Legal institutions

In connection with the process of making, interpreting and applying the law, the main legal institutions are the National Assembly as the legislature, the Gov­ernment as the executive and the People's Courts as the judiciary.

4.1 NationalAssembly

The National Assembly is the supreme legislative body of Vietnam. It is set up under the Constitution and the Law on the Organisation of the NationalAssembly of2001 (amended in 2007). Vested with �supreme state authority', it is the only body with constitutional and Law-making powers. It is the depositary of all state powers and is the primary source from which the powers of other branches of the state derive.

In its current term (Legislature XII), the National Assembly comprises 493 elected delegates, representing 63 cities and provinces. It is headed by a Chair­man and four Deputy Chairs. Most National Assembly delegates hold full-time positions in their respective constituencies and only come to Hanoi for two sessions in a year, each session lasting about a month. During these sessions, National Assembly delegates listen to submissions and reports of members of the Government. They hold debates on draft Laws, pass Laws, and debate and pass Resolutions by majority votes on specific issues and policies of national importance. In recent years, the National Assembly has developed the practice of holding questioning sessions in which members of the Government must answer questions posed by National Assembly delegates.

The workload of the National Assembly has also increased significantly in the past 10 years. Up to about 2002, in each session, the National Assembly was reviewing and passing only a small number of Laws, usually limited to four or five. By 2009, in each session, the National Assembly was reviewing about 10 to 15 draft Laws (first reading) and passed 10 to 15 other Laws, plus a few Resolutions on specific issues. With such an increased workload, the increasing complexity of the Laws and the limited time in each session, National Assembly delegates may soon find themselves under severe constraints in the law-making process.

The National Assembly delegates are assisted by a full-time apparatus consist­ing of a number of specialised committees, including the Law Committee and the Judicial Committee. The Law Committee and the Judicial Committee are both responsible for reviewing draft Laws, making comments, requiring revisions, reports and other necessary information before the entire package of the Law project is tabled before National Assembly delegates. Whether a particular draft Law is to be reviewed by the Judicial Committee or the Law Committee depends on the delegation of the National Assembly on a case-by-case basis. As a rule of thumb, Laws covering commercial and litigation issues are allocated to the Judicial Committee while Laws concerning administrative matters are for the Law Committee.

The Standing Committee is a full-time section of the NationalAssembly, which currently comprises 18 members, assisted by a full-time apparatus in the office of the National Assembly.

• pass Ordinances on matters for which a Law is not possible to be passed by the National Assembly

• prepare for sessions of the National Assembly, including reviewing and commenting on draft Laws

• acting, while the National Assembly is not in session, on matters such as the appointment of Deputy Prime Ministers, Ministers and other members of the Government, and declaration of war.

In addition, the Standing Committee also has the function of making inter­pretations of Laws and Ordinances, organising referenda and repealing legal instruments that are inconsistent with Ordinances of the Standing Committee. However, these functions are hardly exercised in practice.

4.2 The Government

As the legislature, the National Assembly often delegates a major part of its Law-making authority to the Government by requiring the Government to pass Decrees to provide details for the implementation of the Laws passed by the National Assembly. As mentioned above, the sources of Vietnamese law include a large number of Decrees, Circulars and Decisions issued by the Government, Ministries, Ministers and other bodies of the Government.

The Government is the executive arm of the state apparatus, responsible for executing the legal instruments enacted by the legislature, being the National Assembly and the Standing Committee. The Government is accountable to the National Assembly.^[478] The Government is set up and operates under Cap VIII of the Constitution and the Law on the Organisation ofthe Government of2001.

The Government currently comprises the Prime Minister, five Deputy Prime Ministers and 22 Ministers heading 22 different Ministries, such as the Ministry of Justice, the Ministry of Planning and Investment, the Ministry of Finance, and the Ministry of Industry and Trade. Apart from the Prime Minister, all other members of the Government do not need to be National Assembly delegates, although in practice they often are.

The working procedures of the Government have also not changed much over time. The Government holds monthly meetings to pass Decrees and Resolutions on specific issues within its jurisdiction. The Constitution vests in the Government executive powers with respect to all issues of the country, ranging from national defence to finance, and from the economy to cultural development. The Govern­ment is also responsible for signing treaties in the name of the Government.

However, there have been some important changes in the way the Government makes its decisions. The Law on the Organisation of the Government of 2001 requires the Government to discuss collectively and make decisions by a simple majority vote on �important’issues.^[479] Over 10 years ago, the Government decided in a Decree that the Prime Minister was authorised to make decisions on issues that are not �important’.^[480] Obviously, the distinction between �important’ and �unimportant’ matters was not easily made, leading to lack of clarity over the respective powers of the collective Government and the Prime Minister. For this reason, in 2003 the Government passed another Decree to require that the Government must discuss collectively and make decisions on all matters within its jurisdiction.^[481] Under this Decree, the Prime Minister can only make decisions that are specifically delegated to him or her by the Government on a case-by-case basis.^[482] This Decree therefore curtails the powers of the Prime Minister quite significantly, at least in theory, compared to the period prior to 2003.

As the executive, the Government and its Ministries implement the laws and hence they deal directly with the people in practice. While Laws issued by the National Assembly are often the highest legal instruments on relevant areas, it is often the implementing Decrees of the Government and implementing Circulars of Ministries that people refer to most frequently. Where an issue is unclear, citizens will make enquiries with Government officials and obtain a verbal or written response. It is often this response, in the form of �official letters’, that counts and effectively becomes the law, in the absence of other mechanisms. As indicated above, this may result in conflicting official letters from different Ministries on the same subject matter. Recommendations have been made for the Ministry of Justice to act as the �one-stop shop’ for all queries from citizens on legal issues in order to ensure consistency and uniformity. However, it currently seems difficult for the Ministry of Justice to assume this function, given its limited powers and resources and the potential delay itwould cause for citizens to obtain a response.

There have also been significant changes over the past two and a half decades in the way the Government, its Ministries and Departments operate. In this infor­mation age, the Vietnamese Government has implemented the E-Government initiative and now most Government bodies have websites with useful informa­tion, frequently asked questions, contacts and even hotline telephone numbers for urgent queries. As an example, while it was a lengthy process in the past to set up a company, it is now possible to set up a company over the internet within several days. Government officials use email addresses to receive documents from, and exchange views with, citizens. While meetings between Government officials and foreigners invariably had to be conducted via translations 10 years ago, many meetings now are held directly in English and documents are pre­pared in English.

4.3 People’s Courts

The system of People's Courts forms the judicial arm of the state of Vietnam. It comprises the Supreme People's Court as the highest court with about 100judges, 63 Provincial People's Courts in 63 cities and provinces with about 1000 judges and about 700 District People's Courts with about 3000 judges. In addition, there are military courts in charge of military matters, plus any special courts to be created by the National Assembly from time to time. It was reported by the Judicial Academy that the Vietnamese court system would need about 7000 judges by2010.¹8

The highest court, the Supreme People's Court, has appellate, retrial^{[483] [484] and cassation[485] jurisdictions over matters tried by lower courts, including Provin­cial People's Courts and, less frequently, decisions of District People's Courts. Similarly, the Provincial People's Courts have appellate, retrial and cassation jurisdictions over decisions tried by District People's Courts. The right of appeal is a fundamental right in the Vietnamese court system. Only the District Peo­ple's Courts and the Provincial People's Courts have original jurisdiction to try matters, leaving the Supreme People's Courts to have only appellate jurisdiction over matters tried by the courts below.}

Judges in the Supreme People's Court are assigned to three Courts of Appeal, in Hanoi, Ho Chi Minh City and Da Nang, as well as five specialised divisions - the Economic Court, the Civil Court, the Criminal Court, the Labour Court and the Administrative Court. The Judges' Council is the highest judicial body in the Supreme People's Court and exercises the cassation jurisdiction. It includes no more than 17 members, including the Chief Justice, the Deputy Chief Justices and other judges selected by the Chief Justice and approved by the Standing Committee of the National Assembly.²¹

The structure of each Provincial People's Court is rather similar to that of the Supreme Court in that judges, headed by the Chief Judge, are also assigned to five specialised divisions as above, with the Judges' Committee being the highest judicial body with cassation jurisdiction. The number of judges for each Provincial People's Courtvaries. In 2009 Hanoi City People's Court had 50 judges while Ho Chi Minh City People's Court had about 80 judges. In addition, each Provincial People's Courts also has a list of jurors (also referred to as assessors) to sit with judges in trials.

At the district level, District People's Courts comprises the Chief Judge, Deputy Chief Judges, other judges, jurors and the support staff. The judges are not assigned to different divisions as at higher levels. Nevertheless, in practice, each individual judge is often responsible for a special list such as economic, civil or criminal.

Judges in all courts are appointed only for a limited period of five years and there is no guarantee of reappointment. The Chief Justice of the Supreme People's Court is appointed by the National Assembly. Other judges in the Supreme People's Court are appointed by the President on the recommendation of a selection committee whose membership is approved by the Standing Committee of the National Assembly. The Committee is headed by the Chief Justice and includes members from the Ministry of National Defence, the Ministry of Interior, the Vietnam Fatherland Front²² and the Vietnam Lawyers' Association. Judges of Provincial and District People's Courts are all appointed by the Chief Justice of the Supreme People's Court in consultation with the local People's Council and on the recommendation of a selection committee whose membership is approved by the Chief Justice of the Supreme People's Court. This committee is headed by the Chairman of the provincial People's Council and includes the Chief Judge of the Provincial People's Court, the Vietnam Fatherland Front and the provincial branch of the Vietnam Lawyers' Association.

Judges and jurors play a pivotal role in the judicial process. Judges are law graduates who receive additional judicial training provided by the Judi­cial Academy and have had some work experience in the court system. On the other hand, jurors are laypersons who are elected by the local People's Council, also for a term of five years. Each trial court usually comprises one judge and two jurors. The court then makes its decision by a majority vote, which means that the judge can be outvoted by the jurors. If there is an appeal against the decision, the Court of Appeal will comprise three judges and no jurors.

The Vietnamese court system is in need of major reforms in many respects. The courts are always overloaded and, consequently, it takes a long time to dispose of cases. It is not unusual for a matter to take from one to two years to be tried. If the trial decision is appealed against, then another few years may be needed before

21 Law on the Organisation of the People’s Courts of2002, art 21.

22 This is a socio-political organisation, mostly led by the Communist Party. the matter is finally resolved. Each year, the entire number of cases lodged in all the courts is approximately 100 000. This number was, for example, 108 060 in 2007. In the same year, the Hanoi City People's Court received about 9000 cases while the Ho Chi Minh City People's Court received about 10 000 cases. Each judge in the economic court of Hanoi City People's Court would hear about 30 cases per year while each judge in Ho Chi Minh City would have to hear about 50 cases per year.²³

But heavy workload is not the only problem for Vietnamese judges. Lack of training, experience, expertise and even independence and impartiality are other problems that Vietnamese judges have to face. A lack of judicial staff has reportedly led to inexperienced and even incapable judges being appointed.²⁴ Judges often do not have sufficient training in resolving complex commercial matters, especially those involving international parties.²⁵ Judgments are typ­ically not well reasoned, often making decisions appear to be questionable on legal grounds. Furthermore, judges are only appointed for five years and there is no guarantee of reappointment. They are also not well paid. The average salary of judges in Vietnam is about US$300 per month, which is less than the start­ing salary of a law graduate in a medium-sized law firm. This background has led to other problems in the court system, including events of corruption being reported in the press from time to time.²⁶

Finally, it is necessary to mention that there has been a history of poor enforce­ment of courtjudgments inVietnam. The rate of enforcement has often been quite low. However, in the past two years the Ministry of Justice has been active in improving this situation. With the recent establishment of the General Depart­ment for Enforcement of Civil Judgments, it is hoped that court judgments will have a much better chance of being enforced in the near future. In fact, it has been reported that in 2009, 77 per cent of court judgments were enforced, which shows a very positive development.²⁷

4.4 The President

The President is the official head of state. In the law-making process, he or she merely performs a ceremonial role of promulgating Laws passed by the National

23 These statistics are provided at Ho Chi Minh City People's Courts.

24 For example, according to Phap Luat Online, some judges are unable to dispose of cases effi­ciently due to their lack of knowledge and experience. See Phapluat Journal of Law.

25 �Judge Integration Challenge' (2006) VnMedia.

26 On 22 January 2009 a District Court judge in Hanoi was sentenced to 15 years' imprisonment for having received bribes. See Hoang Khue, �Judges Take Bribes, Penalty 15 Years' Imprisonment' (2009) VNExpress. On 25 September 2006 a judge in Binh Duong was sentenced to two years in prison for receiving bribes. See �Judges “Food” Bribery Penalty 2 Years Imprisonment' (2006) Tuoi Tre Online.

27 Press conference held by the Ministry of Justice on 19 November 2009, reported in �Execution of Civil Judgments Exceed Target' (2009) Xalo Tin Tuc.

Assembly. More importantly, the President is responsible for negotiating and concluding treaties in the name of the state and ratifying other treaties, except where approval of the National Assembly is required.

The President also has some substantive powers, such as acting as the Commander-General of the military forces; recommending to the National Assembly candidates for the positions of Prime Minister, Chief Justice and Chief Procurator; and appointingjudges of the Supreme Court.

In reality, the President also has strong powers as he or she is a member of the Politburo (see further below).

4.5 Theprocuracy

The procuracy has the main function of conducting criminal prosecution and ensuring law compliance by all state authorities and citizens. Apart from com­menting on draft laws, itusuallydoes nothave a significant role in the law-making process.

4.6 Local government

The state apparatus at the central level is mirrored at the local level. Each province or city is administered by a provincial People's Council, an elected body similar to the National Assembly, and the People's Committee, the executive body similar to the central Government. Each provincial People's Committee also has a number of departments matching the Ministries at the central level, such as the Department of Justice and the Department of Planning and Investment. These departments are responsible for state control over their respective sectors in the province or city. The same structure is repeated at the district level and the commune level. In each district or commune, there is a district or commune People's Council and a People's Committee. The only difference is that a district or commune People's Committee will not have different departments responsible for different sectors as at the provincial level. They simply have officers dedicated to each area of responsibility.

While the People's Councils technically have a law-making role in passing Resolutions, most regulations at the local level are passed by the People's Com­mittees in the form of Decisions.

4.7 CommunistParty

Last but not least, we must mention the role of the Communist Party. Though not a legal institution, the Communist Party plays a fundamental role, in fact the most important role, in the Vietnamese society and legal system. Under art 4 of the Constitution, the Communist Party is the leader of the state and the society. An overwhelming majority of the National Assembly delegates, Government officials and judges are members of the Communist Party. As Party members must naturally follow instructions from the Party, the Communist Party, which is led by the Politburo, has significant powers over all issues in the country, including law and the law-making processes.

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