advantages and disadvantages and it
is necessary to apply both to take advantages and overcome the disadvantages of them In this regard, according to UNODC, when developing a legal aid system, a number of considerations must be reviewed, including the following: (i) Model of delivery: What type of legal aid delivery system should be adopted to ensure that legal aid services are provided in an effective manner to those who are eligible for legal aid? (ii) Governance system: How will the legal aid system be managed? What governance structures can be established to ensure the independence and effectiveness of the legal aid system? (iii) Appointment system: How should legal aid providers be identified so that people are able to promptly, easily and effectively access quality legal aid services when required? What will trigger the appointment
of a legal aid provider? Are incentives in place to identify correctly if a person is eligible?246
2 The link between legal aid and access to justice
Legal aid is considered as a crucial means of access to justice in modern times As the third foundation of access to justice (the capacity to demand justice remedies is consist of ‗the legal awareness‘ and ‗the legal aid and legal counsel‘), the system of legal aid has the dual role of supporting peoples awareness of the law and helping the people in pursuing cases in the justice systems to seek remedies when their rights and their lawful interest are violated Therefore, the concept of legal aid is inseparable from its function as a vital means of access
to justice Legal aid plays a crucial role in enabling people to navigate the justice system, to make informed decisions, as well as to obtain justice remedies Legal aid makes a critical connection between populations and their justice systems and provides guidance on how to navigate the often difficult-to-understand justice system As emphasized by Mauro Cappelletti, legal aid is essential in providing individuals with access to justice by allowing the individual legal enforcement of economic, social and cultural rights.247
The United Nations recognize that access to legal aid, in addition to being a right in itself, also has instrumental benefits for suspects and accused persons, for the criminal justice system and for the wider community (see the chart below).248
Trang 9Many international organizations recommend that the justice needs of the population
is one of determining priorities that requires the periodic undertaking of a comprehensive assessment for development of national legal aid policy.249 Such an assessment can help identify where gaps and bottlenecks exist for people trying to access justice, especially for vulnerable groups, and can help inform polices to better respond to the realities on the ground For legal aid practitioners and institutions, this information can be valuable to inform specialization on particular issue areas or to respond to priorities of specific groups of people depending on the existing demand.250
The adoption of the United Nations Principles and Guidelines on Access to Legal Aid
in Criminal Justice Systems in 2012 reflects an increasing consensus among States on the importance of legal aid in ensuring access to justice.251 This is evidenced by the growing number of countries that recognize legal aid rights in law (see table below)
When was the right to legal aid first recognized by law? 252
249
These organizations have developed tools that provide guidance on how to undertake access to justice assessments, which includes a wide range of approaches to assessing the justice system and, specifically, legal aid priorities For example, see UNDP (2005) Programming for Justice: Access for All; UNDP (2011) Access to Justice Assessments in the Asia Pacific: A Review of Experiences and Tools from the Region; UNODC (2006) The Criminal Justice Assessment Toolkit – Access to Justice: Legal Defence and Legal Aid; UNODC (2014), Assessment of the Criminal Justice System in Ethiopia; World Bank (2007), Justice Sector Assessments: A Handbook
250
UNODC (2016) Global Study on Legal Aid — Global Report, ibid, p.40
251
UNODC (2014) Early access to legal aid in criminal justice processes: a Handbook for policymakers and practitioners, ibid
252 GSLA Member State Survey and Expert Survey and additional research At UNODC (2016), Global Study
on Legal Aid - Global Report, ibid, p.69
Trang 10According to UNODC‘s recent survey, the right to legal aid is recognized in every country that responded to the Member State Survey, either expressly affirmed in law or recognized as an essential component of the right to a fair trial.253 67% of the Member State Survey reported that their constitution recognizes the right to legal aid either directly in the constitution, or by development case law or legislation.254 The early 2000s ushered in a massive wave of reforms, with 86% of responding countries revamping their legal aid systems sometime during the past 15 years.255
In short, in the modern times, legal aid is an indispensable channel to help poor and
vulnerable groups access justice, legal advice and legal representation in the process of requiring justice Therefore, a weak legal aid system is considered one of the biggest barriers
to people‘s access to justice Access to justice is not only about enhancing the ability of individuals to access the courts or to ensure their legal representation, but to ensure fair and equity for the legal outcomes
3 The legal aid system in Vietnam: An Overview
Before this article is researched, there were some scientific researches on legal aid system in Vietnam through some scientific research such as: Doctoral thesis256; Master thesis257; Ministry-level scientific research258; Articles259;… Generally, research work on legal aid in Vietnam mainly researches the rationale; Legal basis and practice of legal aid practitioners; Assuring rights for vulnerable groups, a legal foundation that regulates legal aid activities and at the same time proposes solutions in solving limitations that indicated in the research works in order to improve the quality of legal aid in Vietnam
Vietnam is among the several remaining socialist countries in the world Legal aid has been provided in Vietnam since its independence in 1945,260 based on the constitutional
principle that ―the power belongs to the people‖261 which was stipulated in some normative documents, mostly relating to criminal procedures While the right to counsel is constitutionally recognized since 1946, the first Law on Legal Aid in Viet Nam only came into effect on 1 January 2007 This Law was revised in 2017 According to the Law on Legal Aid, state-funded legal aid services are available at national, regional and local levels
253
UNODC (2016) Global Study on Legal Aid - Global Report, ibid, p.145
254 UNODC (2016) Global Study on Legal Aid - Global Report, ibid, p.145
Nguyen Van Tung (2007) Doctoral thesis: State management by law for legal aid activities in Vietnam today, Ho Chi
Minh Political Academy, Hanoi
257
Nguyen Bich Ngoc (2012) Doctoral thesis: Solutions on improving Legal aid, Vietnam National University
Le Thi Minh (2014) Master thesis: The role of Legal Aid in ensuring access and securing the human right for vulnerable group
in the society, Vietnam National University, Hanoi
Doan Huu Van (2014) Master thesis: International law and Vietnam law on Legal aid, Vietnam National University, Hanoi Trinh Thi Thanh (2015) Master thesis: Legal aid in Vietnam-organize and operation, Vietnam National University, Hanoi
258
Legal Research Institute (1999) Model of organization and operation of Legal aid, implementation directions in the
current conditions, Vietnam Ministry of Justice
Ta Thi Minh Ly (2003) (former the Director of the National Legal Aid Agency) Expanding the Participation of Vietnam
Non-Governmental Organizations in Legal Aid, at
http://programs.wcfia.harvard.edu/files/fellows/files/ly.pdf?m=1357530297 Accessed 25 July 2019
261 Latham & Watkins LLP (2015), Pro Bono Practices and Opportunities in Vietnam, at
https://www.lw.com/admin/Upload/Documents/Global%20Pro%20Bono%20Survey/pro-bono-in-vietnam.pdf Accessed 25 July 2019
Trang 11The main feature of the legal aid system in Vietnam since 1945 is ―legal subsidization‖262,
of which all costs for legal information, legal advice and legal presentation (criminal, civil cases, etc.,) were provided free of charge by the State Although the obligation for lawyers to work
on a pro bono basis is enshrined in law263, the concept of pro bono assistance is still in its infancy in Vietnam.264 There are opportunities for private attorneys, law firms and in-house counsel to get involved with pro bono work but this is largely dependent on the initiative of the particular attorney, law firm or legal department.265
The subsidization model was strongly emphasized during the period 1960-1986 when Vietnam pursued the model of the Soviet Union socialist state However, there was in practice very few legal aid activities conducted during this time due to various reasons including wars and that the law was underestimated by the state
Since Doi moi (1986), when Vietnam‘s economy was converted to a market-oriented economy, the demand for legal aid has vastly increased However, the pure ―legal subsidization‖ system has been changed The majority of the local people had to pay for the costs of legal services on their own and legal aid services were only provided for the poor and some special groups.266 In 1997, the Prime Minister of Vietnam issued a decision specifying legal aid beneficiaries that included the poor and some preferential groups.267 In order to implement this decision, a legal aid system established, that included the National Legal Aid Agency (NLAA) at the central level, Provincial Legal Aid Centers (PLACs) at the local level, and eventually Legal Aid Centers.268 In 2006, the National Assembly enacted the Law on
Legal Aid (revised in 2017), in which there is a definition: ―Legal aid means the provision of
‗pro bono‘ legal services to legal aid beneficiaries in accordance with this Law to help them protect their legitimate rights and interests and improve their legal understanding as well as their sense of respect for and observance of the law; to contribute to law dissemination and education, protect justice, ensure social equity and prevent and restrict disputes and violations of law.‖269 Although the Law states that the State has the responsibility to provide
262
Vietnam has a history of more than 4,000 years including a thousand year under feudal regime until the country was invaded by the French in 1858 In the period of feudal regime, the legal profession was not yet existed and therefore there was no concept of legal aid The legal profession is considered to be brought by the French into Vietnam to serve their rule in the colonial period (1858 - 1945), but so far there is very few research on this issue However, from some studies it can be deduced that there were some legal aid activities during the French colonial period in Vietnam, mainly bro bono, since after two bar associations established by French in Hanoi and Saigon of which the members not only included French lawyers but also Vietnamese citizens who graduated in French law schools and were qualified to practice French law See Ngo Van Hiep (2014) "History and Development of Legal Profession in Vietnam", Vietnam Lawyers Journal, No 9, 2014, and VU Thi Thanh Van (2016) Legal Profession in Vietnam - An Introduction, paper presented at the workshop of ASEAN Law Association, at https://www.aseanlawassociation.org/12GAdocs/workshop1- vietnam.pdf Accessed 25 July 2019
Latham & Watkins LLP (2015) Pro Bono Practices and Opportunities in Vietnam, ibid
266 Ta Thi Minh Ly (2003) Expanding the Participation of Vietnam Non-Governmental Organizations in Legal Aid, ibid
267
Government of Vietnam, Decision No 734/TTg dated June 9, 1997 of the Primer Minister on provision of legal aid for the
poor and the preferential groups in Vietnam
268
Government of Vietnam, Decision No 734/TTg dated June 9, 1997 of the Primer Minister on provision of legal aid for the
poor and the preferential groups in Vietnam
269
National Assembly of Vietnam, Law on Lawyers 2006 (revised 2012 and 2015), Article 3
Trang 12legal aid and plays the key role in implementing the law, local social organizations are also encouraged to take part in legal aid provision.270
In 2011, the Strategy for Development of Legal Aid in Vietnam through 2020, with orientations toward 2030 was adopted with an ambitious objective of: To develop legal aid in
a stable and sustainable manner and to provide quality legal aid services in a timely and adequate manner for legal aid beneficiaries This should be done on the basis of bringing into play the State‘s key role in organizing legal aid, mobilizing to the utmost social resources as well as assistance of the international community, agencies, organizations, enterprises and individuals, contributing to the best protection of the rights and legitimate interests of citizens This would include when they encounter legal problems and require the protection of justice and social justice, the higher effectiveness of official-duty performance and the sense of law observance and the translation of law into life.271
Vietnam has signed and ratified various human rights treaties requiring state parties to respect and ensure the right of access to justice, including: the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and the Convention on the Rights of the Child (CRC) and its two Optional Protocols on the sale of children, child prostitution and child pornography (OP-CRC-SC) and on the involvement of children in armed conflict (OP-CRC-AC) Viet Nam is a signatory to the Convention on the Rights of Persons with Disabilities (CRPD).272
The main legal aid service providers in Vietnam currently are the state legal aid centers (NLAA and PLACs), legal counselling organizations, legal aid professionals and lawyers and legal counsellors.273 The providers are different in terms of their roles and functions
Legal aid providers must have a law degree and pass a professional examination (bar examination) They are also required to engage in continuing education and skills training, and the State partially allots funds to this effect Legal aid providers need to undertake specialized training to assist disadvantaged population groups (e.g persons with disabilities, children, refugees, etc.)
Paralegals are recognized by law as ‗collaborators‘ While they are not allowed to participate in court proceedings, they can provide legal counselling, in both criminal and civil cases Paralegals are required to have a university degree (law degree or other) and to have worked ―in branches or professions related to fundamental rights and obligations of citizens.‖
According to the Law on Legal Aid, the Ministry of Justice ―takes responsibility before the Government for the performance of state management of legal aid.‖274 For that, the
270
National Assembly of Vietnam, Law on Lawyers 2006 (revised 2012 and 2015), Article 6
271
Government of Vietnam, Decision No 678/QD-TTg signed by Prime Minister on May 10, 2011 approving the Strategy for
Development of Legal Aid in Vietnam through 2020, with orientations toward 2030
272 ASEAN Human Rights - Country Background, Vietnam, at https://humanrightsinasean.info/vietnam/rule-law-human-rights.html,
https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=192&Lang=EN, accessed 25th July 2019 273Danish Institute for Human Rights, National Legal Aid Agency of Vietnam, at
http://dihr.org/legalaid/index.php?option=com_content&task=view&id=21&Itemid=33, accessed 25th July 2019 274National Assembly of Vietnam, Law on Legal Aid 2006 (revised 2012 and 2015), Article 47
Trang 13National Legal Aid Agency (NLAA) is put under the Ministry of Justice as an advisory body function to the Minister in connection with the state wide management of legal aid. 275 Each province in Vietnam has a provincial legal aid center (PLAC) which is under the direct supervision of the provincial People‘s Committee The provincial people‘s committees
―ensure payroll, funds, material bases and working equipment and facilities for state legal aid centers; conduct inspection and examination, settle complaints and denunciations, effect commendation, reward and disciplining; and handle violations in the domain of legal aid in their localities.‖276
They coordinate with the Ministry of Justice in the management of state legal aid in their respective areas
In addition to state-run legal aid system, there is another legal aid system running by mass organizations and law schools in Vietnam The mass organizations and law schools that would like to deliver legal aid must submit a written registration of the scope, forms and domains of legal aid with the provincial or municipal justice services government body.277Mass organizations such as the Lawyers‘ Association, the Trade Union, the Bar Federation, the Farmers‘ Union, and the Communist Youth Union have already established centers providing legal advice and legal knowledge dissemination to their members and others
Legal aid is not a separate component of the annual justice budget However, primary legal aid services are available free of charge at the offices of the National Legal Aid Agency and at the Provincial Legal Aid Centers, as well as at the bar association offices, which maintain a roster of qualified lawyers available to provide legal advice The State covers all legal aid costs in criminal and civil cases for legal aid recipients who meet the eligibility criteria In both criminal and civil cases, legal aid providers work in law firms and institutions that receive funds from the State on a contractual basis Providers are also paid on an hourly basis for actions that the State has identified as a basis of payment Additionally, in civil and administrative cases, providers receive a fixed fee for the provision of legal advice
As stipulated in the Legal Aid Law, legal aid services include:278 Legal counselling
(legal advice): Legal aid providers give instructions, explanations and opinions, supplying
legal information or drafting documents related to legal aid cases to beneficiaries
Participation in legal proceedings: Legal aid professionals and lawyers participate in
To provide legal aid in complicated cases referred from the PLACs and relevant agencies; (5) To engage in international cooperation vis-a-vis legal aid; (6) To manage the Legal Aid Fund; (7) To organize professional training for legal aid staff; (8) To carry out legal education, dissemination to the poor and people enjoying preferential policy; and (9) To administer staff, budget and working facilities of the NLAA according to the Government‘s regulations In addition, the NLAA has the duty to supervise and provide professional guidelines to Legal Aid Centers operating under the political- social organizations
276Ministry of Justice of Vietnam, Decision No 1689/QD – BTP, 21st September 2015, Article 3
277Law on Legal Aid 2006 (revised 2012 and 2015), Article 17
278Law on Legal Aid 2006 (revised 2012 and 2015), Article 27
Trang 14defending legal aid beneficiaries who are detainees, accused or defendants in criminal proceedings They also protect the interests of legal aid beneficiaries who are victims, or
persons with rights and interests related to criminal cases In civil and administrative
proceedings, legal aid professionals and lawyers take part in protecting legitimate rights and
interests of legal aid beneficiaries, both plaintiffs and defendants Representation beyond legal
proceedings: Legal aid beneficiaries shall be represented beyond legal proceedings by legal
aid professionals and lawyers to protect their legitimate rights and interests that they cannot protect by themselves These services will be carried out only when a legal aid beneficiary is requesting for it
According to a recent survey on legal aid in Vietnam, pparticipation in legal proceedings is the most popular among legal aid services (see the chart below).279
TYPES OF LEGAL AID CHOSEN
T ham gia t ố t ụng T ư vấn pháp luật Đại diện ngoài tố t ụng Hình t hức T GPL khác
Người t hực hiện T GP L Người quản lý công t ác T GP L Người dân
Participation in legal proceedings Legal counseling Extrajudicial representation Other forms of legal aid
In addition to the above, other forms of legal aid can be provided by legal aid centers.280 ―Other forms of legal aid‖ means other activities for the public conducted by legal
assistants and lawyers through mediation and services related to administrative and complaint procedures and other activities An example of this is, providing legal aid information through the mass media
279Ministry of Justice of Vietnam and USAID (2016) The Needs of Different Groups for Legal Aid in Vietnam (A Survey
Report conducted by Chu Hong Thanh) for Minstry of Justice of Vietnam and USAID in 2016, under the USAID Program on Governance for Inclusive Growth Program in Vietnam
280
Law on Legal Aid 2006 (revised 2012 and 2015), Article 27