Independence and Responsibility Mechanism of Judges in Vietnamese and English Law

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Joint Swedish-Vietnamese Master’s Programme MASTER’S THESIS T RAN N GOC H A Independence and Responsibility Mechanism of Judges in Vietnamese and English Law SUPERVISORS: Ass.Prof.Dr Mai Hồng Quỳ Prof Michael Bogdan Acknowledgements First of all, I would like to thank my family, especially my husband, for their emotional share and care of my little daughter during the time of this course I cannot pursue the course until present without my family’s encouragement I would like to express my deepest gratitude to my supervisors, Assistant Professor Mai Hong Quy and Professor Michael Bogdan for their sympathy on my private difficulties and for their valuable directions on my thesis Assistant Professor Mai Hong Quy has supported me a lot in deciding the topic of thesis Professor Michael 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 American professors, particularly Assistant Professor Christopher Wong, who devotedly provided us with professional knowledge and research methodology during their lectures in Vietnam and Sweden My thanks also go to Sida for funding the Joint Master’s Program that I attended I am sincerely grateful to friends and colleagues who provide me with kind help through out the time I was doing this research I thank Assistant Professor Truong Dac Linh for his devoted suggestions for my thesis I thank Doctor Do Van Dai for his 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 in this thesis, they totally belong my own responsibility Needless to say, in spite of these acknowledgement, I bear personal responsibility for ideas and arguments presented in this thesis Table of Content Acknowledgements Table of Content Abbreviations .4 Executive Summary Introduction 1.2 Rationale .6 1.3 Purposes .6 1.4 Delimitation .6 1.5 Research methods and Materials .6 1.6 Disposition Independence of judges 2.1 Concept of independence of judges 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 Responsibility mechanism of judges 34 3.1 Overview of responsibility mechanism for judges 34 3.1.1 Concept of responsibility mechanism for 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 Conclusion 53 Table of Statutes and Other Legal Instrument 54 Bibliography 56 Abbreviations CA 1971 CRA 2005 IBA JAC JACO LAWASIA SCA 1981 SPC UN Court Act 1971 Constitutional Reform Act 2005 International Bar Association Judicial Appointments Committee Judicial Appointments and Conduct Ombudsman The Law Association for Asia and the Western Pacific Supreme Court Act 1981 Supreme People’s Court United Nations Executive Summary Improving the quality of judicial activities is a very important duty of the Vietnamese judiciary in the coming time under the light of Resolution No.49 and Resolution No.08 of Political Bureau about the judicial reform strategy Judges plays the decisive role to achieve that purpose because the quality of the judicial activites is assessed on the ground of final outcomes of cases However, the current practice shows that independence of Vietnamese judges is violated seriously by manifold threats from outside and eventually from the judiciary Judges’ working conditions are not guaranteed 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 the reappointment mechanism Besides, the judicial ability of judges is a big problem in present, and this is one of reasons leading to the dependence of judges to their leaders/superiors Additionally, responsibility mechanism for Vietnamses judges contains so many unreasonable problems, especially the disciplinary procedures with two kinds of discipline, professional discipline and civil servant discipline, and the personal remedial responsibility With current responsibility mechanism, judges face a lot of threats which are harmful to their independence Therefore, ensuring independence of judges and setting up a reasonalble accountability mechanism for them are urgent duties of the judiciary to make the positive changes for the judicial reform In order to achieve the effective results, it is very useful for Vietnam to learn from the international 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 Introduction 1.1 Rationale According to the content of the Resolution No 49 on nd June 2005 of the Political Bureau about judicial reform, improving the quality of judiciary activities is the main aim of judicial reform strategy Judges play a very important role to achieve this aim because the independence of judges is a decisive factor to have objective and just judgments The principle “during a trial, the judges are independent and shall only obey the law” is a constitutional provision since 1946 However, in present the independence of judges is a topical matter in Vietnam since there are so many cases 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 a result, it causes many bad consequences to society, especially belief of people to justice According to the Annual Report of the Supreme People’s Court in 2007, there are 35 judges disciplined and prosecuted criminal liability This situation is caused by many reasons both from legal provisions and the judges themselves, for example, the appointment of judges, the low salaries, the organization of court system, the relationship between judges and their superiors…So, ensuring the independence of judges has become very necessary matter to improve the quality of judicial activities One of the factors, which cannot be separated from the independence of judges, is responsibilities mechanism of judges, and this is considered indispensible corollary of the independence Judges must be independence, but it does not mean that they can anything and have no responsibility Responsibility mechanism is very important to make judges independent However, from another perspective, if judges’ 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 the provisions are not effective in fact and there are a lot of gaps in this field Basing on the reality mentioned above, I decide to choose the matter of independence and responsibility mechanism of judges for my master thesis Introduction 1.2 Purposes This thesis has the following purposes: The first purpose is examining main theoretical aspects of independence of judges and their responsibility mechanism With this purpose, the thesis is expected to examine the notion of independence and responsibility mechanism of judges, and the relations of these issues with concerned matters such as impartiality of judges, institutional independence, the relation between independence and responsibility, and relation between individual accountability and State‘s responsibility, ect The second purpose is defining and analyzing threats to independence of Vietnamese judges and problems in their accountability mechanism In addition, the last purpose is suggesting recommendations for guaranteeing the independence of Vietnamese judges as well as building a reasonable responsibility mechanism for them based on selective reference from the international instruments and English law 1.3 Delimitation By setting the above purposes, the thesis will research on legal provisions of independence and accountability of judges in international instruments, English law, and Vietnamese law The thesis focuses on the analyzing the critical practice of Vietnamese judges’ independence and responsibility as well as concerned provisions International provisions and English law are considered reference sources to recommend solutions for Vietnamese judges Within the delimitation of master thesis, it is impossible to study all problems relating to independence and responsibility of Vietnamese judges The following basic elements impacting judges’ independence will be researched: term of office, salary, appointment mechanism, qualifications, discipline, and personal remedial responsibility 1.4 Research methods and Materials In this thesis, the three major research methods are used: the analytical, the comparative, and the descriptive The three methods are used in each chapter The analytical is used to deal with theoretical matters of independence and responsibility of judges, and to examine negative problems both in law and in practice harmful to Vietnamese judges’ independence The descriptive method is used to study on international instruments and provisions of English law The comparative method is used to compare the Short title of the thesis principles guaranteeing the individual independence developed in numerous international instruments, and to make comparison between Vietnamese law and English as well as international provisions in order to find out reasonable recommendations for Vietnam Various material sources are used in this thesis consisting of international instruments, national statutes, books, monographs, and articles from law journals, and materials from the internet 1.5 Disposition In accordance with the purposes, the thesis are structured as follows: Introduction includes these issues: Rationale, Purposes, Delimitation, Research methods and Materials, Disposition Chapter 1“Independence of judges” will research theoretical matters of individual independence of judges including its notion, relations with impartiality and institutional independence This chapter also give the readers knowledge of concerning international instrument and English law on ensuring independence of judges The central part of this chapter is research on independence of Vietnamese judges Chapter “Responsibility Mechanism of Judges” focuses on the responsibility of judges as an important factor supporting the independence of judges This chapter will also examine theoretical aspects of responsibility, international and English legal provisions on this matter, and analyzing problems of responsibility mechanism of Vietnamese judges in present Independence of judges 2.1 Concept of independence of judges Independence of judges is important in every area of the law For just and effective judgments, judges must be independent It is impossible to have an independent judiciary without independent judges The importance of judges’ independence is realized 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 of justice - an elevated but dangerous duty - judges always face many threats Threats to the individual judges are diversity They are also very dangerous because they target directly at the individual judges, who exercise judicial function and therefore are Introduction greatly potential of perverting justice The executive, an executive’s or judicial officer may have the power to raise or to reduce the judge’s salary, to discipline judge or to transfer judge to another court The chief judge in a court may have the power to assign cases to judges Beside the influence may from the other state institutions and superiors, judges may also put themselves in danger of threat from the criminal network Impact from the press and other social and political forces may also be interference with making decision process of judges All of these powers may be exerted to affect the course of action of a targeted judge when deciding on a case 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 in making decision Independence of judge has been mentioned in a lot of documents in various 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 matters before them impartially, in accordance with their assessment of the facts and their understanding of the law without any restrictions, influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason In the decision-making process, judges shall be independent vis-à-vis their judicial colleagues 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 of judicial office, must be able to exercise judicial powers free from social, economic and political pressure and independently from other judges and the administrative of the judiciary”.3Consequently, negative external interference in judge’s professional activities may from not only the judicial system but also their colleagues, superiors, and administrators Another understanding of judge’s independence is mentioned in the Bangalore Principles of Judicial Conduct in 2002 A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.4It is recommended clearly that judge must be free from social USAID, Office of Democracy and Governance, Guidance for promoting Judicial Independence and Impartiality- Revised Edition, (2002), available at p.5 Universal Declaration on the Independence of Justice, II,2.02-2.03 The Universal Charter of the Judge, Art.2 Bangalore Principles of Judicial Conduct 2002, 1.1 to supervise the respective court, and the chief judges has duty to report regularly about the business of that court to the representative bodies Among the factors holding judge more liable, disciplinary mechanism and remedial responsibility are those directly influence on judges’ interest And they also contain a lot of problems which cause pressure on judges, whereby the independence of them is threaten.97 Vietnamese judges have to suffer a too complicated disciplinary mechanism and heavy remedial responsibility There are so many unreasonable responsibility of judges without a effective mechanism for them to protect their rights Actually, these measures affect the independence of judges seriously instead of making them liable and independent As mentioned above, responsibility mechanism for Vietnamese judges is built by various measures, but within the delimitation of this thesis, problems concerning disciplinary mechanism and personal remedial responsibility of judges will be focused and deeply analysed 3.4.2 Problems of responsibility mechanism for Vietnamese judges 3.4.2.1 Disciplinary mechanism Discipline is one of the main elements in responsibility mechanism for Vietnamese judges At the moment, there are two kinds of disciplinary measures: professional discipline and civil servant discipline In case a judge is applied professional discipline, he will not be a judge anymore, whilst civil servant discipline is applicable to the judge in the same way that they would apply to an ordinary whitecollar civil servant Professional discipline Professional discipline for judges is a particular type of discipline which is applied when a judge does not deserve the title “judge” any more The form of professional discipline for judge is removal form office This is the only professional discipline for judges not only in Vietnam but also in other countries, and it is also provided in the international instrument However, it is very important to define in what cases a judge will be removed from his office and the person who has power to apply removal discipline According to article 30 of the 2002 Ordinance of Judges and Jurors and Part IV of the Inter-Circular No.01/2003/TTLT-TANDTC-BQP-BNVUBTWMTTQVN dated on April 2003 of the Supreme People’s Court, Ministry of National Defence, Central Committee of Vietnam’s Fatherland Front, depending on 97 Lê Cảm, Những vấn đề chủ yếu công cải cách tư pháp giai đoạn xây dựng Nhà nước pháp quyền Việt Nam ( Main issues of judicial reform in the stage of building State of law in Vietnam), People’s Court Magazine Vol (2006), pp.2-14 45 the characteristics and degree of violation, Judges shall be removed from office in any of the following cases: - Transgressions in adjudicating the cases assigned - Violating the provisions of Article 15 of the Ordinance on Judges and Assessors of the People’s Courts - If disciplined in the form of removal from a managerial office in accordance with the laws on public servants and officials - Breaching moral standards - Other violations of law Thus, there are various circumstances which may lead judges to be applied this disciplinary, some of them are clear and precise whilst the others are general and vague, for example, it is very difficult to clarify how “breaching moral standards” or “other violations of law” should be understood since no official instrument relating such circumstances have been made Additionally, Vietnamese judges have no rules of conduct or ethical rules at the moment (though some seminars about the matter of professionally ethical rules for judges have been held recently) Therefore, the grounds for the professional discipline consideration are not concrete Consequently, disciplinary decision depends on the subjective opinions of the persons who have the power to apply discipline About the disciplinary procedure, Supreme People’s Court chief judge has the power to nominate judge who may be applied discipline and to make decision of applicable discipline for provincial judges and district judges according to nomination of provincial court’s chief judge The procedure to apply discipline are the same the appointment process, therefore, the Supreme People’s Court chief judge and the provincial chief judge dominate it again This practice shows that the power of the heads in applicable disciplinary process is really the potential threat on the independence of judge Hence, the purpose of the provisions on responsibility of judges is to make them more liable for their judicial duties, whereby the fair judgments or decision are made, however, the vague substance of such provisions backfire the original purpose and influence the individual independence of them Concerning the complaining process for professional discipline, the fact is there is no provision in the 2002 Ordinance on Judges and Jurors regulates this The lack of such provisions is unfair for disciplined judges, especially when the applicable disciplinary decision appears partial In other words, according to current law, there is no way for judges to complain about the application of professional discipline – removal from office Judges cannot follow the complaining procedure of civil servant discipline because professional discipline is regulated by the law on judges and jurors but the law on civil servant discipline Besides, the procedure of 46 professional discipline is quite different from that of civil servant discipline Therefore, it is impossible to apply the latter for judges in complaining process Civil servant discipline Vietnamese judges also considered civil servants according to the 1998 Ordinance on civil servants and cadres So, all the legal provisions on civil servants and cadres are, therefore, applied to judges including disciplinary provisions A civil servant as well as cadre may be applied one of the following disciplinary measures: warning, reprimand, salary cut, transfer to a lower rank, demotion, dismissal The procedure to apply such measures are regulated in the Decree No.35/2005/NĐ-CP dated on 17/3/2005 about disciplinary application for civil servants and cadres However, this decree focus on the procedure applied for administrative civil servants, there is no specific guidance for the one applied for judges whilst judges are not administrative civil servants Similar to the professional discipline, the process to apply civil servant discipline for judges is unclear In reality, the process applied for judges is carried out in the same way as that of civil servants in general The provincial court chief has the power to apply discipline for provincial and district judges, the Supreme People’s Court chief judge has the power to decide for Supreme people’s Court judges It is compulsory to have the consent of a disciplinary board The composition of this board includes three members: the chief judge, one staff of the court who is elected by the whole officers of the court, and one representative from the labour union of the court where the judge concerned works Nevertheless, this board has no real power, their role is considered advisory council for the chief judge who control the process of making the final decision totally About the complaining procedure, this is under the administrative procedure And the problem is the person who is competent to deal with the judge’s appeal is the one making the disciplinary decision, namely the Supreme People’s Court chief judge deals with complaint from judges in the same court, provincial court chief judge deals with complaint from provincial and district judges After that, if not satisfied, the judge may appeal to the next higher chief judge The second step is applied for the provincial or district judges only because in case of a Supreme People’s Court judge, there is no higher chief judge The 1998 Ordinance on civil servants, cadres will be replace by the 2008 Law on civil servants, cadres which was just adopted on 13 th November 2008 and will be in force since 1st January 2010 Different from the 1998 Ordinance, the distinction between civil servants and cadres is defined clearer Judges are considered cadres under such distinction, and disciplinary measures for them includes the three following: warning, reprimand, demotion, and dismissal However, the new law still lacks of a transparent procedure to apply discipline, in other word, it is impossible to 47 define how to apply discipline, especially for judges Hence, at least in the next five years, judges must bear two types of discipline as in the current situation No change has been made for judges although a new law was adopted The above reality reflects the current disciplinary mechanism of Vietnamese judges is too complicated and ineffective All the concerned matters are under the grave control of the provincial chief judge and the Supreme People’s Court chief judge There is also lack of concrete complaining procedure That is judges cannot have any effect measure to protect their legal rights when being disciplined Such problems are negative elements influence the independence of judges In comparison with the discipline mechanism of English judge which is very clear and close, for the sake of Vietnamese judges, there are two problems need solving: first, the mechanism of two disciplinary types should be eliminated as soon as possible, and the professional discipline is the most optimal because the substance of judge – as a job- is entirely different from the work of other civil servants and the suitable discipline is the professional one The practice of two disciplinary kinds is too complex and creates more pressures on judges It is strongly recommended to maintain only one type of discipline consisting of the following measures: reprimand, warning, and removal Secondly, an transparent applicable disciplinary procedure must be made in the shortest time, whereby the judges can protect their legitimate rights The procedure should be carry out with the role of a discipline board whose members are really impartial and independent And the selection committee discussed in Chapter is reasonable solution 3.4.2.2 The personal remedial responsibility of judges Vietnam is one of the signatory of the Beijing Statement of Principles of the Independence of the Judiciary Principle 32 of the Beijing Principles states that: Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State in accordance with national laws, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions However, Vietnam’s civil liability provisions appear to be inconsistent with the above Principle 32 Article 37 section of the 2002 Law on Organization of People’s Court and Article of the 2002 Ordinance of judges and Jurors provide: If judges, …while performing their tasks and exercising their powers, cause damage, the courts, where such judges…have performed the adjudicating tasks shall have to pay compensation thereof and the judges … 48 who have caused the damage shall have to refund the courts as provided for by law The above articles , strictly speaking, provide for the civil liability of the courts in which the judge performs his tasks and exercise his powers and not the judge’s personal liability In this regard, as indicated above, Beijing principles 32 permits “compensation by the State” in accordance with the national laws as an exception to the principle of judicial immunity from civil suit However, the article 37 (4) and are not merely concerned with compensation by the State They also state that when the court has compensated the litigant, the judge concerned must reimburse the court This has adverse repercussions for the judge’s personal financial status and, hence, can have an adverse impact on judicial independence And even the 2005 Civil Code contains provision on civil liability: An investigative or judicial body shall be held liable for the damage caused by its authorized official while carrying out an investigation, prosecution, trial, or enforcement of a judgment An investigative of judicial body shall require the official who caused the damage to reimburse the sum it had paid as compensation to the person suffering the damage, if such authorized official committed fault while carrying out the assigned duty (Article 620) The material difference between the Law on Organization of People’s Court, the Ordinance on judges and jurors and the Civil Code is that articles 37 94) and cover al the judges’ work in the performance of their tasks and the exercise of their powers, unlike article 620 of the Civil Code which is limited to the enumerated judges’ “trial” duties Further, by incorporating provisions relating to civil liability for judges in specific ordinances and laws on judges and the courts, such as articles 37 (4) and (rather than merely in a general code such as Civil Code), it is argued that the significance of the principle of civil liability of judges in Vietnam has been enhanced The other material distinction lies in the requirement of fault in the carrying out of the judges’ duties in article 620 , unlike in the Law on Organization and Ordinance on judges and jurors Article 620 is provided in Chapter XXI of the 2005 Civil Code entitled “Liability for Damages Outside Contract” As to compensation for damage outside contracts, there are four conditions must be satisfied, namely actual damage is caused, the act causing damage violates the law, the damage is caused by an unlawful act; and the person causing damage is at fault It should be pointed out that “fault” in the 2005 Civil Code may be “intentional” (that means the person is clearly aware that his act will cause damage) or “unintentional” (that means the person who does not know that his act can cause damage, though he should have or could have known that it can possibly cause damage, or the person know the act can cause damage but believes the damage will not occur or may be prevented) However, 49 concerning to the reimbursement duty of judges, the question is how may this be applied to adjudicatory acts and omissions of Vietnamese judges? One question that arises is whether the Vietnamese judge may be regarded as being at fault if he misapplied the law or misunderstood the facts of the case Could it be said in such a case that the judge “knows” or ought to know that his adjudicatory decision will cause one of the litigants to suffer damage in terms of financial loss? Admittedly, the position is unclear but clarification as to which specific judicial acts should be exempted from the category of “fault” would be a useful starting point for reform In the context of article 620, this does not pose any problems as that article specifically contains a fault requirement Article 620 is, on its face, more limited in scope than articles 37 and which make no mention of fault But the important question which arise is – are article 37 and of the Law on Organization of people’s Court and Ordinance on Judges and Jurors respectively (which are outside the ambit of Civil Code) nonetheless premised upon the general principle of presumption of fault? Or are those articles based on solely on causation of damage? Although this matter is very important in application reimbursement liability for judges, there is no legally concrete ground for it, all the concerned provisions are too general and vague With the civil liability provided in the 2002 Law on Organization of People’s Court and the 2002 Ordinance on Judges and Jurors, Vietnamese judges face the prospect of a lawsuit by the litigants and they would likely act with lack of personal independence in adjudicating This is particularly true where a broad literal reading of the civil liability provisions in the Law on Organization of People’s Court and Ordinance on Judges and Jurors are adopted, without recourse to any fault requirement Even where the fault requirement approach is adopted, it is at present uncertain how this fault requirement will be applied to adjudicatory acts and omissions (such as honest errors in interpreting the law and the facts) From the perspective of the judge’s psychology, the civil liability of judges may encourage greater care and accuracy in judicial pronouncements On this point concerning the judges’ psychology, Vietnamese judges are already subject to disciplinary and penal sanctions in respect of violations relating to adjudicatory acts The relevant question is – what additional impact the civil liability provisions have on judicial independence? In this regard, it maybe argued that the civil liability provisions in the Law on Organization of People’s Court and Ordinance of Judges and Jurors appear wider in scope than the disciplinary and penal provisions in those instruments They may thus constitute an additional preventive measure or obstacle against judicial acts causing damage.98 98 Nguyễn Đình Hòa, Mấy vấn đề 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 50 Nevertheless, the effect of civil liability has been negatively beyond the purpose of the legislators The vague provisions of civil liability have put the judges under the pressures of being sued and compensating for damage And this situation is one of the reasons lead judges to the practice of seeking opinions from senior judges or their superiors before deciding on the case before them In Vietnam, at the moment, the practice of “reporting during adjudication” (“báo cáo án”, “duyệt án”) seems compulsory in all courts.99 This practice is considered duty of judges which requires judges to report the progress of adjudicating a case and proposed decision for that case to the superiors, usually the chief judge and his deputies If those judges need advisory, the superiors may give their opinions However, the complicated and heavy remedial responsibility mechanism has rendered judges to abuse this practice to reduce their responsibility.100 Judges must be personally accountable for their judgments, but should their decisions be supported by the judicial bossed before pronounced their responsibility will not so heavy because the decisions are made under “directions of superiors” Especially, when the Resolution No.388 of the National Assembly’s Standing Committee about the remedial responsibility for wrong acts or judgments in criminal procedure was issued on 17 th March 2003, the practice of “reporting during adjudicating” has become more and more popular as this is a good measure for judges to get rid of their responsibility This also creates more chances for judicial bosses’ interference in adjudicating As discussed above, the current provisions impose remedial responsibility on judges, and such provisions have made judges more dependent on their bosses This dependence becomes much more serious when the persons who have the power to decide the amount and time for reimbursement are the chief judges Apparently, such mechanism is very harmful to judges’ independence Moreover, another objective of reimbursement is recover the remedial money for the state budget The problem is how judges can compensate with the monthly average salaries is about 2.000.000VND while the remedial money is usually a big one, even hundreds of million or billion of VND Obviously, the purpose of reimbursement can not be achieved Hence, this responsibility mechanism itself reveals unreasonable substance 99 Nguyễn Đăng Dung, Trọng tâm cải cách tư pháp làm cho ngun tắc tòa án độc lập có hiệu lực 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 (2007), pp.23-25 100 (Unknown author), 35 thẩm phán bị kỷ luật, truy cứu trách nhiệm hình (35 judges was disciplined, prosecuted criminal liability), 5/03/2008, available at accessed on March 28th 2008 51 In short, the best solution for the personal remedial responsibility of Vietnamese judges is eliminate it as soon as possible Such responsible mechanism possesses the sole effect which violate the judges’ independence Judges conduct their judicial function on behalf of the State, therefore it is reasonable for the State’s remedial responsibility but not the judges’ The judges should be applied only the professional disciplinary mechanism Conclusion The 1948 Universal Declaration of Human Rights clearly provides that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.101The independent judges play vital role to guarantee this basic right In Vietnam, the importance of judges’ independence is recognized in the aim of the judicial reforms Resolution No.08 and Resolution No 49 issued by the Bureau of Politics The current practice in Vietnam shows that judges have been facing so many threats on their independence The complicated and unreasonable responsibility mechanism is one of the main reason causing that situation Although within the delimitation of the master thesis, it is impossible to cover all the threats on independence of judges as well as problems of responsibility mechanism, those problems analysed in the two chapters are considered main causes for the current situation It is strongly recommended that such problems should be settled as soon as possible for improving the quality of adjudicatory activities Unless the problems mentioned are settled at the same time, carrying out each problem separately may cause negative influence on independence of judges 101 The 1948 Universal Declaration of Human Rights, Article 10 52 Table of Statutes and other Legal Instruments International Treaties and Conventions Bangalore Principles of Judicial Conduct The Beijing Statement on Principles of the Independence of the Judiciary in the LAWASIA Region The European Convention for Protection of Human Rights and Fundamental Freedom The International Bar Association’s Code of Minimum Standards of Judicial Independence The Tokyo Principles on Judicial Independence of the Judiciary in the LAWASIA Region The Universal Charter of the Judge The United Nations’ Universal Declaration of Human Rights United Nations’ Basic Principles on the Independence of the Judiciary National Legislations The United Kingdom Act of Settlement 1701 Constitutional Reform Act 2005 Courts Act 1971 Courts and Legal Services Act 1990 Protocol on Judicial Discipline (2007) The Judicial Discipline (Described Procedures) Regulations 2006 The Supreme Court Act 1981 Vietnam Constitution 1946 Constitution 1959 Constitution 1980 Constitution 1992 Civil Code of Vietnam 2005 Criminal Code of Vietnam 1999 53 Decree No.35/2005/NĐ-CP dated on March 17th 2005 of Government on disciplining civil servants, cadres Inter-Circular No.01/2003/TTLT-TANDTC-BQP-BNV-UBTWMTTQVN dated on `April 1st 2003 of the Supreme People’s Court, Ministry of National Defence, Central Committee of Vietnam’s Fatherland Front guiding on the Ordinance on Judges and Jurors of the People’s Courts Law on the Organization of the People’s Courts 1960 Law on the Organization of the People’s Courts 1981 Law on the Organization of the People’s Courts 2002 Law on Civil Servants, Cadres 2008 Order No.13 dated on January 24th 1946 on the organization of the court system and scales of judges Ordinance on Judges and Jurors of People’s Courts 2002 Ordinance on Civil Servants, Cadres 1998 Ordinance No.11/2003/PL-UBTVQH11 dated on April 29th 2003 of the National Assembly’s Standing Committee amending the Ordinance on Civil Servants, Cadres Ordinance on Procedures for Resolving Administrative Cases 1996 Ordinance No.10/1998/PL-UBTVQH10 dated on December 25th 1998 of the National Assembly’s Standing Committee amending the Ordinance on Procedures for Resolving Administrative Cases Ordinance No.29/2006/PL-UBTVQH11 dated on April 5th 2006 amending the Ordinance on Procedures for Resolving Administrative Cases Resolution No.388/2003/NQ-UBTVQH11 dated on March 17th 2003of the National Assembly’s Standing Committee on remedy for persons wrongfully punished by competent persons in criminal procedures Resolution No.08/NQ-TW dated on January 2nd 2002 of Political Bureau on several central tasks concerning law enforcement in the coming time Resolution No.49/NQ-TW dated on June 2nd 2005 of political Bureau on Judicial Reform Strategy in 2020 54 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(2002), available at International Commission of Jurists, International Principles on the Independence and Accountability of Judges, Lawyers, and Prosecutors – A Practitioners’ Guide, Switzerland, (2004), available at The World Bank, Comprehensive Legal and Judicial Development – Toward an Agenda for a Just and Equitable Society in the 21st Century, edited by Rudoy V.Van Puymbroeck, Washington 2001, available at In Vietnamese Supreme People’s Court, Annual Report 2007, (Internal Document) 55 Books and Monographs In English Darbyshire, Penny, Eddey on the English legal system, 6th ed., Sweet&Maxwell, Lodon 1996 Gillespie, Alisdair A., The English Legal System, Oxford University Press, Oxford 2007 Leach, Robert & Coxal, Bill & Robins, Lynton, British Politics, Palgrave Macmillan Press, China 2006 Russell, Petter & O’Brien, David M., “Judicial Independence in the Age of Democracy”, University Press of Virginia, Virginia 2001 Rivlin, Geoffrey, Understanding the law, 4th ed., Oxford University Press, Oxford 2006 Shetreet, Shimon & Deschênes, Jules “Judicial Independence – The Contemporary Debate”, Martinus Nijhoff, 1985 Slapper, Gary & Kelly, David, Principles of the English Legal System, 3rd ed., Cavendish Publishing Limited, London 1997 Thomas, E.W, The Judicial Process – Realism, Pragmatism, Practical Reasonings & Principles, Cambridge University Press, Cambridge 2006 To Van Hoa, Judicial Independence: A Legal Research on its Theoretical Aspects, Practices from Germany, The United States of America, France , Vietnam and Recommendations for Vietnam, Juristforlaget i Lund, Lund 2006 In Vietnamese Bogdan, Michael, Comparative Law, CE Fritzes, Goteborg 1994, translated into Vietnamese by Le Hong Hanh & Duong Thi Hien (unknown publisher) Supreme People’s Court, Handbook for Judges, (Internal Document), Hanoi 2006 (unknown publisher) Articles in Journals, Anthologies etc In English Beatson, Jack, Judicial Independence and Accountability: Pressure and Opportunities, Nottingham Trent University (04/2008), available at Burbank, Stephen B., “The Architecture of Judicial Independence”, 72 S.Cal.L.Rev (1998-1999) 315 Chan, Gary, Judicial Immunity and Independence of Vietnamese Judges – Reflections on the Ordinance on Judges and Jurors and the Law on the Organization of the People’s Courts, Australian Journal of Asian Law, Vol (2005) 143, pp.143-168 56 Department for Constitutional Affairs, You be the Judge – Career Opportunities in the Judiciary in England and Wales, 10/2005, available at accessed on November 12th 2008 Department for Consitutional Affairs, Judicial Salary Structure and Salaries 20072008, available at< http://www.dca.gov.uk/judicial/2004salfr.htm#part2> Lubet, Steven, Judicial Discipline and Judicial Independence, available at , accessed on November 12th 2008 Straw, Jack, The Governance of Britain – Judicial Appointments, 10/2007, available at Shingh, M.P, Securing the Independence of the Judiciary: the Indian Experience, Indiana International & Comparative Law Review (1999-2000) 245 The Accountability of the Judiciary, available on accessed on October 12th 2008 Tsaoussi, Aspasia & Zervogianni, Eleni, Judges as Satisficers – A Law and Economics Perspectives on Judicial Liability, (Presentation at the 24th Conference of the European Association of Law and Economics held in Copenhagen – 09/2007), available at Quinn, Brian J.M, Vietnam’s Continuing Legal Reform: Gaining Control Over the Courts, Asian Pacific Law and Policy Journal Vol 4(2003), pp.432-466 Wilson, Calvin T., Judicial Immunity – To be or not to be, Howard Law Journal Vol 25 (1982) 809 Woodhouse, Diana, United Kingdom – The Constitutional Reform Act 2005 – Defending Judicial Independence the English way, Oxford Journal Vol (2007), pp 153-165 In Vietnameses Bảo Thắng, Phía sau án bị hủy (Behind abolished judments), 28/12/2007, available at Đào Xuân Tiến, Đào tạo thẩm phán (Training Judges), Legislative Study Magazine Vol 10 (2002), pp.7-9 Đỗ Gia Thư, Thực trạng đội ngũ thẩm phán nước ta – Những nguyên nhân học kinh nghiệm từ trình xây dựng (Critical facts about judges in our country – Reasons and lessons from the history), People’s Court Magazine Vol (2004), pp.5-11 Đỗ Gia Thư, Yêu cầu nhiệm vụ ngành tòa án quan điểm xây dựng đội ngũ thẩm phán giai đoạn (Duties of Courts and point of view in training judges in the new stage), People’s Court Magazine Vol 13 (2004), pp.2-8 Đức Minh, Tổng kết ngành tòa án 2007: Vẫn lo chuyện nhân (Staff – problem of the judiciary in 2007), 30/1/2008, available at , accessed on April 30th 2008 Huy Nam, Đảm bảo nguyên tắc độc lập xét xử tòa án (Ensuring the principle of independence of court), 12/09/2006, available at< http://www.vovnews.vn/?page= 109&nid=22229 >accessed on June 30th 2008 Lê Cảm, Những vấn đề chủ yếu công cải cách tư pháp giai đoạn xây dựng Nhà nước pháp quyền Việt Nam ( Main issues of judicial reform in the stage of building State of law in Vietnam), People’s Court Magazine Vol (2006), pp.214 Lưu Tiến Dũng, Độc lập xét xử nước q độ: Một góc nhìn so sánh (Judicial independence in transitional countries: A comparative Perspective), People’s Court Magazine Vol 20 (2006), pp.14, Vol 21 (2006), pp.12-19 Maison Du Droit Vietnamo – Francaise, Kỷ yếu Tọa đàm “Quy chế độc lập chế trách nhiệm thẩm phán” (Summary Record of Seminar “Independence and Responsibility Mechanism of Judges”), Hanoi 09/2004 Nguyễn Đăng Dung, Trọng tâm cải cách tư pháp làm cho nguyên tắc tòa án độc lập có hiệu lực 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 (2007), pp.23-25 Nguyễn Minh Tuấn, Vai trò thẩm phán trươc yêu cầu cải cách tư pháp (The role of Judges to the requirement of judicial reform), Legislative Study Magazine Vol (2003), pp.32-37 Nguyễn Đình Hòa, Mấy vấn đề 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 Nguyễn Thị Ánh Vân, Cải cách tư pháp Anh ý kiến cải cách tư pháp Việt Nam thời gian tới (Judicial reform in the United Kingdom and recommendations for judicial reform in Vietnam in the coming time), Law Journal Vol (2007), pp.60-68 Phạm Quý Tỵ, Đổi tổ chức hoạt động tòa án nhân dân (Renew organization and operation of people’s courts), 21/03/2006, available at accessed on October 1st 2008 Summary Record of Seminar “Independence of trial in Vietnam”, Hochiminh City 08/2008 Thu Hà, Thẩm phán khó cãi lời người bổ nhiệm (It is very hard for judges to not obey the person who has competent to appoint them), 04/05/2008, available at accessed on June 1st 2008 Wallace, J Clifford, Khắc phục tham nhũng tư pháp phải đảm bảo độc lập tư pháp (Reducing judicial corruption in the condition of ensuring judicial independence), People’s Courts Magazine Vol (2006), pp.40-46 58 (Unknown author), Tư pháp không độc lập tất dẫn đến oan sai nhiều (Lack of judicial independence causes wrongful decisions), available at accessed on September 1st 2008 (Unknown author), 35 thẩm phán bị kỷ luật, truy cứu trách nhiệm hình (35 judges was disciplined, prosecuted criminal liability), 5/03/2008, available at accessed on March 28th 2008 (Unknown author), Án bỏ túi – Còn hay khơng? (Does the “pocket cases” still exist?), 15/04/2007, available at ... This change proves that the independence is focused rather than the impartiality and institutional independence is of more interest than individual independence It also might be alleged that the... procedures of removal, a transparent and impartial appointment system, and having no pressure of reappointment, the individual independence of English judges are much more ensured than that of their counterparts... 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
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