The organisation and operation of administrative courts in Vietnam * Quang Nguyen, PhD Student. School of Law and Legal Studies

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1 1 The organisation and operation of administrative courts in Vietnam * Quang Nguyen, PhD Student School of Law and Legal Studies Faculty of Law and Management, La Trobe University Introduction Since July 1 st, 1996, the people s courts in Vietnam have had the jurisdiction to hear administrative cases. 1 In order to fulfil that task, administrative divisions have been established in the people s courts at the central and provincial levels. At the district level there are no such divisions but there is one judge in each district court who is assigned to hear * This paper was presented to the 15 th Biennial Conference of the Asian Studies Association of Australia in Canberra 29 June 2 July It has been peer - reviewed and appears on the Conference website by permission of the author who retains copyright. The paper may be downloaded for fair use under the Copyright Act (1954), its later amendments and other relevant legislation. 1 See Law on amendment of some articles of the Law on organisation of the people s courts dated October 28 th, Some Vietnamese legal scholars also argue that the jurisdiction to hear some administrative cases was conferred on the people s court system before the enactment of the Law on amendment of some articles of the Law on Organisation of the people s courts (1995). See, eg, Vu Thu, ''Qua Trinh Hinh Thanh Va Phat Trien Cua Tu Phap Hanh Chinh O Nuoc Ta (the Establishment and Development of Administrative Justice in Our Country)' (2003) 10 Legislative Studies 23, However, only when the Law on amendment of some articles of the Law on Organisation of the people s courts was passed, was the term xet xu hanh chinh (administrative adjudication) officially acknowledged in Vietnam.

2 2 administrative cases. In comparison with developed countries or with China 2 a neighbouring country - administrative adjudication is a fairly recent task of the court system in Vietnam, at least in comparison with criminal or civil adjudication. As a result, there are many difficulties, which fall into both theoretical and practical categories, arising during the course of administrative adjudication of the people s court system in Vietnam. Vietnam is pursuing the goals of judicial reform (cai cach tu phap) 3 and building up a law-based state (nha nuoc phap quyen). 4 In the context of judicial reform, reforming the court system with respect to organisational model, operation, and reallocation of jurisdiction has become one of the principal tasks of the Vietnamese Government. 5 Resolution of the Political Bureau No 08-NQ/TW on some judicial principal tasks for the forthcoming period recently points out one of the important tasks is to prepare for the extension of the jurisdiction of the court system over administrative cases in order to avoid stagnating hearing administrative cases. 6 In addition, for the purposes of regional and international integration, especially the forthcoming purpose of accession to WTO, Vietnam is trying to make big efforts to reform its legal system. In such a context, many problems regarding administrative adjudication have been raised not only by legal scholars and officials, but also many citizens who have witnessed the organisation and operation of the court system since it was granted the jurisdiction to hear administrative cases. This paper first draws an overall picture of the organisation and operation of the administrative court system in Vietnam. Some issues regarding the model of administrative adjudication bodies, their jurisdiction over administrative cases, and the procedure to hear administrative cases, which currently attract many debates in Vietnam, then are provided. Finally, some suggestions for solving the difficulties that Vietnam s administrative courts are confronting are discussed in this paper. 2 In 1982 the Civil Procedure Law of the People s Republic of China provided that the provisions of this Law are applicable to administrative cases that by law to be tried by the people s courts. Since then administrative adjudication has been officially determined as one of the tasks of the people s court system in China. See further Lin Feng, Administrative Law Procedures and Remedies in China (1996) Dang Cong san Viet Nam (the Vietnamese Communist Party), Nghi quyet so 08-NQ/TW cua Bo Chinh tri ve mot so nhiem vu trong tam cua cong tac tu phap trong thoi gian toi (the Resolution of the Political Bureau No 08-NQ/TW on some judicial principal tasks for the forthcoming period) in Ban Noi chinh Trung uong (the Home Affair Department of the Vietnamese Communist Party), Mot so van ban cua Dang ve cong tac noi chinh (Some documents of the Vietnamese Communist Party on home affairs) (2002) 9, Dang Cong san Viet Nam (the Vietnamese Communist Party), Van kien Dai hoi dai bieu toan quoc lan thu VIII (the Document of the 8 th National Congress of Delegates) (1996) Nguyen Dinh Quyen, 'Mot So Quan Diem Ve Cai Cach Tu Phap (Some Opinions About Judicial Reform)' (2003) 4 Legislative Studies 15, Dang Cong san Viet Nam, above note 3, 17.

3 3 I. Some theoretical and practical background A. Resolutions for administrative disputes in Vietnam prior to July 1 st, 1996 Before the establishment of the administrative divisions of the people s court system (July 1 st, 1996), administrative disputes between the governors and the governed had been mainly settled through the legally prescribed administrative procedures for handling complaints and denunciations (giai quyet khieu nai, to cao). This mechanism, in essence, was a process of internal review, in which the administrators self-review, self-judge, and selfcorrect their questioned administrative decisions if they see fit to do so. There was no neutral institution to make judgements with respect to those decisions. 7 This reflected a common conception which had existed for a long period in the socialist legal system countries. Traditional legal theorists in socialist countries argued that judicial review of administrative action was unnecessary as the interests of the governors and the governed in socialist society were almost the same. There would be no conflicts of interests between them. A socialist state was a state of the people, by the people and for the people whose representation was the working class and logically the workers could not defend themselves against the workers. 8 Consequently, Vietnam like China, which country was influenced by the above-mentioned conception, had refused the need to establish an external institution for resolving administrative cases. In Vietnam s legal literature 9 terms such as judicial review of administrative action (kiem tra tu phap doi voi hoat dong hanh chinh), or administrative adjudication (xet xu hanh chinh), or administrative jurisdiction (tai phan hanh chinh), or administrative justice (tu phap hanh chinh) 10 were completely absent prior to the 1990s. 11 However, Vu Thu, a Vietnamese legal scholar agues that it would be wrong to conclude that judicial review of administrative action existed in the legal life of Vietnam only after administrative divisions of the people s court system were established in 1995; even before 1995, the people s court 7 Vu Thu, 'Thu Tuc To Tung Hanh Chinh (Administrative Procedure)' in Dao Tri Uc (ed) He Thong Tu Phap Va Cai Cach Tu Phap O Viet Nam Hien Nay (the Judicial System and Judicial Reform in Vietnam at Present) (2002) 340, Rhett Ludwiskowski, 'Judicial Review in the Socialist Legal System: Current Development' (1988) 37 International and Comparative Law Quarterly 89, 91. Ludwiskowski quoted S. Hendel, The Soviet Crucible, The Soviet System in Theory and Practice (1980), 94. See also Dinh Van Mau and Pham Hong Thai, Tai Phan Hanh Chinh O Viet Nam (Administrative Jurisdiction in Vietnam) (1995). 9 When using the term Vietnam s legal literature I do not mention the legal literature of the Public Vietnamese Government in the south of Vietnam in the period from 1954 to Tu phap (justice) in tu phap hanh chinh (administrative justice) or tu phap hinh su (criminal justice), or tu phap dan su (civil justice) in Vietnamese refers to the judging over cases performed by courts of law. 11 See Thanh tra Nha nuoc (the State Supervision), Bao cao tong thuat de tai nghien cuu khoa hoc Toa an hanh chinh Nhung van de ly luan va thuc tien (the General Abstract of the Project Administrative Court Theory and Practice ), Hanoi 1997 (Unpublished material, on file with the author), 1-2.

4 4 system had been granted the jurisdiction to hear some administrative cases. 12 To support his argument, Thu refers to a number of legal provisions, which were enacted after the establishment of the Democratic Republic of Vietnam (1945). First, the Decree 41-SL dated 3/10/1945 of the Government of the Democratic Republic of Vietnam (DRV) to assign the Ministry of Justice responsibility for the Administrative Court established under the French colonial regime; then article 120 of the Law on direct taxes dated 18/6/1949 provided that if the taxpayers were not happy with their tax assessment they could bring their cases against the tax office to the administrative court. However, as Thu points out, there was no other legal document regarding the organisation and operation of this administrative court and his assumption is that under the condition of the war of resistance against French colonists, Vietnam could not organise such an administrative court in practice. Secondly, Article 15 of the Law No 4 on Election of Local People s Councils and Local People s Committees dated 20/7/1957 provided that voters could challenge their omission from the list of voters by bringing an action in the people s court against the office which is responsible for drawing up the list. Similar legal provisions could be found in laws regarding the election of deputies to the National Assembly or to the local people s councils. Thirdly, Article 11 of the Ordinance on Procedure for Resolving Civil Cases dated 29/11/1989 (this Ordinance is currently applied for resolving civil cases) provides that the people s courts have jurisdiction to hear cases relating to complaints about the list of voters, or complaints regarding the refusal to register civil status or the refusal to change data relating to civil status. Such cases, in essence, involve state administration notwithstanding that they are classified as civil matters, and heard by courts exercising their civil jurisdiction. No matter which court heard such cases and which procedure that court followed, as Thu concludes, judicial review of administrative action with its typical characteristics existed in the legal life long time before the establishment of administrative divisions of the people s court system in Vietnam. 13 Essentially, the legal matters as mentioned above are administrative law matters. However, the paucity of relevant legislation, the small number of cases relating to such legal matters accepted by the people s court system, and the lack of scholarly and legislative 12 Thu, above note 1, Thu argued that the existence of such legal provisions proved that the legal institution of judicial review of administrative action existed in Vietnam as: - Such cases involved state administration; - Courts of law were provided for jurisdiction to hear such cases by judicial procedure; See Thu, above note 1, 26.

5 5 interests in this area 14 proves that there was not a real legal institution of judicial review of administrative action in Vietnam prior to the establishment of the special administrative jurisdiction. B. The need for an external review system of administrative actions In 1986 the Vietnamese Communist Party initiated the doi moi (renovation) policy. Since then Vietnam has embarked upon a path of overhauling all aspects of political, economic and social life. In this context, the renovation of political-legal thinking emerges as an important factor providing an impetus to the establishment of a new mechanism, i.e., the judicial mechanism resolving administrative disputes in Vietnam. 15 Many Vietnamese legal scholars analyse a range of factors supporting the notion to establish the administrative adjudication bodies in Vietnam in the post period. 16 First, although the internal review system provided by the law on complaints and denunciations was fast, simple and cheap, there were many disadvantages of this system. The administrators whose administrative decisions were the subjects of complaints functioned as judges to resolve complaints; thus the complainants doubted that their complaints were given a fair hearing. And in practice, the partiality of administrators in resolving complaints was reportedly a main reason for the backlog of a range of complaints and the violation of legitimate rights and interests in Vietnam. 17 Further, exclusive reliance on the internal review system also created a bureaucratic monopoly, which led to unfairness and delay in resolving administrative disputes. As a result, this internal review system was fast, simple and cheap in theory but really ineffective, inefficient and undemocratic in practice. Second, in the context of a country in transition, there was an upward trend of the number and degree of sophistication of administrative complaints and denunciations. The construction and development of a market economy from a central planning economy, the process of openness and democratisation of the life of society in all respects, and the upward tendency of wrongdoings in the state apparatus due to changes in managerial mechanisms 18 were typical 14 Thu, above note 7, 344. See also Le Hong Son, 'Cai Cach He Thong Tai Phan Hanh Chinh Bao Dam Thuc Hien Quyen Con Nguoi, Quyen Va Nghia Vu Cua Cong Dan (Reforming Administrative Jurisdiction System for Ensuring Human Rights and Citizens' Rights and Duties)' (2003) 7 State and Law 12, Thu, above note 7, Ibid, See also Nguyen Binh Vong, Mot so van de ve tai phan hanh chine o Viet Nam (Some issues on administrative jurisdiction in Vietnam) (1994), See Thanh Tra Nha nuoc (the State Supervision) Bao cao tong ket viec thuc hien Phap lenh Khieu nai, To cao 1991(the Summation Report on the Implementation of the Ordinance on Complaints and Denunciations), Hanoi, 1998 (Unpublished material, on file with Thanh Tra Nha nuoc (the State Supervision)). See also Vong, above note 16, 84, and Thu, above note 7, 344. Thu pointed out that in practice there were many cases of complaint, which lasted a long time (even more than 10 years). 18 The process of shifting from the centralised and bureaucratic mechanism to the market economy in Vietnam is regarded as a fertile land fostering many violations of the economic management principles

6 6 reasons for a gradual increase in the number of administrative complaints. 19 Although the internal review system made big efforts to resolve complaints and denunciations arising from the public administration, there was a large backlog of cases (see Table 1 below). This indicates that the internal review system itself could not cope with such a caseload of administrative disputes and the need for an external review system was quite obvious. Table 1: The summation of resolving administrative complaints and denunciations pursuant to the Ordinance on Complaints and Denunciations in Vietnam in the period: Year A B C D E F G H ,802 62,161 40,405 (65%) ,737 95,737 71,324 (74.5%) , ,761 86,512 (81,8%) ,871 98,186 83,546 (85.08) ,785 88,173 73,250 (83,08) , ,263 87,667 (82.5%) 21,756 22,201 15,540 10,101 (65%) 6,661 24,413 17,241 17,211 12,736 4,475 (74%) 19,249 21,403 22,447 17,957 4,490 (80%) 14,640 25,361 12,656 9,897 2,759 (78.2%) 14,923 14,745 10,764 7,075 (65.73%) 3,689 18,596 17,860 13,030 9,318 3,712 (71.5%) (Note: A: Complaints Initiated; B: Complaints Accepted; C: Complaints Resolved; D: Backlog Complaints; E: Denunciations Initiated; F: Denunciations Accepted; F: Denunciations Resolved; G: Denunciations Resolved; H: Backlog Denunciations. This table is drawn based on the data summarised from Thanh tra Nha nuoc, Bao cao tong ket viec thuc hien Phap lenh Khieu nai To cao cua cong dan nam 1991, (The State Supervision, the Summation Report on the implementation of the Ordinance on Complaints and Denunciations), Hanoi This unpublished document is on file with Thanh tra Nha nuoc (the State Supervision) in Hanoi). Third, the building of a modern state governed by the rule of law, a state of the people, for the people and by the people became a central task of Vietnam in the course of the sociopolitical and economic renovation. This goal was stated in the Vietnam Communist Party s and state discipline. In the period of transition, Vietnam saw a range of cases of state officials involving such violations. 19 Thu, above note 7, 345. See also Pham Tuan Khai, 'Some Suggestions on the Administrative Courts in Vietnam' (1995) 2 Vietnam Law and Legal Forum 9, 9 and Vong, above note 16,

7 7 documents of the 6 th and 7 th Congress. 20 The Constitution 1992 (the Constitution of the renovation period) also aimed at achieving the rule of law in Vietnam. 21 Regardless of some different conceptions, basic elements of the rule of law in Vietnam were agreed amongst Vietnamese legal scholars. There included legality and judicial review of administrative action. 22 In this context, setting up a judicial review of administrative action system to review effectively the operation of the administrative apparatus was regarded as an urgent task for Vietnam. The Resolution of the 8 th Conference of the Central Executive Committee of Vietnamese Communist Party of the 7 th term on the continuation of actions to construct and improve the state of Socialist Republic of Vietnam focusing on the public administration reform, clearly determined the task of the state apparatus that was to forward the establishment of administrative court system for resolving administrative complaints against administrative decisions. 23 Also, studying foreign experiences in judicial review of administrative action, especially those of countries, which were well known in this area, played an important role in providing for lessons regarding the establishment of an external review of administrative action system in Vietnam. C. Searching a relevant model of bodies exercising administrative jurisdiction for Vietnam In a climate of renovation of political-legal thinking, the early 1990s saw many legal debates relating to administrative jurisdiction in Vietnam including the terminological debates. 24 However, more practical and important were the legal debates of a relevant institutional model for the exercise of administrative jurisdiction in Vietnam. Searching for such a model, Vietnamese legal scholars examined foreign experiences in this area. They all agreed on the classification of models of institutions exercising administrative jurisdiction and tried to analyse advantages and disadvantages of each model based on their knowledge. In practice, in the period from , many Vietnamese delegations took study tours in foreign countries in order to seek experiences that could be applied in Vietnam Vong, above note 16, Ngo Ba Thanh, The 1992 Constitution and the Rule of Law in Carlyle A. Thayer and David G. Marr (eds), Vietnam and the Rule of Law (1993) 81, Vong, above note16, Dang Cong san Viet Nam (the Vietnam Communist Party), Van kien Hoi nghi lan thu Tam Ban chap hanh Trung uong Dang Cong san Viet Nam Khoa 7 (Document of the 8 th Conference of the Central Executive Board of the Vietnam Communist Party 7 th Session) (1995), Thanh tra Nha nuoc (the State Supervision), above note According to Thanh tra Nha nuoc (the State Supervision), for this purposes, Vietnamese delegations presented in France, Denmark, Sweden, Thailand, Singapore and Malaysia. See: Thanh tra Nha nuoc

8 8 There would be no perfect model of bodies exercising administrative jurisdiction. It is important to promote advantages of each model and find relevant resolutions to reduce its disadvantages. Choosing a relevant model should be based on the detailed context of each country, which is defined, by its political and socio-economic conditions, legal tradition, and legal history. A certain model could be relevant in one country but not in one another. Thus, the system exercising administrative jurisdiction of one country could be modelled after another country s system but should have distinctive features reflecting its historical, legal, socio-political and economic conditions. Given foreign experience regarding this area, Vietnamese legal experts suggested four options with analyses of their advantages and disadvantages in the particular conditions of Vietnam. 26 These options, which might be regarded as a result of the modelling after other legal systems in the Vietnamese context, were carefully discussed by Vietnamese legislators and other legal experts. An independent administrative court system The first model for an administrative adjudication body suggested by the team of legal experts who were responsible for drafting the law on organisation of administrative courts was the model borrowing from the experiences of Germany and Sweden where there were well-developed administrative court systems. According to this model, administrative adjudication bodies would be Toa an hanh chinh (administrative courts) established by the National Assembly as bodies independent of the people s courts. The way to organise the function of those administrative courts would be carefully considered in order to ensure their independence from either the current people s courts system or the executive branch. The legal experts proposed that these courts would be organised at central and provincial levels and there would not be administrative courts at district level. The National Assembly would elect the Chief Justice of the Central Administrative Court who should be accountable to the National Assembly regarding any matter concerning administrative jurisdiction. Other members of administrative courts at central and provincial levels would be appointed, removed or dismissed by the State President. With respect to organisation and function, these administrative courts would be totally independent of the ordinary court system (the people s court system). Administrative judges would be trained as specialist judges who have not only legal but also managerial expertise. (the State Supervision), Bao cao khao sat kinh nghiem nuoc ngoai ve tai phan hanh chinh (Report on foreign study tours regarding administrative jurisdiction (unpublished material), Hanoi, See Du an Luat to chuc Toa an hanh chinh (the Project Law on Organisation of Administrative Courts submitted to the National Assembly Legislature IX, Session 7) (unpublished document) See also Tran Son, 'The Necessity of Setting up Administrative Court' (1994) Vietnam Law and Legal Forum and Nguyen Van Tam, 'On Building an Administrative Jurisdiction in Vietnam' (1994) Vietnam Law and Legal Forum.

9 9 In terms of structure and personnel, this model would seem to be ideal for exercising administrative jurisdiction in Vietnam, as administrative cases would be efficiently heard by the separate and specialist administrative courts that would become more professional. Regarding this point, a similarity also is found in the Kerr Report with a strong preference for creating an Administrative Court in Australia based on a consideration that a specialist court could develop an expertise of its own and be in a position to work creatively in the administrative area. 27 However, the proposal to establish an independent administrative court system in Vietnam encountered a constitutional obstacle. 28 This is because if an independent administrative court system were established, there would be two independent judicial systems in Vietnam, namely, the people s court system and the administrative court system. This would lead to incompatibility with the Constitution 1992 of Vietnam, which provides that the highest judicial body of the Socialist Republic of Vietnam is the Supreme People s Court. 29 As a result, if the proposal were accepted, the National Assembly would have to amend the Constitution 1992 before deciding to establish an administrative court system. Obviously, this would not be an easy task as the process of amending the Constitution of Vietnam is complicated as it is for almost every national constitution. In addition, it would be impractical for Vietnam to raise the issue of amendment of the Constitution at that moment, as by that time the Constitution 1992 had only recently been approved after lengthy deliberation. Also, under pressure to quickly create a system of bodies to exercise administrative jurisdiction in Vietnam, the proposal seemed to be unfeasible. In terms of cost, this option would not be cheap, as a totally new court system would have to be created. For all the above reasons, the proposal to establish an independent administrative court in Vietnam was rejected. Administrative Courts under the Government The second model of administrative adjudication body in Vietnam was proposed was the model Toa an hanh chinh truc thuoc Chinh phu (administrative court under the Government)- an idea to borrow a model Conseil d Etat of France and apply in Vietnam. Like the French counterpart, the doctrine that public administration connotes two interrelated and inseparable aspects: managerial administration and adjudicative administration was regarded as a base for 27 Commonwealth Administrative Review Committee (1971), Report PP No144 of 1971, Paragraph 246, and Chapter See Du an Luat to chuc Toa an hanh chinh (the Project Law on Organisation of Administrative Courts, above note Article 134 the Constitution 1992 of the Socialist Republic of Vietnam.

10 10 this option. 30 In this option, administrative adjudication bodies would be organised at central and provincial levels as bodies under the control of the Prime Minister but independent of the executive branch and of the people s court system. The Prime Minister would not be directly involved in the procedure for resolving administrative cases but would have power to direct the adjudicative work of the whole system of those administrative courts. To ensure the quality of administrative adjudication of those administrative courts, their members would be selected either from current judges or officials of the executive branch and subsequently would be trained at the National Public Administration Academy of the Government. Those who suggested the above model argued that to design administrative courts under the control of the Prime Minister would create a mechanism to efficiently review administrative action in a sense that those courts, as organised under the control of the Prime Minister, could constantly review the operation of the executive branch and give the Prime Minister advice regarding administrative matters. Also, in terms of enforcement of judgement, under the direction of the Prime Minister, judgements and decisions of those courts would be easier to execute. However, this option also suffered from a number of disadvantages such that it too was rejected. Firstly, on a constitutional basis, if this model were accepted, the Constitution 1992 would have had to be amended, as there were no articles in the Constitution 1992 mentioning the power of the Prime Minister to manage such administrative courts. 31 In addition, this model would not be in line with Article 134 of the Constitution 1992 as mentioned above; as a result, this Article would have to be amended if that model were adopted. In terms of organisation of state power, there would be no clear distinction between the executive and the judiciary if administrative courts exercising judicial power, were put under the control of the Prime Minister, the Head of the executive branch. A semi-independent administrative court system The third option was the establishment of a semi-independent administrative court system. According to this option, the administrative courts would be part of a division of the 30 In France, this doctrine was invented for the purpose of protecting the public administration against judicial intervention. Loi des 6-24 août 1790, titre 2 art.13 stated that judicial functions are distinct and will remain separate from administrative function. There would be criminal offences for judges who interfered in the public administration at any rate. All the problems relating to the public administration including the controlling the legality of administrative action should be resolved within the public administration itself. As a result, the public administration functioned not only managerial administration but also administrative adjudication. The Conseil d Etat, administrative courts of first instance, and administrative courts of appeals (these courts are also called as tribunnax and cour d appel) lie in the executive branch but function de facto as courts. See further T. Koopmans, Courts and Political Institutions: A Comparative View (2003), See Article 114, the Constitution 1992 of the Socialist Republic of Vietnam, regarding power and obligation of the Prime Minister.

11 11 people s court system established at the two levels: the central and the provincial. At the central level, the central administrative court would be a division of the Supreme People s Court and under the control of this court. At the provincial level, administrative courts would be independent of the people s court system in terms of both organisation and operation, and of course, they would specialise in hearing administrative cases. The provincial administrative courts would be under the control of the central administrative court. The legal experts considered that a major advantage of this model was that it would not face any constitutional constraint, as it would be in line with article 134 of the Constitution 1992 the Supreme People Court is the highest judicial body in Vietnam. This model would also allow administrative division judges the capability to specialise in hearing administrative cases. In fact, the military court system in Vietnam has been modelled after this model for a long time. 32 However, one of the disadvantages of this model is that the administrative courts, especially the central administrative court, could be overloaded by administrative cases, as those courts would only be organised at the two levels: the central and the provincial. The central administrative court as a court of first instance and a court of appeal would be very hard pressed to cope with such a caseload. Model of administrative divisions of the people s court system The fourth option of administrative adjudication body is the model of administrative divisions of the people s court system. According to this model, administrative divisions would be established in the people s court system at the provincial and central levels. One judge in each district people s court would be assigned to hear administrative cases. On the basis of analyses regarding socio-political, legal, and economic conditions, Vietnamese legislators strongly agued that this model would be relevant for Vietnam, especially under the current conditions in Vietnam. Firstly, to set up administrative divisions of the people s court system was totally constitutional as this option avoided creating another court system beyond the people s court system, which was in line with Article 134 of the Constitution The existence of economic and labour divisions of the people s court system strongly supported the idea of establishing administrative divisions by that time. Secondly, with respect to cost, this model of administrative division would have been inexpensive to create, as organisation and functioning of administrative divisions would be assisted by the existing judges and facilities of the people s court. This would also be a quick way to set up administrative adjudication bodies in response to society s requirement. Furthermore, to create 32 See Laws on organisation of the people s courts (1993 and 2002). According to these Laws, the military court system is divided into the three levels: the central level, the military zone level, and the regional level.

12 12 administrative divisions would not encounter the problem of organisation of state power as mentioned in the second option. However, as Vietnamese legislators pointed out, this model also would have weaknesses. First, to ensure the quality of administrative adjudication, judges certainly would be required to have a full understanding of either administrative law or public administration. This would be very difficult for the existing judges of the people s courts, who were quite familiar with legal issues rather than issues of public administration. In addition, caseloads would be a problem if the people s court system had a new administrative division. In the end, all the above issues were taken into consideration, and administrative divisions of the people s courts system at the central and provincial levels were created by the Law for the organisation of the people s court amended on October 28 th, Together with the establishment of administrative divisions of the people s court system, Vietnamese legislators drafted legal documents, which create a legal framework for the operation of such divisions. In the course of drafting those legal documents, foreign experiences, especially those of China, were adopted by Vietnamese legislators. 34 Some of those important legal documents, which have been enacted since then, are: - Phap lenh thu tuc giai quyet cac vu an hanh chinh (The Ordinance on Procedure for Resolving Administrative Cases) dated in 1996 and amended in 1998; -Cong van so 39-KHXX ngay cua Toa an nhan dan toi cao ve viec huong dan thi hanh mot so quy dinh cua Phap lenh thu tuc giai quyet cac vu an hanh chinh (The Public Letter No 39-KHXX of the People s Supreme Court dated on guiding the implementation of some provisions of the Ordinance on Procedure for Resolving Administrative Cases). 33 In the session of the National Assembly Legislature IX discussing the draft of the Law on amendment of some articles of the Law on organisation of the people s court system, 85.7% of the total number of the National Assembly Deputies agreed on the fourth option of model of administrative courts, i.e., model of administrative divisions of the court system. See further Vu Thu, 'Mot So Khia Canh Cua Viec Nang Cao Hieu Suat Hoat Dong Cua Toa Hanh Chinh Trong Viec Giai Quyet Cac Khieu Kien Hanh Chinh (Some Issues on Promoting the Efficiency of Administrative Courts Regarding Hearing Administrative Cases)' (2003) 8 State and Law 23, As a neighbouring country, China share many things regarding the political, socio-economic conditions, the culture and the legal traditions. China and Vietnam also have adopted the same model of administrative adjudication bodies. As a result, in the course of drafting of the Ordinance on procedure for resolving administrative cases, Vietnam modelled after the Law on Administrative Litigation of China. See B J M Quinn, 'Legal Reform and Its Context in Vietnam' ( ) 15 Columbia Journal of Asian Law 221,261. In this article, Quinn cited Uong Chung Luu, Procedures for Reviewing Administrative Decisions Administrative Jurisdiction in Vietnam 11 (1996) (unpublished research paper No 6, on file with Australian International Legal Cooperation Program, Attorney General s Office).

13 13 - Cong van so 07-HC ngay 9/8/1996 cua Toa an nhan dan toi cao huong dan mot so van de ve giai quyet khieu nai hanh chinh (The Public Letter No 07-HC of the Supreme People s Court on guiding some issues relating to the resolution of administrative complaints. -Nghi quyet so 03/2003/NQ-HDTP ngay 14/4/2003 cua Hoi dong Tham phan Toa an nhan dan toi cao huong dan thi hanh mot so quy dinh cua Phap lenh Thu tuc giai quyet cac vu an hanh chinh (The Resolution No 03/2003/NQ HDTP of the Supreme People s Court dated 14/4/2003 on instruction to implement some legal provisions of the Ordinance on Procedure for Resolving Administrative Cases. II. The current organisation of administrative divisions in the people s court system After more than seven years in operation, the existence of administrative divisions of the people s court system and their operation is no longer an alien phenomenon in the legal life of Vietnam. This is an optimistic signal for the course of judicial reform and building the rule of law in the context of shifting to a market economy and democratising all aspects of the social life in Vietnam. The organisation of the bodies exercising administrative jurisdiction has been gradually reinforced in order to meet requirements of hearing increasing numbers of administrative cases at all levels. Below is the diagram reflecting structure of the people s court system with all its divisions including administrative divisions: The Supreme People s Court The Council of Judges Criminal Division Civil Division Economic Division Labour Division Administrative Division Appeal Division The Province People s Court The Committee of Judges Criminal Division Civil Division Economic Division Labour Division Administrative Division The District People s Court Criminal Judges Civil Judges Economic Judge Labour Judge Administrative Judge

14 14 As it is shown in the diagram, courts in Vietnam are organised, based on administrative territorial units (don vi hanh chinh lanh tho). This principle has been applied since the Constitution 1959 of the DPV and the Law on organisation of the people s courts 1960 were passed. Administrative divisions of the people s courts have been set up at the central and provincial levels. There is no administrative division of the district people s courts but one administrative judge who is assigned to hear administrative cases in each district people s court. In principle, administrative judges at the district level only hear administrative cases of first instance within their jurisdiction prescribed by law. Administrative divisions at the provincial level hear administrative cases of first instance within their jurisdiction and hear appeals from the district courts regarding administrative cases within their jurisdiction. The Administrative Division the Supreme People s Court is not a court of first instance; nor does this division hear appeals from lower courts regarding administrative cases, as the appeal division of this court will hear such appeals. According to Vietnam s law the Administrative Division the Supreme People s Court has jurisdiction to hear certain cases protesting against final decisions of lower administrative courts (giam doc tham, tai tham). Giam doc tham will be applied in the following cases: Lower administrative courts seriously violated the procedural provisions; Their decisions are not consistent with matters of fact; Serious wrongs in legal application. Tai tham will be applied in the following cases: New matters of fact that defendants and plaintiffs did not know at the time of the initial hearing are discovered; Statement of witnesses, findings of experts, and interpretation of interpreters are proved to be wrong or counterfeit; Judges, people s assessors (jurors- hoi tham nhan dan), procuracy officials, and court secretaries deliberately changed case files. 35 The giam doc tham or tai tham procedure is different from the phuc tham (appeal) procedure in a number of senses. Giam doc tham or tai tham procedure is applied in hearing cases appealing final decisions of courts while phuc tham (appeal) procedure is a procedure for hearing appeals of court decisions of first instance. Also, while defendants or plaintiffs hold the right to appeal (phuc tham), the right to giam doc tham or tai tham belongs to the 35 See Article 67 of the Ordinance on Procedure for Resolving Administrative Cases.

15 15 President of the Supreme People s Court or the President of the Supreme People s Procuracy (with regard to final decisions of the whole court system) or the Vice the President of the Supreme People s Court or the Vice President of the Supreme People s Procuracy (with regard to final decisions of local courts) or presidents of provincial people s courts or presidents of provincial people s procuracy (with regard to final decisions of district people s courts). Judges who are assigned to hear administrative cases were first selected from amongst the existing judges of the people court system. Later, many of them were newly appointed judges. Such administrative judges 36 then usually participated in intensive legal courses called training for administrative judges. 37 Currently, the administrative division of the Supreme People s Court has three administrative judges. At the provincial level, one or two administrative judges are usually appointed in each administrative division. However, in reality, administrative judges at the district level and almost all administrative judges at the provincial level also are assigned to hear criminal or civil cases as the number of administrative cases accepted by district people s courts, even many provincial people s courts in recent years is still very modest. 38 III. Judicial reform process and the issue of restructuring administrative court system in Vietnam A. Is the model of administrative divisions of the people s court system still relevant? The group of legal experts of the State Inspection (Thanh tra Nha nuoc) who in association with some other legal experts proposed the four options of models of administrative adjudication bodies (as mentioned in the above section) and conducted the project Administrative Courts Theory and Practice admitted that the model of administrative divisions of the court system was not an ideal, but relevant in the context of the current legal, political, and socio-economic conditions of Vietnam. 39 For more effectively hearing administrative cases, they suggested, it was necessary to further study organisational 36 Administrative judge means a judge who is specialised in hearing administrative cases. 37 These legal courses are offered by the Legal Professional Training School (now known as Judicial Academy) under the control of the Ministry of Justice in Vietnam. These courses focus on the legal knowledge relating to administrative law, the public administration knowledge, and some legal skills concerning administrative adjudication. 38 According to the year 2000 s statistics, in average, each district people court in Vietnam hears 3 administrative cases per annual. See Toa hanh chinh ngoi choi xoi nuoc vi thieu quyen (administrative court idles due to the lack of competence) (2001) < at 23 February Thanh tra Nha nuoc (the State Inspection), above note 11, 25.

16 16 models of administrative courts, to gather experiences of administrative divisions in hearing administrative cases, and to make any relevant amendment regarding the organisation of administrative courts in Vietnam. The research findings of the above group of legal experts showed that their preferred model of administrative adjudication bodies was the model of an administrative court system independent of the existing people s court system. This model, as they argued, could maintain the distinctive characteristics of administrative adjudication and maintain independence, and thus, effectively hear administrative cases. 40 This suggestion has become a topic of many current legal debates in Vietnam. In terms of both theory and practice, setting up an administrative adjudication bodies system is not an easy task that can be completed in a short time. Building up their system for adjudicating administrative cases, the French have spent nearly 200 years. 41 China spent nearly ten years on an experimental trial of administrative cases before its people s courts officially tried administrative cases pursuant to the Administrative Litigation Law (1989). 42 So an assessment of possible reforms of the current organisation of the Vietnamese administrative courts requires attention to some questions, one of which is whether it is too early to consider reform of the current system. To answer the first question, it is necessary to put it in the context of the current judicial reform process in Vietnam, in which reforming the organisation, operation and reallocation of the jurisdiction of the people s court system is determined as one of central tasks. 43 The goal of this court reform is to promote the quality of adjudication and to effectively protect legitimate rights and interests of individuals and organisations. To attain this goal, a range of issues relating to the court system in Vietnam have been raised, one of which is the issue of organisational model of the people s court system and its impacts on the judicial independence and the quality of adjudication. In a recent seminar called Judicial Reform held by the Legislative Studies Journal in Hanoi, many lawyers, judges, historians, and other scholars discussed solutions for reforming the court system of Vietnam in the context of the judicial reform process. 44 In such a context, it is quite understandable the issue of restructuring the present administrative courts in Vietnam was raised. 40 Ibid, Koopmans, above note 30, 131. Koopmans pointed out that by the early nineteenth century the Conseil d Etat started settling administrative disputes completely independently; thus, this time could be regarded as the time remarking the establishment of the administrative court system in France. 42 Feng, (1996) above note 2: Quyen, above note 5, Khanh Van, 'Cai Cach Tu Phap - Nhin Tu Nhieu Goc Do (Judicial Reform - Examining from Various Perspectives' (2003) 4 Legislative Studies 3, 3.

17 17 In practice, the independence of Vietnam s administrative courts, especially of local courts, in hearing administrative cases has been criticised. Judicial independence, as one of the most important characteristics of the rule of law has been constitutionalized since 1946 when the first constitution of the DPV was enacted. The current constitution of Vietnam clearly states, Judges and people s assessors independently hear cases and shall only obey the law. 45 However, in reality, to comply with this principle is not an easy task and Vietnam has found it hard to guarantee the independence of its judiciary. 46 In a recent interview by a correspondent of a popular electronic newspaper in Vietnam the Vietnam Net, the Inspector General, Mr. Quach Le Thanh admits the difficulties regarding the organisation of local administrative courts, which can influence their judicial independence. 47 The most important reason for these difficulties, as Thanh points out, is the dependence of local courts upon the local government at the same level with respect to organisation, personnel, and budget. To understand such dependence, there are some issues relating to the political and legal practice in Vietnam one should bear in mind. First, it is necessary to note that the entire state apparatus of Vietnam is organised according to the doctrine of state power concentration. On the basis of the fundamentals of Marx - Leninism, this doctrine states that in socialist states, all state power of the people has to be united in their representative organs which are organised at both the central level and the local level. The people make use of state power through these representative organs. 48 Organs like people s councils in Vietnam (or soviets in the former Soviet Unions) and the National Assembly (or the Supreme Soviet in the former Soviet Unions) are selected by the people and regarded as organs of state power. The National Assembly (or the Supreme Soviet in the former Soviet Unions) is the highest organ of state power, exercising the legislative power and supervising the operation of the entire state apparatus. Other state organs (executive and judicial organs) have to be established by the representative organs and accountable to them. 49 Just as the doctrine of power separation is generally accepted in Western countries, the doctrine of state power concentration is widely accepted in socialist countries. Socialist theorists argued that under socialism, the people, essentially, are united, which include classes 45 See Article 131 of the Constitution 1992 (amended 2001). 46 Bui Ngoc Son, 'Su Doc Lap Cua Toa an Trong Nha Nuoc Phap Quyen (Judicial Independence in the Rule of Law)' (2003) 4 Legislative Studies 43, See Le Tho Binh, Toa an tinh co the xu chu tich tinh? (Can provincial courts challenge chairmen of provincial people s committees?) (2004) < at 6 March V I Lenin, Revolution Tasks (Power Belongs to Soviets) (Collected Works V.34) (1966), 231-2; V I Lenin, Can the Bolsheviks Hold the State Power? (Collected Works V.34) (1966), ; V I Lenin, The Draft of the Political Program (10 Theses About the Soviet Government) (Collected Works V.36)(1966), V I Lenin, Resolution on Setting up the Government of Working Class and Peasantry (Collected Works V.33) (1966),

18 18 of labourers under the leadership of the working class with its vanguard party; thus, the existence of an organ representing that united power is of necessity. It is unnecessary to accept power separation, and if this doctrine were accepted there would be no grounds for its existence. 50 This is particularly true in Vietnam where the multiparty or pluralist concept is accepted neither in theory nor in practice 51 and where the leadership of the VCP is constitutionally recognised. 52 However, in the course of building their state apparatuses, socialist countries applied flexibly this doctrine consistently with their detailed conditions. In Vietnam this doctrine is currently applied based on the doi moi (renovation) opinion of the Vietnam Communist Party (VCP). Shifting from a state of dictatorship of the proletariat to a socialist rule of law state really is an important step in reconceptualising the doctrine of state power concentration in Vietnam. 53 The VCP opines that the doctrine of state power concentration is applied in Vietnam on the basis of inheriting relevant ideas of the doctrine of power separation. In other words, in the new conditions of Vietnam, the doctrine of state power concentration focuses on the issue of assigning and coordinating state organs to exercise the legislative, executive, and judicial power rather than the issue of uniting state power in the National Assembly and other representative organs. 54 Appling this principle more flexibly does not, however, mean Vietnam is inclined to accept the doctrine of power separation. The VCP affirmed that state power concentration is one of fundamental principles in the 50 Bui Xuan Duc, 'Van De Nhan Thuc Va Van Dung Nguyen Tac Tap Quyen Xa Hoi Chu Nghia Trong Dieu Kien Hien Nay (the Issue of Perceiving and Applying the Socialist State Power Concentration Principle in the Current Condition).' in Le Minh Thong (ed) Mot So Van De Ve Hoan Thien to Chuc Va Hoat Dong Cua Bo May Nha Nuoc Nuoc Cong Hoa Xa Hoi Chu Nghia Viet Nam (Some Issues on Perfecting the Organisation and Operation of the State Apparatus of the Socialist Republic of Vietnam) (2001) 47, Hoc vien Hanh chinh Quoc gia (The National Public Administration Academy), Ve Cai Cach Bo May Nha Nuoc (on the Reform of Status Apparatus) (1991), Article 4 of the Constitution 1992 reads The Communist Party of Vietnam, the vanguard of the Vietnamese working class, the faithful representative of the rights and interests of the working class, the toiling people, and the whole nation, acting upon the Marxist-Leninist doctrine and Ho Chi Minh's thought, is the force leading the State and society. 53 The term state of dictatorship of the proletariat was used in the Constitution 1980 in Vietnam. This state model was applied in all countries of the socialist bloc in this period. The state of dictatorship of the proletariat particularly stressed the supremacy of the representative state organs and regarded them as a political base of the entire state organ system; for example according to the Constitution 1980 of Vietnam, judges of the Supreme People s Court were elected by the National Assembly, judges of the local courts were elected by the local councils at the same level. The term socialist rule of law state has been known in Vietnam since the early 1990s. This state model inherited sensible elements of the doctrine of power separation. For more details about this state model in Vietnam see: Truong Trong Nghia, The Rule of Law in Vietnam: Theory and Practice < > at 20 May Above note 50, 53-4