The Juridification of Cause Advocacy in Socialist Asia: Vietnam as a Case Study, John Gillespie
Although commercial lawyers are often assumed to be apolitical, some of them also fight for legal and political reforms. This is especially the case for developing countries in which there is not a high degree of specialization in the legal professions.
In such cases, prominent lawyers often wear multiple hats - they are key actors in commercial cases but also advocate for reforms of the legal system. It is also not uncommon for commercial lawyers to shift their practice toward public interest law or human rights at a later stage of their careers. John Gillespie’s case study of cause advocacy in Vietnam tells the story of Le Cong Dinh, one of Vietnam’s most successful commercial lawyers who was later charged and sentenced because of his criminal defense work on constitutional issues. It is a telling example of the political side of lawyers' commercial practice.In many post-colonial Asian societies law is the language of the state, and lawyers actively construct this language and police its boundaries. Socialist Asia has a different legal history. Engineers, rather than lawyers built the state. There were no lawyer revolutionaries like Gandhi to inspire future generÂations of cause advocates and no memory of courts protecting civil rights to guide them. Socialist revolutionaries not only expelled the colonial regime, but also colonial legalism. They discredited colonial notions such as private rights and independent courts to clear space for Leninist organizational structures that subordinated the legal system to the Communist Party. This article argues that despite decades of legal reform, the socialist legacy conÂtinues to mediate the way cause advocates use the law in SocialistAsia. [...]
Given the tight state management of lawyers, it is surprising that public interest litigation occasionally surfaces in Vietnamese courts.
Interviews reveal a complex range of reasons why lawyers take on social causes. Although all the lawyers interviewed believed that the law should protect the poor and vulnerÂable, they expressed wildly different views about who are the poor and vulnerable and how to use courts to protect them.A. Classifying Cause Lawyers
It is possible to position cause lawyers along a continuum with those advocatÂing hoan thien (improving) the legal system at one end and those promoting cai cach (reforming) the legal system at the other. Hoan thien implies small incremental and technical changes to the legal system while cai cach presents a more radical challenge, especially to socialist legality. Naturally, there is considerable overlap between these approaches.
Hoan thien entails some form of engagement with state officials to make the existing system, including socialist legality, work more efficiently. In an economy dominated by state-owned and -controlled firms, many prominent commercial lawyers owe their success to personal relationships with the party and state officials. Not only are they reluctant to promote causes that might embarrass the party, they do not want to promote rights-based discourse that might disrupt lucrative personal networks by shedding light on the porous legal boundaries between state and society. Lawyers from this group occasionÂally accept politically sensitive criminal cases, but are careful to base their arguments on procedural issues that avoid challenging party narratives. In
255 short, they advocate incremental improvements to procedural justice rather than state protection of civil rights-substantive justice.
Support for cai each (reforms) comes primarily from foreign law firms and a handful of domestic law firms that work with international donors on law reform programs. Foreign law firms want private legal rights to disrupt the state-supported relational networks that regulate domestic commerce, but they are more interested in property rights than civil rights.
What unifies the domestic lawyers who promote cai cach reforms is a desire for the law and legal institutions to check party-state prerogative powers. They push the boundaries of party-state narratives by arguing that nha nuoc phap quyen doctrines should entirely displace socialist legality. Although sceptical about the willingness of party leaders to move in this direction, some members of the group work with reform-minded state officials to secure a lawÂbased state.
A much smaller subgroup of cai each lawyers believe that the party-state has no intention of abandoning socialist legality and placing the party and state under legal rule. For them, confrontation and protest are the only ways to highlight shortcomings in the legal system and pressure the party-state to protect civil rights. It is estimated that there are fewer than twenty lawyers comprising this subgroup at any one time.
B. Le Cong Dinh: Case Study
Le Cong Dinh exemplifies the confrontational cause lawyers. For a time, he was considered one of Vietnam's most successful commercial lawyers. Dinh rose to national prominence by defending Vietnamese catfish exporters in 2002 against anti-dumping actions brought by United States producers. His commercial law firm represented prestigious foreign companies such as Yahoo!, Sun Wah International, Nestle, and Toyota.
Dinh fulfilled the state ideal that lawyers should work to build the economy and promote state socio-economic policies. He cooperated closely with the Ministry of Justice in preparing an industry plan to develop a globally comÂpetitive legal profession in Vietnam and worked to protect Vietnamese comÂmercial interests against foreign competitors. Eventually, the government rewarded Dinh by appointing him as the Vice Chairman of the Ho Chi Minh City Bar Association.
Dinh's commercial practice brought him into contact with foreign lawyers and academics, and through these connections he gradually developed an interest in civil rights and defending Vietnamese dissidents.
Most significantly, while he continued to think of himself as a patriot working for the national interest, he became convinced that a just society needed radical cai cach reforms. Without a local tradition of cause lawyering to guide him, Dinh looked first to France and then to the United States for inspiration. A Fulbright scholarship to study at Tulane University completed the transÂformation in his thinking.Most of Dinh's clients were charged with violating article 88 of the Criminal Code, which forbids “raising propaganda against the state.” The state branded his clients dissidents, not only for sponsoring fundamental constitutional change, but also for joining banned pro-democracy parties, such as Bloc 8406. None of his clients were accused of using or advocating the use of violence against the state. Some clients attacked the government for allowing environmental damage, others for colluding with China over border disputes, and still others for corruptly benefiting from land dealings. These issues are routinely discussed in the state-controlled media. According to Dinh, their real crime was advocating multi-party democracy and freedom of speech as the remedy to Vietnam's social and economic problems.
Dinh defended his clients by arguing that article 69 of the Constitution 1992 protects free speech, as do international covenants signed by the Vietnamese government. He maintained that the Constitution 1992 affords citizens “freedom of opinion and speech” to propose unorthodox and controÂversial views about the state. This right was meaningless, he argued, if state agencies could use criminal sedition laws to arbitrarily suppress critical thought. He emphasized the role legal rights play in defining boundaries between the state and society in commerce, land tenure, and family disputes. He also challenged judges to extend legal protection to civil rights. During a trial in 2007, Dinh informed the court: “Talking about democracy and human rights cannot be seen as anti-government unless the government itself is against democracy.”
Dinh knew that his arguments were entirely rhetorical and that, even if the courts were willing, they lacked the discretionary powers to assess the constiÂtutionality of legislation and administrative action.
He wrote that the courts functioned like “civil authority machines rather than as adjudicative agencies which [have] a role to uphold one justice in a community with a plurality of interests.” He urged the courts to become more active in protecting constiÂtutional rights; a process he thought might “blow a stream of vitality into the dry and motionless body of legislation....”Dinh relied on arguments developed by academic lawyers who for decades had called for bao hien (literally, constitutional protection). Bao hien can mean anything from promoting the Constitution as the supreme legislative instrument to a Western liberal form of constitutionalism. What unites the different threads of this discourse is a shared belief in the need for a constitutional court (or tribunal) with powers to bring the Constitution Vietnam 1992 into daily life.
Police charged Dinh on June 13, 2009 with the same sedition offense used to silence his clients. They claimed that Dinh used court cases to “propagandÂize against the regime and distort Vietnam's Constitution and laws.” To identify the boundaries of permissible discourse, it is instructive to examine why the state moved to silence Dinh. Lawyers familiar with his case claim that his crime was not advocating constitutional change, but rather disloyalty to the party. Most of what Dinh said about state protection of civil rights had already been published by the mainstream media and academic journals. In the lawyers' opinions, the authorities were offended because Dinh continued to challenge party orthodoxies after security police had warned him to stop.
What complicates Dinh's case is the charge that he joined with banned foreign organizations in Thailand to overthrow the state. To the surprise of many who knew him well, Dinh admitted in a televised confession that he collaborated with “foreign agents.” He also confessed to acquiring subversive ideas about civil rights while studying in the United States. This link between civil rights and foreigners resonates with the “peaceful evolution” (dien bien hoa binh) campaign mounted by conservative party cadres. According to this narrative, foreigners - especially overseas Vietnamese living in America - use civil rights and democracy to discredit the party and engineer regime change in Vietnam. Perhaps due to his public affirmation of loyalty to the party, Dinh was given a comparatively light sentence of five years imprisonment for a crime that carries a twenty year maximum sentence.