ASEAN CHARTER AND ASEAN LAWYERS FOR THE RULE OF LAW, ACCESS TO JUSTICE AND HUMAN RIGHTS Dr. Luu Tien Dzung Partner, YKVN Lawyers Chairman, International Cooperation, Vietnam Bar Federation. 1 Introduction 1. The ASEAN Charter ( the Charter ) is considered as the Constitution of Association of Southeast Asian Nations (ASEAN). The intention on the drafting of the Charter had been officially discussed at the 11th ASEAN Summit held in December 2005 in Kuala Lumpur, Malaysia. The Charter was adopted at the 13th ASEAN Summit in November 2007. The implementation of the Charter will contribute to establishment of ASEAN as an organization operating on the basis of law and appropriate legal framework, supporting effectively for the establishment of the ASEAN community in 2015. 2. Article 2 of the Charter lays down fourteen operating principles of ASEAN which member States shall obey. Among these principles, the Charter mentions the principles of adherence to the rule of law, good governance, the principle of democracy 2 and the principle of respect for fundamental freedoms, the promotion and protection of human rights and social justice 3. Such principles are concretization of two of fifteen purposes of ASEAN: to strengthen democracy, enhance good governance and the rule of law, to promote and protect human rights and fundamental freedoms 4 and to 1 2 3 4 This paper just represents the personal view of the author and does not necessary reflect any view of the firm the author is working or the Vietnam Bar Federation. Article 2.2(h) of the Charter. Article 2.2(i) of the Charter. Article 1.7 of the Charter. 1
enhance the well-being and livelihood of the peoples of ASEAN by providing them with equitable access to opportunities for human development, social welfare and justice 5. 3. Though the Charter does not explicitly provide for any obvious provision on the roles of the lawyers, I am confident to view that various provisions of the Charter imply the roles of the ASEAN lawyers and call for their commitments implementing the Charter at both the regional and national levels. 4. In this paper, I would focus on the three-linked roles of the ASEAN lawyers inherent from the Charter from my point of view for (i) upholding the rule of law, (ii) ensuring the equal access to justice, and (iii) realization of human rights. For the purpose of this presentation, I narrow down the definition of the lawyers just to those practicing lawyers in the legal professions, not covering other judges, prosecutors or legal experts working in the government institutions. I. ASEAN Lawyers and the Rule of Law 5. The commitment to the Rule of law is a common commitment and is amongst the highest priorities of all ASEAN states. Though, the Constitution of Vietnam provides for a principle and direction for the development of a rule of law state with a just simple statement that State manages a society by law, by incorporation of various elements of the rule of law in its legal normative documents and its important documents of the Communist Party of Vietnam, Vietnam is underway of and committed to the development of a rule of law state, where the Constitution and the law should be regarded as the supremacy, which must be obeyed by all members of the society, including the ruled and the rulers and before which all should be equal. 6. In his famous literature The Rule of Law and Its Virtue, Raz lays out two important aspects of the Rule of Law: first, the law should govern the people and the people should 5 Article 1.11 of the Charter. 2
obey the law, and second, the law must be capable of being obeyed (good laws). 6 Thus, the rule of law and the rule by law are not the same. The good laws, which reflect the wills and expectation of the society and the people, should be seen as a key element of a rule of law state. 7. The lawyers by the nature of their professions seem to focus on their business representing the clients in transactions or before the court rooms. Their experience in facing both good and not good/loopholes of the laws in daily works in advising the clients should be utilized and generated for the continuing development of the policy and the law. 8. Private lawyers, standing alone, seem not to have much time and interest in making its contribution to the policy and law development. Thus, I think that the bar associations should take their proactive roles in generating and utilizing the intellectuals and rich experience of the private lawyers in the policy and law development. 9. Government should have a commitment in engaging the private legal professions in the policy and law development. Such commitment should be laid out in the relevant law governing the legal professions and transformed into particular incentives, for example from the tax perspectives. An example is that the hours spent by the lawyers for the policy and law development should be deducted from the taxable incomes. 10. Vietnam is under the intensive stage of the legal and judicial reforms under the Resolution No. 49 of the Communist Party of Vietnam issued in 2005 on the Judicial Reform Strategy till 2020. The National Steering Committee on Judicial Reforms was established to direct and monitor the on-going reforms on the judicial sector in Vietnam. The State President is the head of the Committee; Deputy Prime Minister, Minister of Public Security, Minister of Justice, Chief Prosecutor, Chief Justice, President of 6 Raz, The Rule of Law and It s Virtue in Liberty and the Rule of Law (Cunningham ed.), A&M Press: Texas, 1979. 3
Vietnam Lawyer Association and the President of the Vietnam Bar Federation are the members of the Committee. Thus, by being a membership of the highest authority on judicial reforms, the Vietnam legal profession can use that channel to express its voice and inputs on the rule of law development in general and the judicial reform agenda of the country in particular. 11. Vietnam is about to amend the current Constitution, Law on Lawyers and Criminal Procedures Code. Vietnam Bar Federation has formed relevant sub-committees to coordinate and generate voices, comments and inputs of the legal professions during the process of revising and amending the Constitution and the foregoing laws. II. ASEAN Lawyers and Access to Justice 12. The Charter explicitly provides for an aim of the regional states to enhance the wellbeing and livelihood of the peoples of ASEAN by providing them with equitable access to opportunities for human development, social welfare and justice 7. Access to Justice or, more importantly equitable Access to Justice, is a desire of all citizens, individuals and organizations in any society. Such desire or goal would not be met without the participation of the private legal professions. 13. The duty of the lawyers in providing pro bono legal services is crucial for ensuring the equitable Access to Justice. These pro bono legal services and legal aid activities provided at no cost to the vulnerable targets who are actually special subjects under the law governing legal profession or legal aid. Such targets may depend on particular political, social, economic and cultural aspects of each nation. However, in any case, such services are also to ensure the right to counsel as a constitutional right of major ASEAN member States. 7 Article 1.11 of the Charter. 4
14. Article 21 of Law on Lawyers of Vietnam dated June 29, 2006 states that one of obligations of lawyers is to provide pro bono legal aid. In fact, lawyers actively cooperate with legal aid centers at the locality where lawyers practise. Participation in these activities not only is the fulfillment of lawyers obligation to society but also contributes to bringing justice to all who cannot afford the legal fees. 15. The Criminal Procedures Law of Vietnam also provides for the obligation of the Government of Vietnam in ensuring that the free legal service must be provided for the defendants/accused, who face criminal charges subject to the death penalty, for the pregnant women, for those who are under 18 years old or those who face mentality problems. In such cases, upon the requests of the courts, the local bar is obliged to appoint an appropriate lawyer and the nominal fees funded by the government budget will cover the lawyer s service. 16. Legal aid activities have been conducted since the late of twentieth century. From 1945 to 1996, free legal aid services developed along with activities of lawyers and the judiciary bodies. Under the direction of the Government, Ministry of Justice researched and advised the Government to establish Legal Aid Centers of the State in several provinces. From these initial results, based on experience in organizing legal assistance activities of developed countries, the Prime Minister issued Decision No. 734/TTg dated September 6, 1997 on establishment of a system of legal assistance for the poors and policy beneficiaries. This Decision created a legal basis for the introduction of legal aid organization system of the State. Accordingly, Legal Aid Department under Ministry of Justice was established at national level and Legal Aid Centers under Departments of Justice are established in provinces and cities directly under the Central Government. 17. Legal Aid Department under Ministry of Justice was established in September 6, 1997 under Decision No. 734/TTg of the Prime Minister. Legal Aid Department under the Ministry of Justice is responsible for overall management of the legal aid work at national level. 5
18. Main activities of Legal Aid Department under Ministry of Justice are: (i) Managing and guiding on operation of legal aid centers; (ii) Providing training and professional improvement courses for officers/staffs conducting legal aid activities and granting certificate of professional training in legal aid; and (iii) Managing legal aid fund. 19. A legal aid center is available in each province under the management of the provincial Department of Justice. Main activities of Legal Aid Centers under Departments of Justice are: (i) Organizing public legal education programs for the people and subjects of legal aid activities; (ii) Appointing lawyers who collaborate with Legal Aid Center to protect the rights and legitimate interests for subjects of legal aid activity in the proceedings in accordance with the law; and (iii) Organizing seminars on some legal issues and disputes arising frequently. 20. In addition to the foregoing legal aid centers, Vietnam Lawyers Association has established legal consulting centers located in some cities like Hanoi and Ho Chi Minh City. These centers give legal advice to individuals and organizations and also organize working legal consulting activities in remote areas every year. Vietnam Bar Federation has also just established its one legal consulting center. 21. Several legal aid days (usually during Saturdays) are available in premises of local newspapers offices or law firms, so that the people can freely come to seek advice. 22. In conclusion, I view that there are several legal frameworks and practical modalities available in Vietnam for the people to access legal service with no cost. However, there is no legal requirement on how many hours or cases a lawyer has to spend every year to assist the people on pro bono basis. Such requirement should be in place to push for the more systematic pro bono legal service. III. ASEAN Lawyers and Human Rights 6
23. ASEAN Charter explicitly provides that one of the missions of the ASEAN member States is to promote and protect human rights and fundamental freedoms. 8 24. Lawyers have a great role in realizing the human rights. The provision of the legal advice or legal representation for the clients would assist the clients in seeking the remedies for the breach of the law and their legitimate rights in both criminal and civil cases. 25. The roles of the lawyers in realization of the human rights can also be seen in the cases where the individuals or business entities challenges the abuse of the powers by the government agencies or officials. 26. The current Criminal Procedures Law of Vietnam allows the lawyers to represent the clients from the very first stage of the criminal charge and investigation. However, there are still some de-facto barriers created by the investigators, for example by delaying the issuance of the permit to allow the lawyers to do so. 27. The Vietnam Bar Federation has successfully worked it out with the Ministry of Public Security on this regard. Recently, the Ministry of Public Security issued a Circular No. 70 requesting the police and investigation force at the both national and local levels to create favorable conditions for lawyers to access to their clients and represent the clients at any stage of the investigation process. 28. The Vietnam Bar Federation in 2010 also signed a Cooperation Document with the Supreme People s Procuracy, which allows a better the lawyers access to the cases with the support from the prosecutors. 8 Article 1.7 of the Charter. 7
29. The Supreme People s Court of Vietnam has also indicated its support to the lawyers participation in representing the clients in the court room. A Deputy Chief Justice of the Supreme Court of Vietnam has raised a concern in the most recent Conference of the National Lawyers Council held in Ho Chi Minh City January 5, 2012 that there was only 12% of the total criminal cases and 8.3% of the total civil cases heard by the courts during last 2010 year with the lawyers representation. 30. There is some wrong perception of officials of the judicial agencies of Vietnam that the lawyers seems to be standing on the opposite side, which seems to be a reason for some barriers created for lawyers to access to the cases and clients. However, there is a positive change of such perception in a way that the participation of the lawyers should be seen as a supporting factor for the finding of the true and the exercise of justice. 31. On the other hand, there is no class action allowed under the current procedure laws of Vietnam. The availability of the class action would allow a better realization of the human rights when the legitimate rights of a large group of the people are violated. In class actions, the access to counsel will be ensured for all victims of the violation. Conclusion The ASEAN Charter calls for more engagement of the private legal profession in the upholding of the rule of law, exercise of equitable access to justice and the more meaningful realization of the human rights in the region in general and in each member State in particular. Indeed, there is no controversy on the view that historically and presently, the lawyers of each ASEAN nations have significantly contributed to this important mission. However, given the nature of the private business of the practicing lawyers and the proper attention and support from the Government given to the roles of the legal profession in these aspects, much more needs to be done at both ASEAN and the nation level and from both legal framework and implementation mechanisms to have more meaningful engagement of the legal profession in these regards. 8